Steven J. Bell Jr. v. 3E a/k/a Electrical & Engineering Co., and Travelers Indemnity/CT, Court of Appeals of Iowa, No. 14-0044

On March 19, 2010, Claimant, Steven Bell Jr., was working as an “inside sales” representative for Electrical & Engineering Co. (3E) when he slipped and fell in the 3E lobby. The fall resulted in a left wrist sprain, a trauma-induced ganglion cyst, lower back strain, and a contusion to the left shoulder and elbow. Claimant underwent surgery to remove the cyst from his wrist in early May and continued physical therapy for his wrist and shoulder. After leaving physical therapy in mid-May 2010, Claimant returned at the end of the month complaining of increased back pain. An MRI done on Claimant’s back revealed no problems or “abnormalities of the lumbar spine.” On June 24, 2010, Claimant was released to work without restrictions. 

On June 4, 2010, Claimant filed a petition with the workers’ compensation commission. The deputy found Claimant’s accident left him with a five percent industrial disability. On October 15, 2012, the commissioner adopted the findings of the deputy. Claimant sought judicial review, and on July 9, 2013, the district court affirmed the commissioner on all grounds. Claimant now appeals.

Claimant argues the commissioner erred in not considering his possible career as a firefighter in determining his lost earning capacity. Claimant received a degree in fire and science technology in 1997 and passed the examinations required to serve as a firefighter, but had not applied for any firefighter positions since 1997. He claims the workers’ compensation statute does not require an employee to have pursued a particular position to establish he or she has the capacity to perform it. The Court of Appeals agrees with the district court’s analysis in finding that the commissioner “properly considered the fact of [Claimant]’s minimal work experience as a firefighter when he chose not to include any lost earning capacity from employment as a firefighter.”

Claimant also claims the commissioner failed to make the credibility findings required by Iowa Code section 17A.16 (2011). The Court of Appeals finds the agency complied with section 17A.16, noting, “We do not hold the commissioner to technical compliance with this provision as long as we can determine where finding of facts end and conclusions of law begin or otherwise can track the commissioner’s analytical process.” The agency decision is divided into a finding-of-fact section and a conclusion-of-law section. The decision logically sets forth the commissioner’s thought process. The decision gives specific findings on Claimant’s credibility and while other credibility findings are not explicit, they can be discerned from the direction of the analysis.

Claimant also argues the issue of permanent disability was not ripe for adjudication because the doctors did not find he had reached maximum medical improvement (MMI) for his back injury. The Court of Appeals finds the commissioner’s decision that Claimant had reached MMI was supported by substantial evidence. In an independent medical examination, a doctor opined the Claimant had reached MMI for his back in June 2010 and only suggested future treatment for pain management; ongoing pain does not extend the healing period if it does not decrease the industrial disability.

Douglas Moad, By his Wife Sharon Moad, v. Gary Jensen Trucking, Inc., Court of Appeals of Iowa, No. 14-0164

Claimant, Douglas Moad, worked as a truck driver for Gary Jensen Trucking, Inc. On December 1, 2008, Claimant was driving his truck within the course of his employment when an SUV driver drove his SUV across the median and struck Claimant’s truck head-on. The other driver died at the scene. Claimant died roughly three months later. Thereafter, Claimant’s wife Sharon filed a claim for workers’ compensation death benefits on Claimant’s behalf, asserting the injuries from his December accident were the cause of his eventual death. Defendant admitted Claimant suffered injuries in his accident, but it denied that those injuries caused or contributed to Claimant’s death.

A hearing was held before a deputy workers’ compensation commissioner in September 2012. Several conflicting expert opinions were offered on the cause of Claimant’s death. Dr. Bruce, the cardiologist who treated Claimant the day of his demise, testified it was his opinion that Claimant’s probable cause of death was a massive pulmonary embolus, though it was also possible he died from a massive myocardial infarction. Dr. Watt testified that the consequences from Claimant’s accident could lead to the tendency to have a pulmonary embolus. The employer’s expert, Dr. Ronald Vessey, opined it was “most probable” that Claimant “died of the sudden death syndrome secondary to having developed an acute event.” Sharon’s expert, Dr. Dan Fintel, a cardiologist, concluded that “a cardiac etiology was the most likely cause of [Claimant’s] persistent chest discomfort, and was a direct consequence of the motor vehicle accident.”

In November 2012, the deputy commissioner entered his decision denying Sharon’s claim. The deputy noted the opinions of Drs. Vessey and Fintel and stated that the “opinions of both doctors are possible scenarios, and perhaps equally persuasive (reading Dr. Fintel’s opinions in the best light). However, the claimant has the burden of proving causation by a preponderance of the evidence.” Sharon appealed the deputy’s decision, and the Iowa Workers’ Compensation Commissioner affirmed the decision. Sharon then filed a petition for judicial review of the commissioner’s decision, challenging the agency’s factual findings, its legal conclusions, and its application of facts to the law. Following a contested hearing, the district court entered its judicial review ruling reluctantly affirming the agency decision.

The Court of Appeals affirms the district court’s ruling, finding substantial evidence supports the agency’s finding that Sharon did not prove by a preponderance of the evidence that Claimant’s accident was a cause of his tragic death. The commissioner relied upon Dr. Vessey’s opinion that Claimant was simply “one of the 250,000-300,000 Americans who die every year of cardiovascular collapse.” Consequently, the agency’s decision was supported by substantial evidence, and the Court of Appeals cannot conclude the agency’s decision to accept Dr. Vessey’s opinion over the other experts was irrational.

Sharon Moad, Individually and as Personal Representative of the Estate of Douglas Moad, et al., v. Richard Libby, as Personal Representative of the Estate of Matthew Libby, et al., and Dakota Truck Underwriters, et al., Court of Appeals of Iowa, No. 14-0290

Douglas Moad was a resident of South Dakota. He was employed as a truck driver by a South Dakota trucking company, Dakota Truck Underwriters (DTU). Pursuant to South Dakota law, DTU voluntarily paid workers’ compensation benefits to Moad arising out of a work-related traffic accident occurring in Iowa. Douglas Moad accepted the workers’ compensation benefits paid by DTU. Douglas deceased several months after the traffic accident. Sharon sought workers’ compensation benefits in Iowa. She also filed this civil suit against the motorist causing the traffic accident. DTU intervened in this case, asserting a workers’ compensation subrogation lien for the benefits paid to Douglas. Ultimately, Sharon settled this case with the underinsured and uninsured motorist insurance carriers and moved to strike the subrogation lien on the settlement proceeds. The parties agreed that DTU had a right to reimbursement if South Dakota law controlled the subrogation question and no right to reimbursement if Iowa law controlled the subrogation question.

The district court held Iowa law applied and granted Sharon’s motion to extinguish DTU’s lien. DTU appealed. In the first appeal, the supreme court concluded the district court and this court incorrectly analyzed the conflict of laws issue. The supreme court remanded the case “to the district court to consider the extent to which section 185 of the Restatement (Second) applies in this case.” The district court concluded Restatement (Second) section 185 applied to this case, concluded that South Dakota law controlled the subrogation question, and held that DTU had a valid lien against the settlement proceeds under South Dakota law for compensation benefits already paid to Moad.

Sharon timely appealed the district court’s order. Sharon first contends the district court erred in concluding Restatement (Second) section 185 was applicable to this case. Section 185 provides as follows:

"The local law of the state under whose workmen’s compensation statute an employee has received an award for an injury determines what interest the person who paid the award has in any recovery for tort or wrongful death that the employee may obtain against a third person on account of the same injury."

Sharon contends an “award” can only be paid following an adjudicative determination of entitlement to benefits, and as DTU voluntarily paid workers’ compensation benefits, section 185 is inapplicable. The Court of Appeals disagrees, finding that Sharon’s interpretation of section 185 is too narrow. Sound policy reasons actually militate against Sharon’s interpretation of section 185; it is at odds with workers’ compensation schema, generally, to adopt a rule that incents employers and insurance carriers to contest claims for no reason other than to preserve subrogation rights.

Sharon also argues that South Dakota law should not determine the subrogation issue because she filed in Iowa a workers’ compensation claim for benefits related to Douglas’s death. The Court of Appeals disagrees, stating that the fact that Sharon sought additional benefits in Iowa is not at all relevant to whether DTU has subrogation rights for benefits already paid pursuant to another state’s law.

Accordingly, the Court of Appeals finds the district court did not err in applying section 185 of the Restatement (Second) of Conflict of Laws and did not err in denying the plaintiff’s motion to strike the lien. The case is remanded to determine the amount of the lien.

Heritage Care and Rehabilitation and Midwest Employer’s Insurance Company v. Debra True, Court of Appeals of Iowa, No. 14-0579 

Claimant, Debra True, began working in 2007 as a dietary aide for the employer. She injured her right shoulder while taking out the trash in 2010. Medical treatment was provided for a short time. Claimant did not miss any days of work due to the injury, so no weekly workers’ compensation benefits were paid. On March 1, 2011, Claimant filed a petition with the workers’ compensation commissioner seeking medical benefits under Iowa Code section 85.27 (2011) for the injury. The case was set for a hearing on February 24, 2012.

Prior to that hearing on January 20, 2012, Claimant filed a motion to amend her petition to include a claim for temporary and permanent disability benefits. Claimant also submitted, and the commission accepted, a $100.00 filing fee. The case proceeded to hearing on February 24, 2012, where it was brought to the deputy’s attention that the $100.00 filing fee was paid and accepted with the motion to amend. Because the fee was accepted, the deputy concluded the agency had deemed the motion to amend to be a petition in arbitration, that filing had occurred prior to the running of the statute of limitations, and therefore, Claimant should be permitted to make a claim for weekly benefits.

After the hearing, the deputy issued a decision awarding a thirty-percent industrial disability to Claimant. The employer appealed to the commissioner, who summarily affirmed the award of benefits and also affirmed the deputy’s decision regarding the motion to amend. The employer filed a judicial review petition with the district court challenging the agency’s ruling on the statute of limitations issue and the award of benefits. The district court affirmed the agency’s decision, and the employer now appeals.

The Court of Appeals concludes the agency’s decision to permit the amendment is not irrational, illogical, or wholly unjustifiable. The employer asserts this ruling was in error because Claimant was required to file an original notice and petition for permanency benefits prior to the statute of limitations running, not just a motion to amend. However, there is no statutory or administrative rule requiring Claimant to file a separate petition for each type of workers’ compensation benefit she seeks from the employer arising out of the same injury. The commissioner concluded a motion to amend was the proper procedural course to take when a petition alleging the same injury for the same date against the same employer is already on file, and the Court of Appeals agrees.

The Court of Appeals also concludes substantial evidence supports the factual findings of the agency and the agency’s award of thirty percent industrial disability is not irrational, illogical, or wholly unjustifiable. The deputy commission assigned a thirty percent industrial disability after  concluding Claimant has clearly lost earning capacity as she is now restricted from overhead and heavy work activities. The deputy noted Claimant’s age and the fact that she had to give up her part-time work. The deputy also stated that the restrictions imposed would preclude Claimant from some food server and food preparation jobs that were in her prior work experience. The Court of Appeals therefore affirms the district court's judicial review decision affirming the agency's award of workers' compensation benefits.

We all know that before finalizing a settlement in a workers’ compensation claim, the parties need to determine whether Medicare has already made any payments and, if so, whether there is a conditional payment lien.  The obvious risk in not addressing conditional payments before resolving a case is that Medicare may come back after the settlement seeking reimbursement for conditional payments that it made while the claim was open.  If Medicare does have to seek repayment after the settlement, it can seek more than just the amount of the conditional payments.  Medicare can seek twice that amount, or double damages.[1]

Medicare is not the only entity that can come after a party to obtain reimbursement for conditional payments.  The Medicare Secondary Payer Act also includes a private cause of action which means that the injured employee can sue the carrier for failure to reimburse Medicare for conditional payments.

The private cause of action in the context of a workers’ compensation award was recently addressed in Estate of McDonald v. Indenmity Insurance Company of North America, 2014 U.S. Dist. LEXIS 121902.  In this case, the Western District of Kentucky awarded the employee’s estate the full amount of Medicare conditional payments, plus double damages, despite the carrier having already reimbursed Medicare.

By way of background, the employee was involved in a motor vehicle accident, which he alleged was work related.  The resulting workers’ compensation claim was denied.  Between the accident on May 10, 2007, and his ultimate death on November 5, 2007, Medicare paid $180,185.75 in medical bills.  On December 28, 2009, the Kentucky Workers’ Compensation Board found the accident and resulting death were work related and ordered the employer/carrier to pay medical expenses.  The final order was issued on March 9, 2010.

On September 13, 2012, the estate of the injured employee filed a lawsuit under the Medicare Secondary Payer private cause of action.  After the lawsuit was filed, the carrier received a Medicare conditional payment letter dated September 18, 2012, which was followed by the Final Demand Letter on October 25, 2012.  The carrier paid the full conditional payment amount to Medicare on December 11, 2012, and received a letter from Medicare dated January 11, 2013, acknowledging payment in full and closure of the file.  The carrier moved to dismiss the lawsuit, in part, because the conditional payment had been reimbursed per Medicare’s demand.  The court did not agree, instead relying upon the same reasoning as the 8^th Circuit as follows:

The thinking behind the statute is apparently that (1) the beneficiary can be expected to be more aware than the government of whether other entities may be responsible to pay his expenses; (2) without double damages, the beneficiary might not be motivated to take arms against a recalcitrant insurer because Medicare may have already paid the expenses and the beneficiary would have nothing to gain by pursuing the primary payer; and (3) with the private right of action and the double damages, the beneficiary can pay back the government for its outlay and still have money left over to reward him for his efforts.

Estate of McDonald, 2014 U.S. Dist. LEXIS 121902, *5.  The court held that the carrier’s argument—that it had already reimbursed Medicare, so there was “no harm, no foul”— disregarded the two years between the order for payment made by the Workers’ Compensation Board and the filing of the lawsuit, during which the carrier did nothing to either notify or reimburse Medicare.  The court awarded the employee’s estate the full amount of the $184,514.24 in Medicare conditional payments, plus double damages in that amount, as a reward for the estate’s efforts.

This private cause of action is also being exercised by Medicare Advantage Plans.  Although the circuits are somewhat split, the majority are allowing such plans to initiate lawsuits seeking reimbursement for expenses paid under Medicare Part C.

Risk Handling Hints:

It is important to include language in your settlement agreement to address how conditional payments are being addressed.  But what happens if your case goes to a hearing and responsibility for payment of medical care is retroactively established?  We recommend contacting the Benefits Coordination & Recovery Center (BCRC) once a final award establishes responsibility for payment of medicals to obtain any conditional payment amount that must be reimbursed.

We also recommend beginning the process to verify any conditional payments beforereaching a final settlement or taking a case to hearing.  Although Medicare is reluctant to provide a final conditional payment amount prior to settlement, we recommend reporting the claim to Medicare, which is done through the BCRC, to establish a case identification number, which will begin the conditional payment investigation process.  At any point after the claim has been established, a party may then report the settlement, which will generate a final conditional payment letter.  We are looking forward to Medicare’s full implementation of Section 205 of the SMART Act which will allow the parties to obtain a final conditional payment amount prior to settlement.

The law is not yet settled on how much time must pass before an employee is able to file the private cause of action (although the SMART Act established a three-year statute of limitations for pursuing a claim for conditional payment reimbursement, which begins to run from the date notification of settlement or award is provided to Medicare), the amount of damages that can be recovered, and the standard for demonstrating entitlement to double damages, but it is clear that carriers and defense counsel can take steps to mitigate any potential damages.  In addition to the list above, some best practices we recommend include the following:

• Do not rely upon any mandatory reporting under Section 111 to “trigger” a conditional payment letter. Be prepared to investigate potential conditional payments independently of Section 111 mandatory reporting requirements.
• Do not rely upon the employee to share conditional payment information with the carrier. When in doubt, notify BCRC of your claim to begin the conditional payment investigation.
• Specify in the settlement agreement exactly how conditional payments have been addressed, including how they will be reimbursed.
• Verify whether a Medicare Advantage Plan has made any payments related to your claim. Negotiate resolution of any Medicare Part C lien directly with the insurance plan.
• Upon receipt of any final award establishing responsibility for medical payments, notify BCRC of the claim and request a conditional payment letter.

[1] 42 U.S.C. § 1395y(b)(2)(B)(2).

Effective January 1, 2015, the mileage rate is $0.575.  The maximum benefit rate for accidents occurring on or after January 1, 2015, is $761.00

Link

Desirae Cintron was injured in a motor vehicle accident on September 20, 2011 while walking in the parking lot of a Wal-Mart store where she worked.  She was struck by a vehicle driven by Marvin Thomas.  Cintron was eligible for PIP benefits because she lived with her father who had an insurance policy with NJM.  She brought a law suit against Thomas in civil court for damages.

The issue of Wal-Mart’s workers’ compensation lien arose as part of the civil suit with defendant Thomas taking the position that Wal-Mart had no lien rights because evidence of PIP benefits, which are collectible or paid under a standard PIP policy, are inadmissible in a civil action for recovery of damages. Because the plaintiff would not be able to recover her medical bills, the Defendant contended that Wal-Mart would not be able to recover its lien for the payment of these bills. Defendant argued that part of the automobile reform legislation was a provision insulating a tortfeasor or person responsible for the accident from a claim for medical expenses and wage benefits that are paid by PIP.  The way this was accomplished was through a provision in the PIP law under N.J.S.A. 39:6A-12, which bars evidence of PIP benefits which are collectible or paid under an auto insurance policy. What this does, in effect, is prevent a double recovery of PIP benefits already paid out or due to the insured in a subsequent action.

Wal-Mart intervened in this case to protect its lien. It contended that N.J.S.A. 39:6-12 did not apply to a suit involving an automobile accident in which the workers compensation carrier paid the medical bills. Because the costs of the work-related auto accident are ultimately borne by the workers comp carrier, these benefits are not “collectible or paid” through PIP coverage and are admissible. Thus, it should be entitled to assert its lien to collect on the medical bills it paid.  

Defendant relied heavily on the unreported case of Dever v. New Jersey Mfrs. Ins. Co, 2013 Wl 5730033 (App. Div. Oct. 23, 2013) for the proposition that there is no workers’ compensation lien in this situation.  Wal-Mart, which was represented by Capehart Scatchard through Gina Zippilli Esq. and Betsy Ramos, Esq., argued to the contrary  thatDever is entitled to no precedential value and that the controlling case in this area isLefkin v. Venturini, 229 N.J. Super. 1 (App. Div. 1988).  

The Honorable Darrell Fineman, J.S.C., Law Division, Cumberland County, held in favor of Wal-Mart.  “Plaintiff’s workers’ compensation lien is admissible because precedential case law controls, and there has been no indication that the statute has been changed as to workers’ compensation through the enactment of AICRA.”   The Judge said that theLefkin case is binding on the court.  The Judge reasoned that workers’ compensation is ultimately responsible for payment of medical bills in a situation where the PIP carrier makes the initial payment.  The PIP carrier has a right of reimbursement against the workers’ compensation carrier.  Therefore, evidence of the medical bills should not be barred in the civil suit because they are not collectible under the PIP policy.  The Judge concluded:

In the case where both workers’ compensation and PIP apply, the workers’ compensation system is the ultimate payer of the plaintiff’s medical bills.  Therefore, it makes little sense to apply a bar created for the PIP statutory scheme and not a part of workers’ compensation statutory scheme.

This decision, which was rendered on February 23, 2015, is now the second decision in the Superior Court in the past few months rejecting theDever case as having no precedential value and essentially being wrongly decided.  It is an important decision because there are so many employers in New Jersey who are trying to recover workers’ compensation liens where plaintiffs are defending by means of the Dever case.   For further information on this case, please contact Betsy Ramos, Esq. atbramos@capehart.com. 

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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. 

On February 27, 2015, the Alabama Court of Appeals released its decision in Ex parte Fairhope Health & Rehab, LLC. The facts of the case were as follows: The plaintiff, Lula Durgin worked as a nursing home activities director for Fairhope Health & Rehab. One day, while preparing to take a group of nursing home residents to the local Wal-Mart, she climbed into the driver’s seat of her employer’s van. Durgin alleged that in February 2012, she felt pain in her right knee as she went to sit down in the seat of the van. Durgin was sent to a local orthopaedist, who diagnosed her with a torn meniscus and pre-existing arthritis. The orthopaedist performed surgery to repair the torn meniscus, and released Durgin to return to work without restrictions. Durgin returned to work, but several months after surgery she continued to have pain in her right knee. Durgin’s orthopedist related the continued pain to pre-existing arthritis. Durgin also contended that her knee caused her to fall several times, and on one occasion, she had sustained a back injury due to a fall at home. Another physician determined that Durgin needed to undergo a right knee total replacement surgery. Durgin contended that Fairhope Health & Rehab was responsible for the total knee replacement surgery, and that her alleged back injury was also compensable as the direct and natural result of her on-the-job-knee injury. Fairhope Health & Rehab asserted that Durgin’s alleged injuries did not occur in or arise out of her employment, and that Durgin’s need for a right knee replacement was not related to the alleged accident. Fairhope Health & Rehab also denied that Durgin had any compensable back injury and further asserted that her alleged back problems were the result of a prior accident that had occurred several years before she was hired.

Durgin filed suit, and the parties took the deposition of the orthopedist who had performed the meniscus repair. During his deposition, Durgin’s orthopedist reviewed medical records and MRIs taken of both Durgin’s knees in 2007, five years prior to the February 2012 incident. Those MRIs showed that the menisci in both of Durgin’s knees were shredded and severely torn. At that time, her doctor had recommended that she undergo knee replacement procedures of both knees. While Durgin elected to undergo a total knee replacement in her left knee, she had never had surgery to repair the torn meniscus or to replace the right knee joint. Despite this, she had been able to perform all of the regular duties of her job at Fairhope Health & Rehab prior to her alleged accident. Durgin’s orthopedist stated that while the alleged incident in February 2012 may have exacerbated her already torn meniscus, the surgery he had performed restored her knee to a condition that was even better than it had been prior to the February 2012 incident. The orthopedist also testified that while Durgin continued to complain of pain in her knee, it was solely the result of the pre-existing arthritis in her "terrible looking knee", and not the February 2012 incident. Following the orthopedist’s deposition, the case went to trial on three issues: (1) whether Durgin’s alleged meniscus tear occurred in and arose out of her employment; (2) whether Durgin’s need for a knee replacement surgery was related to the February 2012 incident; and (3) whether Durgin’s alleged back injury was compensable.

Durgin testified on her own behalf at trial, and also called one of her co-workers as a witness to testify that she had been able to perform her regular job duties prior to the February 2012 incident. The deposition and medical records of Durgin’s treating physician were entered into evidence, as were medical records from the doctor who had performed the left knee replacement surgery in 2008. Despite the fact that no other evidence was presented at trial, the trial court found that the February 2012 incident exacerbated or aggravated Durgin’s pre-existing meniscus tear, and that Fairhope Health & Rehab was responsible for Durgin’s right knee replacement procedure. The trial court found that Durgin’s alleged back injury was not compensable. Fairhope Health & Rehab appealed the findings that the torn meniscus and need for the knee replacement were related to Durgin’s February 2012 incident.

The Alabama Court of Appeals held that since the trial court did not determine the specific amount of temporary total or permanent partial disability benefits to which Durgin was entitled, it was not a final appealable Order. However, the Court of Appeals evaluated the employer’s appeal as a Petition for Writ of Mandamus instead. The Court of Appeals held that the Trial Court’s finding that Durgin sustained an accident occurring in and arising out of her employment that aggravated her already torn meniscus was supported by substantial evidence. However, since the only evidence presented on the issue of medical causation (the treating physician’s deposition testimony and medical records) established that Durgin’s need for a knee replacement was not related to her alleged accident, the Court of Appeals held that Durgin had failed to meet her burden of proof. As a result, it issued a Writ of Mandamus to the Trial Court, directing it to set aside the portion of the Order requiring Fairhope Health & Rehab to pay for the prescribed right knee replacement surgery.

Two Judges dissented, stating that the Trial Court’s Order was final for purposes of Appeal, since all of the issues submitted to the trial court had been decided. Despite their dissent on the procedural aspects of the case, those two judges concurred with the end result.

MY TWO CENTS:

If allowed to stand, the trial court’s ruling would have required the employer to provide medical treatment that, according to Durgin’s treating physicians, was unrelated to the alleged accident. In his dissent, Judge Moore stated, "the trial court could have reached its conclusion only by impermissibly deciding matters lying exclusively within the peculiar knowledge of medical experts." This was the same position taken by Fairhope Health & Rehab. While Alabama law has long held that expert medical testimony is not necessary to establish medical causation in a workers’ compensation case, there was expert medical testimony in this case, and it firmly supported Fairhope Health & Rehab’s position.

Also important to note is that the Court of Appeals cited the case of Alamo v. PCH Hotels & Resorts, in finding that Fairhope Health & Rehab was not responsible for Durgin’s knee replacement surgery because the alleged accident only temporarily aggravated her underlying arthritis. In doing so, I believe the Court of Appeals differentiated this situation from the one presented inMadison Academy v. Hanvey, reiterating that the employer is not liable for any continuing symptoms that result solely from a pre-existing condition.

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ABOUT THE AUTHOR:

This article was written by Charley M. Drummond, Esq. of Fish Nelson & Holden, LLC. Fish Nelson & Holden is a law firm located in Birmingham, Alabama dedicated to representing employers, self-insured employers, and insurance carriers in workers’ compensation cases and related liability matters. Drummond and his firm are members of The National Workers’ Compensation Defense Network (NWCDN). The NWCDN is a national and Canadian network of reputable law firms organized to provide employers and insurers access to the highest quality representation in workers’ compensation and related employer liability fields. If you have questions about this article or Alabama workers’ compensation issues in general, please feel free to contact the author at cdrummond@fishnelson.com or (205) 332-3414.

BEING SPECIFIC ABOUT SPECIFIC LOSSES

By Jeffrey D. Snyder, Esquire

In Jacqueline Fields v. WCAB (City of Philadelphia), decided by the Pennsylvania Commonwealth Court on November 14, 2014, the Court addressed the issue of whether benefits payable for an injured employee sustaining multiple specific losses, arising from the same injury, should be paid consecutively, as opposed to being paid concurrently under the Pennsylvania Workers’ Compensation Act.

In Fields, the Pennsylvania Commonwealth Court ruled that the benefits should be paid consecutively, regardless of whether that meant that the benefits due and owing might not be completely paid within the injured employee’s life expectancy.

This case arose as a result of the injured employee sustaining injuries to her left shoulder, arm, wrist, and hand, while restraining an inmate, in the course of working as a prison guard for the City of Philadelphia in January of 2013.

In December of 2013, she was awarded workers’ compensation benefits, in the form of temporary total disability benefits, by the Workers’ Compensation Judge.

Three years later, a different Workers’ Compensation Judge granted the injured employee’s Review Petition, adding additional descriptions of injury to the injury nexus for the injured employee’s 2003 injury, including adding a partial tear of the left rotator cuff, a left brachial plexus traction injury, and reflex sympathetic dystrophy of the injured employee’s left upper extremity.

Yet another Workers’ Compensation Judge then granted the injured employee’s Claim Petition in 2008, awarding the injured employee 410 weeks of specific loss benefits for the specific loss of her left arm, finding that the specific loss benefits were payable as of the injured employee’s injury becoming a complete loss of use for all practical intents and purposes in August of 2006.

In addition, a 20 week healing period was also awarded to the injured employee.

The Workers’ Compensation Judge also ordered that the injured employee’s temporary total disability benefits would continue, as the injured employee was totally disabled, and the specific loss benefits would then be payable after total disability benefits concluded.

The injured employee then filed a second Claim Petition, alleging a specific loss of her right lower extremity and right foot, later amending the petition to include a specific loss of her left leg.

In 2009, yet another Workers’ Compensation Judge found that the injured employee’s work injuries had resolved into specific losses of her left arm, and both legs.  Doing so, the Workers’ Compensation Judge granted the Review Petition, awarding 410 weeks of specific loss benefits to the right leg, 410 weeks of specific loss benefits for the left leg, and a 25 week healing period.

The 2009 Decision also resulted in the employer, the City of Philadelphia, being entitled to a credit for weekly temporary total disability benefits that had been paid through the date of the Judge’s 2009 Decision.

An Amended Decision was then issued by the Workers’ Compensation Judge, changing the dates relevant for the interest that would be payable on the various awards of specific loss benefits.

The 2009 Decision was appealed, with the Appeal Board determining that the 2009 Decision incorrectly awarded interest to commence on different dates for each specific loss, with the Appeal Board modifying the Judge’s Decision, to reflect an accrual date, for interest purposes, for all three awards.

The Appeal Board held that the date of accrual for interest was when the evidence proved that the injured employee’s disability injuries had resolved into specific losses, with specific loss benefits then being payable, as temporary total disability benefits ended.

The Appeal Board’s Decision was then affirmed by the Commonwealth Court in the firstFields Decision, issued in 2012.

In 2010, the injured employee filed a Petition to Review Medical Treatment, alleging that she required a personal care attendant, as well as modifications to her home and vehicle, also filing a Penalty Petition, alleging that the employer had violated the Act, by unilaterally reducing her compensation benefits.

In 2011, the Workers’ Compensation Judge concluded that the injured employee had met her burden of proof in support of her Review Medical Petition, without entering a specific award for the costs of the vehicle modifications, and home care services sought, since the injured employee did not present evidence of any modification estimates or service invoices.

The Penalty Petition was denied, on grounds that the Workers’ Compensation Judge found that the employer did not violate the Act.

The Workers’ Compensation Judge also concluded that, based upon the injured employee having multiple specific losses arising from the same injury, that the injured employee could elect to be paid specific loss benefits, rather than indemnity or temporary total disability benefits, but that the injured employee could not receive concurrent multiple awards of specific loss benefits.

This Decision was then appealed by both parties, with the Board disagreeing with the Judge’s determination as to how benefit payments should be made to the injured employee under the Act.  The Board also determined that the injured employee’s specific loss benefits should be paid consecutively, as opposed to concurrently.

Holding that the plain language of Section 306(c)(21) of the Pennsylvania Workers’ Compensation Act dictated that the employer should pay the injured employee specific loss benefits consecutively, the Commonwealth Court concluded, as the employer suggested, that the injured employee was attempting to back-door her specific loss benefits as though the same were being commuted, effectively accelerating the payment of benefits, although there was not a commutation petition before the Court.

Consequently, the Commonwealth Court determined, that an injured employee claiming bilateral specific losses, who chooses to receive the specific loss benefits rather than total disability benefits, mandates that the specific loss benefits should then be paid “in the same manner as the legislature intended other multiple specific losses, … which is consecutively”.

Holding that the injured employee’s disabilities resulted from a single occurrence, the Commonwealth Court ordered that the injured employee’s multiple specific losses should be aggregated pursuant to Section 306(c) of the Act, requiring that the benefits be paid consecutively, and not concurrently.

What is the take away from this specific loss Decision?

Simply put, it is that the Commonwealth Court has now made a bright line line ruling on an issue that rarely arises, being that an employer’s obligation to pay specific loss benefits, for multiple specific losses arising out of the same injury, requires consecutive and not concurrent payments, with an injured employee not being permitted to attempt to accelerate payments, in the absence of the benefits being commuted.

ConnorsO’Dell LLP

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A claimant’s testimony that pain caused by his compensable injury led to his resignation is sufficient to support disability, but only up until such time as the claimant retains new employment earning at least as much as his preinjury wage. APD 141958, decided November 24, 2014.

The Appeals Panel has authority to recalculate an impairment rating based on the figures provided by the certifying doctor in order to correct a mathematical error. APD 141980, decided November 10, 2014.

Where a Hearing Officer finds a Designated Doctor’s certification of MMI/IR is contrary to the preponderance of the evidence based on a misinterpretation of the Designated Doctor’s opinion, the Appeals Panel will remand the issue if there is more than one certification in the record that could be adopted.  APD 141917, decided November 4, 2014.

A Claimant can show good cause for failing to appear at a CCH, even after the 10 day period, if they also have good cause for failing to respond to the 10-day letter. APD 141918, decided November 3, 2014.

A finding that lumbar radiculitis is part of the compensable injury requires expert medical evidence explaining how the mechanism of injury caused that condition. APD 141973, decided November 3, 2014.

This is good news, except it is a shame you have to go to court to get an agreement like this.  In this case, the Division appealed an agreed judgment entered by a trial court where the claimant and the carrier agreed to a reduced payment in amount less than the full amount of SIBs would have been. The Division claimed that the Labor Code is clear on this point, and SIBs can only be paid in the full amount or not at all. The Dallas Court of Appeals rejected all of the Division’s arguments and held that, while neither the Division nor the court could award partial SIBs, nothing prevented the parties from settling to an agreed partial amount.  Tex. Dept. of Ins, Div. of Workers’ Comp. v. Jones, 2014 WL 5768728 (Tex. App.–Dallas 2014, no pet. h.) (mem. op.).