State News

 New Division Rule 131.1 and Form PLN-04 become effective June 1, 2015.   The new Rule requires Carriers to review a Claimant’s eligibility for lifetime income benefits (LIBs) in a timely fashion, including when a Claimant requests LIBs, and review all of the statutory criteria for determining entitlement.  The new Rule also outlines the time frames for determining LIBs eligibility in situations where a Claimant requests LIBs in writing, as well as the time frames for the payment of LIBs after the Carrier reasonably believes the Claimant is eligible for LIBs.  The Carrier shall either initiate LIBs or deny the Claimant’s eligibility for LIBs within 60 days from the receipt of the injured employee’s written request.  In addition, Carriers must initiate payment of LIBs without a final decision, order, or other action of the commissioner if a Claimant meets the eligibility criteria for LIBs listed under Section 408.161 of the Texas Labor Code as a result of the compensable injury.  The Division noted in the rule adoption preamble that the initiation of LIBs without a final decision, order, or other action of the commissioner does not waive the Carrier’s right to contest the compensability of the claim in accordance with Texas Labor Code Section 409.021. The first payment of LIBs must be issued on or before the 15th day after the date the Carrier reasonably believes that the Claimant is eligible for LIBs. 

Beginning June 1, 2015, Carriers must also use the new, June 2015 version of the Form PLN-04 (Notice Regarding Eligibility for Lifetime Income Benefits) to advise Claimants whether the Carrier is initiating LIBs or denying LIBs eligibility.  If the Carrier denies LIBs eligibility, the Carrier must do so within 60 days’ receipt of the Claimant’s written request by sending the PLN-04 to Claimant, the Claimant’s attorney (if any), and the Division, providing a full and complete explanation of the reasons for the denial.  Carriers are reminded that the statement must contain sufficient claim-specific substantive information to enable the injured employee to understand the insurance carrier’s position or action taken on the claim, and to explain the reasons for disputing the issue in plain language without unnecessary use of technical terms, acronyms, and/or abbreviations.  Denials should be based on the information the Carrier has obtained or verified.  A Claimant may contest the Carrier’s denial by requesting a BRC.

Carriers may use only the Form PLN-04 for initiating or denying LIBs, as provided under Rule 124.2(e)(1) and 131.1(d).  Claimants requesting LIBs are not required to use a particular form; any manner of written request for LIBs by Claimant is permitted.   A Carrier’s failure to respond to a Claimant’s request for LIBs within 60 days from the receipt of the written request does not constitute a waiver of the Carrier’s right to dispute eligibility to LIBs.  

New Rule 131.1 does not limit the Carrier’s duty to initiate LIBs on or before the 15th day after the date the Carrier reasonably believes that the Claimant is eligible for LIBs as a result of the compensable injury. For example, if a Carrier receives a written request for LIBs, and then five days later has a reasonable belief that the Claimant is entitled to LIBs, Rule 131.1 requires the Carrier to initiate payment of LIBs within 15 days.  In other words, the deadline to initiate LIBs is not extended to the 60th day after receipt of Claimant’s written request. 

Note that the new Rule retains the Labor Code §408.161’s statutory eligibility requirements for LIBs.  

Additional information relating to the PLN-04 is available in the instructions on the form, and in the Division’s memo dated February 19, 2015. 

          The old adage is that New Jersey is a not a partial temp state, but is that really true?  In some states, likeNew Hampshire, an employee who returns to work but due to disability cannot earn the amount he or she was earning before the work injury may be eligible for significant benefits.  The adjuster may pay the employee 60% of the difference between pre- and post-injury earnings and that may continue for up to 262 weeks.  But this applies to a situationafter maximal medical improvement.  New Jersey clearly does not have any requirement like this becauseNew Jersey is not really a wage loss state:  it is a functional loss state which compensates injured workers after maximal medical improvement with dollars that correspond with the percentage of loss of bodily function.

             But what about this increasingly common situation? Ashley Franklin works for Krogers Inc. in the deli department. She earns $20 per hour for a 40-hour week.  She makes $800 per week.  She fractures her leg at work and is out of work for the month of January 2015, receiving $560 per week in temporary disability benefits.  Krogers offers Ashley a modified duty sedentary job for the month of February.  The workers’ compensation doctor restricts her to four hours per day, and she makes $400 per week, half her normal wage, for the month of February. She works half a day for four straight weeks. Ashley calls the adjuster and asks, “what about the other $400 per week I am losing?”

             Ashley reaches maximal medical improvement on March 1, 2015.  She contacts a lawyer about her loss of wages in February, complaining as follows: “When I was working the job, I was making $800 per week.  On temporary disability, I was getting $560 per week tax free.  Now I am working on modified duty, limited to half a day by my comp doctor, and I am earning less than I was on temporary disability -- and it’s all taxable!”

             This question comes up every month in this practitioner’s practice.  Which of the following should the claims examiner tell Ashley?

             A. “New Jersey does not have partial temp. You get nothing.”

            B. “We will pay you $160 weekly in temp benefits to get you to $560, your temp rate.”

            C. “We will pay you $280 in temporary disability benefits weekly, half of what you were paid while on temporary disability.”

            To answer this question, the practitioner has to studyN.J.S.A. 34:15-38. That is the section which explains how to pay temporary disability benefits.  The question is whetherNew Jersey compensates only for loss of whole days or fractions of days.  Here is what the statute says:  first you determine the first day that the employee cannot work due to the accident up to the first day the employee can return to work and continue at work.  In Ashley’s scenario that is 28 days.  Then you “subtract from the number the waiting period and any day and fraction thereof the employee was able to work during the this time, and divide the number by seven.”  The statute concludes, “the resulting whole number and seventh will be the required period for which compensation is payable on account of temporary disability.”

             The language of the statute is confusing.  On the one hand, it recognizes a partial loss of a day by saying “any day and fraction thereof the employee was able to work.”  That would suggest that Ashley has a valid claim for two weeks of temporary disability benefits because she lost 20 half days. On the other hand, the statute speaks in terms of the “resulting whole number and seventh.”  The intention of the legislature is arguably less than clear in reading this statute.

             There are no published decisions on this issue.  In fact, there is only one decision in the Division of Workers’ Compensation directly on point, namelySoto v. Herr’s Foods, Inc., 2012 NJ Work. Comp. LEXIS 4 (September 7, 2012).  That case also involved a situation where the injured worker was limited to four hours per day by the treating doctor while on light duty.  Mr. Soto was getting $683.31 per week on temporary disability but was returned to light duty earning a net payment of $329.43 per week, which was $353.88 less per week than he was earning on temporary disability.  The Honorable Emille Cox ruled in favor of the petitioner: 

It seems rather obvious to this Court that if Respondent is responsible for the payment of temporary disability benefits, and, in this case, the amount to which Petitioner is entitled is $683.31 per week, to allow Respondent to provide minimum light duty and only pay the Petitioner an amount less than $683.31 to which he is entitled defeats the purpose of both the temporary disability and the light duty provisions of the workers’ compensation statute.

             Judge Cox did not call thistemporary partial disability benefits.  His decision was not appealed, no doubt a wise decision by the employer.  The term temporary partial disability refers more to the example at the beginning where an employee returns to work on a full-time basis earning less than he or she earned before the injury well after maximal medical improvement.  The question in Ashley’s scenario is limited to payment before she reaches maximal medical improvement.  It is this:  is temporary disability defined in New Jersey to include only whole days lost or parts of days where the treating doctor will not allow the worker to work more than parts of days?

             In this practitioner’s experience, most workers’ compensation judges agree strongly with Judge Cox, and in fact most employers also agree that modified duty when limited to half days by the treating doctor should not result in a financial penalty to workers.  In other words, the employee restricted to working half a day by the workers’ compensation doctor should not see his or her compensation drop below the amount earned in temporary disability benefits.

 The general consensus is that something must be done in Ashley’s situation because it seems inequitable for her to earn less on modified duty half days than she was earning while out of work receiving tax free temporary disability benefits. Where there remains some difference in opinion is how much Ashley should be paid over and above the $400 in earnings for half days of work that she has lost. The way Section 38 reads in subtracting any day and fraction thereof that the employee was able to work suggests that if this issue gets to the Appellate Division, the Court would order the employer to pay 70% of the four weeks of half days lost by Ashley in the month of February.  That would mean she would get paid $280 per week in temporary disability benefits.  Every two days lost becomes one day of temporary disability benefits. Adding that to the $400 per week in earnings, she would be earning $680 per week.  Of that amount $400 per week would be taxable, putting her basically in the same position she was in while out on temp earning $560 per week. 

 In the end, New Jersey needs a published decision by the Appellate Division to resolve this issue.  Absent that, employers have to do what they perceive to be both consistent with the law and fair under the law. 

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John H. Geaney, Esq., is an Executive Committee Member and a Shareholder in Capehart Scatchard's Workers’ Compensation Group.  Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at jgeaney@capehart.com. 

Unlike many states, most settlements in New Jersey are paid out over a period of weeks, often with payments carrying out well into the future.  For example, if an employee receives an award of 40% permanent partial disability, the award is paid over 240 weeks in equal payments beginning with the last payment of temporary disability benefits.  When an employee seeks to accelerate those payments into one lump sum check, this is known as a commutation.  Permission must be obtained from the judge. 

 A recent case illustrates the issue.  Terrance Jenkins received an award of permanent disability benefits.  He applied to the lateVirginia Dietrich, Judge of Compensation, for the sum of $16,000 in commutation funds from the remaining award of $28,000, which was being paid in equal amounts over many weeks.  He contended that he wanted to open a small business selling fish and chips.  He testified in workers’ compensation court that he wanted to build on his mother’s current catering business.  However, he admitted that his mother’s business had few customers, and he needed to purchase equipment and supplies for the business.  Furthermore, he was in arrears on his rental payments for the business premises and needed to pay off his mother’s debts.

 Judge Dietrich reviewed the provisions ofN.J.S.A. 34:15-25. That section states,“Commutation is to be allowed only when it clearly appears that an unusual circumstance warrants a departure from the normal manner of payment and not to enable the injured employee . . . to satisfy a debt, or to make payment to physicians, lawyers or others.” Applying this standard, the judge rejected the request for commutation concluding that this “would be throwing good money after bad.”  She further found that the petitioner did not have a sound business plan and had managed to get over-extended financially.  

The Appellate Division affirmed the rejection of the commutation request because of the reasons provided byJudge Dietrich.  The case shows that it is really quite difficult to obtain a commutation inNew Jersey.  Very few requests get approved because judges look out for the best interests of employees.  This case may be found atJenkins v. L.A. Fitness, A-3570-12T2 (App. Div. February 4, 2015).    

 It is important for practitioners to realize that a commutation is improper when it is caused by the employer or carrier by mistake.  For example, suppose an employer or carrier is supposed to pay out an award over the next 52 weeks.  Due to a misunderstanding or computer error, the company pays the entire 52 weeks of future payments in one lump sum to the employee.  This amounts to a commutation, and it would be illegal because only a judge of compensation can approve a commutation.

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John H. Geaney, Esq., is an Executive Committee Member and a Shareholder in Capehart Scatchard's Workers’ Compensation Group.  Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at jgeaney@capehart.com. 

Janice Davis was injured on April 23, 2007 in a work-related accident.  She filed a claim petition promptly against Yassien Mobility Assistance & Ambulance, Inc., her employer.  On October 1, 2007, Yassien filed an answer stating that it had no insurance for workers’ compensation.  The Uninsured Employers’ Fund (UEF) was joined in the matter as an additional party. 

Yassien had previously obtained workers’ compensation insurance from Zurich American Insurance Company, which cancelled coverage in March 2006.  The accident happened over a year after the cancellation. 

Subsequent to these events, the Supreme Court of New Jersey held that cancellation of insurance policies will only be upheld if all aspects of the statute are strictly followed. N.J.S.A. 34:15-81 requires that the notice of cancellation be filed in the Office of the Commissioner of Banking and Insurance, together with a certified statement that the notice provided for in the statute has been given.  The Supreme Court of New Jersey in Sroczynski v. Milek, 197N.J. 36 (2008) stated that even a minor deviation such as not filing the certified statement will void the cancellation.

In this case, Zurich did not file the certified statement required underN.J.S.A. 34:15-81, but Yassien failed to argue this issue until 2013.  The workers’ compensation case dragged on for many years until Yassien on February 9, 2013 filed a motion to amend its answer to the claim petition to join Zurich as an additional party.  This was the first time Yassien formally contended thatZurich failed to properly cancel its policy in 2006. 

The Judge of Compensation ruled in favor of Yassien and held thatZurich failed to properly cancel the policy and would therefore have to pay the workers’ compensation claim. Zurich appealed and argued that Yassien waited far too long to raise this issue -- seven years, in fact.  The Appellate Division reversed and held thatZurich was correct in arguing that Yassien waived its argument for improper cancellation by waiting seven years. 

The Appellate Division reasoned that it would not be fair to carriers if employers could challenge proper cancellation many years after the cancellation occurred.  The Court noted that Yassien did not raise the improper cancellation argument in 2007 or 2008 before the Sroczynskidecision came down.   The Court suggested that if Yassien had raised this issue in 2007 or 2008, before theSroczynski case had been decided, its position would have been stronger.  By waiting until 2013 to raise the improper cancellation issue for the first time, Yassien waived its right to challenge the cancellation. 

The case can be found at Davis v. Yassien Mobility Assistance & Ambulance, Inc., A-0356-14T3 (App. Div. May 5, 2015). 

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John H. Geaney, Esq., is an Executive Committee Member and a Shareholder in Capehart Scatchard's Workers’ Compensation Group.  Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at jgeaney@capehart.com. 

          Cases dismissed underN.J.S.A. 34:15-54 for lack of prosecution are permanently closed if not reinstated within one  year.  The matter ofKost v. GPU Energy, A-0858-13T3 (App. Div. 2015) offers one exception to the rule.

             Richard Kost filed seven claims against GPU Energy/JCP&L in 2003.  He also filed a parallel civil action which was pending from 2003 to 2008.  Claimant’s attorney,Eric Lentz, left his law firm, Garces and Grabler, in March 2005.  Lentz kept the case and from time to time met withMr. Kost. 

             Problems began between the years 2005 and 2008.  Lentz failed to comply with several requests made by the Judge of Compensation, leading GPU to file a motion to dismiss for lack of prosecution.  That motion was granted in December 2008.  The rule provides that the claimant has one year to reopen the matter or the dismissal becomes final.

             On December 8, 2008, GPU’s attorney sent the order of dismissal to Lentz, who had not appeared at the hearing when the case was dismissed. Mr. Kost said he was never made aware of the dismissal.  He said he called his lawyer on numerous occasions but could not reach him.  Finally in January 2010, he reached his lawyer, who misled him into believing that the workers’ compensation cases were still active.  Lentz told Kost that the cases were progressing, and from time to time he asked Kost to sign medical authorization forms. The Appellate Division noted, “However, it is clear that Lentz hid from petitioner the true status of his cases.”

             In January 2010, Lentz scheduled an appointment for Kost to attend a permanency exam.  When petitioner got to the doctor’s office, there was no record of any appointment, nor any paperwork from Lentz.  Kost confronted Lentz, who assured him that the cases were progressing.  He never told Kost that his cases had been dismissed in December 2008.

             Kost retained new counsel, who figured out that the cases had been dismissed and attempted to restore the cases to the active list.  GPU argued that the one-year time period for reinstatement had passed.  The Judge of Compensation on September 16, 2013, refused to reinstate the case, and Kost appealed.  The Appellate Division was faced with the fact thatN.J.S.A. does not provide for any exceptions:

 Although N.J.S.A. 34:15-54 does not expressly create an exception to the one-year requirement for filing a motion for reinstatement, our courts have recognized that compensation judges possess the inherent power to excuse the one-year time bar upon the grounds set forth in Rule 4:50-1.

 The Court found that this was an exceptional circumstance. “Petitioner’s dilemma was not caused by his own dereliction or ambivalence. Instead, fault for the dismissal rests squarely on his prior attorney.  Here, petitioner made significant effort to keep in contact with Lentz.  He was affirmatively mislead, and assured his cases were still active.  It was not until new counsel took over in 2010 that petitioner was informed his cases were dismissed.”

             The Court also noted that GPU was not really prejudiced in this case because the company had obtained substantial discovery during the five-year period of the civil litigation. 

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John H. Geaney, Esq., is an Executive Committee Member and a Shareholder in Capehart Scatchard's Workers’ Compensation Group.  Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at jgeaney@capehart.com. 

In New Jersey, the PIP carrier has a right to file a workers’ compensation claim petition in the name of the injured worker, but there is a catch:  the PIP carrier is subject to the same defenses that the injured worker would be subject to.

 InHigh Point Insurance Company(as subrogor of Kevin Smith) v. Drexel University, A-2030-13T4 (App. Div. April 17, 2015), High Point Insurance paid personal injury protection benefits for injuries suffered by Kevin Smith, a Ph.D. student and Teaching Assistant at Drexel University.  On September 2, 2011, Smith drove aDrexel University vehicle to a site in the Pine Barrens inNew Jersey to conduct research for his graduate dissertation.  While driving back toDrexel University, Smith was injured in a car accident.

High Point sought reimbursement of the PIP benefits it paid to Smith by filing a claim petition in the Division of Workers’ Compensation.  Smith himself never filed a claim petition on his own behalf. Drexel University answered the claim petition with a denial.

The Judge of Compensation observed that the Ph.D. program Smith was enrolled in at Drexel did not require that he work as a Teaching Assistant.  Smith decided to accept that position in an attempt to offset the cost of the Ph.D. program.  The Judge felt that Smith was using the Drexel vehicle to reach thePine Barrens for his own personal research, not in his role as a Teaching Assistant.  The Judge also noted that there were no classes in session the week of the accident. Judge of Compensation dismissed the workers’ compensation claim petition commenting that High Point never proved any requirement that Smith travel to thePine Barrens for his work. 

On appeal, High Point argued that Drexel “entwined” Smith’s personal graduate studies and teaching assignments to a degree that traveling for his research became work related.  The Appellate Division rejected High Point’s reasoning and held that there was no connection between the accident and Smith’s employment.

The case illustrates a number of interesting procedural points.  The New Jersey Division of Workers’ Compensation is open to a variety of claims by PIP carriers.  A PIP carrier can intervene in an existing litigated claim in the Division of Workers’ Compensation for reimbursement of benefits the carrier has paid.  In addition, the carrier can also file a claim petition in the name of the injured party,even if there is no existing claim petition.  Getting cooperation from the injured party can sometimes prove difficult, but in this case Smith agreed to cooperate and testified.  The problem which High Point had was that it could not show that driving the Drexel vehicle was related to the Teaching Assistant job.  It was more of a personal mission related to Smith’s research for his Ph.D.   

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John H. Geaney, Esq., is an Executive Committee Member and a Shareholder in Capehart Scatchard's Workers’ Compensation Group.  Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at jgeaney@capehart.com. 

        Sometimes the seemingly minor cases have significant long-term impact.  The case ofAmedeo v. United Parcel Service, A-1013-13T2 (App. Div. April 8, 2015) may be one of those cases. 

          Thomas Amedeo suffered a work injury in 2009 in the employment of UPS.  He filed a workers’ compensation claim petition and ultimately received an award of 30% partial permanent disability.  He timely reopened the case in October 2012 and sought by way of motion an order requiring UPS to assign an orthopedist to treat him for a degenerative hip condition.  Petitioner relied in his motion on a report fromDr. Frederic Brustein, an internist and physiatrist.  Dr. Brustein stated in his report that he himself would not treat petitioner but that petitioner should seek out other specialists such as university affiliated orthopedists specializing in the hips, the spine, and pain management. 

          UPS arranged an IME with Dr. Joseph Corona, who said that Amadeo had reached maximal medical improvement and there was no increase in his disability. He found no need for further treatment.

          The case was listed on a motion hearing on October 4, 2013.  Petitioner’s attorney requested an adjournment.  The Judge refused that request, noting that petitioner’s attorney had failed to appear on several occasions.  Respondent’s counsel and an attorney covering for petitioner’s counsel appeared and conferenced the case with the judge.  Petitioner himself did not appear at the motion hearing. 

          The Judge of Compensation dismissed the motion hearing without prejudice.  She determined that the motion papers were insufficient and advised petitioner’s attorney of this opinion.  She also noted that no hearing could take place without the petitioner.  The Judge determined that the motion papers were deficient under N.J.A.C. 12:235-3.2(b)(2).  Dr. Brustein did not state the specific type of treatment being sought; nor wasDr. Brustein the proper physician to advance the motion since he could not treat petitioner himself as a physiatrist and internist.   AllDr. Brustein did was say that petitioner should seek out other specialists. 

          Petitioner appealed the dismissal of his motion.  The Appellate Division agreed with the Judge of Compensation, stating that the regulation noted above was designed to eliminate non-specific reports by requiring applicants to provide detailed opinions from qualified experts. 

Here, we agree with the judge of compensation that petitioner failed to provide evidence adequate to present a prima facie case in support of his motion.  Specifically, Dr. Brustein’s report did not recommend a definite course of treatment, state that petitioner needed a particular medical treatment, or sufficiently support a referral to a specialist. Rather, Dr. Brustein’s report ‘merely suggested several options for other specialists to try.’

          The Appellate Division also rejected the petitioner’s request that the case be assigned to another judge.  This decision is likely to change the way practitioners file motions and the way respondents defend them.  It is quite common for claimants to retain doctors in support of treatment motions who themselves cannot treat or lack the specific qualifications to treat.  Instead, they will recommend treatment by otherdoctors-to-be-named. The Amedeo case puts the onus on the applicant to retain the appropriate physician from the outset, which will also allow employers to adequately respond to such motions.    

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John H. Geaney, Esq., is an Executive Committee Member and a Shareholder in Capehart Scatchard's Workers’ Compensation Group.  Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at jgeaney@capehart.com. 

Pella Corporation v. Diana Winn, Court of Appeals of Iowa, No. 14-0771

On February 4, 2011, Claimant, Diana Winn, filed two petitions with the Iowa Workers’ Compensation Commissioner, both alleging she sustained a cumulative injury to her right shoulder. The first petition, numbered 5035646, claimed the injury occurred on November 16, 2010, the day she was suspended by her then employer, Pella Corporation. The second petition, numbered 5035647, alleged the injury occurred on June 1, 2010.

At the time of the arbitration hearing, Claimant was sixty-one years old. She had worked for Pella Corporation for thirty-four years. For the last ten years of her employment, Claimant had worked as a stock-keeper, requiring her to carry out different tasks, many involving the pushing and pulling of materials in the stock room.

During Claimant’s tenure with Pella Corporation, she suffered several injuries, including tearing a rotator cuff in her left shoulder in 2008. Claimant returned to work after that injury with restrictions, which essentially left her performing her job tasks with only her right arm. Eventually she began to have pain in her right shoulder, and on June 1, 2010, she saw her medical provider, Nurse Practitioner Katherine Todd, for treatment of her right shoulder pain. Nurse Todd diagnosed Claimant with “[r]ight arm and neck pain, most likely due to overuse due to the fact she cannot use her left arm.” Nurse Todd referred her to Dr. Cassim Igram, an orthopedic surgeon. Dr. Igram ordered an MRI of Claimant’s right shoulder, which took place on July 13. The procedure revealed “a small full thickness rotator cuff tear” in Claimant’s right shoulder. Dr. Igram then referred Claimant to Dr. Scott Meyer, an orthopedic shoulder specialist. Dr. Meyer evaluated Claimant on August 27, 2010, and he agreed Claimant had a tear in the rotator cuff of her right shoulder.

On February 16, 2012, an arbitration hearing was held on Claimant’s petitions before a deputy workers’ compensation commissioner. The deputy entered her arbitration decision on September 19, 2012. She concluded Claimant sustained an injury to her right shoulder as a result of her employment with Pella Corporation. The deputy specifically found the date of Claimant’s “right shoulder injury was November 16, 2010 and not on June 1, 2010,” explaining the November date was “the date [Winn] discovered her condition was serious enough to have a permanent, adverse impact on her employment.” The deputy determined Claimant had a permanent partial disability in the amount of eighty percent and awarded Claimant permanent partial disability benefits.

Pella Corporation sought a rehearing, which was subsequently denied. It then appealed the deputy’s arbitration decision to the commissioner. The commissioner affirmed and adopted the deputy’s decision. Pella Corporation filed an application for rehearing, which the commissioner denied. Pella Corporation then filed a petition in district court seeking judicial review of the agency’s decision, asserting the decision was not based on proper findings of fact and conclusions of law.

Following a hearing in January 2014, the district court entered its ruling on judicial review affirming the agency in all respects but one. Like the commissioner, the court found the deputy commissioner was in the best position to assess Claimant’s credibility, and it concluded substantial evidence in the record supported both the deputy’s credibility finding and the agency’s determination that Claimant suffered an injury in the course of her employment with Pella Corporation. However, the district court agreed with Pella Corporation’s contention that the agency did not employ the proper legal test in determining the date of Claimant’s injury, and it remanded the case back to the agency “to determine the date of cumulative injury using the appropriate legal analysis stated in Herrera [v. IBP, Inc., 633 N.W.2d 284 (Iowa 2001)].” InHerrera, the Iowa Supreme Court clarified the analytical interplay between the cumulative injury rule and the discovery rule. Finally, the district court found the agency’s determination that Claimant sustained permanent partial impairment to her body as a whole in the amount of eighty percent was supported by substantial evidence and was not irrational, illogical, or unjustifiable. The court entered its ruling remanding “for a determination as to the date of the right-shoulder injury, and a reconsideration of [Winn’s] first claim for workers’ compensation benefits, file number 5035647.”

Following the district court’s final decision on judicial review, Pella Corporation appealed, and Claimant cross-appealed. Pella Corporation contends the district court erred by remanding the case to the agency for a determination of an injury date rather than dismissing the case altogether, and Claimant argues the court erred in remanding the case with the direction that the agency consider Pella Corporation’s section 85.23 defense. Pella Corporation asserts the court erred in affirming the agency’s conclusion that Claimant was credible and suffered a work-related injury. Pella Corporation also argues the district court erred in affirming the award of industrial disability benefits when the issue of entitlement to such benefits was not ripe for determination and because the agency award was not supported by substantial evidence and reflects error of law.

Because the Court of Appeals finds the district court erred in finding Pella Corporation’s untimely-notice defense should be considered on remand, the Court reverses on this issue. The Court affirms the decision of the district court in all other respects and remands the case to the district court with instructions on judicial review to remand to the commissioner for a date-of-injury manifestation analysis consistent with the Supreme Court’s directions inHerrera for purposes of benefit calculation.

Call Mark Bosscher or Lee Hook with any questions @ 515-243-2100.  We’d be happy to help, whether it be a quick or a complex issue!

Polaris Industries, Inc. v. Ken E. Sharar, Court of Appeals of Iowa, No. 14-1648

Claimant, Ken Sharar, has been employed by Polaris since 2003. His work at Polaris primarily involved physical labor. On November 3, 2009, he fell while performing his work duties and sustained serious injuries to his right shoulder. He underwent two surgeries and extensive physical therapy. He returned to work on light duty but struggled with clerical tasks that required the use of a computer. He eventually settled into a position operating an air lift. He was able to perform these work tasks largely unassisted.

Claimant achieved maximum medical improvement (MMI) on February 21, 2011. The doctor who determined he had reached MMI opined Claimant suffered “a total impairment rating of 5% of the right upper extremity due to his decreased range of motion.” A second doctor performed an independent medical evaluation of Claimant. He calculated a fifteen percent permanent impairment of the extremity—equivalent to a nine percent whole-person impairment—and estimated Claimant could lift thirty-five pounds using both hands. A vocational consultant wrote in an evaluation of Claimant, “It is reasonably likely that he has suffered a reduction in employability of 61% and a reduction in labor market access of approximately 70%. This is reasonably expected to result in a loss in earning capacity estimated at approximately 65%.”

Claimant filed for permanent partial disability benefits. A deputy commissioner at the agency conducted a hearing. He found Claimant to have sustained a forty percent loss of earning capacity and awarded him 200 weeks of industrial disability benefits. Polaris appealed the decision of the deputy commissioner, and the commissioner affirmed the award. Polaris petitioned the district court for judicial review, and the court affirmed. Polaris now appeals from the district court’s affirmance. Polaris does not contest that Claimant is entitled to some amount of industrial disability benefits, but it contends the award of forty percent is excessive and not supported by substantial evidence.

On review of the record and consideration of the applicable factors, the Court of Appeals finds substantial evidence to support the agency’s determination. Claimant’s functional impairment prevents him from engaging in heavy physical labor, and most of his prior work experience and qualifications relate to physical labor. At the time of the hearing, Claimant was forty-eight years old and high-school educated. The record shows he experienced difficulties adapting to retraining and learning new skills. Although Claimant’s actual earnings at the time of the hearing were higher than at the time of the injury, the report of the vocational consultant indicates that Claimant’s earning capacity in the general labor market had decreased.

Archer Daniels Midland, Inc. v. Robert Warren, Court of Appeals of Iowa, No. 14-0956

Claimant, Robert Warren, was born in 1949. He completed the ninth grade, later obtained his G.E.D, and also attended Kirkwood Community College. In 1969, Claimant suffered a severe, traumatic right-hip injury after falling twenty-eight feet from a roof that collapsed. He underwent a Jewett hip nailing procedure involving a three and one-half inch nail, a four inch plate, and metallic screws. Claimant worked as a welder from 1974 until 1986 when that employer’s plant closed. In 1976, at his doctor’s recommendation, Claimant had the Jewett nail removed. Claimant worked for a different employer’s manufacturing business from 1987 to 2000. He then drove a semi-truck for about six months.

On March 19, 2001, Claimant began working for Archer Daniels Midland, Inc. (ADM). His health was “excellent” when he started and he was under no restrictions. As a utility worker at ADM, Claimant was responsible for moving railcars and directing trucks into proper filling position. Claimant’s right hip began to bother him when the rail car staging area was expanded, which caused him to walk more. On January 28, 2009, Claimant went to his family doctor, Dr. Yang Ahn, complaining of stiffness and pain. Dr. Ahn referred him to Dr. Michael Brooks for evaluation on July 31, 2009. Dr. Brooks assessed “[p]olyarthritis with a predominance of osteoarthritis.”

On September 22, 2010, Claimant saw Dr. Sandeep Munjal, an orthopedic surgeon. Dr. Munjal noted, “His work does require significant lifting of loads and more than twelve hundred steps a day of rough walking.” X-rays demonstrated “advanced degenerative changes in the right hip with hallmarks of previous surgery and a valgus alignment of the hip.” Claimant underwent a right total hip replacement on February 22, 2011. Claimant returned to ADM, but was told his work restrictions could not be accommodated. Consequently, Claimant’s last date of employment with ADM was February 18, 2011.

On April 5, 2011, Claimant filed a petition seeking workers’ compensation benefits for a cumulative injury. ADM sent Claimant for an independent medical examination (IME) with Dr. William Boulden on June 15, 2011. In his report, Dr. Boulden opined “Warren’s work activities with Archer Daniels Midland…did not accelerate or cause the osteoarthritis of his hip, for which he had the hip replacement.” On March 13, 2012, Claimant was seen by Dr. Ray Miller for another IME. Dr. Miller wrote: “It is my opinion from evaluating Mr. Warren, his medical records, and his job requirements, that his work activity during his ten years at Archer Daniels Midland were significant physical activities that contributed to the progression of osteoarthritis resulting in the need for a total hip replacement.” At a June 11, 2012 deposition, Dr. Munjal testified that Claimant’s work activities were not a cause of Claimant’s osteoarthritis.

Following an arbitration hearing, the deputy commissioner determined, “The record evidence considered as a whole does not support a finding that claimant’s right hip osteoarthritis and his need for a right hip replacement were rational consequences of his work activities for ADM.” Consequently, the deputy denied Claimant’s workers’ compensation benefits. Claimant appealed to the commissioner.

The commissioner reversed the deputy’s arbitration ruling. The commissioner reviewed the records of Drs. Munjal, Boulden, and Miller and determined Claimant “met his burden to prove that his right hip replacement and disability arose out of and in the course of his employment duties with [ADM].” Further, the commissioner found Claimant had sustained a twenty-percent impairment to the whole person. The commissioner concluded Claimant “sustained a right hip injury through a cumulative process as an aggravation of claimant’s preexisting hip condition.” The commissioner also concluded Claimant had “sustained an injury which permanently disables him from performing work within his experience, training, education, and physical capacities,” entitling him an award of permanent total disability benefits commencing on February 19, 2011.

ADM filed a petition for judicial review in the district court. The district court found substantial evidence supported the commissioner’s finding of causation. ADM Appeals.

Because the commissioner weighed the expert opinion evidence thoroughly and documented its finding of causation, and the district court accepted the finding of the commissioner as supported by substantial evidence in the record, the Court of Appeals affirms the causation finding. Additionally, the Court of Appeals does not find the commissioner’s determination as to industrial disability was irrational, illogical, or wholly unjustifiable. The Court of Appeals therefore affirms the district court’s decision affirming the Iowa Workers’ Compensation Commissioner’s award of permanent total disability benefits to Claimant.

Call Mark Bosscher or Lee Hook with any questions @ 515-243-2100.  We’d be happy to help, whether it be a quick or a complex issue!

Paul Fields worked as a mechanic for H and E Equipment Services, LLC for over 11 years.  Mr. Fields alleged an at-work injury to his back on May 24, 2012 when removing a 43-pound battery from a car.  His doctor indicated this injury aggravated Mr. Fields’ pre-existing low back problems and concluded that he would be unable to return to work as a mechanic as a result of this injury.  After the hearing, Deputy Commissioner Harris found that Mr. Fields had established ongoing disability since May 24, 2012 and awarded him temporary total disability (TTD) benefits and  the Full Commission agreed.

The Court of Appeals, in Fields v. H and E Equipment Services, LLC, reversed the Full Commission and found that Mr. Fields had failed to meet his burden of proving disability.  Specifically, the Court found that Mr. Fields had failed to produce competent evidence that it was futile for him to seek any other employment under the Russell test, and as such, Mr. Fields had failed to establish disability under Hilliard.

Under Hilliard, an employee must prove disability by establishing three things:

(1) that he or she was incapable after the injury of earning the same wages earned before the injury in the same employment;

(2) that he or she was incapable after the injury of earning the same wages he or she earned before the injury in any other employment; and

(3) that his or her incapacity to earn was caused by the injury.

In order to establish (1) and (2) above, the employee must show one of the following (known as the Russell  test):

(1) medical evidence that he or she is mentally or physically incapable of working in any capacity;

(2) evidence that he or she is capable of some work, but has not been able to find any;

(3) evidence that he or she is capable of some work, but that it would be futile to attempt to find any based on age, experience, or lack of education; or

(4) evidence that he or she has obtained employment at a lower wage than the previous employment.  The employee need only produce evidence of one of these factors in order to satisfy (1) and (2) under Hillard.

Mr. Fields did not produce any evidence to support (1), (2), or (4) under Russell.  This left (3) which required evidence that it would be futile for him to attempt to find work because of age, experience, or lack of education.  Mr. Fields did not meet his burden because he offered no testimony from a vocational expert that his pre-existing condition made it futile for him to seek employment.  He also offered no labor market evidence, nor did his doctors indicate that his medical condition would preclude him from working; just that he could not return to his pre-injury job.  As such, Mr. Fields could not satisfy the first two prongs of Hilliard and could not establish disability so as to entitle him to TTD and medical benefits.

Risk Handling Hints:  This case establishes that employees must have expert testimony or at least some other objective evidence of an inability to return to work in order to establish futility under the third prongs of Russell.  The employee’s testimony alone will not be enough.  Although not specifically outlined in the holding, employees will also want to have expert medical testimony to establish incapacity to work under the first prong of Russell.  If the employee does produce an expert or other evidence of disability, defendants will want to retain an expert of their own to contradict employee’s evidence where possible.