State News

WORKERS’ COMPENSATION IMES IN PENNSYLVANIA

By

Kevin L. Connors, Esquire

            Many of you have expressed some confusion, regret, and/or a pain associated with the selection of independent medical examiners, particularly in the context of workers’ compensation cases.

             No question, this is a difficult task in workers’ compensation cases, as it could well become a claim-defining examination, since under Section 304 of the Pennsylvania Workers’ Compensation Act, Independent Medical Examinations (IME) can only be requested on an every six (6) months basis, triggering brow-furrowing and head-scratching, as to when do I get the IME.

             No less true, the issue for one to secure an IME often comes into question when you are either administering a “medical only” claim, which sometimes drift into the “I am disabled” claim, resulting in a claim for indemnity compensation benefits, as well as claims that are administered a Notice of Temporary Compensation Payable, whether for both indemnity and medical compensation benefits and/or simply for “medical only” compensation benefits.

             As all of us know, the Notice of Temporary Compensation Payable (NTCP) permits the administration of a workers’ compensation claim for the first ninety (90) from issuance of the NTCP, to allow continuing investigation into the workers’ compensation claim, including terms of compensability, disability, injury description, etc., there may be many facets that play into whether a claim is accepted, denied, or administered under an NTCP, with the IME being one resource available to Employers and Insurance Carriers, as well as administrators, as the NTCP is approaching its end point, being that ninety (90) days from issuance, after which, absent the issuance of a Notice of Compensation Denial, as well as the issuance of Notice of Stopping Temporary Compensation, the NTCP becomes the claim-admitting document under which the Employer, Insurer and/or Administrator, becomes liable for the continuing payment of workers’ compensation benefits, being indemnity and medical, and/or only medical.

             Yes, it is a time-sensitive feature in workers’ compensation claims, with an accepted claim technically becoming a workers’ compensation claim with extensive exposure, in the absence of one of the following events occurring post-acceptance, i.e., the conversion of the NTCP into a Notice of Compensation Payable, to include the following possible claim occurrences:

 (1)            The Claimant dies, and compensation benefits terminate by operation of both death and loss;

(2)            The Claimant voluntarily returns to work in their pre-injury capacities, and there is no continuing wage loss post-return to work, such that the Claimant’s compensation benefits are suspended;

(3)            The Claimant returns to work in a modified-duty capacity, with some reduction in return-to-work wages, such that the Claimant’s compensation benefits are modified, and temporary partial disability benefits are paid, subject to the 500 week limitation;

(4)            The Claimant executes a Supplemental Agreement, perfecting either a termination, suspension, or modification of the Claimant’s workers’ compensation benefits;

(5)            The Claimant signs a Final Receipt (almost never used), under which the Claimant agrees that all compensation benefits have been paid;

(6)            The Claimant is deported by virtue of not being able to prove legal immigration status;

(7)            The claim is settled under a Compromise and Release Agreement, perfecting some type of compromise of the indemnity and medical compensation benefits liability associated with the claim; and,

(8)            The Claimant’s compensation benefits are terminated, modified, or suspended by order of a workers’ compensation judge, with the employer/insurer carrying the burden of proving the entitlement to a change in the Claimant’s benefit entitlement status.

             So, back to IMEs.

             To address client and contact confusion over who to choose for a respective IME, with it being necessary to differentiate IMEs based upon medical specialties, we have prepared a list of our preferred IME physicians to include the following:

            All of the physicians listed above, are physicians that we have utilized in defense of workers’ compensation, and most of the above-listed physicians have been physicians which have testified on behalf of our clients in litigated workers’ compensation cases, with our having respect for every physician listed above, in terms of their specialty, the thoroughness of their Independent Medical Examination function, to include the narrative medical reports that these physicians draft post-IME, as well as their preparation for any trial depositions that might become necessary in the course of a workers’ compensation claim being litigated, and their tenacity defending their respective opinions, both findings and conclusions, in the course of being subjected to cross-examination by counsel representing Claimants, with the focus of cross-examination often turning on the IME physician indicating that they only had one opportunity to examine the Claimant, particularly in the context of a Claim Petition being defended, and/or how could the IME physician possibly conclude that the injured employee has fully recovered from a work injury, when the IME physician has only examined the Claimant on one occasion, some doctors conducting the examination and in reliance upon the history elicited from the Claimant, and any medical records that we might be able to provide to the IME physician in preparation for their IMEs.

             Obviously, we encourage you to contact us with any question that you might have with regard to any particular physician listed above, as well as any questions that you might have regarding specific medical specialties, the sometimes incongruous nature of workers’ compensation claims, as well the unreasonable evaluation sometimes placed on non-catastrophic injuries by counsel representing workers’ compensation Claimants.

                                                                                ConnorsO’Dell LLC

            Trust us, we just get it!  It is trust well spent!

             We defend Employers, Self-Insureds, Insurance Carriers, and Third Party Administrators in Workers’ Compensation matters throughout Pennsylvania.  We have over 100 years of cumulative experience defending our clients against compensation-related liabilities, with no attorney in our firm having less than ten (10) years of specialized experience, empowering our Workers’ Compensation practice group attorneys to be more than mere claim denials, enabling us to create the factual and legal leverage to expeditiously resolve claims, in the course of limiting/reducing/extinguishing our clients’ liabilities under the Pennsylvania Workers’ Compensation Act.

             Every member of our Workers’ Compensation practice group is AV rated.  Our partnership with the NWCDN magnifies the lens for which our professional expertise imperiously demands that we always be dynamic and exacting advocates for our clients, navigating the frustrating and form-intensive minefield pervasive throughout Pennsylvania Workers’ Compensation practice and procedure.

In a decision marked as “significant,” the Appeals Panel reversed a CCH determination of non-compensability of specific diagnoses, and rendered a decision that the disputed diagnoses were compensable on the basis that the claimant’s impairment rating (IR) including those conditions had become final so that the conditions included in the IR were made compensable by waiver.

At CCH, the Administrative Law Judge (ALJ) found that the Claimant’s first certification of MMI/IR had become final and that his compensable injury did not include a right hip labral tear and hamstring tear.  The Appeals Panel reversed the ALJ’s decision that the right hip labral tear and hamstring tear were not compensable, finding these conditions part of the compensable injury.  In doing so, the Appeals Panel noted that “Dr. B” (a doctor selected by the treating doctor to certify MMI/IR) indicated in his report that the conditions he considered and rated were a right hip contusion/sprain and labral tear, lumbar strain, right hamstring tear, and right shoulder strain.   The Appeals Panel noted that Dr. B’s 6% IR, which had become final pursuant to Texas Labor Code Section 408.123 and Division Rule 130.12, included a rating for the diagnoses of right hip labral tear and right hamstring tear.  Therefore, the Appeals Panel held that the compensable injury extends to a right hip labral tear and right hamstring tear.  In addition, the Appeals Panel noted that the designated doctor provided a detailed causation analysis regarding the right hip labral tear and right hamstring tear.

The Appeals Panel went on to clarify that the rationale for its holding does not act to exclude diagnoses that were not included in that impairment rating certification: “Our holding should not be construed as limiting claimants from expanding on what is included in the compensable injury.  We acknowledge that injuries can evolve over time and that claimants may claim that additional injuries or conditions are compensable even after an IR becomes final.” (Citing APD 040150-s, decided March 8, 2004.)

In other words, if a first certification of MMI and impairment that includes a disputed medical condition is not timely disputed and becomes final, the disputed condition may be deemed to be compensable.  On the other hand, a Claimant is not prohibited from expanding his injury by adding additional diagnoses that were not included in a final assessment of MMI/IR.  Appeals Panel Decision 191874-s, decided December 5, 2019.
 

... but the issue of MMI/IR finality has to be a certified issue for adjudication in order to be a basis for Carrier's waiver of extent of injury

In a decision filed just six days later, the Appeals Panel declined to extend a similar extent of injury “waiver” theory in a case in which the issue of finality of the Claimant’s impairment rating had not been an issue certified for adjudication in the underlying CCH.

In Appeals Panel Decision No. 191919, decided December 11, 2019, the Appeals Panel reversed a decision from an ALJ that the Claimant’s compensable injury extends to include C5-6 and C6-7 central left side disc herniation.  The ALJ made several findings of fact, among them that that the Claimant’s 15% impairment rating (IR) assigned by “Dr. C” was an IR for the conditions of herniated disc status post anterior cervical discectomy and fusion at C5-6 and C6-7, and that there was no dispute of the MMI date or 15% IR before the expiration of the first quarter SIBs period.  In doing so, it appeared that the ALJ had determined that the 15% IR (and therefore, the disputed conditions that were included in the 15% IR)  had become final pursuant to Division Rule 130.102(h), which provides that if there is no pending dispute regarding the date of MMI or the IR prior to the expiration of the first quarter of supplemental income benefits (SIBs), the date of MMI and the IR are final and binding.  

The Appeals Panel observed that although the ALJ did not expressly add the issue in her decision and order, her extent of injury determination was premised on a determination that the 15% IR had become final pursuant to Rule 130.102(h) and that this certification considered and rated herniated disc status post anterior cervical discectomy and fusion at C5-6 and C6-7.  However, in this case there had been no finality issue before the ALJ to decide.  The BRC Report did not list an issue of finality pursuant to Rule 130.102(h), and neither party at the CCH requested the addition of an issue regarding Rule 130.102(h) finality.  The Appeals Panel further noted that the MMI/IR certification at issue was not in evidence, there were no SIBs applications in evidence, no testimony or documentary evidence regarding whether or not a dispute of the claimant’s MMI and IR occurred prior to the expiration of the first quarter of SIBs, and no stipulation or testimony regarding the date of MMI or the IR based on the claimant’s compensable injury, or as to the dates of the SIBs quarters applicable to the claimant.  In fact, neither party had even argued that the 15% IR certification had become final.  

On this basis, the Appeals Panel stuck the ALJ’s Findings of Fact related to finality, reversed the ALJ’s determination on extent of injury, and remanded the extent-of-injury issue to the ALJ with instructions to determine whether the evidence supports that the compensable injury extends to include the disputed conditions.

There was no indication as to whether the Appeals Panel in Decision Number 191919 would have found the disputed conditions compensable had the issue of finality of the claimant’s IR been certified for adjudication.  However, the decision issued just six days earlier in Decision Number 191874-s is an indication that it very well would have.  

Appeals Panel Decisions 191874-s and 191919 make way for additional avenues for Claimant attorneys to circumvent the medical causation standard set out by the Texas Supreme Court in Transcontinental Insurance Company v. Crump, 330 S. W. 3d 211(Tex. 2010); that is, that the work injury must be a “producing cause” of the injury or death, which is defined as “a substantial factor in bringing about an injury or death, and without which the injury or death would not have occurred.”  By allowing for adjudication of extent of injury via a determination of finality of an impairment rating that includes the condition or diagnosis, the Appeals Panel has paved the way for a new era of extent of injury “waiver.”  

We certainly have not seen the last of this, and urge our clients to closely scrutinize the diagnoses that are included in a Claimant’s IR. If the certified impairment rating includes any disputed (or questionable) conditions, best practice will be to dispute the certification to avoid the condition becoming compensable via MMI/IR finality under Rules 130.12 or 130.102(h), or some other avenue.
 

-  Copyright 2020, Erin Shanley, Stone Loughlin & Swanson, LLP

Happy New Year from Peddicord Wharton! Here is what’s new in Iowa:

• The Iowa Court of Appeals recently affirmed a favorable agency decision in Harrod v. Advance Services, Inc. and Ace American Insurance Company. The case was defended by Peddicord Wharton attorneys Tim Wegman and Alison Stewart. Claimant Leslie Harrod appealed a district court decision affirming a final Iowa Workers’ Compensation Commissioner decision to reduce Claimant’s industrial disability award from 40% to 25% industrial disability on the basis that it was supported by Substantial evidence. In addition, the Court of Appeals held that Claimant failed to prove entitlement to alternate medical care and penalty benefits. Deputy McElderry awarded 40% and Deputy Commissioner Fitch (upon delegation from Commissioner Cortese) reduced the award to 25%. The Court of Appeals reasoned the Commissioner decision was appropriate because consideration was given to the several industrial disability factors. Specifically, Claimant’s inability to complete a certified nursing assistant program she attended following high school caused the reviewing deputy to question the likelihood of her success in further training, despite Claimant’s statement during the hearing that she was interested in pursuing further education. The reviewing deputy also found that while Claimant could pass the pre-employment physical examination for working as an egg packager for Rembrandt, it was unclear whether she would have been physically capable of maintaining this position long-term. For these reasons, the Court of Appeals affirmed the decisions of the agency and district court.
  
  
• Attorneys Steve Spencer and Chris Spencer were successful in defending another case recently decided by the Iowa Court of Appeals. In Lewis v. Windsor Windows & Doors and Twin City Fire Insurance Company, the Court affirmed an agency decision appealed by the Claimant, in which it was determined the injury alleged did not arise out of and in the course of employment. The issue was Claimant’s credibility and the Commissioner specifically indicated that he gave considerable deference to the findings of fact which were impacted by the credibility findings. The Court was satisfied by the agency’s detailed analysis of the conflicting evidence and explanation of how its decision was reached. As a result, the Court indicated that the record as a whole contained substantial evidence to support the Commissioner’s findings.
  
  
• There are two new Workers’ Compensation Deputy Commissioners. Jessica Cleereman will start January 24, 2020. Deputy Cleereman is from Sioux Falls, South Dakota originally and has practiced at various insurance defense firms in the Des Moines area since graduating from Valparaiso University School of Law in 2005. Andrew Phillips will start March 6, 2020. Deputy Phillips will replace Deputy Michele McGovern, who will retire early this year. Deputy Phillips has worked in the insurance industry in the Des Moines area since graduating from Drake Law School in 2010.
  
  
• The mailing address for the Iowa Division of Workers’ Compensation (DWC) has changed. The new mailing address is 150 Des Moines Street, Des Moines, Iowa 50309. Carriers should update their forms requiring communication with injured workers accordingly. One example is the Auxier notice. If you have questions about this, please reach out to any of the workers’ compensation attorneys at Peddicord Wharton.
  
  
• The DWC recently provided additional information relating to vocational training and education available to employees who sustain a work injury to the shoulder (after July 1, 2017) and are unable to return to gainful employment due to the resulting permanent partial disability. If these qualifications are satisfied, Iowa Workforce Development (IWD), upon written application, will evaluate the employee and determine whether that employee would benefit from a vocational education and training program at a qualifying community college. If the employee qualifies, they must enroll in the community college program within six months of the IWD referral to the program. The employee is eligible for up to $15,000 support toward tuition, fees, and purchase of supplies required to participate in the program. More information about the process and qualifying fields can be found here.
  
  
• SF2003 was recently introduced in the legislature. The proposed change relates to Iowa Code section 85.27 as it specifically pertains to the furnishing of prosthetic devices. Currently, Iowa Code section 85.27(1) states that “the employer shall also furnish reasonable and necessary crutches, artificial members and appliances but shall not be required to furnish more than one set of permanent prosthetic devices.” The proposed change states “a person shall be entitled to replacement of a prosthetic device, including subsequent replacements, by the employer if the prosthetic device is needed as a result of a compensable injury, and the replacement of the prosthetic device would otherwise be considered reasonable medical care under this chapter.” If the proposal passes, an injured worker will be entitled to replacement of a prosthetic device so long as the device would otherwise be considered reasonable medical care. We will monitor this proposed change and provide updates accordingly.

Legal Update by Attorney Alison Stewart, an attorney with Peddicord Wharton. Peddicord Wharton is a member of the National Workers’ Compensation Defense Network. If you have any questions about this submission or Iowa workers’ compensation in general, please contact Alison by e-mailing her at alison@peddicord.law or by calling her directly at 515-243-2100.

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NOTICE TO THE PUBLIC

The determination of the need for legal services and the choice of a lawyer are extremely important decisions and should not be based solely upon advertisements or self-proclaimed expertise. This disclosure is required by rule of the Supreme Court of Iowa.

Peddicord Wharton Legal Updates are intended to provide information on current developments in legislation impacting our clients. Readers should not rely solely upon this information as legal advice. Peddicord Wharton attorneys would be pleased to answer any questions you may have about this update. ©2020 Peddicord Wharton. All Rights Reserved.

 The Dome Report - 2020 West Virginia Legislature Updates, Issue 3

 Dill Battle, Chair Workers' Compensation Practice Group

304.340.3823

dbattle@spilmanlaw.com

Claimant was involved in a compensable 2013 accident with Urgent Ambulance involving a herniated lumbar disc with radiating pain into his legs. Claimant’s symptoms improved to a point where they were tolerable but still present, and he returned to work with a new employer, Recovery Innovations. Claimant then alleged three separate incidents at Recovery Innovations, (1) a 2016 increase in low back symptoms felt days after moving furniture all day without a specific event, (2) a 2017 acute onset of back pain without radiation with lower pain levels than his initial accident, and (3) another 2017 incident where he woke up spontaneously with 10/10 low back pain without any specific connection to work. Claimant’s medical expert very confusingly testified that the first accident was responsible for the symptoms, then changed his testimony to say that each of the subsequent accidents were individually responsible for the symptoms and refused to exclude any of the four accidents as contributors to claimant’s injury.

The Board noted the successive carrier standard of Nally v. Standard Distributing was to be applied, meaning that to shift liability from the first to a subsequent accident, there would need to be an “untoward event” that resulted in a “new injury.” The Board commented that none of the subsequent allegations satisfied that standard as (1) moving furniture and feeling pain days later was not an acute incident, (2) feeling symptoms less severe than the initial accident was not a new injury, and (3) waking up spontaneously with 10/10 pain attributable to no specific work activity was also not an acute incident. The Board elaborated that the reason for theNally approach is that any chronic injury is liable to wax and wane. If a subsequent employer is going to assume liability for the entire condition whenever some work activity causes a flare up of the condition, it would be a strong disincentive for any employer to hire an employee who had been injured in a prior work accident. It would also complicate getting medical care if the insurer on the risk for a physical condition could shift with each new flare up. TheNally standard was crafted to prevent such an undesirable result.

The important takeaways from this Decision are that under Nally it can be very difficult to shift liability from one accident with one employer or carrier to a subsequent employer or carrier, but there are many different nuances ofNally that can be outcome determinative. If you have any questions concerning this Decision, or any successive employer or carrier issue, please feel free to contact Greg Skolnik, Partner, atHeckler & Frabizzio or any other attorney in our Workers’ Compensation Department.

Keita Bowels v. Urgent Ambulance, et. al., IAB Nos. 1406305, 1458022, 1471444 (Sept. 13, 2019). 

New Jersey Governor Phil Murphy this week signed into law the long-considered hand and foot Bill, increasing the amount of workers’ compensation benefits paid for injuries producing loss of function for such injuries. The Bill accomplishes the legislature’s goal of providing greater compensation for hand and foot injuries by increasing the number of weeks that an employer will pay.  L. 2019, C. 387 also provides modest increases in awards for loss of function of the fingers.

To understand how the new law works, it is important to appreciate that loss of function in New Jersey is compensated with payments of weeks that vary depending on the part of body that is injured.  The more weeks one receives, the more money one receives.  Injuries producing loss of function to the trunk, head, neck, back, shoulder, and hip (falling under the partial total category on the rate chart) are compensated the highest in New Jersey with each percentage correlating to a payment of 6 weeks.  So an award of 50% for loss of function of the back means payments will be made over 300 weeks because each percent awarded is multiplied by 6 to arrive at total weeks.  

Historically, hand and foot injuries have been compensated with a relatively small number of weeks compared to those involving the back, neck, trunk, and shoulder as described above.  Currently an injury producing loss of function of 1% of the hand is compensated with 2.45 weeks.  Under the new law, such an injury is now compensated at 2.6 weeks until the award level reaches 25%.  Similarly, under current law an injury producing loss of function of 1% of the foot is compensated with 2.3 weeks.  Under the new law, each percent of loss of function of the foot is now compensated at 2.5 weeks until the award level reaches 25%.  

Here is the big change.  For more serious hand and foot injuries, the new law creates a stepped up number of weeks.  This is new to New Jersey law.  L. 2019, C. 387 creates a disability threshold at which there is now a second increase in the number of weeks over current law.  The threshold is 25% loss of function.  Once an award is found to produce loss of function of 25% of the hand, each percentage of the hand is compensated at 3 weeks instead of 2.6 weeks (current law is 2.45 weeks).  Similarly, at 25% of the foot, each percentage of the foot is compensated at 2.85 weeks instead of 2.5 weeks (current law is 2.3 weeks).  So the big change is that hand and foot injuries, unlike all other scheduled losses (legs, arms, etc) will have two schedules for weeks for compensation.  There will be one weekly schedule for loss of function under 25%, and then a new weekly schedule for loss of function of 25% or higher.

This sounds confusing but it is easier to understand by considering an award of 25% of the hand and 25% of the foot.  Such an individual will receive 75 weeks of benefits (3 weeks times 25) instead of 65 weeks because there is an upward adjustment in the number of weeks at the 25% level. (Note that current law is 61.25 weeks for 25% of the hand).  An injured worker with an award of 25% of the foot will receive 71.25 weeks of benefits instead of 62.5 weeks if there had been no upward adjustment in the number of weeks. (Note that current law is 57.5 weeks for 25% of the foot).  This will make a larger percentage difference in dollars as the loss of function rises. 

This concept should ring a bell for experienced practitioners who know about the “bump” at 30% permanent partial disability.  In 1979, the New Jersey Legislature accomplished the same goal of compensating more serious injuries with higher dollar rates when an injury produces loss of function greater than 30% or above 180 weeks.  The hand and foot bill does it differently.  It does not increase the dollar rate for each week, but rather it increases the number of weeks of compensation one will receive once an injury reaches the 25% loss of function threshold.   An injured worker will receive more weeks of compensation over current law for hand and foot injuries no matter what the percentage, but when the injury produces loss of function of 25% or higher, that injured worker will receive an upward adjustment to his or her weeks starting from week one.

Let’s consider an award of 50% of the hand and 50% of the foot under the new law at 2020 rates versus the current law.  One can see that in actual dollars, the new law generates substantially more money to an injured worker on account of the jump in weeks for any award at or above 25%.

Current law – 50% of the hand equals 122.5 weeks or $33,364
New law – 50% of the hand equals 150 weeks or $43,128 (an increase of 29%)

Current law – 50% of the foot equals 115 weeks or $30,969
New law – 50% of the foot equals 142.5 weeks or $40,318.50 (an increase of 30%)

Now let’s compare an award of 15% for carpal tunnel syndrome and an award of 15% for tarsal tunnel syndrome:

Current law – 15% of the hand equals $9,261
New law – 15% of the hand equals $9,828 (an increase of 6%)

Current law – 15% of the foot equals $8,694
New law – 15% of the foot equals $9,450 (an increase of 8%)

Readers can see that the percentage increase in dollars on small awards is far less than the percentage increase on higher awards.  The new law also makes some minor changes in compensation for the following finger injuries in terms of adjusting weeks higher:

*  80 weeks of compensation for the low of a thumb (currently 75);

* 60 weeks of compensation for the loss of a first (index) finger (currently 50);

*  50 weeks of compensation for the loss of a second finger (currently 40);

*  40 weeks of compensation for the loss of a third finger (currently 30);

*  30 weeks of compensation for the loss of a fourth (little) finger (currently 20)

There are two other changes to N.J.S.A. 34:15-12 worth mentioning as part of this Bill.  Section 12E has been amended to raise from $3,500 to $5,000 the amount paid by the employer in case of death of the person from any cause other than the accident or occupational disease during the period of payments of permanent injury.  The remaining payments shall be paid to such of the deceased person’s dependents or, if there are no dependents, the remaining amount due, but not exceeding $5,000, shall be paid for burial or funeral expenses.

In addition, Section 12(c) has been amended to read: “An award of permanent total disability shall not bar an additional amount from being added to an amputation award.  The amount of the additional award shall not be subject to subrogation pursuant to R.S. 34:15-40, as it shall not be considered a payment for compensation except for rating purposes.”  This clarifies that the so-called amputation bonus is not lienable and is payable even in the case of a total and permanent disability award.

For copies of the new law, feel free to contact the undersigned. This new law is now in effect on all cases.

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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. 

By: Bruce Hamilton

Simon Law Group, P.C.

720 Olive Street, Suite 1720, St. Louis, MO 63101

314-621-2828

MISSOURI WORKERS’ COMPENSATION CASE LAW UPDATE

October 2019 – December 2019

Claimant’s Injury after Fall in Employer’s Hallway Compensable

Adkison vs. Argosy Riverside Casino, Injury No. 09-103074

The claimant worked for the employer as a table games dealer.  On December 31, 2009, she walked over ice, snow, and salt on the parking lot to get to the only employee entrance when she slipped and fell on the floor.  She fractured her left arm, which required surgery. 

The ALJ found the claimant fell in an unsafe location due to her employment and awarded benefits.  The ALJ noted that the claimant’s injury did not occur merely because she was walking or “just fell”, rather she slipped on the slippery, smooth, highly polished, concrete floor because her shoes were wet after walking through snow and ice, and the slip caused her to fall.  The ALJ found that the claimant’s injury was a rational consequence of some hazard connected with the employment, the hazard being the snow and ice outside the only employee entrance that caused her shoes to be wet and slippery, which caused her to fall on employer’s floor that had no traction skids, mats, or rugs.  Therefore, claimant fell in an unsafe location due to her employment.

On appeal, the Commission affirmed the ALJ’s decision and Award with a supplemental opinion wherein the Commission found that the combination of employee’s wet shoes on the slippery, smooth, highly polished, concrete floor in the employee-only hallway was a hazard or risk directly related to her employment to which she would not have been equally exposed to outside of and was unrelated to her employment in her nonemployment life.  As the ALJ found, the employee’s injury was a rational consequence of some hazard connected with employment.  Therefore, the Commission found the claimant was in the course and scope of her employment when she sustained her injury, and she was awarded benefits.

Injury Sustained in Motor Vehicle Accident While Claimant Eating Breakfast Sandwich Not

in the Course and Scope of Employment

Boothe vs. DISH Network, Inc., Injury No. 17-053996

On the morning of July 23, 2017, the claimant was operating the employer’s van as a technician.  He left his house and started his route, determined by his employer.  He stopped at a convenience store to purchase a breakfast sandwich.  On the way to his first customer, he choked on his sandwich, blacked out, and was in a one-vehicle accident.  The employer argued that the claimant was not in the course and scope of his employment when the motor vehicle accident occurred.

At a Hearing, the ALJ found that the injury occurred in the course and scope of his employment because the risk source was having to travel on a rural highway on a strict timeline in the employer’s van, which was something the claimant was not equally exposed to outside of his nonemployment life.  The ALJ noted that the claimant was not on a distinct personal errand and was in the course and scope of his employment as he had been driving to his first scheduled customer stop, not to the employer’s principal place of business.  Therefore, the ALJ awarded benefits.

On appeal, the Commission reversed the ALJ’s decision and Award holding that the claimant’s injury did not arise out of and in the course of his employment because an injury only occurs within the course and scope of employment if the claimant is able to show a causal connection to the employment other than the fact the injury just occurred at work.  Here, the Commission reasoned there was no aspect of the claimant’s work that required him to eat breakfast while driving.  In fact, the employer prohibited the employee from eating and drinking while driving.  Further, the particular circumstances of this case show that the claimant had the ability to eat his breakfast prior to his first shift instead of waiting until after he clocked in and started driving.  Therefore, the Commission found there was no causal connection to his employment other than the fact the claimant had already clocked in.  The claimant argued that the personal comfort doctrine applied, but the Commission did not agree because there was no benefit to the employer for the claimant to stop a few minutes into his first shift of the week to pick up a breakfast sandwich to eat while driving.  Therefore, the claimant did not establish that his injury occurred in the course and scope of his employment, and the Commission denied benefits.

Claim Denied as Claimant’s Condition was Due to Degenerative Condition, Not His Job Duties

Sample v. Drivers Management LLC/Werner Enterprises, Inc. and Ace American Insurance c/o ESIS, Injury No. 17-006709

The claimant began working as a truck driver in November of 2016. His job duties involved picking up his preloaded trailer, performing a safety inspection, driving to 3 to 5 retail stores as scheduled by the employer, and dropping off loaded totes or “rolltainers” from his trailer at each store. The claimant’s job duties did not involve stocking the rolltainers or loading the rolltainers in the trailer. Delivery at each store required the claimant to offload 10 to 24 rolltainers from his trailer, which he pushed or pulled into the store. The claimant testified these could weigh between 200 and 1,000 pounds.

The claimant testified that after Christmas 2016 he experienced general muscle soreness in both shoulders and arms while performing his job duties.  He reported that it came on gradually and he did not have a specific work accident, event or trauma.  Sometime before January 17, 2017, after an ice storm kept him home over the weekend, the claimant notified his fleet manager of his complaints.  He testified that he did not have previous neck or arm complaints or treatment for neck or arm symptoms. 

The employer sent the claimant to Fulton Clinic at which time he was diagnosed with right shoulder pain, right neck pain radiating into the right arm and muscle spasms. Thereafter, the claimant sought treatment on his own with his personal physician who did not document any specific work event or discrete work injury. He also treated with a chiropractor and a pain management physician who provided him an injection.

The employer had the claimant evaluated by Dr. Cantrell who found that the claimant had radiographic evidence of disc pathology at the C5-6 level, resulting in spinal cord compression. However, he opined that the claimant’s job duties were not the prevailing factor in causing the radiographic abnormalities shown on the MRI. Dr. Cantrell released the claimant at MMI. Dr. Chabot evaluated the claimant and reviewed the previous cervical spine MRI which showed evidence of disc desiccation at C3-4, C4-5, C5-6, and C6-7 and a large extruded disc herniation at C5-6 on the right, which extended into the posterolateral region on the right, and significantly narrowed the right neuroforamina. Dr. Chabot noted the claimant’s condition occurred over a matter of years rather than weeks or months and was not a result of the claimant’s job duties.

Dr. Lee evaluated the claimant at the request of the claimant’s attorney and he opined that the claimant’s job duties were the prevailing factor in causing the acute, large, right sided disc herniation of C5-6. The onset of his symptoms coincided with his strenuous work activities for the employer and there was no other event to explain the onset. Dr. Lee believed surgery was necessary to cure and relieve the effects of the work injury.

The ALJ found that the claimant’s job duties were not the prevailing factor in causing the claimant’s condition. The claimant then appealed to the Commission who found that the claimant’s neck condition was pre-existing and degenerative in nature which was shown by the objective medical evidence including the MRI which revealed disc desiccation at C3-4, C4-5, C5-6, and C6-7.  The Commission found that the claimant’s testimony was not particularly credible as the claimant was inconsistent and evasive in his testimony.  Therefore, the Commission found that the claimant did not sustain an occupational disease arising out of and in the course of his employment.  Further, they found that his employment was not the prevailing factor causing his neck condition and the pathology set forth in the MRI. 

Fund Not Responsible for Benefits Because Claimant PTD Before Primary Injury

Wurth v. The Treasurer of Missouri as Custodian of the Second Injury Fund, Case No. ED107335 (Mo. App. 2019)

FACTS:  On November 4, 2008 the claimant sustained a low back disc injury while carrying a heavy cable box and underwent a discectomy.  He settled for 25% of the body and proceeded to a hearing against the Fund alleging permanent total disability. Prior to his November 2008 injury, the claimant sustained previous work-related injuries and has a history of three prior low back surgeries.  At the Hearing, Dr. Volarich testified on behalf of the claimant and was the only medical expert to testify.  Dr. Volarich conducted evaluations of the claimant in February 2000, December 2001, January 2008 and September 2009.  Dr. Volarich testified that after every injury, the claimant’s spine worsened. When he was evaluated in January of 2008, Dr. Volarich believed that the claimant could maintain his job as a manufacturing manager but needed to be in a sedentary to light duty capacity.  He also opined that if the claimant lost his job at that time, it would be difficult for him to find employment in the open labor market.  Dr. Volarich further explained that the employer allowed the claimant to lie down in an office during the day when he needed to take a break and he could come and go as he pleased which he noted is not typical in the open labor market by any stretch. 

Mr. England evaluated the claimant and he opined that the employer provided him with quite a bit of accommodation prior to his injury in November 2008 and he had been more and more accommodated after the 2008 injury. 

The ALJ denied compensation opining he was permanently and totally disabled prior to the November 2008 accident.   The claimant appealed to the Commission which affirmed. The claimant then again appealed.

HOLDING:  On appeal, the Court of Appeals affirmed the Commission’s decision.  The Court held that the Commission’s determination that the claimant was PTD prior to his employment with the employer is supported by substantial and competent evidence.  Specifically, the claimant argued the evidence presented before the ALJ supported a conclusion that prior to his 2008 work-related injury he was not severely limited or highly accommodated because he worked a full-time job for years.  However, the Court was not persuaded. The Court noted that although the claimant’s testimony disputed that he was accommodated to the extent he could lie down, the Commission attributed more weight to the testimony of Dr. Volarich which was consistent with his records at the time of his evaluation.  Therefore, the Court affirmed that decision of the Commission.

Claimant PTD Due to Primary Knee Injury and Pre-existing Conditions

Nivens v. Interstate Brands Corporation and the Second Injury Fund, Case No. WD82132 consolidated with WD82136 (Mo. App. 2019)

FACTS:  On February 7, 2008, the claimant injured his right knee while pushing a full load of transport rack and underwent surgery. He was released back to work. However, he required assistance to complete his job duties.  The employer provided him with an assistant. However, in the fall of 2008, the employer informed the claimant that he was going to have to complete his job without an assistant, and therefore he retired.  The claimant does have pre-exiting conditions including low back injuries, a right knee injury, a cardiac condition and a 2007 wrist injury which required surgery.

At a hearing, the ALJ found that the claimant was PTD as a result of the right knee injury and his pre-exiting conditions. The Fund appealed and the Commission affirmed the Award. The Fund again appealed alleging that the finding that the claimant was PTD was against the overwhelming weight of the evidence. 

HOLDING:  It was noted that the claimant went to the hearing with respect to the 2007 wrist injury and on appeal the Commission determined that the claimant was not PTD as a result of the 2007 wrist injury and his pre-existing condition. Therefore, the Fund argued that the Commission’s decision was inconsistent with the 2007 opinion wherein it found the claimant was not PTD. The Court was not persuaded and noted that it was not inconsistent for the Commission to find that the claimant’s pre-existing conditions especially the back injury became a hindrance or obstacle when combined with his primary knee injury to make the claimant PTD after the primary injury even if he was not PTD after the prior wrist injury.

Therefore, the Court found that the Commission did not error in entering its final Award finding the Fund liable for PTD benefits. 

Claimant Not PTD as Claimant Did Not Meet Her Burden of Proof Based on Her Self-Reported Limitations and Her Expert Evaluation

Williams vs. Gate Gourmet, Inc., Injury No. 08-108467

On November 30, 2008, the claimant sustained injury to her neck while unloading a cabinet from a compartment on an airplane.  She was seen by Dr. Lange and underwent a fusion at C6-C7.  Subsequently, in light of her continuing complaints, she was referred to Dr. Coyle and underwent a second procedure at the same level.  Claimant did have a history of a prior neck injury, which resulted in a previous surgery at C4-C5 and C5-C6. 

The claimant settled her case against the employer for 45% of the body and proceeded to a Hearing against the Fund for permanent total disability benefits.  Prior to the Hearing, the claimant’s attorney obtained a report from Dr. Berkin who assessed disability and provided the claimant restrictions.  However, he did not specifically say the claimant was permanently and totally disabled.  The claimant’s attorney also obtained a report from Mr. Dolan, a vocational rehabilitation counselor, who found the claimant was permanently and totally disabled based on the restrictions of Dr. Berkin.

At the Hearing, the ALJ found that, in light of the fact that Dr. Berkin did not state that the claimant was permanently and totally disabled, based on strict construction, the claimant did not meet her burden of proving that she was permanently and totally disabled.

On appeal, the Commission agreed that the claimant was not permanently and totally disabled but noted that a medical expert need not use “magic words” that the claimant is permanently and totally disabled.  The Commission found that the record in this case lacked significant competent and substantial evidence to support the conclusion that the claimant was permanently and totally disabled.  The Commission noted that Dr. Berkin, the claimant’s only medical expert, explicitly avoided finding the claimant permanently and totally disabled and rather assessed permanent partial disability only.  While the Commission noted that a medical expert does not have to state that a claimant is permanently and totally disabled, in this particular instance, since a doctor did not state the claimant was permanently and totally disabled, the Commission did not believe there was enough evidence in this case to find the claimant permanently and totally disabled.  The Commission did believe that the claimant was entitled to compensation from the Fund for permanent partial disability.

Court Overturned Commission’s Decision that Claimant Not PTD Because Award Not Supported by Sufficient Competent Evidence

Hazeltine vs. State of Missouri, Second Injury Fund, Case No. ED107630 (Mo. App. 2019)

FACTS: On June 15, 2012, the claimant sustained an injury when she was hit in the head by a took rack suspended from the ceiling. She was diagnosed with a head injury, a head laceration, left shoulder strain and neck pain. She returned to work after her injury, had difficulty performing her job and was terminated shortly after her return. She did not return to the work force after she was terminated. She settled her claim against the employer for 20% of the body referable to the head, psychiatric disability and left shoulder. She then proceeded to a hearing against the Fund for perm total benefits. With respect to her pre-existing condition, she had prior psychiatric traumas including being raped in 1970s and her daughter was raped and murdered in 1995. Thereafter she left the work force and did not return to the workforce until 2012.

Dr. Volarich testified on behalf of the claimant and assessed disability referable to the head injury and left shoulder. He deferred to a psychiatrist for any psychiatric evaluation and diagnosis. Dr. Sky also testified on the claimant’s behalf and opined that the claimant had 25% disability pre-existing the accident and that the claimant’s pre-existing psychiatric disability was exacerbated another 75% by the accident. Dr. Liss also testified on the claimant’s behalf and diagnosed her with anxiety and depression along with PTSD both as a result of the work injury and as a pre-existing condition. He assessed 50% disability referable to the pre-existing condition and 50% disability as result of the work injury. Both Dr. Sky and Dr. Liss opined she was PTD as a combination of the work injury and her pre-existing condition.

The ALJ denied the claimant perm total benefits opining that she did not meet her burden of proving the nature and extent of any alleged pre-existing psychological disability by a reasonable degree of certainty. The ALJ found that other than testifying briefly about leaving her job after her daughter’s death, going to see a therapist twice and receiving medication from her primary care physician, she did not testify about any actual symptoms prior to her work accident. He did not find her testimony persuasive. He also did not find the testimony of Dr. Liss and Dr. Sky persuasive. The claimant appealed and the Commission affirmed noting that the Award was supported by sufficient competent evidence. The claimant again appealed.

HOLDING: The claimant argued that the Commission erred in finding that she did not have pre-existing permanent disabilities that were a hinderance or obstacle to the employment. The Court noted that when determining whether the claimant has satisfied the hinderance or obstacle requirement, the proper focus is not on the extent to which the condition has caused difficulty in the past but on the potential that the condition may combine with a work related injury in the future so as to cause a greater degree of disability than what has resulted in the absence of the condition. The Court noted that the claimant testified that she left her employment after her daughter’s death and moved away from the area. Also, she testified that her daughter’s death was the reason she stayed out of the work force from 1995 until 2012. Also, she treated with her primary care physician and was prescribed medications. Furthermore, the claimant abused alcohol following her daughter’s death and had DWI convictions. The Court found that this evidence relates to whether her pre-existing disabilities constituted a hinderance or obstacle to employment.

The Court went on to note that acceptance or rejection of evidence is usually an issue for the Commission to determine. When the Commission reaches its decision by expressly making credibility findings, it may disbelieve uncontradicted and unimpeached testimony. However, where the record is wholly silent concerning the Commission’s weighing of credibility and neither the claimant nor the experts testifying on his or her behalf are contradicted or impeached, the Commission may not arbitrarily disregard and ignore competent, substantial and undisputed evidence. The Court went on to note that the Commission did not conclude that they disbelieved the claimant’s testimony and in fact found that she was a very sympathetic witness. Since the claimant’s testimony was not expressly disbelieved, contradicted or impeached the Court found the Commission erred in disregarding it.

The Court also noted that the Commission was not free to arbitrarily disregard and ignore the testimony of Dr. Liss and Dr. Sky regarding the claimant’s pre-existing disabilities and base its finding upon conjecture or its own mere personal opinion unsupported by sufficient competent evidence. The Court noted the claimant’s expert psychiatric testimony sufficiently established the nature and extent of her pre-existing permanent psychiatric disabilities and the Commission’s conclusion to the contrary appears to reflect its personal opinion that something other than the pre-existing disabilities caused the claimant to leave the work force.

The Court concluded that the Commission arbitrarily disregarded and ignored the substantial and undisputed evidence offered by the claimant and its denial of the claimant’s claim against the Fund was an error. The case was remanded with instructions for the Commission to enter an Award consistent with the findings of this opinion.

Fund Liable for PPD Benefits Even Though Occupational Disease Claim Filed in 2016 Because “Injury” was Prior to January 1, 2014

Krysl v. Treasurer of Missouri as Custodian of the Second Injury Fund, Case No. ED107591 (Mo. App. 2019)

FACTS:  In 1994, the claimant was employed as a sculpture for the Veil Prophets of St. Louis, carving large characters for parade floats.  In 2013, he began to experience numbness and tingling in his right hand while sculpting and was ultimately diagnosed with severe right carpal tunnel syndrome.  The parties stipulated that January 1, 2013 was the correct date of injury referable to the claimant’s occupational disease. He settled his primary claim against his employer and proceeded to a hearing against the Fund. The ALJ awarded the claimant PPD. The Fund appealed arguing the claimant was not entitled to PPD due to the new law that went into effect stating that the Fund is no longer responsible for PPD benefits for any claims filed after January 1, 2014.

HOLDING:  The claimant argued the plain language in Section 287.220 applies to all injuries occurring prior to January 1, 2014, despite the fact that he filed his claim after that date on July 5, 2016.  The Court agreed and concluded that although the claimant filed his claim for injury due to occupational disease after January 1, 2014, he sustained a compensable injury prior to this date resulting in his PPD.  Therefore, his claim was not precluded by the new statue that went into effect January 1, 20014 and was entitled to benefits.  

Claimant Awarded Compensation for Wife’s Nursing Care After Employer Denied Necessary Nursing Care Services

Reynolds v. Wilcox Truck Line, Inc., Case No. WD81969 (Mo. App. 2019)

FACTS:  On July 17, 2007, the claimant was driving his regular route as an over-the-road trucker and was in a one car motor vehicle accident. He was diagnosed with PTSD, was seen by a social worker and then began treating with a psychiatrist. Dr. Halfaker, a neuropsychologist testified on behalf of the employer and assessed 10% disability. Dr. Lynch also evaluated the claimant at the request of the employer and found no evidence of progressive cognitive decline but recognized that the claimant was clearly suffering from impaired cognition and symptoms consistent with PTSD and depression. The claimant’s attorney had Dr. Butts testify who also diagnosed PTSD and believed that he was permanently and totally disabled. Mr. Wiemholt also testified on behalf of the claimant and believed that he was PTD due to his PTSD. After the work injury, the claimant returned to full duty work briefly in 2008 and then retired. The claimant did have a farm wherein he raised cattle. The claimant requested nursing services related to his injures, but the employer refused to provide the services. Based on the claimant’s declining condition, his wife eventually abandoned her outside employment entirely to care for him. A nurse care consultant concluded that the claimant needed sixteen to twenty hours of daily home care.

The ALJ opined that the claimant was PTD and the employer was responsible for benefits. The ALJ did not believe the claimant was entitled to compensation for his wife’s in-home nursing. Both parties appealed. The Commission affirmed the ALJ’s Award of perm total disability but reversed the decision in part regarding compensation for the claimant’s prior nursing services. The employer appealed.  

HOLDING:  With respect to the claimant’s perm total allegation, the Court noted that the mere fact that the claimant returned to work for a trial period does not prevent a finding that the claimant is PTD. The employer also argued that the claimant was not perm total because he engaged in cattle raising. However, the Court stated that a claimant need not be completely inactive to be found to be PTD. 

The employer additionally argued that the Commission erred in awarding the claimant compensation for past nursing services related to tasks completed by his wife.  However, the Court stated that after the employer denied the claimant’s request for nursing care, it became necessary for the wife to reduce and eventually abandon her outside employment to provide the services necessary to care for the claimant.  The Court further stated that the wife’s services met the nursing definition of a person skilled in caring for and waiting on the infirm, the injured or the sick.  Additionally, the Court found that the wife’s services were reasonably required to cure and relieve the effects of the claimant’s work injury.  The Court further stated that the Commission was careful to distinguish between the hours the wife committed to compensable services and those dedicated to normal spouse activities. Therefore, the Court affirmed the Commission’s Award.

Court Increased Commission’s Award of 5% PPD to 20% Due to Objective Testing and Findings

Harris v. Ralls County, Missouri, Case No. ED107606 (Mo. App. 2019)

FACTS:  On March 9, 2009 the claimant and a co-worker were told to change a 350-pound tire and the claimant sustained an injury to his back. He was referred to Dr. Coyle who reviewed the MRI and diagnosed disc herniations. The claimant underwent injections. Thereafter, Dr. Coyle noted that the claimant did not receive any relief from the injections and advised against surgery and referred him to Dr. Cantrell. After review of the MRI he recommended an FCE which showed inconsistent effort and symptom magnification on the part of the claimant. Eventually Dr. Cantrell placed the claimant at MMI and assessed 8% disability, half attributable to the work injury and the other half to pre-existing degenerative and congenital abnormalities unrelated to his work injury. Dr. Bernardi also testified on behalf of the employer and believed the claimant’s work accident may have caused a low back sprain/strain but those symptoms should have resolved in 4-6 weeks. Dr. Bernardi believed the claimant did have a pre-existing condition. He did not have an explanation for the claimant’s sypmtoms but did assess 2% disability referable to the sprain/strain type injury. Mr. England testified on behalf of the employer and found that the claimant was employable.

The claimant’s attorney obtained a report form Dr. Musich who determined that the claimant sustained 65% disability to the body due to the work-related injury and residual bilateral lower extremity radiculopathy. Mr. Weimholt testified on behalf of the claimant opining that he is permanently and totally disabled.

The ALJ concluded that the claimant sustained a work-related accident, his low back injury was medically causally related to the 2009 work accident, he was PTD and the employer was responsible for benefits. The employer appealed.

The Commission concluded that the claimant sustained a work-related accident on March 9, 2009 that arose out of and in the course of his employment because he suffered an “unusual strain” producing objective symptoms of an injury during his shift at work.  The Commission further concluded that because only “some of the symptoms” the claimant experienced were the result of the 2009 work accident, the 2009 work accident was the prevailing factor causing the claimant to suffer only a chronic back sprain or strain and awarded 5% PPD.

HOLDING: The Court found the Commission’s Award determining medical causation and concluding the claimant suffered only 5% permanent partial disability was not supported by sufficient and competent evidence.  Therefore, the Award was affirmed in part and reversed and modified in part. 

The Court found that the Commission’s determination that the claimant had not proven PTD was supported by sufficient and competent evidence and affirmed that part of the decision.  The Court further noted that the Commission’s finding that the objective evidence failed to show the claimant suffered radiculopathy and an acute injury because of the 2009 work accident and therefore the claimant was only entitled to 5% PPD was against the overwhelming weight of the evidence.  The Court stated that the electrodiagnostic and radiographic findings from March 11, 2009 made it clear the claimant suffered radiculopathy and an acute post-traumatic injury stemming from the 2009 work accident.  The Court further noted that although the experts never used the precise term “acute” to describe the claimant’s injury that did not convince the Court otherwise and therefore the Court believed that 20% was reasonable and modified this part of the Commission’s decision.

On January 17, 2020, the Alabama Court of Civil Appeals released its opinion in the matter styledEx parte Kohler Company, Inc.  In Kohler, the Court considered a Petition for Writ of Mandamus filed by the employer as the result of a trial court order requiring it to authorize a referral to a doctor for a second opinion after the employee had previously exercised her right to select a doctor from a panel of four.  Specifically, the employee injured her left foot and was initially treated by two occupational medicine doctors.  On September 19, 2018, one of the authorized occupational medicine doctors authored a note which made a referral to an orthopedic specialist.  Just five days later on September 24, 2018, the employee called the claims adjuster and asked that she be provided a panel of four physicians.  It is undisputed that the employee was represented by counsel at this time.  A panel of four orthopedic surgeons was offered to the employee.  She ultimately selected an orthopedic surgeon from the panel and received treatment.  When the panel doctor could not offer a diagnosis, the employee asked for a second opinion and he agreed that a second opinion would be okay.  The employer did not authorize a referral for a second opinion.  The employee filed a motion to compel the referral which the trial court granted.  The employer’s efforts to vacate the order were unsuccessful and so it timely filed a Petition for Writ of Mandamus asking the Court of Appeals to direct the trial court to vacate the order.  The Court of Appeals ultimately denied the employer’s petition rationalizing that it was equitably unjust for the employer to successfully take the position that the employee burned her panel when the employer had not followed the recommendation of the authorized occupational medicine doctor.

My Two Cents

The employee requested a panel of four just 5 short days after the occupational medicine doctor put an orthopedic referral in his notes.  It is not clear when that referral was actually shared with the claims adjuster.  Even if the adjuster knew about the orthopedic referral at the time the employee requested the panel (and there is nothing in the opinion to suggest that she did), to suggest that the employer failed to follow the recommendation of the occupational medicine doctor by not making the referral within 5 days of the recommendation is a little unfair.  Although it seems pretty clear that the orthopedic referral at least became known to the adjuster after the request for a panel was made (panel was comprised of 4 orthopedic surgeons), that is of no consequence since, by that time, the request for a panel had already been made.  Further, it is the opinion of the Court that the employer failed to follow a recommendation (that it may or may not have known) of an authorized doctor within 5 days of the recommendation being made.  Even if you consider what transpired after the call, the employee was represented when she requested the panel of four.  She and her attorney both knew that she had just been seen by an occupational medicine doctor.  Yet they elected to request a panel without so much as even inquiring as to what the occupational medicine doctor had to say as the result of the last appointment.  The fact that the panel was comprised of orthopedic surgeons instead of occupational medicine doctors should have been a huge clue to her attorney that such a referral had been made. 

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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.

This week the New Jersey Appellate Division decided Hager v. M&K Construction, A-0102-18T3 (App. Div. January 13, 2010).  The issues of whether an employer must reimburse an injured worker for the costs of medical marijuana and whether such a court order would violate federal law have been the source of much controversy in the Division.  Hager is the first published opinion in our state to address these issues.

The facts can be briefly summarized as follows:  petitioner, then 28-years-old, was injured in 2001 working on a construction site for M&K Construction when a truck delivering concrete dumped its load onto him.  M&K denied the claim and stated that it was investigating the matter.  For reasons not made clear in the reported decision, the trial did not begin in workers’ compensation until 15 years later in November 2016.   During the course of the trial M&K stipulated that petitioner had sustained a compensable accident. However, the employer opposed petitioner’s claim for total and permanent disability and opposed petitioner’s request to reimburse him for the cost of marijuana under the New Jersey Compassionate Use Medical Marijuana Act (MMA).

During the many years since the date of injury, Mr. Hager endured chronic disabling pain and underwent multiple unsuccessful lumbar surgeries.  At trial he described his pain as starting in his lower back and radiating down his entire left leg to his toes.  He said that the pain affected every activity of his daily life and that he could only stand for a half hour to an hour at a time.  Lying down lessened the pain only marginally. He became dependent on the use of opiates.  He sought care with a chiropractor.  At various points over the years he was prescribed Oxycontin, Oxycodone, Valium, Lyrica and other pain medications. 

Petitioner saw Dr. Joseph Liotta in April 2016, who diagnosed him with post-laminectomy syndrome with chronic pain from a spinal nerve injury.  Petitioner was also experiencing side effects from his use of Oxycodone.  Dr. Liotta provided the required documentation for petitioner’s enrollment into the New Jersey MMA, providing him with a prescription for medical marijuana.  He opined at trial that petitioner will need marijuana to manage his pain for the rest of his life.  He also said that chemical addiction to marijuana is very weak compared to the more potent addiction to opioids, which can lead to death and many other severe side effects.

At trial petitioner testified that as a result of the use of medical marijuana, he was able to stop taking Oxycodone.  He felt that it provided some relief from incessant pain, and it helped him sleep better. He paid $616 per month out-of-pocket for the prescription of two ounces of medical marijuana.  During trial, petitioner sought a court order requiring M&K to reimburse him for the costs of the medical marijuana.  M&K argued that such an order would violate federal law.

Three other medical experts testified at trial besides Dr. Liotta.  Dr. Cary Skolnick testified for petitioner and opined that petitioner was 100% totally and permanently disabled as a functioning unit with a 65% permanent partial disability for the lumbar spine.  Dr. Gregory Gallick testified for respondent stating that petitioner, who was then in his 40s, could perform light duty work or drive a car and was not totally disabled.  He opined that petitioner had a 12.5% permanent partial disability.  

Dr. Brady, a pain medicine doctor, also testified for respondent.  He is certified to prescribe medical marijuana in New Jersey but has never done so thus far for any patient.  He testified that users of medical marijuana can experience “cognitive difficulties, problem solving cognition, short term memory loss, . . . hallucinations,” as well as an increased risk of lung cancer.  He testified that users of opioids could experience “addiction, tolerance, overdose, death, constipation, depression and sexual dysfunction.”  He said that marijuana is less addictive than opioids, and he felt petitioner was addicted to opioids and may be addicted to marijuana.  He felt that the use of marijuana had not been shown in the literature to be helpful to people with non-malignant back pain.  In his opinion, the only measure petitioner could take for his back pain was physical therapy.

The Judge of Compensation ruled that petitioner was disabled to the extent of 65% of partial total with 50% attributed to his orthopedic condition and 15% attributed to the effects of medical marijuana.  The judge ordered M&K to reimburse petitioner for the costs of medical marijuana and related expenses.  The judge was not persuaded by Dr. Brady’s position that petitioner should “simply deal with his pain.”  The Judge commented that this position was “unacceptable as inhumane and contrary to the law concerning an employer’s obligation to treat.”  The judge further noted that the only treatment choices outlined by the experts were opioids and/or marijuana.  “This Court concludes that, if the only choice for petitioner is between opioids and marijuana, then marijuana is the clearly indicated option.  Both modalities present significant downsides in terms of adverse consequences and risks, but a comparison leads inescapably to a conclusion that marijuana is the appropriate option.”

Both sides appealed aspects of the decision.  Regarding the issues raised by M&K, the Appellate Division addressed five separate arguments:

1) Does the Controlled Substance Act (CSA) which makes it a crime to manufacture, possess or distribute marijuana, preempt the New Jersey MMA?

The Appellate Division disagreed with the employer’s argument that it was impossible to comply with the MMA without violating the CSA.   The Court began by observing that the MMA decriminalized the possession of a certain amount of marijuana for medical use.  One of the Act’s purposes was to protect from arrest and criminal penalties those patients who use cannabis to alleviate suffering.  The Court noted that the MMA shields qualifying users of medical marijuana from civil penalties and provides an affirmative defense to patients who are properly registered under the statute but are nevertheless arrested and charged with possession of marijuana.

The Court reviewed two state decisions in New Mexico and Maine dealing with the question of whether their medical marijuana legislation was preempted by the CSA.  New Mexico held it was not preempted, but Maine held that it was preempted.  The Appellate Division found that the CSA only preempts a state law that requires the performance of an action specifically forbidden by the federal statute.  The CSA makes the possession, manufacture, and distribution of marijuana a criminal offense, “But an employer’s reimbursement of a registered MMA patient’s use of medical marijuana does not require the employer to commit those offenses.”  The Court added:

The MMA does not require an employer to possess, manufacture or distribute marijuana – the actions proscribed by the CSA.  Because it is not physically impossible to comply with the CSA and the MMA, there is no positive conflict between the laws.

2) Does the MMA violate the CSA by aiding and abetting in the commission of a crime?

The Court considered the argument that the MMA puts M&K in the position of aiding and abetting a crime.  The Appellate Division gave this argument short shrift:

Under the circumstances presented here, M&K is not an active participant in the commission of a crime.  The employer would be complying with an order requiring it to reimburse a person for the legal use of medical marijuana under this state’s law. M&K has not established the requisite intent and active participation necessary for an aiding and abetting charge.

The Court also said that “one cannot aid and abet a completed crime.” Petitioner would have already obtained the medical marijuana before M&K would reimburse him.

3) Does compliance with the court order expose M&K to the threat of federal prosecution?

The Court addressed this argument by observing that there has been tolerance from the federal government of state medical marijuana laws.  Since December 2014, “congressional appropriations riders have prohibited the use of any Department of Justice funds that prevent states with medical marijuana programs . . . from implementing their state medical marijuana laws.”  The Court said:  “Despite the enactment of medical marijuana legislation by the majority of states, M&K could not apprise this court of any federal prosecution against an employer or insurance carrier for its reimbursement of authorized medical marijuana treatment.”

4) Should a workers’ compensation insurer be treated the same under the MMA as a private health insurer?

N.J.S.A. 24:6I-14 states, “Nothing in the MMA shall be construed to require a government medical assistance program or private health insurer to reimburse a person for costs associated with the medical use of cannabis, …” The Appellate Division noted that under Title 17, in defining “health insurance,” the Legislature expressly stated that “health insurance does not include workers’ compensation coverage.” N.J.S.A. 17B: 17-4.  The Court said that only two categories of entities may not be required to reimburse the costs of medical marijuana:  a government medical assistance program or private health insurer.   In essence, the Court held that this argument failed because workers’ compensation is not considered under the law to be equivalent to a private health insurer.

5) Can medical marijuana be considered reasonable and necessary under the New Jersey Workers’ Compensation Act?

The Appellate Division considered a number of precedential cases that have liberally construed medical treatment that has helped patients cope with chronic pain.  In this case the Court observed that Dr. Liotta felt petitioner’s pain was irreversible and that he would need to manage pain for the rest of his life.  The Court concluded that the use of medical marijuana was reasonable and necessary for the treatment of petitioner’s chronic pain under the circumstances of this case.

The Hager case is now the leading case in the State of New Jersey on the issue of whether the MMA is preempted by the CSA and must be followed by judges in the Division of Workers’ Compensation.  If the employer seeks certification from the Supreme Court, it is highly likely that the Court will grant certification.

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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.