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.
Total number of Weeks for PPD
In a 23-page opinion, the Oklahoma Supreme Court made a major ruling regarding how many total weeks of permanent disability benefits an injured worker can receive under the Administrative Workers' Compensation Act (AWCA), the new comp law that has been in effect since February 1, 2014.
The AWCA limits to 350 the number of weeks of benefits for 100 % permanent partial disability (PPD). However, under the old workers' law that covered injuries up to January 31, 2014, the maximum number of weeks for 100 % disability was 520. In Mr. Cantwell's situation, the Workers' Compensation Court had awarded him 71 % disability to the body for injuries that occurred before the AWCA took effect on February 1, 2014.
One of Mr. Cantwell's new injuries was to his hip, an injury admitted by his employer. He underwent 3 surgeries culmination in a total hip replacement. A judge of the Workers' Compensation Commission awarded Mr. Cantwell more than $30,000 PPD but followed the letter of the new law and said the insurance company did not have to pay the award because Mr. Cantwell was already over 350 weeks. The full Commission affirmed the judge and Mr. Cantwell appealed to the Supreme Court and claimed that it was unconstitutional for him not to receive up to 100 % disability for his lifetime injuries.
In Cantwell v. Flex-N-Gate, 2023 OK 116, the Supreme Court, in a 5-4 vote, agreed with Mr. Cantwell and reversed the Commission's decision. The Court repeated the holding in other cases interpreting the AWCA that the law in effect at the time of an injury controls all aspects of a claim. The Supreme Court held that the Commission cannot use the number of weeks of benefits under the new law to determine what 100 % is, but rather must use percentages when old law injuries are present.
The majority opinion held that the Commission's interpretation that an injured worker is prohibited from being awarded up to 100 % PPD is "constitutionally impermissible." The Court further said that a claimant has a "substantive right" to 100 % PPD and that the Commission's interpretation of the statute would affect that substantive right. A retroactive application of the 350-week limitation would violate Art. 5, Sec. 54 of the Oklahoma Constitution.
The opinion summed up its holding:
"We hold that the 100 % limitation on PPD benefits controls over the number of weeks when awarding compensation for PPD where a claimant has both compensable awards for job-related injuries that occurred before February 1, 2014, and compensable awards for job-related injuries occurring after February 1, 2014."
Claimant was involved in a work-related 9/24/20 motor vehicle accident resulting in injuries to his ribs, bilateral wrists, pelvis and right foot. Claimant had previously undergone two unrelated lumbar spine surgeries involving fusions, first at L4-5 and most recently at L3-4. After this work accident, the claimant underwent two lumbar spinal fusions, performed in February 2021 and May 2021, culminating in a combined lumbar fusion from T10-L5. The claimant filed a Petition to Determine Additional Compensation Due seeking acknowledgement of a low back injury, including payment of the surgeries, and recurrence of total disability. A Board Hearing was held on 12/8/23 at which time the Board appropriately denied claimant’s Petition, ruling the low back injury was not causally related to the work accident and claimant did not sustain a work-related recurrence of total disability.
The Board opined it found “most interesting” the “timeline and chronology of events and emergence of low back issues … in the context of [Claimant’s] preexisting condition.” The crucial facts included the claimant’s prior back injury, the claimant’s prior low back surgeries in 2013, and 6 months before the accident in 2020, as well as pre-accident CT scan images. The claimant’s lumbar spine was fused, with a “cage” inserted into his spinal column in 2013 and again in early 2020. CT scans from before the work accident revealed the surgical cage had migrated beyond the interior cortex of his spine before the work accident even occurred.
Claimant argued that his surgical hardware had failed because of the work accident, which created the need for the final two lumbar spine surgeries. Drs. Piccioni and Rushton testified for the Employer, stating that immediately after the car accident, the claimant identified no low back complaints during his nine-day stay in the hospital. The doctors agreed that if this car accident caused the hardware to fail, then the claimant would have felt similar or even more pain compared to his other factures. The doctors agreed the pre-accident CT scans showed the cage migrating already, and the “wheels were already in motion” for the claimant to need additional back surgery. Post-accident X-Rays were also compared to the pre-accident films, which clearly showed the surgical cage, implanted months prior to his work accident, had migrated but was stable after the trauma of the car accident. Finally, claimant’s surgical hardware failed again, this time between the third and fourth surgeries. If it could fail then with no trauma, then it could have failed previously even without the work accident, contrary to the opinions of claimant’s experts.
The Board agreed that there is no evidence that the work-related trauma accelerated or impacted the claimant’s pre-existing low back condition. The Board issued a Decision finding the low back injury was not causally related to this work accident but was an ongoing issue the claimant had had for many years pre-dating the accident. Finally, because claimant’s doctors linked disability to the low back, the Board found claimant did not sustain a work-related recurrence, and thus the Petition was denied outright.
Should you have any questions regarding this Decision, please contact Nicholas Bittner or any other attorney in our Workers’ Compensation Department.
Young v. IG Burton & Company, Inc., IAB Hrg. No. 1510414 (Dec. 20, 2023)
Can An Employer Face Liability For Providing And Paying For Cannibas Products To “Cure Or Relieve” From The Effects Of An Industrial Injury?
Provided by William Davis, Esq., Hanna Brophy Santa Rosa
An employer is required to provide medical treatment “that is reasonably required to cure or relieve the injured worker from the effects of the worker’s injury”. (CA Labor Code sec. 4600) But, does this requirement include providing cannibals products, when doing so would require violating federal law?
In California, treatment requests are evaluated for approval using the “evidence-based” medical (EBM) approach in Labor Code section 5307.27(a). With this EBM approach in mind, is a request for cannabis reasonably required to cure or relieve an injured worker’s injury under LC 4600? For now, there is no easy answer to that question for California employers. However, that does not mean that no one has attempted this.
In California, a medical provider requests treatment modalities by using a Request for Authorization (RFA). The employer can either approve the requested treatment or have it placed thru Utilization Review (UR). IF UR non-certifies the RFA, the injured worker can appeal thru Independent Medical Review (IMR). The IMR stage is where we pick up the issue of employer liability for cannabis. It appears that, so far, there is just a single IMR decision on employer liability for cannabis to “cure or relieve”, Cm19-0016741, 84 Cal. Comp. Cases 465, 2019 Cal. Wrk. Comp. LEXIS 23. For those without Lexi access (and really, who would that be), California IMR decisions can be found at https://www.dir.ca.gov/dwc/IMR/IMR-Decisions/IMR_Decisions.asp
The Cm19-0016741 case dealt with a RFA for a referral to a pain physician who specializes in prescribing cannabis for pain control. UR non-certified the request and the injured worker filed for IMR.
The reviewer in this case noted the difficulties in determining whether cannaboids fit within EBM. It was noted that the Medical Treatment Utilization Schedule (MTUS) 2017 is silent in regards to cannaboids and the Official Disability Guidelines note “Not recommended for pain”. The reviewer cited a study that noted “there are no quality studies supporting cannabinoid use, and there are serious risks. Restricted legal access to Schedule I drugs, such as marijuana, tends to hamper research in this area. It is also very hard to do controlled studies with a drug that is psychoactive because it is hard to blind these effects. At this time, it is difficult to justify advising patients to smoke street-grade marijuana, presuming that they will experience benefit, when they may also be harmed”.
Request for cannabis denied this time.
Apart from the question of an employer providing cannabis to an injured worker is the question about whether the employer can be made to pay for it. Why would this be an issue? Paying for cannabis could violate Federal law. After all, as the IMR reviewer noted, marijuana is a federal schedule I narcotic. The employer argument is that it is a violation of the Controlled Substances Act to reimburse or pay for cannabis for the treatment of an injured worker and that state laws to the contrary are preempted by this Act.
A case in Minnesota dealt with this very issue. In Musta v. Mendota Heights Dental Ctr., 2022 U.S. LEXIS 1036, the Minnesota Supreme Court ruled that the Controlled Substances Act preempted a state order requiring reimbursement for medical cannabis. The U.S. Supreme Court declined to review. Other states may have reached contrary positions and it would appear that a federal case will be necessary to resolve this federal question.
A nine year old case in California dealt with the issue of a health insurance provider could be held liable for reimbursement for a claim of medicinal use of marijuana. That case dealt with the Health and Safety Code sec. 11362.785(d), which notes “This section does not require a governmental, private, or any other health insurance provider or health care service plan to be liable for a claim for reimbursement for the medicinal use of cannabis”. Cockrell v. Farmers Insurance, 2015 Cal.Wrk.Comp. P.D. LEXIS 95 was a WCAB panel decision that partially addressed this issue and the argument, by a defendant, of no liability. The defendant argued an Award finding liability for reimbursement was in error because of California Health and Safety Code sec. 11362.785(d). On appeal, the Board sidestepped the issue of reimbursement by holding “[P]arties and the WCJ did not analyze the issue of whether a workers’ compensation insurer constitutes a “health insurance provider” for the purposes of Health and Safety Code section 11362.785(d)”.
So, is an employer required to provide and pay for cannabis products to “cure or relieve” from the effects of an industrial injury? It appears that the answer is no. But that no, must be qualified with a “not for now”. This issue is certainly on the horizon.
The Division has revised the DWC-42 and PLN12 in connection with amendments to
the death benefits legislation out of the 88th Legislative Session. The
forms are designed to help eligible beneficiaries file claims for death
benefits with the Division or the Carrier. The new rule was effective
December 11, 2023 and the forms are available on the Division’s website here.
Copyright 2024, Stone Loughlin & Swanson, LLP
The moment many
designated doctors have long awaited and lobbied (dare we say begged) for has
finally arrived. The Division has proposed changes to the billing and
reimbursement structure for certain workers’ compensation services that will
also benefit RME providers as well as treating and referral doctors. Who
knows, maybe the promise of greater financial incentive is responsible for the
recent bump in the number of designated doctors on the Division’s list that has
swollen from the 238 reported in March to a whopping 288 in November (all but
12 of the 50 being chiropractors).
The proposal includes adjusting fees once by applying the Medicare Economic
Index (MEI) adjustment factor for examinations performed 2009-2024; adjusting
the fees annually on January 1st by applying that factor in Section
134.203(c)(2); rounding the fees to whole dollars; creating a specialist fee of
$300.00 and including the much longed for $100.00 missed appointment fee.
The proposal also eliminates the current tiering structure so that for DD
and RME examinations, all issues addressed in one exam are paid at the
established fee and not reduced. An assignment number in the prior
authorization field of medical billing forms will be required to identify
DD-associated billing.
For more information about the proposed rule amendments, click here.
You can view the proposed changes here: Chapter 133 and Chapter 134.
A public hearing on the rules is scheduled for 11:00 a.m. on January 23,
2024.
Copyright 2024, Stone Loughlin & Swanson, LLP
The Merriam-Webster Dictionary defines “decision” as an authoritative
determination (as a decree or judgment) made after consideration of facts or
law. Each month, the Division posts to its website a comprehensive list of “decisions” made by the
Division’s Appeals Panel and lists them by date filed and issue
addressed. In December, you will find two such decisions on the issues of
SIBs-Permanent Loss of Entitlement and Extent of Injury. If you are
hoping to find any insight or guidance on either of those topics, alas, you
will have to look elsewhere. Further investigation will reveal those
decisions to be of the “affirmed as reformed” variety. In other words, the
ALJ made a typographical error that was corrected by the Appeals Panel and no
substantive change was made. In AP No. 231626, the Appeals Panel corrected the
name of the claimant’s county of residence and in AP No. 231546, the Appeals Panel corrected the
name of the carrier’s registered agent. Perhaps a separate column entitled
“clerical correction” or “oops I did it again” would save participants valuable
legal research time.
Copyright 2024, Stone Loughlin & Swanson, LLP
The Workers’
Compensation Research and Evaluation Group (REG) released a new report on
health care cost and utilization in the Texas workers’ compensation system
between 2012 and 2022 that shows total health care declined 30% during that
period. Key findings include claims are down 20%, professional service
costs down 26%, hospital costs down 20%, and pharmacy service costs down 71%.
Click here for a drill-down analysis of the claim,
provider, service and drug types, among other categories.
Copyright 2024, Stone Loughlin & Swanson, LLP
The Division will hold the first Carrier Quarterly Meeting of 2024 on January
10, 2024 from 2 to 3:30 p.m. Updates will be provided from the usual
departments including Claims and Customer Service, Health and Safety, Business
Process and Operations and External Relations as well as a chance to hear from
the new Deputy Commissioner of Compliance & Investigations. For Zoom
Info and Agenda, click here.
Copyright 2024, Stone Loughlin & Swanson, LLP
Effective as of January 1, 2024, the maximum weekly income benefit under the Nebraska Workers’ Compensation Act will increase to $1,094.00. This amount applies to work-related injuries and illnesses occurring on or after January 1, 2024 (https://www.newcc.gov/home/court-news/2023-10-news).
Also, effective January 1, 2024, the mileage rate will become 67.0 cents per mile for travel to seek medical treatment or while participating in an approved vocational rehabilitation plan. See related news release (https://www.newcc.gov/home/court-news/2024-01-news).
Historic mileage reimbursement rate information is available in the Tables of Maximum / Minimum Compensation Benefits, Burial Benefits, and Mileage Reimbursement Rates on the Nebraska Workers’ Compensation Court’s “Benefits” web page (https://www.newcc.gov/service-providers/attorneys/benefit-rates).
Simon Law Group, P.C.
701 Market Street, Suite 340, St. Louis, MO 63101
314-621-2828
MISSOURI WORKERS’ COMPENSATION CASE LAW UPDATE
October 2023 – December 2023
Ex-Spouse Does Not Qualify as Dependent for Death Benefits Under Statute
Virgel Bird (deceased), Karen Bird v. US Assets Recovery LLC, Case No. SD37966 (Mo. App. 2023)
FACTS: The sole issue in the case was whether Karen Bird (“Bird”), the ex-spouse of Virgel Bird (“Ex-Husband”) is a “dependent” under Section 287.240. Bird is disabled, unemployed, and receives Social Security disability benefits. Bird and ex-husband were married in 1987 and divorced in 2019. After the divorce, Bird and ex-husband continued to live together until ex-husband died on June 8, 2021, in an accident arising out of and in the course of his employment. While Bird and ex-husband lived together after their divorce, the two maintained a joint bank account from which their bills were paid. Bird never deposited any money into that account, and ex-husband paid the bills.
Following ex-husband’s death, Bird filed a claim for death benefits, alleging she was a dependent of ex-husband under Section 287.420. The Commission denied Bird’s petition for death benefits. Bird appealed.
HOLDING: On appeal, Bird argued that she was a “dependent” under Section 287.240(3)(b) because the 2017 amendment to the statute eliminated the requirement that a dependent be a relative by blood or marriage. According to Bird, the “[i] in all other cases” language of Section 287.240 (3)(b) created a catch all condition for all cases where a person is dependent upon the decedent. The Court stated that Bird’s argument had no merit because she read that clause in isolation ignoring the sentences before it and the clause that followed it. The phrase “in all other cases” referred to cases where the degree of dependency between a child and spouse and the decedent was not outlined in the previous sentences. It did not create a new category of dependence.
Paragraph (a) and (b) state two possible classes of dependents: children and spouses. Paragraph (b) described the condition in which children may qualify as a dependent. The language of Section 287.240 (3) was clear and unambiguous and requires that the dependent spouse be a wife or husband.
The Court affirmed the Commission’s decision because Bird does not qualify as a “dependent” under Section 287.240.
Claimant Must Present Persuasive and Credible Expert Testimony of Qualifying Preexisting Disability to Be Awarded PTD from Fund
McCoy v. Meridian Medical Technology and Second Injury Fund, Case No. ED1111299 (Mo. App. 2023)
FACTS: Prior to the primary injury, claimant suffered from multiple health conditions, including morbid obesity, low back pain, asthma, ventral hernias, and pulmonary disease. In 2006, ALJ awared claimant 17.5% PPD at the right wrist and 17.5% PPD of the left wrist for which the employer was liable.
Claimant’s primary injury occurred in 2017 when she was diagnsoed with “lateral epicondylitis” of the right elbow arising out of the course of her employment. The ALJ found the employer liable for 10% PPD of claimant’s right elbow. The ALJ also found claimant’s preexisting disabilities to her body satisfied the first condition of Section 287.220.3 RSMo 2016 so that the Fund was liable for PTD benefits.
The Fund appealed. The Comission adopted the ALJ’s finding that the employer was liable for 10% PPD for the right elbow injury. However, the Comission found that claimant was not permanently and totally disabled because claimant’s expert opinions were not credible or persuasive. The claimant appealed.
HOLDING: The Court affirmed the Comission’s decision. The Court stated that it is required to defer to the Comission’s credibility determination. The Comission found that the claimant’s experts, Dr. Volarich and Mr. Lalk, lacked credibility. Dr. Volarich testified that the claimant’s obesity was the cause of multiple factors rendering her 65% PPD of the body. The Fund did not introduce its own expert testimony. The Court pointed out that the Fund does not have the burden of proof and is not obligated to contradict claimant’s evidence. The Comission may believe some, all, or none of a witness’s testimony.
The Commission stated that Dr. Volarich’s opinion was neither persuasive nor credible. As a result, there was no credible expert testimony to support claimant’s claims regarding her body as a whole disability. The Comission was not required to believe testimony from Dr. Volarich simply because the Fund did not present a countervailing expert.
Thereore, the Court ruled that the Comission did not err in finding that claimant’s body as a whole disability was not a qualifying preexisting disability. The Court affirmed the Commision’s decision of awarding 10% PPD of the elbow against the Employer and did not award PTD against either the Fund or Employer.
Employer’s Untimely Answer Results in Admission of Factual Allegations but Not Legal Conclusions Regarding Issue of Prevailing Factor in Occupational Diseases
Collins v. Century Ready Mix Inc, Case No. WD86101 (Mo. App. 2023)
FACTS: The Commission found that claimant sustained a compensable occupational disease as a result of his exposure to repetitive trauma within the course and scope of his employment. The Commission also determined that the ALJ correctly ruled that the “Maximum Rate/Wage” listed on claimant’s claim was a statement of fact deemed admitted by Employer’s untimely answer. However, the Commission determined that Employer’s untimely answer to claimant’s claim did not preclude it from disputing the threshold issue of whether claimant sustained an occupational disease arises out of and in the course of employment. The Commission found that Employer’s defense was not without reasonable grounds, and therefore, denied claimant’s motion for costs and expenses.
HOLDING: The claimant appealed, arguing that the Commission erred in concluding that causation was a legal issue not admitted by a late answer. However, the Court disagreed and affirmed the Commission.
The statute states “Unless the Answer to Claim for Compensation is filed within 30 days from the date the Division acknowledges receipt of the Claim or any extension previously granted, the statements of fact in the Claim for Compensations shall be deemed admitted for any further proceedings.” (8CSR50-2.010.8)(B). Furthermore, the Court noted that the Compensation Act is an exclusive and complete code and provides its own procedures.
The Court stated that an Employer’s untimely answer results in the admission of factual allegations in the claimant’s Claim for Compensation such as: how the injury occurred, causation, average weekly wage, rate of compensation, and the date of the accident.
However, allegations in a Claim for Compensation which are legal conclusions are not deemed admitted by an Employer’s untimely answer. Whether an injury was in the course of employment is a legal question not admitted by an untimely answer. A disability percentage determination alleged within a Claim for Compensation is not deemed admitted nor is the Commission bound by it. The determination of degree of disability is within the exclusive province of the Commission. Also, the Court noted that the claimant’s allegations on the claim form that the claimant “was exposed to occupational disease/cumulative trauma in a degree greater than or different from that which affects the public generally and some distinctive features of his job which was common to all jobs of that sort” as well as statement that the claimant suffered injury “as a direct, proximate, and prevailing factor of his occupational position and duties” are legal conclusions and not factual statements that the injury occurred at work.
Therefore, the Court concluded that the Commission did not err in concluding that Employer’s untimely Answer did not preclude it from disputing the issue of whether claimant sustained a compensable occupational disease injury within the course and scope of his employment.
In conclusion, the Court noted that the Employer’s appeal was not frivolous as it presented a reasonable question on merit. Because the Employer was not frivolous, the Court denied claimant’s motion for damages due to Employer’s appeal.
Claimant Must Submit Evidence Constituting a Prima Facie Case Showing Incident was Compensable
Taylor v. General Motors LLC., Injury No. 20-078394
FACTS: This case at Hearing raised several issues arising out of an alleged work-related injury which the claimant, a factory assembly line worker, developed knee pain at work. The issues for determination were (1) accident or occupational disease arising out of and in the course of employment (2) medical causation, (3) additional medical care, (4) permanent disability.
The claimant testified that on July 20, 2020, he slipped on a nut and felt his left knee go out of socket and had pain but did not fall. He submitted in evidence Exhibit B, the plant medical records which showed that the claimant was seen on July 24, 2020, four days after the injury. The assessment was left knee pain.
Evidence was also presented at Hearing that since leaving the Employer, claimant had worked for three additional employers, FedEx, Toyota, and Chick-Fil-A. He had to stand throughout his entire shift for subsequent employers and testified that he had sharp pain while working for at least subsequent employer.
HOLDING: The ALJ noted that the claimant has the burden to establish that he has sustained an injury by accident arising out of and in the course of his employment, and the accident resulted in an injury. In this case, the question was whether the evidence established that the incident at work, specifically his slip on a bolt and having pain, was the prevailing factor causing both the resulting medical condition and disability.
The medical report, Exhibit B, simply reflected that the claimant was seen at the medical facility for the occurrence of left knee pain. There is no additional evidence to support a conclusion that claimant’s condition was sufficiently debilitating to constitute permanent or temporary disability.
After reviewing all the evidence, the ALJ found that the claim must be denied for failure to prove that it meets the statutory element of compensability. None of the evidence supported a conclusion that the claimant’s condition was sufficiently debilitating to constitute total disability, either permanently or temporarily, and the claimant failed to provide certification from a physician to prove disability under Section 287.190.6. Therefore, the claimant did not present a prima facie case that the incident was the prevailing factor causing any disability as defined by the worker’s compensation statute. The Commission affirmed the ALJ’s Decision. [Editor’s Note: This case was handled by our office.]
Parties Can Stipulate to Settlement and Modify the ALJ’s Award After Medical Fee Dispute Hearing
Orthopedic Ambulatory Surgery Center of Chesterfield v. ClayCo., Inc. and American Zurich, Medical Fee Dispute No. 15-02310
FACTS: A Medical Fee Dispute Evidentiary Hearing was held regarding the Application for Payment of Additional Reimbursement of Medical Fees filed by the healthcare provider. The Employer and its insurer were not present or represented at the Hearing despite being dually notified of the Evidentiary Hearing.
The healthcare provider offered into evidence an affidavit along with bills and medical records for treatment provided. The healthcare provider also asked that the judge take Judicial and/or Administrative Notice of the contents of the Missouri Division of Worker’s Compensation file in the matter.
The ALJ found that the employer and insurer were mailed the Medical Fee Dispute Notice of Evidentiary Hearing via certified mail by the Missouri Division of Worker’s Compensation notifying them of the Hearing. The USPS tracking results noted that the employer received the notice at their last known address on file.
After reviewing all of the evidence, the Judge found that the charges were fair and reasonable and finding no other factual or legal basis for denying the charges, ordered the employer/insurer to pay the healthcare provider $8,460.77.
The Judge also awarded interest. The Judge noted that the healthcare provider also requested recovery of interest based on the number of months from the date of the demand to the hearing. Therefore, the Judge ordered the employer and insurer to pay the additional sum of $2,601.68 or prejudgment interest.
HOLDING: The employer/insurer filed a timely Application for Review to the Commission. The employer/insurer provided the Commission an undated agreement signed by counsel for the healthcare provider and for the employer/insurer stating that the parties have reached an agreement requesting that the Judge’s Award be modified to reflect the settlement as to some of treatment. Therefore, the parties agreed that the remaining balance shall be modified to $4,755.77.
As the Commission agreed to modify the Medical Fee Dispute Award of the ALJ, the employer/insurer was now ordered to pay only the remaining amount of $4,755.77 plus the interest on that lower amount, $1,462.47, for a total of $6,218.24.
The Commission stated that the modification was incorporated in their final Award based on the agreement of the parties to the extent that it was not inconsistent with their Decision and Award.
Complex Issues Involving Medical Causation from Occupational Exposure Must be Based on Persuasive and Credible Expert Medical Testimony, Not Common Knowledge
Pierce v. Ford Motor Company, Injury No. 18-112200
FACTS: The issues in this case included whether the claimant sustained an occupational disease in the course and scope of his employment from exposures to chemicals at his place of employment, and if so, whether the alleged exposure was the prevailing factor in claimant’s diagnosis of Parkinson’s disease.
At Hearing, there was testimony that in 2012 and 2013, Ford built a new paint facility. During that time claimant and other maintenance workers would stand on a boom or scissor lift to cut down the old pipes and then haul the old pipes away. The contents of the pipes included stagnant paint, solvent, and water, which spilled onto them as they worked. The claimant spent a year removing the pipes. The claimant also testified that he lost his sense of smell shortly after he removed and replaced the pipes in the paint plant.
The claimant’s primary care physician referred him to Dr. Shorten for a neurological consultation in April 2018 at which time the doctor noted that the claimant’s tremors started about 9 months earlier in 2017. He diagnosed the claimant with essential tremor. The claimant’s expert witness, Dr. Koprivica opined that exposure to multiple chemicals, specifically including various solvents, was the prevailing factor in the claimant’s development of Parkinson’s disease. However, it was noted that Dr. Koprivica did not perform an analysis of the specific chemicals that the claimant was exposed to or the duration of that exposure.
Also, on behalf of the claimant, Dr. Pahwa also opined that the claimant did develop Parkinson’s disease and that environmental chemicals, genetics, and interactions between genes and chemicals, were responsible for Parkinson’s disease. However, Dr. Pahwa, conceded that he did not analyze any specific chemicals, solvents, or other sources that the claimant may have been exposed to while working for the employer. He admitted he did not analyze the duration of that exposure. He could cite no studies or scientific evidence in support of his conclusion.
Employer’s medical witnesses testified that they analyzed relevant studies regarding chemical exposures and Parkinson’s disease and noted that none of the studied chemical risk factors established with certainty causation of Parkinson’s disease.
HOLDING: The ALJ noted that the central issue in the case was one of medical causation. Due to the complex nature of the case and the differences of opinion between the experts, the Judge concluded that medical causation in this matter cannot be determined by common knowledge or experience but must be based on the opinions of medical physicians and other expert witnesses.
The Judge concluded that when supplied with multiple opinions upon reviewing the medical and expert evidence, she found that the expert opinions on behalf of the claimant were simply unpersuasive and not credible. In contrast, she found the experts submitted by the employer were credible and persuasive and their opinions dispositive.
Therefore, the judge found that the claimant failed to meet the requisite burden of proof to establish by a preponderance of the evidence that he sustained an occupational disease pursuant to Section 287.067.2 of the Worker’s Compensation Statute, specifically, the claimant did not initially provide evidence to prove by reasonable probability that his development of Parkinson’s disease arose out of and in the course of his employment.
The claimant appealed. The Commission affirmed the ALJ’s Award.