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In 1979, the New Jersey Legislature made sweeping changes to the Workers’ Compensation Act.  Among those was the creation of a sliding scale on the Schedule of Disabilities found in N.J.S.A. 34:15-12c.  The legislative intent was to award greater compensation to the more seriously injured worker.  To accomplish this intent, the pertinent language in Section 12c says: “When a claim petition alleges more than one disability, the number of weeks in the award shall be determined and entered separately for each such disability and the number of weeks for each disability shall be cumulative when entering the award.”

Initially judges of compensation as well as appellant panels had mixed interpretations of the above section.  The issue was resolved in 1984 with the New Jersey Supreme Court decision in Poswiatowski v. Standard Chlorine Chemical Co., 96 N.J. 321 (1984).  Poswiatowski was actually a consolidation of three cases and the other two are: Fagan v. City of Atlantic City and Smith v. United States Pipe and Foundry Company. 

In Poswiatowski, the petitioner fell in 1981 fracturing his back and left foot and received an award of 20% permanent partial disability for the back, 40% of the foot and 10% permanent partial disability for the neuropsychiatric component.  The trial court, believing that the award should be entered separately, gave $6,924 (120 weeks @ $59) for the back, $4,328 (92 weeks @ $47.04) for the foot and $2,820 (60 weeks @ $47) neuropsychiatric for a total of $13,172.  Petitioner argued that the total of the weeks should dictate the rate, and he should have been awarded 272 weeks at 50% SAWW (State Average Weekly Wage) or $33,456.  The Appellate Division affirmed and the Supreme Court granted certification.

In the Fagan case, the petitioner, a public health nurse, was assaulted and robbed during the course of her employment.  She suffered a concussion, fractured nose, facial scarring, sinus disorders, headaches, facial numbness and recurring nightmares.  The compensation court awarded her 7 ½% permanent partial disability (45 weeks) for the fractured nose, 7 ½% permanent partial disability (45 weeks) for severe contusions of the scalp, lips and mouth with numbness, and 15% permanent partial disability (90 weeks) for the post traumatic nightmares.  That totaled 180 weeks (30% permanent partial disability) at an average rate of $57.30 or $10,314.  The Appellate Division reversed and modified the award to $8,460. ($2,115 nose + $2,115 contusions and numbness of face plus $4,230 nightmares).  Again, the Supreme Court granted certification.

In Smith, petitioner received a significant crush injury to his right forearm resulting in numerous surgeries for vascular, orthopedic and cosmetic injuries together with skin grafts from petitioner’s abdomen and right thigh.  The compensation court awarded 23% permanent partial disability (138 weeks @ $66) for the combination of the right hand and right leg (apportioned 50% of the hand and 5% of the leg), 10% permanent partial disability (60 weeks @ $47) for the cosmetic scarring of the abdomen and 12 ½% permanent partial disability  (75 weeks @ 47) for neuropsychiatric residuals for a total of $15,468.  Petitioner argued that he was entitled to 273 weeks at 50% SAWW or $33,759.  The Appellate Division agreed with petitioner, finding that the compensation court’s interpretation was “inconsistent with the purposes of the 1980 amendments.”

The Supreme Court stated “(W)e believe that the Smith case best illustrates the method most consistent with statutory purpose.” The court added,  “We hold that the weeks of compensation awarded for one accident’s multiple injuries that establish a single compensable disability should be cumulated, not separated, in computing the award.”

The Supreme Court went on to explain, “(O)f course, if the compensation judge uses the schedule as an aid in determining the extent of the award, such may be regarded as a reasonable finding if expressed in terms of permanent partial disability. Orlando v. F. Ferguson & Son, supra, 90 N.J.L. at 553, 102 A. 155. But the point of the Smith panel is to focus on the nature of the injury. The method of calculating permanent partial disability to two or more major body members under N.J.S.A. 34:15-12(c)(20), -12(c)(22), has not been affected by the 1980 amendments. The compensation court is not to determine the scheduled number of weeks for each injury separately; rather, it is to look at the effect of the injuries and to make a reasonable assessment of the extent of the combined disability in terms of a percentage of permanent and total disability. This requires the court to make a judgment about the extent of impairment resulting from the combined injuries without being limited by the statutory schedules. See Cooper v. Cities Serv. Oil Co., supra, 137 N.J.L. at 182, 59 A.2d 268; Orlando v. F. Ferguson & Son, supra,  90 N.J.L. at 557, 102 A. 155; Vishney v. Empire Steel & Iron Co., supra, 87 N.J.L. at 483-84, 95 A. 143.”

In further support the Court said: “(B)ut under the new schedule of benefits set forth in N.J.S.A. 34:15-12(c), the difference is of great significance. If the weeks due the injuries are added together when entering an award, more money is awarded. By the 1979 amendments, L. 1979, c. 283, § 5, the Legislature not only increased the weekly rate for permanent disability from a maximum of $40 to a maximum of 75% of statewide average weekly wage (SAWW), but also created a sliding scale of weekly dollar payments ranging from $47 where the adjudicated disability requires payment for 90 weeks or less, up to $82 for the last six weeks of disability for which 180 weeks of payments are required. Over 180 weeks of entitlement, there is a dramatic increase in weekly dollars payable. From 181 up to 600 weeks, disability is compensated from a low of 35% of SAWW (for disabilities drawing entitlement of from 181 to 210 weeks), to a maximum of 75% of SAWW (for disabilities falling within the 421- to 600-weeks bracket.)¹ See **1259 Gothelf v. Oak Point Dairies of N.J., 184 N.J.Super. 274, 445 A.2d 1170 (App.Div.1982).”

Based on this logic, the Supreme Court reversed the appellate division decisions in Poswiatowski and Fagan and affirmed the decision of the appellate division in Smith.

Now let’s consider how stacking affects reopener claims and new accidents.  Where an injury results in an award encompassing more than one body part, and the petitioner seeks to reopen that award under N.J.S.A. 34:15-27 for review and/or modification of the prior award, the petitioner need not allege an increase in disability to all affected body parts.  Since the original award set the overall disability for the accident, an increase of disability to one part is added to the overall award. In effect, the prior award becomes the base.

For example, let us assume that petitioner receives an award for injury occurring in 2017 to his or her lumbar spine and left shoulder.  The award is for 35% permanent partial disability apportioned 20% to the low back and 15% to the left shoulder (210 weeks x $418 = $85,260 assuming wages sufficient for maximum rates in 2017).  In 2019 petitioner files an application for review and/or modification alleging an increase in disability to the left shoulder. The judge of compensation finds an increase in disability of 7 ½% of the left shoulder, taking into consideration the overall disability to the petitioner in 2019.  The overall award must be increased to 42½% permanent partial disability apportioned 20% (unchanged) to the low back and 22 1/2% of the left shoulder. Because it is an extension of the original award, the award must be paid at the rates in effect for the year of the accident, which is 2017. (255 weeks x $522 = $133,110 less credit for the prior award of $85,260) The award calculation is made by going back to the beginning of the original award and changing the rate to $522 and paying the accrued weeks at the increased rate of $104 per week and the balance of the non-accrued weeks at the full $522.

In contrast to the example above, stacking does not occur with a new accident to one of several previously awarded body parts. Suppose our petitioner above received the original award of 35% permanent partial disability and then had a new accident in 2019 causing increased disability to the left shoulder only.  The Judge of Compensation finds an overall disability to the left shoulder to be 22 1/2% permanent partial disability.  That is 7.5% higher than the prior shoulder apportionment of 15%, but the new award is only based on the shoulder, not the low back.  In effect, the shoulder can be separated from the previously stacked award.  So the new award would be 22 ½ % permanent partial disability for the left shoulder minus a credit of 15 % preexisting with no mention of the back at all.  The new award would equal 135 weeks x $271.33 or $36,630 credit $22,140 (15% @ the 2019 rate) or $14,490.  Obviously, if the new award had been stacked on the prior back/shoulder award, it would have resulted in a great deal more money.

Notice in this example of the new 2019 accident impacting only the shoulder, that the rates must be those for 2019 for both the new award AND the credit. Obviously the new award should command 2019 rates since the new injury occurred in 2019, but the credit also jumps to 2019 rates, unlike the situation noted above for reopeners.

About the Author:

Prior to joining Capehart Scatchard as Of Counsel, Judge Hickey III (Ret.) served as the Compensation Administrative Supervisory Judge for the State of New Jersey from 1991 to 2009. Previous to his judgeship, he served as a Prosecutor in Gloucester County, New Jersey from 1986 to 1991

About the Editor:

 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. 

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MISSOURI WORKERS’ COMPENSATION CASE LAW UPDATE

April 2019 – June 2019

Work Accident Prevailing Factor in Causing Ankle Injury and Resulting Disability, Including Death Due to Pulmonary Embolism

Knutter vs. American National Insurance, Case No. SD35644 (Mo. App. 2019)

FACTS:  On March 25, 2013, the employee sustained a non-displaced right ankle malleolus fracture, which was treated conservatively, and the claimant was advised to use a wheelchair.  Less than two months later, she died as the result of a pulmonary embolism.  The claimant filed a Claim for Compensation for death benefits on behalf of the employee.

Doctors disagreed as to whether the claimant’s ankle injury was the prevailing factor in causing the PE and death.  Dr. Wright provided a report at the claimant’s attorney’s request and opined that the employee had underlying risk factors, but the employee’s immobility following her ankle injury was the tipping point that caused the PE.  Dr. J. Mullins provided a report at the employer/insurer’s request and opined there was a lack of evidence directly tying the ankle fracture to DVT or a blood clot, and he noted that the employee had other contributing factors such as obesity, a sedentary lifestyle, obstructive sleep apnea, and chronic kidney disease, all of which raised her risk of DVT.  Dr. Cross reviewed the medical records at the employer/insurer’s request and opined that without an autopsy, it was impossible to conclude that the claimant had DVT in the lower extremity that may have caused a PE to the lungs.

After a Hearing, the ALJ denied death benefits and opined it would be pure speculation to causally relate the PE back to the work injury since there was no autopsy or evidence in the medical records directly tying a blood clot or DVT to the claimant’s injury or the use of a wheelchair.  On appeal, the Commission reversed the ALJ’s decision and Award.  The Commission found the expert opinion of Dr. Wright credible and concluded that it was not coincidence that the claimant developed a PE just forty-five days after being confined to a wheelchair due to her injury.

HOLDING:  The employer/insurer appealed the Commission’s decision, which was affirmed by the Court, who specifically found that the Commission’s decision was supported by sufficient competent evidence on the record and deferred to the Commission’s credibility determinations.

Claimant's Work as Firefighter Prevailing Factor in Development of Non-Hodgkin's Lymphoma and Claimant's Death

Cheney (Deceased), Cheney spouse vs. City of Gladstone, Case No. WD81939 (Mo. App. 2019)

FACTS:  The claimant, a longtime firefighter, developed non-Hodgkin’s lymphoma (NHL).  He filed a workers’ compensation claim, underwent treatment, and subsequently died as a result of the disease on May 22, 2014.  He was exposed to smoke and other emissions during his work as a firefighter, including fumes from burning household objects that contained toxins and carcinogenic chemicals.  He was also regularly exposed to diesel fumes in the fire station due to poor ventilation.

Dr. Lockey and Dr. Koprivica testified that the claimant’s occupational exposure as a firefighter was the prevailing factor in causing his NHL.  Dr. Lockey cited a statistical correlation between firefighting and NHL.  Dr. Shah testified on behalf of the employer that NHL has no known cause and is a disease to the lymphatic system, not the respiratory tract or cardiovascular system, and age, race, and obesity are known risk factors for NHL.  The claimant’s treating oncologist also opined in a report that it is impossible to know the cause of NHL.

At a hearing, the ALJ found that the claimant failed to prove that his job duties as a firefighter were the prevailing factor in causing his NHL and opined that statistical correlation does not equal causation.  On Appeal, the Commission reversed the ALJ’s decision and Award and held that with respect to occupational disease, the claimant does not need to establish causation to a medical certainty.  The Commission found the claim compensable because there was an increased risk of contracting NHL as a result of occupational exposure as a firefighter, and the employer was ordered to pay death benefits to the claimant’s dependent widow.

HOLDING:  The employer appealed, and the Court of Appeals affirmed the Commission’s decision and Award.  The Court noted that the Commission had expressly found the expert opinions of Dr. Lockey and Dr. Koprivica the most credible and persuasive with respect to causation and the prevailing factor in the development of the claimant’s NHL, and it declined to disturb the Commission’s credibility findings.

Court Reversed Circuit Court Decision Granting Summary Judgment Finding a Genuine Issue of Material Fact as to Whether Defendant Engaged in Affirmative Negligent Act That Purposefully and Dangerously Caused or Increased Risk of Injury to Employee

Mems vs. Labruyere, Case No. ED106319 (Mo. App. 2019)

FACTS:  On June 27, 2013, the defendant was removing a heavy overhead roller door from a mechanical assembly and caused the door to suddenly detach and fall onto the claimant, causing injury.  The Circuit Court granted summary judgment at the defendant’s request, holding that the employee failed to establish a genuinely disputed fact that the defendant engaged in “purposeful, inherently dangerous conduct.”  The employee appealed.

HOLDING:  The Court of Appeals first looked to whether the defendant breeched a duty owed to the employee by engaging in “an affirmative negligent act that purposefully and dangerously caused or increased the risk of injury.”  The Court first found that the defendant performed an affirmative act by loosening the bolts and prying the roller door loose from its wall anchors.  It also held that the defendant’s actions werepurposeful because he meant to do the physical acts of

detaching the bolts and prying the roller door.  He did not need to intend to cause harm for his actions to be purposeful.  The Court then found that there was sufficient evidence for a jury to find that the defendant’s actions werenegligent and dangerously caused or increased the risk of injury to the employee.  The Court also found that the defendant’s actions created a transitory risk to the employee that was not reasonably foreseeable by the employer, and therefore, he breached a duty that was separate and distinct from the employer’s non-delegable duty to provide a safe workplace.  Therefore, the Circuit Court’s award of summary judgment was reversed, and this matter was remanded for trial.

Compensable Injury Because No Evidence Claimant was Equally Exposed to Hazard or Risk of Injury of Pulling 2-Wheeled Cart Through Congested Doorway Outside of Work in Non-Employment Life

McDowell vs. St. Luke's Hospital of Kansas City, Case No. WD82076 (Mo. App. 2019) 

FACTS:  The claimant had a pre-existing hip condition which caused her to use a support cane and transport her belongings between her vehicle and work using a 2-wheeled rolling cart. She parked in a parking garage at work, where she frequently encountered other people.  On her date of injury, the claimant went through a door in the garage and attempted to maneuver to the right to avoid another employee, at which time the wheel of her rolling cart pulled and caught on the door frame, causing her to fall to the ground and fracture her left wrist. 

At a hearing, the claimant testified that she only used the cart when arriving to and departing from work, and she exclusively used the north parking garage because it was the door closest to her destination.  The ALJ found the claim compensable because the risk source was pulling a cart of work-related supplies through a congested entryway, which was related to the workplace and not a risk source the claimant would be likely to encounter in her non-work life.  The Commission affirmed the ALJ’s decision and Award, and the employer appealed the Commission’s decision.

HOLDING:  On appeal, the Court held that the Commission did not err when it held that the claimant’s injury arose out of and in the course and scope of employment.  The employer first argued there was no causal nexus between the claimant’s use of the rolling cart and her work because the cart was not necessary for her to complete her work.  However, the Court found that the risk source of the claimant’s injury was the door frame of a congested exit, and there was no evidence to suggest that the claimant was equally exposed to the cause of this injury outside of work.  The employer also argued that the risk of injury was unrelated to the claimant’s work because she only used the cart due to her prior hip replacement.  However, the Court held that an using an assistive device due to a pre-existing condition does not render an injury involving the use of that assistive device non-compensable.

Claimant Not Injured in Course and Scope of Employment Because Equally Exposed to Risk Source of Descending Stairs Outside of Work in His Normal Non-Employment Life

Marks vs. Missouri Department of Corrections, Injury No. 17-086644

The claimant was required to perform security checks and cell searches, which required him to go up and down stairs at work.  On his date of injury, he was descending the stairs when he mis-stepped off a stair, felt his right knee twist, and injured the same.  He reported the injury, but no treatment was authorized by the employer.  He completed a questionnaire four days after the accident wherein he denied that he was responding to a code or other emergency-type situation, that he was distracted for any reason while on the stairs, that he was carrying anything at the time, that there were any offenders in the area, or that there was anything on the floor or physically wrong with the steps.  When asked specifically to state what caused his injury, the claimant answered that he “stepped off the step wrong.”

At a hearing, the claimant testified that he also uses stairs outside of work to access his apartment.   He did not testify that there was anything physically defective about the stairs.  The claimant did testify that he was performing security training and was looking back for another officer to ensure her safety when he missed the step.  However, the ALJ did not find his testimony credible in light of the fact that it was inconsistent with his prior statements just four days after the date of injury.

The ALJ held that the accident and injury did not arise out of and in the course and scope of employment because the hazard or risk of injury was descending stairs and stepping wrong, which was unrelated to the claimant’s employment, and the claimant was equally exposed to that risk outside of work in his normal non-employment life.  The ALJ found that the claimant was simply walking down the stairs and was not carrying anything, responding to a code, hurrying to complete a task, distracted, or looking for a co-worker.  The ALJ also found there was nothing on the stairs, and the stairs were not physically defective.  The ALJ further opined that even had the claimant been looking at his co-worker and attempting to complete a task in a timely manner, the only risk source in this case was walking down stairs.  Therefore, the ALJ found that the claimant failed to meet his burden of proof that he sustained a compensable injury.  On Appeal, the Commission affirmed the ALJ’s Decision and Award.

Windsor Not Liable for Benefits as Statutory Employer, Because ALJ Found No Joint ans Several Liability with Primary Employer, A Staffing Agency

Chilton vs. Productive Staffing Ajinomoto Windsor Inc., Injury No. 15-098442

The claimant was hired by staffing agency Productive Staffing (PS) to work at Windsor Foods (WF), where he performed maintenance work.  He received paychecks through PS, but daily instructions were given by his supervisors at WF.  PS had a contract with WF noting that PS would provide all workers’ compensation insurance for employees.  The claimant had an employment contract with PS but not with WF.  On December 22, 2015, claimant sustained an injury to his right hand.  PS authorized treatment and paid TTD.  The claimant filed a Claim for Compensation against both PS and WF.  PS filed a timely Answer, but WF did not.  The claimant reached a settlement agreement with PS and then pursued additional benefits against WF.

At a hearing, the claimant argued that WF was a statutory employer.  The ALJ noted that a 3-part test determines statutory employment, including whether: the work at the time of the injury was being performed pursuant to a contract; the injury occurred on or about the premises of the alleged statutory employer; and the work was performed in the usual course of the alleged statutory employer’s business.  The ALJ found that all three parts of the statutory employment test had been met, and WF was a statutory employer of claimant.  However, the ALJ also held that WF was not liable for benefits because PS was the immediately employer, and pursuant to statute, no other employer shall be liable if the employee was insured by his immediate employer, which was the case here.

The claimant argued that PS and WF were joint employers and were jointly and severally liable for benefits.  However, the ALJ rejected this argument and held that PS and WF were not joint employers.  The ALJ noted that joint employment occurs when a single employee is under contract with two employers, under simultaneous control of both, and performs services for both employers, and the services are the same or closely related to that of the other.  The ALJ noted that the claimant had an employment contract with PS but not with WF, and there was no persuasive evidence of simultaneous control or that the claimant provided services for both employers that were the same or closely related.  Therefore, the ALJ denied the claim against WF.  On appeal, the Commission affirmed the ALJ’s decision and Award.

Court of Appeals Reversed Commission Decision and Found That Employer That Went Out of Business Before 2014 Could Still Be Liable for Enhanced Benefits by Fully Insuring Its Liability for Occupational Disease at Time of Last Exposure

Hegger vs. Valley Farm Dairy Company, Case No. ED106278 (Mo. App. 2019)

FACTS:  The employee was last exposed to asbestos through the employer in 1984.  The employer went out of business in 1998.  The employee then died in 2015 from mesothelioma caused by exposure to asbestos while working for the employer.  He initially filed a Claim for Compensation, and his children subsequently sought benefits after his death.

At a Hearing, the ALJ addressed the sole issue of enhanced benefits under Section 287.200.4(3).  The ALJ found that the claimant was last exposed to asbestos while working for the employer, and his exposure was the prevailing factor for his diagnosis of mesothelioma which resulted in his death.  However, neither of the insurers who insured the employer during the claimant’s dates of employment were liable for paying enhanced benefits because the enhanced benefits provision did not go into effect until January 1, 2014.  The ALJ reasoned that the employer could not possibly have elected to be liable for enhanced benefits, because it went out of business in 1998.  The ALJ also held that insuring its liability for occupational diseases in 1984 did not qualify as electing to be liable for enhanced benefits, which are separate from and additional to benefits otherwise payable for an occupational disease.  Therefore, the claimant was not entitled to enhanced benefits.  On Appeal, the Commission affirmed and adopted the ALJ’s decision and Award.

HOLDING:  On appeal, the claimants argued that the Commission erred because the employer did elect to accept liability for benefits under strict construction when it insured its liability at the time of last exposure and the employer was not required to provide the Division with notice of an election to accept liability.  The Court of Appeals first noted that the employer was fully insured on the date of last exposure and held that this meant the employer had elected to accept liability for any occupational diseases that manifested from that exposure “regardless of the length of time” it took for the occupational disease to manifest and be compensable.  The Court held that it did not matter that the statute regarding enhanced benefits did not exist at the time of last exposure.  With respect to the claimants’ second point on appeal, the Court noted that employers could accept liability for enhanced benefits by “insuring their liability, by qualifying as a self-insurer, or by becoming a member of a group insurance pool.”  The Court concluded that under strict construction of the statute, only employers who chose to become a member of a group insurance pool were required to provide notice to the Division of an election to accept liability for enhanced benefits.  Therefore, the Court reversed the Commission’s decision and Award and remanded this matter to the Commission to determine which insurer is liable for paying enhanced benefits.

Employer/Insurer Liable for PTD After Rotator Cuff Tear Due to Permanent Lifting Restrictions, Age, Education, and Other Life Factors

Duarte (Deceased), Dobrauc vs. Butterball, LLC and Treasurer of Missouri as Custodian of Second Injury Fund, Injury No. 09-111523

The 76-year-old claimant obtained degrees in political science and law in Peru and also worked as an accountant, secretary, and owned two businesses while in Peru.  When he immigrated to the United States in 2003, he was 63-years-old, spoke very little English, and did not have a U.S. driver’s license.  He briefly worked for a florist and then on the line at a cereal plant before he started working for the employer, where his job duties involved pulling skin and cutting meat off of hanging turkey carcasses on the line using his right arm.  The claimant developed right shoulder pain, and he was diagnosed with a chronic rotator cuff tear and underwent two unauthorized shoulder surgeries in 2009 and 2010.  He has not worked since March 31, 2009.  He did collect unemployment benefits for a time in 2010 and 2011.  Although the claimant had prior medical conditions including cataracts, DDD in the lumbar and cervical spine, and tenosynovitis in the left wrist, he denied that those conditions hindered or impaired his ability to work prior to 2009.

Dr. Volarich examined the claimant at his attorney’s request, causally related the claimant’s right shoulder condition and need for surgery back to his job duties, placed the claimant at MMI, and recommended permanent lifting restrictions for the right arm.  Dr. Parmet examined the claimant at the employer/insurer’s request and opined that the prevailing cause of his need for treatment was age and preexisting arthritis, although his job duties could have aggravated his condition.  Mr. Eldred provided a vocational report at the request of claimant’s counsel and opined that the claimant did not have a preexisting disability that constituted a hindrance or obstacle to employment and was PTD as a result of the primary injury alone.  Mr. Dreiling provided a vocational report at the employer/insurer’s request and opined that the claimant was unemployable due to a combination of his primary injury and preexisting conditions.

At a hearing, the ALJ found the opinions of Dr. Volarich and Mr. Eldred more credible than the opinions of Dr. Parmet and Mr. Dreiling and held that the claimant sustained a compensable injury by occupational disease to his right shoulder.  The ALJ also noted the claimant’s 5-pound lifting restriction, noted that he did not have any permanent restrictions before 2009, and found the claimant PTD as a result of the primary work injury alone.  The ALJ opined that although the claimant was previously limited to manual labor by his age, education, and other life factors, these were not pre-existing disabilities that triggered Fund liability.  The ALJ ordered the employer/insurer to pay TTD benefits from April 1, 2009 until his last office visit with Dr. Lieurance on April 29, 2010 as well as PTD and future medical.  On appeal, the Commission affirmed the ALJ’s decision and Award with a supplemental opinion, wherein it held that the claimant’s MMI date was the date of Dr. Volarich’s examination on June 12, 2013, because it was the first medical record to expressly address MMI.  However, the Commission also held that the claimant was not entitled to TTD during the periods in 2010 and 2011 where he was receiving unemployment.

Claim Barred by Statute of Limitations Because Medical Payments Made in Kansas Did Not Toll Statute of Limitations in Missouri Under Strict Construction

Austin vs. AM Mechanical Services and Missouri State Treasurer as Custodian of the Second Injury Fund, Injury No. 11-112011

On March 10, 2011, the claimant sustained a neck injury and also had complaints in his wrists and shoulder.  He underwent a multi-level cervical fusion as well as surgeries on the bilateral wrists/hands and right elbow.  The claimant’s injury occurred in Kansas, but he entered a contract for employment in Missouri.  He previously settled a workers’ compensation case referable to this accident in Kansas.  The claimant testified that he was under duress at the time of the settlement, which closed out all claims in all jurisdictions for injuries related to the date of injury.  This was approved at a conference before an ALJ in Kansas. 

At a Hearing in Missouri, the ALJ held that he did not have jurisdiction to rule on the validity of the Kansas settlement, and there was no evidence showing that the employer pressured, forced or coerced the claimant into the settlement agreement.  The ALJ noted that he must give full faith and credit to the Kansas settlement agreement and denied the claimant’s claim for benefits in Missouri against the employer.

The ALJ also noted that the claim against the Fund was denied because the statute of limitations had run.  The claimant argued that the treatment provided by the employer in Kansas pursuant to the Kansas claim tolled the statute of limitations, but the ALJ noted that the statute had to be strictly construed in Missouri.  Therefore, only payments made pursuant to Chapter 287 in Missouri, and not payments made pursuant to the Kansas Workers’ Compensation Act, would toll the Missouri statute of limitations.  The ALJ also held that there is no authority stating that payment for an examination for rating purposes tolls the limitation period, only payment for a doctor’s bill for treatment.  Therefore, the claimant’s claim in Missouri was denied in full.  The employee appealed the ALJ’s decision, which was affirmed by the Commission.

Claimant Not Owed Past TTD After Terminated for Post-Injury Misconduct When He Failed To Work For Several Months After Being Released From Care Without Restrictions and Failed to Follow Employer Policies

Hicks vs. Missouri Department of Corrections and Treasurer of Missouri as Custodian of Second Injury Fund, Injury No. 14-004926

The claimant was working as a corrections officer and was undergoing training when he sustained an injury to his left arm and shoulder.  He underwent authorized treatment, including a surgery performed by Dr. Emanuel, who placed the claimant at MMI without restrictions on August 26, 2014.  However, the claimant did not feel he could return to work full duty, and light duty was not available.  He demanded a second opinion and additional treatment, which was denied, and he advised that he would not come back to work until his shoulder was fixed.  The claimant was then a no call, no show for work during most or all of September 2014.  He was aware of the employer’s attendance policies due to his recent training.  Attendance policies required the claimant to notify his supervisor at least 60 minutes prior to the beginning of the work shift each day he was unable to work.  The claimant was also instructed by the employer via letter to return to work no later than October 27, 2014, and if he was unable to do so, to submit a voluntary resignation in writing effective on that date.  The claimant did not do so, did not request additional leave without pay, and was ineligible for FMLA benefits.  A pre-disciplinary meeting was scheduled for October 22, 2014, but the claimant did not attend, and his employment was subsequently terminated.

At his attorney’s request, the claimant was evaluated by Dr. Snyder, who opined that the claimant required additional surgery and was unable to work from the date of injury until January 2015.  The employer then sent the claimant back to Dr. Emanuel, who performed a second surgery on April 1, 2015.  The claimant subsequently underwent a third authorized shoulder surgery, which was performed on December 17, 2015 by Dr. Lenarz, who subsequently placed the claimant at MMI again on February 10, 2016.

At a Hearing, the claimant demanded TTD to cover the period from his date of injury until he reached MMI on February 10, 2016.  The employer argued that he forfeited his right to additional TTD when he was terminated for post-injury misconduct.  However, the ALJ held that the claimant was unable to return to any employment during that period and failure to comply with the employer’s attendance policies did not rise to the level of post-injury misconduct.  The ALJ also held that pursuant to statute, post-injury misconduct does not include absence from the workplace due to a workplace injury.  Therefore, the ALJ awarded full TTD benefits in the amount of $26,999.12 as well as PPD.

The employer appealed, and the Commission modified the ALJ’s decision and Award with respect to TTD.  The Commission found that the claimant only called in sporadically to report absences between September and November 2014, despite the fact that he did not return to work in violation of attendance policies, and he failed to make arrangements with his supervisor, request additional leave without pay to cover his absences, respond to the employer’s letters, or attend the pre-disciplinary hearing.  The Commission found that the employer did not terminate the claimant merely because of his absences but because he failed to follow proper procedures to report his absences, which was post-injury misconduct.  Therefore, the claimant was not entitled to TTD benefits after his termination.

When Primary Work Injury Occurs After January 1, 2014, Claimant Not Entitled to PPD Benefits From SIF

Douglas Cosby vs. Treasurer of the State of Missouri as Custodian of Second Injury Fund, Case No. SC97317 (S. Ct. 2019)

FACTS: On January 22, 2014, Douglas Cosby injured his left knee at work. He filed a workers’ compensation claim against the employer and Second Injury Fund alleging he was totally or, alternatively, partially disabled as a result of his knee injury combined with his pre-existing disabilities, which included bilateral inguinal hernias in 2002, a left shoulder rotator cuff tear in 2004, and a right shoulder rotator cuff tear in 2008.

At a hearing, the ALJ determined the claimant was not permanently and totally disabled. Also, the ALJ found that the claimant was not entitled to PPD benefits due to the fact that §287.220.3(2) which was added to the Statue in 2013 applied to the case at hand, which states that PPD claims against the Fund shall not be filed for injuries occurring after January 1, 2014. The Commission affirmed the ALJ’s award.

HOLDING: The claimant’s attorney made various arguments, including that §287.220.3(2) did not apply because the claimant’s pre-existing disabilities and/or injuries occurred prior to January 1, 2014. The Court did not agree, as it noted that “injury” is defined in the statute as “an injury which has arisen out of and in the course of the employment.” Therefore, “injury” pertained to the primary work-related injury, and since that injury occurred and a Claim was filed after January 1, 2014, §287.220.3(2) does apply, and therefore the claimant is not entitled to PPD benefits from the Fund. The claimant’s attorney also made other arguments, including that §287.220.3(2) violates the open courts provision, due process and equal protection, but the Court was not persuaded. Therefore, the Court upheld the Commission’s decision and concluded that the claimant was not entitled to any PPD benefits from the Fund.

Reopener petitions abound in New Jersey, but seldom does an injured worker seek on reopener to move an award of 30% permanent partial disability to total and permanent disability benefits.  That was the issue in Camarena v. Sprint PCS, A-2205-17T2 (App. Div. June 24, 2019). 

Ms. Camarena obtained an award of 30% permanent partial disability in 2003 arising from a work-related motor vehicle accident dating back to 1999.  The award was for a bulging disc at C6-7 and disc protrusions at L4-5 and L5-S1.  Camarena later reopened the award and sought total and permanent disability benefits with the Second Injury Fund.  Capehart and Scatchard partner, Michelle Duffield, argued successfully that petitioner’s subsequent increased disability was not related to the 1999 work accident but to subsequent non-work injuries.

There was no dispute that petitioner’s condition clearly worsened in the years following the 2003 award.  The dispute centered on what caused the worsening.  Petitioner admitted to having a car accident in July 2002 but claimed that she only injured her knee at that time.  Respondent obtained medical records from that accident and proved that petitioner treated for her neck and back after the 2002 accident. 

In 2004 petitioner suffered a serious fall from her knee giving out.  She obtained a new cervical MRI, which showed a new herniation in the neck, leading to a discectomy and fusion surgery at C5-6.  She fell again in 2007 and reinjured her low back.  A new MRI showed an L4-5 disc herniation and an L5-S1 disc herniation.  In 2007, she had a revision surgery on her neck.  In 2008, she fell again, leading to another cervical MRI. At the time of trial, she needed a health aide 40 hours per week during the day and 12 hours a week at night.

The petitioner’s expert testified that he knew about the right knee injury from the 2002 car accident, but he was unaware that petitioner complained about her neck and back from that accident and had a 2004 MRI showing a new disc herniation in her neck.  Respondent’s expert testified that petitioner’s worsening condition related to the subsequent car accident and subsequent falls from her knee injury sustained in the 2002 car accident. 

The Hon. George H. Gangloff, Jr. dismissed petitioner’s claim against Sprint PCS and against the Second Injury Fund.  Judge Gangloff found that there was a contradiction between petitioner’s description that she only injured her knee in the 2002 car accident when compared with the actual medical records documenting spine complaints.  The judge reviewed the medical records carefully and noted that the petitioner had several non-work injuries after the 1999 workers’ compensation injury. 

Petitioner appealed and argued that she was totally disabled from a worsening of the 30% award entered in 2003.  However, the Appellate Division pointed out that petitioner’s own orthopedic expert had mistakenly believed that the 2002 car accident only involved the petitioner’s knee.  Nor did the petitioner’s expert know much about the subsequent 2004 fall.  The Court held, “The 2002 motor vehicle accident was an independent intervening cause.  As a result of that injury in 2004, her knee later gave out causing her to fall and again worsen her injuries – for reasons unrelated to the 1999 incident.  The 2002 motor vehicle accident and her numerous falls were clearly intervening independent causes which broke the chain of causation from the 1999 accident to the present.”

This case underscores why it is so important for employers, carriers, third party administrators and self-insured entities to focus on subsequent health records in reopener cases.  Even in serious reopener cases, there is sometimes a rush to arrange a reexam in order to reach closure without spending the time and effort on discovery and investigation into interval activities and injuries.  In this case, the subsequent investigation saved the employer a great deal of money.  Respondents are well advised to order a new ISO and ask on reopener interrogatories about subsequent work and non-work injuries as well as subsequent surgeries. This case points out that the medical records are often more accurate than a petitioner’s recollection of an old injury. While petitioner stressed that the 2002 car accident was a knee injury, — and it primarily was — the records showed treatment to other parts of the body as well.

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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. 

Beginning July 1, 2019, the maximum workers’ compensation payable will be raised to $892.00 per week and the minimum will be raised to $245.00 per week. https://labor.alabama.gov/docs/guides/wc_weeklywage.pdf

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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.

Reconstruction of Wages is an issue in many New Jersey workers’ compensation matters.  In a case handled by Capehart Scatchard and successfully argued by Keith Nagy, Esq., the Appellate Division stressed that petitioner has to prove permanent impairment of full-time working capacity arising from a work injury before wages must be reconstructed. The case is Lawson v. New Jersey Sports and Exposition Authority, A-4058-17T1 (June 26, 2019).

Petitioner, Ms. Lawson, had two jobs in 2009: one for the NJSEA as a stadium usher earning about $14 per hour and the other for Wal-Mart in a full-time position.  She broke her femur at work on the part-time job with the NJSEA I 2009 and had metal rods inserted into her leg during surgery.  She worked very few hours for NJSEA, so her wage was only $103.36 per week giving rise to a rate of $72.35 per week for permanency purposes.  Because petitioner had a significant injury consisting of a femur fracture and other leg injuries, the parties ultimately agreed that the disability was thirty three and one third percent.  Where the parties disagreed was on whether to do wage reconstruction.  That issue was the one that was tried fully.

Without wage reconstruction, the one third award amounted to $14,469.  With wage reconstruction, the one third award would have amounted to $72,300 because the $14 per hour wage would be reconstructed on a 40-hour per week basis to $560 with a rate of $392.  So reconstruction in this case really mattered:  $14,469 versus $72,200.  The difference was $57,531.

Petitioner testified at trial that after her accident on August 14, 2009, she took medical leave from Wal-Mart until April 2010.  When she returned to Wal-Mart, she did so with medical restrictions limiting her to part-time work.  Petitioner refused the company’s offer of part-time work and was let go.  She later reapplied to Wal-Mart for a full-time position but the company did not rehire her.  After she recovered from her surgery, she was able to return to her part-time job as a stadium usher for the NJSEA.

Petitioner collected unemployment from July 2010 to December 2012, certifying that she was ready, willing and able to work.  At the time petitioner testified at trial, she said that she could not do stocking of shelves and so was unable to get a job in other large stores.  She also testified that she felt she could work full time in a store but only if she did not have to climb ladders. At the time of her testimony, she was working part-time at a supermarket.  She admitted to doing a lot of physical work at home, mowing the lawn, cutting wood with a small electric chainsaw, walking a mile and swimming.

Two experts testified in the case on the issue of reconstruction of wages.  Dr. Tiger for petitioner said that petitioner could not do full-time work as a consequence of her injury at NJSEA.  However, he did not know that she was climbing up and down stairs as a stadium usher, and he did not know that she was swimming, walking a mile and doing some strenuous home activities.

Dr. Mercurio for respondent testified that petitioner had minimal residual disability from her injuries.  He felt that she could work full duty without restrictions.  He noted that petitioner had a second surgery in 2014 to remove hardware from her leg and observed that petitioner told physicians that she was “better than she was before.”  When Dr. Tiger examined, the second surgery had not yet taken place, so he really could not comment on this issue.

The Judge of Compensation found Dr. Mercurio to be the more credible medical witness.  The Judge noted that Dr. Tiger was not aware of several key facts in the case that Dr. Mercurio had been aware of.  The Judge stated that “petitioner was a very sturdy woman with a high level of physical strength and endurance and energy.”  This conclusion was based in part on the many home activities petitioner engaged in.  The Judge cited to the leading case on reconstruction of wages, Katsoris v. South Jersey Publishing Company, commenting that petitioner failed to prove that “she lacked potential for full-time employment under the Katsoris decision.”

Petitioner appealed to the Appellate Division and argued that she had not been able to return to full-time employment, which was proof in and of itself that her wages should be reconstructed. The Appellate Division disagreed.  The Court said, “petitioner did not prove that her injuries from the 2009 accident diminished her capacity to perform full-time work.”  The Appellate Division credited the Judge of Compensation in making appropriate findings in the case.

This is a helpful decision to practitioners because it shows that it is not enough to prove wage reconstruction simply by stating that one has not returned to full-time work.  Physical capacity of the worker both in and outside work must be considered.  The Judge in this case found that the petitioner could in fact do full-time work based on the physical activities that she engaged in at home, and respondent’s expert made the point that she had no restrictions against doing full duty work.

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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:  Alfred Vitarelli, Esq., Shareholder, Stark & Stark

Yes, it’s me again with yet another nightmare-inducing minefield to trap the unwary practitioner. Well, perhaps that’s an extreme analogy. But since we are dealing with Department of Defense-based health coverage, I believe a military-themed introduction is a necessity. Ok, I’ve got it: think of these liens as submarines, lurking underwater, undetectable unless the destroyer above uses sonar to locate it. Hmmm…I think I’ll take a break and order up “The Hunt for Red October,” or that Burt Lancaster/Clark Gable classic, “Run Silent, Run Deep.” Ok Al, enough with the movies, get down to business…..”one ping only.” Sorry, just had to get a line from a movie in here. Sorry if it makes no sense. Watch one of the above movies!

Ok, why do I say a proactive approach is needed? Well, for one, many Petitioners are covered by VA health insurance or Tricare. Tricare, you say? Yes. Tricare is a Department of Defense health benefit plan for uniformed service members, retirees and their families. They are established under CHAMPUS, the Civilian Health and Medical Program of the Uniformed Services. Both VA health coverage and Tricare are secondary payers with respect to workers’ compensation treatment and both have rights of subrogation under federal law. The primary source of the right of recovery is found in the Federal Medical Care Recovery Act, 42 U.S.C 2651. However, both the VA and Tricare have additional statutory and Code provisions addressing recovery procedures, which will come up while researching these lien issues.

Both the Veterans Administration and Tricare have a right of recovery of any amounts paid for ineligible treatment. For purposes of this article, ineligible treatment is treatment provided for a work-related injury. Simply put, both entities have statutory rights to recover the cost of treatment provided for a work-related injury or condition to a covered beneficiary. Keep in mind, however, that while the VA covers veterans, Tricare covers service members, retirees and their families, so Tricare’s right to recovery of course extends to all such covered persons. This places an additional responsibility on the practitioner, which I’ll discuss later.

The VA collection rules are found in 38 CFR 17.106. It states in part:

“(a)(1) VA has the right to recover or collect reasonable charges from a third-party payer for a nonservice-connected disability in or through any VA facility to a veteran who is also a beneficiary under the third-party payer’s plan.” Later, this section defines a third-party payer as “…an entity, other than the person who received the medical care or services at issue…responsible for the payment of medical expenses on behalf of a person through insurance, agreement or contract.” A listing of third-party payers includes: “(F) workers’ compensation program or plan sponsor, underwriter, carrier or self-insurer.” Pretty comprehensive, no?

Tricare’s collection rules are found in 32 CFR 199.12. The General statement (a) states:

“This section deals with the right of the United States to recover from third-parties the costs of medical care furnished to or paid on behalf of TRICARE beneficiaries. These third-parties may be individuals or entities that are liable for tort damages to the injured TRICARE beneficiary or a liability insurance carrier covering the individual or entity. These third-parties may also include other entities who are primarily responsible to pay for the medical care provided to the injured.”

Please note the emphasis on reimbursements from third parties. This requires the respondent to also be actively involved in the handling of such liens, at least in my opinion.

The recovery provisions under the rules for both the VA and Tricare are very similar. Each allows suit to be filed in federal court against a third-party payer within six years of the last day of the provision of the medical care or services for which recovery or collection is sought. However, they are much too extensive to include them here. I therefore recommend they be read in full, as they also refer to other statutory and rule provisions which will also impact the handling of WC matters involving VA/Tricare payments. By way of example, I’ll just point to one:

VA/Tricare “reasonable charges,” determined in accordance with federal law and regulation, “shall be” judicially noticed. See: 44 U.S.C. 1507. The government is not required to litigate reasonableness of administrative fixed rates. Billing rates are not subject to challenge for unreasonableness or arbitrariness. There are many more which may impact any case at a given time, so when dealing with these liens, do the research!

Now it’s time for some practical ideas for handling claims involving the VA/Tricare. As I noted earlier, many people are covered by the VA or Tricare. For the petitioner’s attorney this will require asking a potential client at the first interview if he or she is covered by either program. In my prior article in this blog on Medicaid/NJ Family Care I pointed out that even people working for employers which provide excellent health care are covered by those programs due to the cost of the employee’s share of premiums, co-payments, etc. The same situation exists with Tricare. Just the other day I interviewed a woman working for a company with good employer-provided health care. However, she was covered by Tricare, since her husband was retired from the Navy.

Another issue I really need to address is whether there are requirements in these recovery Acts or Codes placing a direct responsibility on an attorney to place the VA/Tricare on notice of a WC claim filed by a beneficiary where some treatment has been provided by one of these programs. While I am unaware of any such written requirement, keep in mind that the beneficiary (your client) does have a duty to cooperate in recovery efforts. Further, the attorney has a duty to properly represent the client. So, my position is yes, notice should be given even if no inquiry from either program has been sent to the attorney or client.

I believe respondents need to be pro-active here. I previously quoted provisions of the VA and Tricare recovery Codes. Both clearly state recovery is against a third party payer, and define a third party payer as including workers compensation programs and carriers. In addition, I need to cite a further VA Code provision:

38 C.F.R. 17.106 (c): VA’s right to recover or collect is exclusive. The only way for a third party payer to satisfy its obligation under this section is to pay the VA facility or other authorized representative of the United States. Payment by a third party payer to the beneficiary does not satisfy the third-party’s obligation under this section. (Emphasis added.)

This section, referring to an obligation on the part of the third party payer, emphasizes the need for the respondent to be pro-active, in my opinion. On its face, this section prohibits a settlement whereby the respondent pays petitioner a sum of money to satisfy a VA/Tricare lien. Its import, however, emphasizes the respondent’s role in satisfying a lien. Respondents therefore need to act quickly in determining if a claimant is covered by VA/Tricare as early as possible following receipt of a First Report of Injury. In claims where the petition is the first notice of claim, respondent’s counsel should immediately determine this information.

In closing, I’ll first provide two websites to visit when faced with payments by the VA/Tricare. For the VA I found the VA’s Office of General Counsel’s website quite helpful. This is www.va.gov.ocg/collections.asp. For Tricare I suggest visiting their website at www.tricare.mil and go to Forms/Claims/ThirdPartyLiability.

I’d also like to state that of the various liens discussed in my articles, those from the VA and Tricare, seem to be less understood than others. It is hoped this article will alert practitioners to them. All parties must recognize the importance of identifying and addressing payments made by one of these Department of Defense health care programs. The statutes and rules are extensive and complex but do provide guidance in navigating the shoals of DoD liens. There, I closed with another naval reference!!

(Editor’s Note:  Many thanks to Alfred Vitarelli, Esq., a frequent contributor to this blog, for an incredibly helpful explanation on how to deal with VA and Tristar liens.  This is an area of law that employers, adjusters, and practitioners must understand, and the rules are not exactly the same as those with CMS and Medicare.  Keep this blog by your side because we will all be dealing with VA and Tristar liens on a fairly regular basis.)

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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 tensions flare up between employees resulting in physical altercations with unexpected consequences.  A case in point is Bhut v. Aluminum Shapes, No. A-4652-17T1, 2019 N.J. Super. Unpub. LEXIS 1322 (App. Div. June 10, 2019).  The petitioner, Mr. Bhut, worked as a technician fixing manufacturing equipment.  He said that on May 21, 2017, he entered the employee locker room.  A co-worker, Mr. Stevens, had his feet up on a bench.  Bhut said he asked Stevens to move his legs but Stevens refused.   Bhut jumped over Stevens’s legs but his feet caught Stevens’s leg in the process.  According to Bhut Stevens threw a cup of soda at Bhut. 

Petitioner said he left the room but came back a few minutes later to wash his hands.  He ran into Stevens outside the locker room in a narrow walkway.  Stevens was holding a pizza box.  Bhut testified that Stevens pushed the pizza box at him as Bhut passed Stevens.  To keep the box away from him, Bhut swung his arm toward Stevens and hit a hat on Stevens’s head.  Stevens then threw petitioner to the floor.  Bhut maintained that he was not trying to strike Stevens when he swung at him.

A completely different version of facts was advanced by Stevens, who said that Bhut never asked him to remove his feet from the bench.  Stevens said Bhut pushed and kicked his legs off the bench. He claims that when he stood up, petitioner stepped in front of him and caused the Coke drink to fall on him.  Co-workers separated them.  Stevens said Bhut then returned a few minutes later and Bhut came at him.  Stevens side-stepped with the pizza box, and the next thing he knew Bhut struck him in the back of the head.  Stevens said he grabbed Bhut’s arm and the two men bounced off the locker and landed on the floor with Stevens on top of Bhut.  Stevens said he never pushed the pizza box onto Bhut.

There was no dispute that Bhut injured his shoulder in the fall.  Bhut filed a motion for medical and temporary disability benefits resulting in an order for benefits in the amount of $15,583.54.  The respondent appealed the decision of the Judge of Compensation.  Respondent argued that Bhut deliberately struck Stevens leading to the fall, which caused the shoulder injury.   As such, respondent argued that this was in the nature of a deliberate assault, disqualifying Bhut from recovery.

The Judge of Compensation found that the altercation between the two men arose during the fulfillment of work duties or doing something incidental to that, namely eating lunch on premises.  The Judge noted that there was no evidence of hostilities between the two men outside work.  Therefore there was no personal animus between the two men.  The Judge also rejected the argument that Bhut intentionally assaulted Stevens.  She said that neither man had any willful intent to injure the other.  She said, “The reactions of both Stevens and the petitioner were in response to what each felt was aggressive behavior.”  She found Mr. Bhut credible in his testimony that he did not intend to strike Stevens when he pushed the pizza box away from himself.

The Appellate Division affirmed the decision below.  The Appellate Division viewed this as an injury arising from work tensions.  The Court deferred to the Judge of Compensation on her findings of credibility of the witnesses and her finding that there was no intent by either man to deliberately hurt the other.  She found that each man was trying to protect himself from the other.

This decision illustrates a number of important rules.  First, the trial judge is in the best position to assess credibility of witnesses in factual disputes.  Secondly, when a series of escalating tensions occurs, it is very difficult to find that one party deliberately assaulted the other party.  This was not a case where an employee decided to assault a co-employee without prior provocation or tensions.  The Judge viewed these facts as a series of two separate events minutes apart where each party saw the other as the aggressor and tried to defend himself.  The decision of the Judge of Compensation made good sense, and the Appellate Division properly deferred to the Judge below on determination of credibility.  Perhaps the case could have been viewed as one involving “horseplay.”  That rule says that the victim of horseplay is always covered for injuries, and the aggressor may also be covered under certain circumstances.

Thanks to Rick Rubenstein, Esq. for bringing this case to our attention.

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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. 

Legal Update by Attorney Tyler Smith

Gumm v. Easter Seal Society of Iowa, File No. 18-1051 (Iowa, May 15, 2019)

The issue in this case involved whether a claimant, after sustaining a traumatic, acute injury, is allowed to bring a cumulative injury claim with regard to symptoms/injuries to that same body part. The Court of Appeals addressed the two Supreme Court of Iowa cases that have addressed acute-then-cumulative injury claims: Ellingson v. Fleetguard (requiring claimant to show a “distinct and discreet” disability/injury as a result of cumulative work duties) andFloyd v. Quaker Oats (allowing a cumulative injury claim in the certain circumstance where the claimant had not been compensated via an award, volunteered benefits, etc. and doing so was unavailable due to the statute of limitations). In this case, the Court of Appeals reversed and remanded the Commissioner’s finding that the claimant failed to establish a distinct and discreet disability/injury underEllingson. The Court of Appeals extended/expanded the Floyd case in holding that if a claim relating to the first injury is barred by the statute of limitations (regardless of whether benefits had been paid with regard to the initial acute injury), a cumulative injury claim can be made for the increase in disability brought on by subsequent work duties. Appellees have filed Applications for Further Review.

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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 Legislative 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. ©2019 Peddicord Wharton. All Rights Reserved.

Legal Update by Attorney Alison Stewart

Two recent Iowa Supreme Court decisions have addressed liability of workers’ compensation carriers and third-party administrators. In both cases, the Court declined to extend liability.

Clark, et al v. Ins. Co. of the State of Penn., File No. 17-2068 (Iowa, May 3, 2019)

Recently, the Iowa Supreme Court addressed whether Iowa Code section 517.5, which mandates that no inspection of any place of employment made by insurance inspectors shall be the basis for imposition of civil liability upon the inspector or insurance carrier, is constitutional. In Clark, the plaintiffs alleged employees of the insured were exposed to hazardous chemicals while manufacturing wind blades and that the workers’ compensation carrier’s failure to inspect the employer was the cause of plaintiffs’ injuries. These claims were brought in district court. The Iowa Supreme Court disagreed and outlined a detailed history of the policy behind the exclusive remedy doctrine which requires injury claims brought by employees against their employer must be brought before the workers’ compensation commissioner. This means that immunity remains for carriers who either fail to inspect or negligently inspect the premises of an insured.

De Bois v. Broadspire, File No. 18-1227 (Iowa, May 10, 2019)

The Iowa Supreme Court ruled an injured worker cannot sue a workers’ compensation third party administrator for civil bad faith. In Iowa, an injured worker can establish damages beyond those entitlements provided pursuant to the workers’ compensation chapter where benefits are denied without a reasonable basis and that the carrier knew or should have known its refusal or delay was without such a basis. The Court reasoned that the duties imposed upon a workers’ compensation insurer are non-delegable, and thus, the acts of a third-party administrator, are the acts of the insurer. The liability of third party administrators remains limited to the contractual obligation they have to their insurers.

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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 Legislative 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. ©2018 Peddicord Wharton. All Rights Reserved.

Most doctors who take the Designated Doctor test fail.  At least, that is what data recently obtained from the Division via an open records request revealed.  For instance, in 2018 the failure rate was 56% on the first attempt, 64% on the second, and 61% on the third. 

The 2011 Legislature mandated more stringent testing requirements on designated doctors, with the goal of addressing the increasing discrepancy in the number of physicians versus chiropractors on the designated doctor list.  However, that doesn’t appear to have happened.  When broken out by provider type, data reveal that medical doctors (MDs) and doctors of osteopathy (DOs) have lower failure rates than chiropractors.  The percentage of chiropractor DDs rose from 20% to 49% between 2010 and 2015.  By contrast, the number of MDs and DOs dropped from 70% to 55% during the same timeframe.  And overall, the number of DDs continues to drop—in April 2017 there were 586, compared to 475 in March 2019.  Of those, just 133 are MDs.  Chiropractors take a different test containing more questions on musculoskeletal injuries.  (The Division maintains two lists of designated doctors—one for musculoskeletal conditions, and one for all other injuries; chiropractors fall into the first category, as they are only allowed to address musculoskeletal conditions.) 

The data and discouraging pass rates leave some doctors to conclude that the test is impassable.  Complaints run the gamut, including allegations that the test asks irrelevant questions, questions that have not been validated, and questions that have more than one correct answer.  An article from WorkCompCentral earlier this month provided an example of one such question said to have been on the DD test: “Who determines compensability?”  The choices, reportedly, were: (1) the Division, (2) the designated doctor, and (3) the insurance carrier.  The “correct” answer was both (1) and (2).  However, this isn’t entirely true, as the carrier could ultimately make the decision if it denies a claim and there has been no challenge to the denial.  The question is also confusing, as DDs are told when assessing MMI/IR to rate the carrier-accepted injury, which is noted in Box 37 of the DWC-32 Request for Designated Doctor form provided to the DD in advance of the exam.  If there is no dispute as to the compensability of any specific diagnoses, and the DD is not being asked to address extent of injury, then effectively the insurance carrier has determined which diagnoses are compensable.

Another case of good intentions gone bad?  We’ll plead the Fifth.