NWCDN Members regularly post articles and summary judgements in workers’ compensations law in your state.
Select a state from the dropdown menu below to scroll through the state specific archives for updates and opinions on various workers’ compensation laws in your state.
Contact information for NWCDN members is also located on the state specific links in the event you have additional questions or your company is seeking a workers’ compensation lawyer in your state.
Simon Law Group, P.C.
701 Market Street, Suite 340, St. Louis, MO 63101
314-621-2828
MISSOURI WORKERS’ COMPENSATION CASE LAW UPDATE
July 2024 – September 2024
Claimant Only Needs One Qualifying, Preexisting Disability Combined With the Primary Disability for Fund PTD Liability
Eckardt v. Treasurer of Missouri as Custodian of the Second Injury Fund, Case No. ED112132 (Mo. App. 2024)
FACTS: In the course of 40 years as an aircraft mechanic, the claimant sustained seven work injuries. Claimant was first injured in March 1998, injuring his right knee, resulting in two knee surgeries and, eventually in 2014, a right knee total arthroplasty. On September 6, 2001, he sustained a second injury, which resulted in two left knee surgeries. The third injury was on January 13, 2010, and resulted in surgeries on the left wrist and left shoulder with post-surgical complications. In November 2012, he injured his right shoulder and received treatment for a right shoulder strain and impingement. The fifth and sixth injuries occurred prior to January 4, 2013, resulting in chronic, severe bilateral carpal tunnel syndrome, and he had surgeries on his right wrist on February 8, 2013 and left wrist on March 1, 2013. Despite his multiple injuries and difficulties performing his job duties, the claimant testified that he continued to work.
The claimant sustained his seventh and primary injury on October 3, 2015, which resulted in a cervical disc herniation at C3-4 and he underwent surgery in July 2016.
At the hearing, on behalf of the claimant, Dr. Volarich opined he was PTD as a direct result of the October 3, 2015 work-related injury in combination with his pre-existing medical conditions from his prior injuries.
The ALJ issued an Award in favor of claimant for PTD benefits against the Fund. The ALJ concluded the claimant met his burden to show he was PTD due to a combination of his primary and qualifying preexisting injuries which resulted in the following disabilities: right knee-50% (80 weeks); left knee-50% disability (80 weeks); left shoulder-40% disability (92.8 weeks); left wrist-45% disability (78.75 weeks); and right wrist-40% disability (70 weeks).
The ALJ noted the only preexisting injury that did not reach the statutory threshold was the right shoulder injury, which was 47.5 weeks or 2.5 weeks short of the statutory minimum.
The Fund appealed the Award. The Commission reversed the ALJ’s Award. The Commission found “no credible or persuasive evidence in the record that [claimant] is PTD due to the primary injury in combination with only preexisting disabilities that qualify under [Section] 287.220.3.”
HOLDING: The Court of Appeals found the Fund liable for PTD. The Court stated that it was undisputed that claimant was PTD and the sole issue on appeal was whether his PTD qualified for Fund liability. To make a compensable claim against the Fund, a claimant must meet two conditions. First, the employee must have at least one qualifying preexisting disability, which must be medically documented, equal to at least 50 weeks of PPD and meet one of the four listed criteria in the statute; second, the employee must show he sustained a subsequent compensable work-related injury that resulted in a PTD when combined with the preexisting disability.
In this matter, Dr. Volarich may have considered all of claimant’s disabilities, but his final determination that claimant was PTD does not rely on claimant’s preexisting nonqualifying right shoulder injury. All of his other disabilities sufficiently combined to cause the PTD absent the right shoulder injury.
The Court concluded the evidence supported the statutory requirement for Fund liability because the claimant demonstrated he had sustained a “subsequent compensable work-related injury, that when combined with the preexisting disability, . . . results in a permanent total disability”. The Court instructed the Commission to grant the claimant PTD benefits to which he is entitled to from the Fund.
Also, the Court concluded that Section 287.220.3(2)(a)a(ii) which defines a qualifying preexisting disability included occupational diseases such as carpal tunnel syndrome. The Court stated that pursuant to longstanding principles of statutory interpretation, they recognized the legislature’s intent as evidenced by its decision not to exclude such coverage when it had sufficient opportunity to do so. The Court concluded that Section (ii) refers generally to a “compensable injury”, and they found it does not exclude from such injury the specific category of occupational diseases, defined as compensable in Chapter 287 as a whole. In this matter, the claimant’s preexisting bilateral carpal tunnel syndrome qualified under Section 287.220 because it was the result of compensable injuries.
Last week SLS attended
the National Workers’ Compensation Defense Network (NWCDN) meeting in Denver as
the Texas member. The group is comprised of one vetted law firm member
from each state. We were invited to be the Texas member 17 years ago and
continue to work with the group in support of Texas employers and insurance
carriers who insure them. Jane Stone gave a short presentation about
these disputes to the employers and decision-makers present at the meeting.
There are over 3,000 air ambulance fee disputes currently pending in the Texas
workers’ compensation system. The average amount in dispute in each case
is over $50,000 for a total at stake of at least one hundred fifty million
dollars plus interest. These disputes have gathering at the Division of
Workers’ Compensation since 2012 while the parties continue to litigate the
threshold issue of whether the federal Airline Deregulation Act of 1978
preempts the Texas Workers’ Compensation Act’s reimbursement standards for
medical care.
The ADA prohibits states from regulating the price, route or service of an “air
carrier.” The air ambulance companies argue that the ADA preempts Texas’
workers’ compensation laws that govern the amount of reimbursement owed to
health care providers and therefore, they are entitled to their full billed
charges for transporting injured workers. The air ambulance companies’ billed
charges are significantly more than the amount paid by the insurance carriers
which in most cases is 125% of the Medicare rate.
The air ambulance companies’ billed charges are generally 600% to 1,200% of the
Medicare rate. For the sake of comparison, the Division’s fee guideline
payment adjustment factors range from 125% of the Medicare rate for the Medical
Fee Guideline to 235% of the Medicare rate for the Ambulatory Surgical Center
Fee Guideline. In 2015, an ALJ at the State Office of Administrative
Hearings issued a decision finding that 149% of the Medicare rate was fair and
reasonable reimbursement for the air ambulance services at issue but on appeal
that amount was determined to be too high.
The Division of Workers’ Compensation has abated all of the pending individual
fee disputes while the preemption issue is litigated. However, the Division
recently issued decisions in the Air Evac fee disputes. The Division awarded
$0.00 additional reimbursement on the grounds that it cannot determine the
proper payment amount because of the federal injunction Air Evac obtained that
enjoins the Division from applying its “fair and reasonable” reimbursement
standards against Air Evac.
This preemption issue has been litigated in other states but none more than
Texas. The litigation in Texas over the preemption question has been going on
for over ten years. The issue has been litigated to the Texas Supreme Court and
Fifth Circuit Court of Appeals which reached different conclusions. The
Fifth Circuit held there is preemption while the Texas Supreme Court held there
is not.
Case law holds that Texas courts are not bound by the Fifth Circuit but
only higher Texas courts and the U.S. Supreme Court. Therefore, the ALJ
overseeing the air ambulance disputes currently pending at the State
Office of Administrative Hearings recently issued a ruling that he would follow
the Texas Supreme Court’s decision and apply Texas’ “fair and reasonable”
reimbursement standards for workers’ compensation to determine the amount of
reimbursement to which the air ambulance providers are entitled.
The ALJ has now set two groups of cases for hearings on the merits in April and
May 2025. The air ambulance providers are expected to appeal the ALJ’s
final decision when issued so the air ambulance litigation in Texas is far from
over.
Copyright 2024, Stone Loughlin & Swanson, LLP
Everyone remembers the
anxiety waiting for a report card brings. Insurance carriers and
employers are no different, and the news is good for those that take advantage
of the benefits provided by networks. According to TDI’s Division of Workers’
Compensation, what we at SLS have seen regarding the effectiveness of networks
certified under Chapter 1305 of the Texas Insurance Code is confirmed by the
numbers. Networks tend to be more cost efficient than non-network claims. The
cost differences appear to be driven in part by lower hospital utilization and
lower prices per service. Despite lower costs, network claims as a whole have
higher satisfaction levels with health care, faster return-to-work and better
functional outcomes. Network claims tend to receive initial non-emergency
medical care faster than non-network claims, which studies have shown may
assist in controlling health care costs and reducing missed time from work.
Injured workers’ early return to physical function and productivity is
the goal of the workers’ compensation system– and it is working!
Copyright 2024, Stone Loughlin & Swanson, LLP
Well, not really.
However the DWC has set weekly benefit rates for fiscal year 2025. For
dates of injury beginning October 1, 2024 through September 30, 2025, the state
average weekly wage is $1,218.62. Keep in mind that the rate applied to any
particular claim is set as of the date of injury.
Copyright 2024, Stone Loughlin & Swanson, LLP
DWC is putting on its
annual Texas Workers’ Comp Conference October 22nd and 23rd in Austin and
registration is still open. It is the “go to” event in the Fall every year for
anyone involved in the workers’ compensation process. A featured speakers is Mark
Pew who is well respected as one of the developers of the excellent Workers’
Comp College educational platform, for which SLS is the Texas contributor.
Check it out here.
Copyright 2024, Stone Loughlin & Swanson, LLP
We couldn’t resist this cartoon! The Fall is also the time carriers are asking SLS for Zoom training meetings, which made this especially relevant to those of us who teach!
Copyright 2024, Stone Loughlin & Swanson, LLP
DWC has proposed a
rule addressing a little-known problem. In some circumstances SIF can
issue Lifetime Income Benefit payments to an employee who meets the criteria.
Of course the employee must be alive to receive them. This new rule
proposal protects the Fund by providing a process to verify that a LIBs
recipient is still among the living before the payments are issued.
Public comments are being accepted to proposed Rule 131.5. (CITE)
Copyright 2024, Stone Loughlin & Swanson, LLP
Attorney Colby Liesman
is reported to be the newest ALJ to come on board at the agency. He got
his law degree at the Florida Coastal School of Law in 2017 and was licensed to
practice law in Texas in 2018. Prior to his employment at the agency, his
practice areas included business, criminal, family and probate law. His
wide range of expertise will serve him well in his new role dealing with
claimants, the administrative process, and the lawyers who practice the
interesting and complex field of workers’ compensation. Welcome, Judge Liesman!
Copyright 2024, Stone Loughlin & Swanson, LLP
VNA of St. Luke’s Home/Hospice, Inc., v. Ortiz (WCAB) A.3d. No. 1312 and 1362 C.D. 2022 (Pa Cmwlth. 7/23/2024)
Holding- Under Section 413(a) of the Pennsylvania Workers Compensation Act, an employer who initially agrees to a Stipulation of Facts can set aside the Stipulation if it is shown that the Claimant/employee falsely provided information material to the Stipulation. Claimant, Elizabeth Ortiz was an administrative assistant who initially claimed a November 2017 work injury in the form of a left shoulder strain alleging that she fell while attempting to sit on a chair and injured her shoulder. In May of 2018, the Employer issued a notice of temporary compensation payable (NTCP) accepting a left shoulder strain. In June 2019, the Claimant filed a claim petition seeking to expand the work injury to a left shoulder rotator cuff tear and biceps tendon injury. In September 2019, the parties entered into a Stipulation of Fact, approved by the trial judge, for additional injuries, specifically a full thickness tear and a biceps tenodesis of the left shoulder. While Claimant was being paid total disability benefits in October 2020 and January 2021 the employer filed two Modification petitions asserting that Claimant had failed to respond to modified-duty job offers that would have paid her wages less than her average weekly wage. In the course of litigating the Modification petitions, newly discovered medical records disclosed to the Employer revealed that a left shoulder rotator cuff tear and biceps tendon injury pre-existed the November 2017 work accident. The Employer sought to set-aside the Stipulation of Facts accepting the expanded injury description based on the newly uncovered medical records. The WCJ had found that the Claimant repeatedly under oath falsely denied having suffered and being treated for the stipulated before the work accident. The Judge ruled that, inter alia, Employer’s request to set aside the September 2019 stipulation of facts was denied for lack of sufficient competent evidence. The Employer appealed to the WCAB, but the Board affirmed the WCJ’s refusal to set aside the stipulation. The Board treated the matter as a legal issue, as one of waiver, determining that there was no indication that the Employer lacked the opportunity to fully investigate the challenged finding before entering into the stipulation and that it failed to act properly in seeking relief. The Employer appealed to the Commonwealth Court who noted that this case boils down to how much an employer is expected to do by way of investigation and within what timeframe when a claimant misrepresents her condition and/or existence of prior injuries. The Court in an opinion written by Judge Leadbetter noted “turning to the extent to which Employer should have conducted a more rigorous investigation before entering the stipulation, it bears repeating that Claimant time and again misled Employer, her own surgeon, and the workers compensation tribunal as to pre-existing left shoulder issues. It was noted that the Employer was not seeking to set aside its original acceptance of the work injury (left shoulder strain). It was disingenuous for the Claimant to attempt to shift blame for her repeated misrepresentations when such false statements had the practical effect of complicating the proceedings. The Court reversed the Board in deciding that the stipulation could be set aside based on the false statements by the employee.
Paul C. Cipriano Jr., Esquire
Rulis & Bochicchio, LLC
On August 16, 2024, the Alabama Court of Civil Appeals released its opinion in Victoryland v. Patricia Dianne Arnold wherein it addressed the Successive Compensable Injury Test. Specifically, it affirmed the trial Court’s judgment that a subsequent motor vehicle accident that exacerbated the Employee’s compensable low back injury did not qualify as the type of intervening event that would relieve the Employer from its responsibility to provide medical benefits.
The trial Court considered the Employer’s motion for relief from future responsibility based on an MVA that occurred approximately 9 years after the Court approved a workers’ compensation settlement concerning the low back which left medical benefits open. It also considered evidence that the Employee was deciding whether to proceed with a third low back surgery at the time she was involved in the MVA. The Employee testified that the accident resulted in exacerbated low back pain that radiated down into both legs.
The Employee took a position in the MVA lawsuit that her low back condition was exacerbated as a result of that accident. In the Workers’ Compensation matter, the Employee took the position that, despite the exacerbation, her Employer should remain on the hook for medical benefits. The trial Court denied the Employer’s motion for relief and so it appealed the decision.
On appeal, the Court of Appeals did not agree with the Employer’s position that the Employee was judicially estopped from taking inconsistent positions in the workers’ compensation case and the MVA case. Specifically, it was the Employer’s position that since the Employee alleged a permanent exacerbation of her low back as a result of the MVA in one proceeding that she could not also assert that an intervening event that severed the chain of causation had not taken place in another proceeding. The Court disagreed with the Employer’s position by stating that the positions, while inconsistent, were not so inconsistent as to warrant applying the Doctrine of Judicial Estoppel.
The Court also considered the Employer’s position that an MVA is not the type of routine event or “customary activity” that would allow the Employee to connect her current need for medical benefits to the original workers’ compensation claim under the Successive Compensable Injury Test (a test which states generally that employer is not relieved of responsibility when it is established that the later injury is the direct and natural result of the compensable work injury).
The Court noted that an MVA is an unusual traumatic event and pointed out that case law cited in the briefs did not address whether such events should be treated as intervening causes. The Court expanded its research beyond the cases cited by the parties to consider a case specifically involving an MVA wherein the Plaintiff filed a petition seeking an order compelling medical treatment after the Defendant denied treatment following the accident. In that case, the trial Court denied the Plaintiff’s motion and the Court of Civil Appeals reversed that decision.
Although it did not state as much, the Court applied what amounted to a reverse eggshell doctrine theory. The “eggshell doctrine” states that you take the plaintiff as you find him or her, for purposes of determining damages. It provides that plaintiffs who are far more susceptible to a particular harm than the average person may nonetheless recover their full damages without reduction. So applying the eggshell doctrine in the MVA case allowed the employee to maximize her recovery against the third party driver. In the Victoryland opinion, however, the Court relied on a reverse application because it found the Employee was more susceptible to a particular harm (aggravation to the compensable low back) than the average person. So, in the liability case, her eggshell condition put responsibility for the increased damage on the liable 3rd party and, in the workers’ compensation case, that same condition put the responsibility on the Employer.
My Two Cents: While the Court did not say as much, this type of situation really comes down to the specific facts of a case. The seriousness of the pre-existing condition versus the seriousness of the “unusual traumatic event.” Other factors to consider would be whether or not the injured Employee was actually acting in a routine and customary manner at the time of the accident. In the Victoryland case, it was noted that the Employee was driving her two grandchildren and so she was not likely to have been driving in a unsafe or erratic manner. However, in situations where the driver was driving in an unsafe manner, that could certainly be used in support of a motion for relief from future liability of medical benefits.
A Few More Cents: Of note, the Employer formerly asserted its subrogation rights in the MVA case. The Employer continued to pay for the low back injury medical treatment and, when the Employee recovered from the other driver in the motor vehicle accident case, the Employer received $46,950.81 in satisfaction of its subrogation lien. The lesson to be learned here is that the right to a subrogation recovery and the statutory right to reimbursement can extend to any event involving third-party liability that increases the amount or duration of medical benefits in your workers’ compensation case.
About the Author
This blog submission was prepared by Mike Fish, an attorney with Fish Nelson & Holden, LLC, a law firm dedicated to representing self-insured employers, insurance carriers, and third-party administrators in all matters related to workers' compensation. Fish Nelson & Holden is a member of the National Workers' Compensation Defense Network. If you have any questions about this submission or Alabama workers' compensation in general, please contact Fish by e-mailing him at mfish@fishnelson.com or by calling him directly at 205-332-1448.