State News

 

            There are many instances in which an injured worker argues that he was not employed so as to be able to bring a negligence action.  The case ofHernandez v. Port Logistics, A-3558-12T3 (App. Div. 2014) illustrates this situation.

 

            Daniel Hernandez was placing a box onto a load of pallets on August 23, 2011, when a wood splinter broke off and struck him in the eye, causing total loss of vision in the left eye.  Hernandez was employed by Staff Management, which had entered into a “Service Agreement” with Distribution Solutions, Inc. doing business as Port Logistics Inc. Hernandez sought workers’ compensation benefits from Staff Management.  Then he sued Port Logistics Inc. contending that the company was negligent in not providing him with eye protection.

 

            Port Logistics Inc. argued that Hernandez was its employee and could not sue the company because his exclusive remedy was workers’ compensation.  In his deposition, Hernandez acknowledged that he was doing work for Port Logistics in loading and unloading trucks.  He worked under the direct supervision of Port’s managers, who provided him with his assignments and directed his work at the loading docks.  Port controlled his work hours and lunch time.  Port Managers could send Hernandez home early if work was lacking. 

 

            For his part, Hernandez argued that the Service Agreement said he was an employee only of Staff Management and that Staff Management was exclusively responsible for payroll, taxes and workers’ compensation.  The trial judge rejected this argument that only Staff Management was Hernandez’s employer.  The judge found that  Hernandez was a special employee of Port Logistics.  Hernandez appealed.

 

            The Appellate Division noted that it is quite common for an employee to have two employers.  The court said that the language of the Service Agreement alone did not control the outcome of the litigation.  Instead, the court reviewed all the factors noted above showing that Port Logistics exercised tremendous control over the day-to-day activities of Hernandez. “In short, under the precedent cited, defendant (Port) was a special employer of plaintiff, despite any contract language to the contrary.  As a result, plaintiff’s tort claim against defendant was barred by N.J.S.A. 34:15-8.”

 

            The lesson in this case is that sometimes an employer wants coverage under workers’ compensation because the exclusive remedy provision offers powerful protection for an employer faced with a potentially large negligence law suit. 

Frank Ascione worked for U.S. Airways at Newark Liberty International Airport as a fleet service agent since 1981.  He handled baggage and drove equipment to push back planes.  He would work in the “bag room” transporting baggage to and from the plane.  He assisted in de-icing of planes about 20 times in his career and worked with a chemical named glycol.  He said the diesel tugs he drove released smoke that would enter the cab of the tug, leaving a heavy soot on the floor of the vehicle.  It was often hard to breathe, and sometimes he would have to stick his head out the window for fresh air.  Sometimes the baggage conveyor belt would jam, requiring him to crawl into the system to remove baggage.  When that would happen, dirt, dust and asbestos would fall on him.  He also was exposed on occasion to clouds of smoke emanating from the engine while unloading the plane.

 

            Petitioner brought a claim for pulmonary injuries against U.S. Airways.  At trial he testified that he had a lack of energy, although he still worked for the company and took overtime.  He complained of a cough and shortness of breath which prevented him from exercising or playing sports.  He admitted to a history of heart problems and had a cardiac catheterization in 2009. 

 

            Dr. Malcolm Hermele testified for petitioner as an expert in internal medicine, although he admitted he is not board certified in pulmonology.  He testified that x-rays of petitioner’s chest showed damaged alveoli which could be caused by exposure to fumes, dust and pulmonary irritants.  He did concede that petitioner’s excessive weight could be an independent cause of fatigue and shortness of breath.  Losing weight, he admitted, would help petitioner reduce his symptoms.  Dr. Hermele said petitioner suffered from chronic bronchitis and probably restrictive pulmonary disease caused or aggravated by work exposures.  He estimated 35% permanent partial disability. 

 

            Dr. Benjamin Safirstein, a board certified pulmonologist, testified that petitioner’s physical exam was “pretty normal.”  He said that the first set of pulmonary functions studies were entirely normal.  He had no obstruction, restriction or impairment in diffusion.  One of the key factors in this case was that Dr. Safirstein did more extensive pulmonary function testing than Dr. Hermele did.  Dr. Safirstein performed spirometry, lung capacity and diffusion testing, while Dr. Hermele only did spirometry.  According to Dr. Safirstein, spriometry alone is only preliminary and cannot be used to diagnose pulmonary diseases.  Another point of contention between the experts was the x-rays, which were completely normal according to Dr. Safirstein. 

 

            Dr. Safirstein performed a second pulmonary function test in late 2012 which showed a mild decline in the vital capacity parameter of petitioner’s lung volumes.  He attributed this decline to lack of effort on the part of petitioner in performing the test and his excessive weight, or cardiac enlargement.  He did admit petitioner would qualify as having bronchitis but did not believe that this condition was due to work.  As for petitioner’s shortness of breath, that could be caused by any number of conditions, including morbid obesity and an enlarged cardiac silhouette suggestive of cardiac disease.

 

            The Judge of Compensation ruled for petitioner and awarded 7.5%.  U.S. Airways appealed.  It argued that the Judge of Compensation failed to make critical findings concerning the conflicting testimony of the medical experts in this case.  The court said, “A workers’ compensation judge should ‘carefully explain why he or she considered certain medical conclusions more persuasive than others.’”Smith v. Montgomery nursing Home, 327 N.J. Super. 575, 579 (App. Div. 2000).  The court said the judge failed to articulate her reasons for making discretionary decisions.  In a key statement the court said: “This court has reversed decisions from judges of compensation when a decision merely recounts the highlights of the expert testimony without making any conclusions.” What the court meant is that it was not enough for the judge to simply discuss the testimony of the experts:  since their testimony conflicted, she needed to make credibility findings. 

 

            The court observed that Dr. Safirstein’s testing was superior to that of Dr. Hermele.  All Dr. Hermele measured is air flow but not lung volumes.  More testing was needed to confirm an abnormality, according to Dr. Safirstein. “As noted, the judge failed to fully explain why she rejected the findings and conclusions of Dr. Safirstein, and credited those of Dr. Hermele.” The court remanded the case for the judge to make specific and detailed findings as to expert witness credibility and determine whether petitioner has proven “by suitable medical evidence that the employment exposure did indeed cause or contribute to the disease . . . [and] that the employment exposure substantially contributed to the development of the disease.”

 

            This case can be found at Ascione v. U.S. Airways, A-5049-12T1 (App. Div. April 10, 2014). 

“SHOW ME THE MONEY!”

By Kevin L. Connors, Esquire

Sound familiar?

 

It is an all too familiar refrain in the context of workers’ compensation subrogation recoveries, with insurers simply seeking the equitable redistribution of no-fault compensation dollars paid by compensation insurers as a result of third-party negligence.

 

A recent Commonwealth Court Decision in Natasha Young v. WCAB (Chubb Corporation), decided on March 10, 2014, is an affirmation of an insurer’s statutory entitlement to subrogation, where workers’ compensation benefits were paid under the Pennsylvania Workers’ Compensation Act, although the third-party negligence occurred in a neighboring jurisdiction, with the accident giving rise to the workers’ compensation claim occurring in Delaware, as well as all litigation over the third-party personal injury lawsuit also being filed in Delaware, against a Delaware Third-Party Defendant.

 

The relevant facts in Young are/were:

 

·         Work-related motor vehicle accident in Delaware;

·         Third-party Defendant was a Delaware resident;

·         Pennsylvania workers’ compensation benefits paid to the Claimant pursuant to an NCP issued by the Employer/Insurer, accepting liability, under the Pennsylvania Workers’ Compensation Act, for the Claimant’s work injury;

·         Claimant filed a personal injury lawsuit in Delaware, seeking personal injury damages against the Third-Party Delaware Driver;

·         The Third-Party personal injury lawsuit in Delaware was settled for $160,000.00;

·         The Employer/Insurer asserted a statutory right of subrogation against the Claimant’s Third-Party recovery;

·         The Claimant challenged the Employer/Insurer’s right to subrogation, contending that Delaware, and not Pennsylvania, law should apply to the parties’ dispute over subrogation; and,

·         Employer/Insurer filed a Review Petition against the Claimant, seeking satisfaction of its workers’ compensation subrogation lien, equaling $101,381.94.

 

Correctly so, the WCJ granted the Employer/Insurer’s Review Petition, which was, in turn, then affirmed by the Workers’ Compensation Appeal Board.

 

Appealing to the Commonwealth Court, the Claimant argued that Delaware and not Pennsylvania law should be applied to the issue of the Employer/Insurer’s subrogation rights, given that the Claimant characterized Delaware’s subrogation laws as being more equitable than Pennsylvania subrogation law, and that the Claimant’s third-party recovery had been limited by Delaware law, such that the Claimant argued that Delaware law should also apply to the insurer’s right of subrogation.

 

Both at the WCJ and the Appeal Board levels, the Claimant’s argument that Delaware law should be applied was soundly rejected in reliance uponAllstate v. McFadden, 595 A.2d 1277 (Pa. Super. 1991), a Decision that had applied a significant contacts test to determine whether Pennsylvania or New Jersey law would apply to a workers’ compensation subrogation claim.

 

Claiming that there was a direct conflict between Delaware and Pennsylvania workers’ compensation laws, as Delaware specifically excludes certain expense items from subrogation, as the items are not admissible at Trial under the Delaware Code, in contrast to Pennsylvania law, which has long been interpreted to provide Employers with an absolute right of subrogation released only by their prorata share of costs and fees, the Claimant sought to apply Delaware subrogation law to the insurer’s subrogation claim.

 

This conflict of law disparity required the Commonwealth Court to utilize the Pennsylvania Supreme Court’s significant contact qualitative analysis underGriffith v. United Airlines, Inc., 203 A.2d 796 (1964) under which the Pennsylvania Supreme Court had held that a potential conflict between the application of state laws required the consideration of the policies and interests underlying the particular issue being brought before the Court, requiring that when jurisdictions are compared, the qualitative factors override quantitative factors when analyzing jurisdictional control.

 

Under Allstate, applying Griffith, the Pennsylvania Superior Court, in the course of examining the contacts each State, Pennsylvania and New Jersey, had with the underlying controversy, being the Employer’s subrogation rights, vis-à-vis its payments of workers’ compensation benefits, the Pennsylvania Superior Court had ruled inAllstate that “Pennsylvania has a significant interest in payments made under its Act and the subrogation of Pennsylvania Employers to monies paid to its Employees by a Third-Party.”Allstate, 595 A.2d at 1279.

 

Other factors relevant to the Allstate holding included the Claimant being a Pennsylvania resident, the Employer being a Pennsylvania Corporation, the Claimant regularly working in Pennsylvania, and the Claimant being paid workers’ compensation benefits under a policy of workers’ compensation insurance coverage satisfying the insurance requirement of the Pennsylvania Workers’ Compensation Act.

 

Relying upon those factors, the Superior Court had ruled in Allstate that Pennsylvania was “the State with the most significant interest in determining the right of the Employer to subrogation where it has made payments to an injured Employee” under its workers’ compensation statute.

 

The reasoning applied by the Pennsylvania Superior Court in Allstate became the controlling holding inByard F. Brogan, 637 A.2d at 693, involving a Pennsylvania worker injured in a motor vehicle accident in West Virginia, who was paid workers’ compensation benefits under the Pennsylvania Workers’ Compensation Act, with the Employer seeking to enforce its right of subrogation, and the Pennsylvania Court applying Pennsylvania, and not West Virginia, law to the issue, although at the time that case was litigated, the Pennsylvania Motor Vehicle Financial Responsibility Law had abrogated an Employer’s right of subrogation for motor vehicle accidents, with that right being subsequently reinstated by subsequent Amendments to the Pennsylvania Workers’ Compensation Act in 1996.

 

Relying upon Griffith, Allstate, and Brogan, the Pennsylvania Commonwealth Court held inYoung, that the State with the most significant contact to a workers’ compensation claim, and the potential right of subrogation for workers’ compensation payments made, is the jurisdiction whose workers’ compensation laws have been applied to the underlying entitlement to receive workers’ compensation benefits for work-related injuries.

 

So concluding, the Young Court held that the Pennsylvania WCA applied “because it is the State with the most significant interest in determining the right of an Employer to subrogation where it has made payments to an injured Employee.”

 

Did we also mention that the Claimant had, in the course of the workers’ compensation claim being resolved, entered into a Compromise and Release Agreement with the Employer/Insurer, under which the C&R Agreement specifically indicated that the Employer/Insurer was reserving its right of subrogation, an issue not contested by the Claimant in the course of receiving an $85,000.00 C&R payment.

 

Resolving the choice of law “significant context” jurisdictional question, theYoung Court further upheld the underlying Decisions of the WCJ and Appeal Board, that the Employer/Insurer’s subrogation lien included the twenty percent attorneys’ fees that were deducted from the Claimant’s compensation benefit payments, in satisfaction of the Claimant’s Contingent Fee Agreement with her workers’ compensation attorney, as the Claimant sought to exclude those payments from the subrogation lien, contending that they were not compensation benefit payments.

 

Are you kidding?

 

A final desperate argument was raised by Claimant, requesting that the Court limit the Employer’s subrogation lien recovery to one-third of the Claimant’s Third-Party settlement, as monies sufficient to satisfy a one-third distribution had been escrowed by the Claimant, with the Commonwealth Court denying that request, finding it had no authority to order the Employer to accept one-third of the Claimant’s Third-Party settlement, when the Employer’s rights to enforce its subrogation lien could only be abrogated by the Employer/Insurer’s consent.

 

Denying the Claimant’s request, the Commonwealth Court also denied the Employer’s request, seeking counsel fees, pursuant to Pennsylvania Rule of Appellate Procedure No. 2744, permitting an Appellate Court to award reasonable attorneys’ fees, if it is determined “that an Appeal is frivolous or taken solely for delay or that the conduct of the participant against whom costs are being imposed is dilatory, obdurate, or vexatious”, with the Commonwealth Court holding that, underPhillips v. WCAB, 554 Pa., 721 A.2d 1091 (1999), Employers are not entitled to counsel fees under P.R.A.P. 2744.

 

Show me the money!

 

Being Practical

 

Seeking enforcement of a subrogation lien for workers’ compensation benefits paid in Pennsylvania, when the Third-Party personal injury claim arose in or is litigated in another State,Young would require a Pennsylvania Court to apply Pennsylvania law to the Employer’s statutory subrogation lien rights if the underlying workers’ compensation claim is administered and paid under Pennsylvania’s WCA.

 

This is an important Decision for Pennsylvania Employers and Insurers seeking protection of their statutory subrogation rights under Section 319 of the Act.

 

It is also an important Decision for clarifying what constitutes the lien benefits that can be asserted in the context of subrogation, to include the actual payments of workers’ compensation benefits to the Claimant, which include not only attorneys’ fees deducted from the Claimant’s compensation benefits, but also medical expenses and reasonable expenses incurred in the administration of the workers’ compensation claim.

 

 

ConnorsLaw LLP

 

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

 

Defending workers’ compensation claims throughout Pennsylvania for employers, self-insureds, insurance carriers, and third party administrators, our 100+ years of cumulative experience defending our clients against compensation-related liabilities, empowers our workers’ compensation practice group attorneys to be more than mere claim denials, entrusting us to create the factual and legal leverage to expeditiously resolve claims, in the course of limiting/reducing/extinguishing our clients’ liabilities under the Pennsylvania’s Workers’ Compensation Act.

 

With every member of our workers’ compensation practice group being AV-rated, our partnership with the NWCDN magnifies the lens through which our professional expertise imperiously demands that we always be dynamic and exacting advocates for our clients, businesses, corporations, and insurance carriers, seeking our trial and compensation acumen, navigating the frustrating and form-intensive minefield pervasive throughout Pennsylvania workers’ compensation practice and procedure.

 

“PRACTICE, WHY PRACTICE?”

By Kevin L. Connors, Esquire

 

No, we are not taking about the iconic Allen Iverson whose penchant for missing team practices while the leading scorer for the Philadelphia 76ers throughout his turbulent career became well-documented by his own tattooed admission before a viral TV reporter audience became the stuff of ignorant legend.

 

No, this time we are talking about the invalidation of an IRE physician who had originally been certified by the Pennsylvania Bureau of Workers’ Compensation as a certified IRE physician, by virtue of the physician having initially met the threshold credentialing requirement of being “active in clinical practice” for at least twenty hours per week when originally approved to conduct IREs, the seemingly mystical assessment of determining whole person impairment in reliance upon the byzantine AMA Guides to Impairment.

 

The case being discussed is the recent Commonwealth Court Opinion in Verizon v. WCAB (Ketterer), authored by Senior Judge Colins on March 12, 2014.  The issue examined by the Commonwealth Court was whether the IRE doctor’s (Dr. Antonelli) discontinuance of an “active clinical practice” negated/eviscerated her authority to perform an Impairment Rating Evaluation on the Claimant.

 

The Claimant had been a service technician for Verizon, performing installations and repairs for telephone, television, and computers.  He injured his neck and back while working for Verizon on August 27, 2008, when his service vehicle was rear-ended.

 

The claim was accepted, as some claims are, and the Claimant began receiving temporary total disability benefits, although the Employer filed a Termination Petition in 2009, seeking to terminate its liability for compensation benefits under the Notice of Compensation Payable.

 

Verizon’s Termination Petition was, however, denied by the Workers’ Compensation Judge, with there being no discussion in the Decision regarding the evidence presented in support of and in opposition to the Termination Petition.

 

Several months after the Termination Petition was denied, the Employer requested that the Bureau designate a physician to perform an IRE.

 

This is a two-step process, the first being that the IRE Physician Designation can only be requested after the Claimant has received 104 weeks of temporary total disability benefits, although the formal request can be made 60 days in advance of the Claimant receiving two years of compensation benefits.

 

The second step is that the Bureau then randomly assigns the IRE request, using a list of physicians that the Bureau has vetted through a credentialing and qualification process, seemingly untethered to specific medical specialties, requiring the following qualifications:

 

·         A license to practice medicine in Pennsylvania;

·         Physician training on the AMA’s Guides to the Evaluation of Permanent Impairment;

·         Board-certification in a medical specialty;

·         The hands-on requirement that IRE physicians must maintain a medical practice involving twenty hours per week of clinical medicine; and,

·         Formal approval of IRE physician status by the Bureau.

 

In Verizon, the Bureau had randomly assigned Verizon’s IRE Physician Designation request to Dr. Elena Antonelli, whom the Bureau had approved as an IRE physician in 2008.  In 2008, Dr. Antonelli maintained an active clinical patient practice with Capital Health.

 

Fast forward to Dr. Antonelli’s 2010 IRE of the Claimant, resulting in a 16% impairment rating, an impairment rating that would effectively convert the Claimant’s entitlement to temporary total disability benefits to only being entitled to receive temporary partial disability benefits, the relevance of which is that the Claimant would then be limited to receiving another 500 weeks of temporary partial disability benefits, the statutory limit under Section 306(b) of the Pennsylvania WCA, as opposed to there being no limit whatsoever for temporary total disability benefits.

 

Following the IRE, Verizon petitioned to modify the Claimant’s compensation benefits from temporary total to temporary partial disability benefits, the statutory mechanism for converting the Claimant’s compensation benefits status when the IRE Physician Designation request has not been made either 60 days before or 60 days after the Claimant receives 104 weeks of temporary total disability benefits, as an IRE request within that window of claim time entitles the Employer to an automatic conversion of the Claimant’s compensation benefits from temporary total to temporary partial disability benefits, while an IRE Physician Designation request made 60 days after the Claimant has received 104 weeks of temporary total disability benefits requires the Employer to Petition to Modify/Convert the compensation benefits from temporary total to temporary partial.

 

Presumably, that is the procedural background for how the IRE issue was litigated.

 

In defense and support of Verizon’s Modification Petition, Dr. Antonelli testified that her practice was essentially limited to conducting IMEs, IREs, and physical examinations for Pilots and Truck Drivers, as she was not otherwise engaged in an active clinical practice, testifying “I don’t have that much of a clinical practice any longer.”

 

Of course, this fact should have been disclosed by Dr. Antonelli before she was paid handsomely for her deposition testimony.

 

In fact, she testified that her practice was largely “administrative”, bizarrely not a credentialing requirement imposed by the Bureau for conducting IREs.

 

In reliance upon Dr. Antonelli’s admission of not having an active clinical practice, the WCJ denied Verizon’s Modification Petition, with that denial being affirmed by the Commonwealth Court in the course of which it has now been held, in a case of first impression, there being no statutory definition of “clinical practice” in the WCA, although the Bureau has addressed that definition in the Bureau Regulations that deal with Impairment Rating Evaluations, defining “active in clinical practice” as “the act of providing preventative care and evaluation, and treatment and management of medical conditions of patients on an ongoing basis.”34 Pa. Code § 123.103(b), with the Commonwealth Court holding that the Bureau’s regulatory definition requires that an active clinical practice involve both “preventative care and evaluation, and treatment and management” of medical conditions of patients, being a conjunctive grammatical structure, the conjugation of which requires an “and”, as opposed to an “or”.

 

“Practice, why practice”, means, yes, that an IRE physician must practice clinical medicine at least 20 hours per week, in the course of which the physician must not only evaluate patients, but must also manage their care and treatment.

 

In Verizon’s defense, Verizon argued that the legislative intent behind the requirements should be interpreted to mean that IRE physicians insure that their qualifications and medical knowledge are current and updated, with the Commonwealth Court interpreting that legislative intent to require that “physicians have a medical practice in which their judgments have genuine consequences for patient care and treatment”, to the exclusion of physicians whose work is primarily opinion-driven for legal determinations.

 

Holding that a physician whose practice consists solely of conducting independent medical examination of workers’ compensation claims, performing IREs for workers’ compensation claims, and physical examinations for certification and qualification requirements, does not satisfy the statutory requirements imposed under the Act for physicians to perform IREs, the Commonwealth Court affirmed the underlying Decisions of the WCJ and the Workers’ Compensation Appeal Board, denying the Employer’s Modification Petition.

 

Being Practical

 

This being a case of first impression, this Decision will impose another level of scrutiny on Employers and Insurers seeking to modify compensation benefits through the utilization of an IRE, requiring yet another threshold to be crossed, before the liability-capping actuality of an IRE can be realized.

 

So the Verizon ruling makes it clear that no one can assume that a physician designated by a Bureau to perform an IRE currently meets the Bureau’s regulatory requirements, in terms of maintaining an “active clinical practice”, such that any Employer/Insurer seeking to modify a Claimant’s compensation benefits in reliance upon an IRE, must be sure that the IRE physician is engaged in an “active clinical practice”, at the time that the IRE physician performs the IRE, so that the IRE is not later being challenged for having failed to meet all regulatory requirements, including the physician’s qualifications.

 

This ruling could potentially result in there being Claimant-focused discovery directed at determining whether an IRE physician meets the regulatory requirements of maintaining an “active clinical practice” and that could well turn into a paper chase of hours worked and patients consulted, requiring validation as a threshold to efficacy.

 

Despite Allen Iverson’s query to the contrary, practice is an essential test of professional skill and judgment, as well as being the regulatory requirement for conducting IREs.

 

 

ConnorsLaw LLP

 

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

 

Defending workers’ compensation claims throughout Pennsylvania for employers, self-insureds, insurance carriers, and third party administrators, our 100+ years of cumulative experience defending our clients against compensation-related liabilities, empowers our workers’ compensation practice group attorneys to be more than mere claim denials, entrusting us to create the factual and legal leverage to expeditiously resolve claims, in the course of limiting/reducing/extinguishing our clients’ liabilities under the Pennsylvania’s Workers’ Compensation Act.

 

With every member of our workers’ compensation practice group being AV-rated, our partnership with the NWCDN magnifies the lens through which our professional expertise imperiously demands that we always be dynamic and exacting advocates for our clients, businesses, corporations, and insurance carriers, seeking our trial and compensation acumen, navigating the frustrating and form-intensive minefield pervasive throughout Pennsylvania workers’ compensation practice and procedure.

 

 

 

 

 

Readers should be aware of a potential landmark decision from the National Labor Relations Board on Wednesday, March 26, 2014, in which the NLRB found that the Division I football players receiving scholarships at Northwestern University are employees of the university under the National Labor Relations Act.  It is anticipated that the decision will be appealed by Northwestern University to the full National Labor Relations Board in Washington D.C. and possibly end up in front of the Supreme Court of the United States.  The Board’s decision is limited to the football players at Northwestern University, but could pave the way for athletes at similar private universities.  The Board’s decision was based on several specific factors listed below.

First, the Board found that scholarship football players perform services for the benefit of the University for which they receive compensation.  In finding that the University benefits from the scholarship football players, the Board noted that Northwestern University’s “football program generated revenues of approximately $235 million during the nine year period between 2003-2012 through its participation in the NCAA Division I and Big Ten Conference that were generated through ticket sales, television contracts, merchandise sales and licensing agreements.”  The Board found that the scholarships to the players are a transfer of economic value since the University pays for the players’ tuition, fees, room, board, books and a stipend for players living off-campus for up to five years, which can total up to $76,000 per calendar year at Northwestern University.  The Board also found that “The fact that the Employer does not treat these scholarships or stipends as taxable income is not dispositive of whether it is compensation.”

Secondly, the Board found that the scholarship football players are subject to the University’s control in the performance of their duties as football players.  The Board noted that the players who receive scholarships are under strict and exacting control throughout the entire year.  The players are subject to NCAA eligibility guidelines as well as the team rules that are enforced by threat of discipline or loss of scholarship.

Third, the Board found that the scholarship players are employees under the common law definition.  “Under the common law definition, an employee is a person who performs services for another under a contract of hire, subject to the other’s control or right of control, and in return for payment.”  Brown University, 342 NLRB 483, 490, fn. 27 (2004) (citingNLRB v. Town and Country Electric, 516 U.S. at 94).  The Board found that “players receiving scholarships to perform football-related services for the Employer (Northwestern University) under a contract for hire in return for compensation are subject to the Employer’s control and are therefore employees within the meaning of the Act.”  However, the Board found that the walk-on players, those not receiving scholarships, do not meet the definition of “employee.”  Similarly, the Board noted that unpaid interns, even if they are subject to similar terms and conditions of employment, are not employees because they did not receive compensation.

The Board specifically found that the statutory definition of employee articulated in Brown University, 342 NLRB 483 (2004), was not applicable to the football players at Northwestern University.  In Brown University, the Board found that graduate assistants were not employees of the university since the relationship between the graduate assistant and the university was primarily an educational one, rather than an economic one.

The Board found the scholarship football players at Northwestern University were employees under the Act and that the College Athletes Players Association (CAPA) (Petitioner) is a labor organization within the meaning of the Act.  The Board ruled that all football players receiving football grant-in-aid scholarships not having exhausted their playing eligibility that were employed by the Employer were eligible to vote whether or not they desire to be represented for collective bargaining purposes by CAPA.  The Board specifically excluded office clerical employees, professional employees and supervisors from voting.

What are the possible implications of the Board’s Decision for Workers’ Compensation? If the decision is affirmed, the Board’s ruling has the potential to change the landscape of college sports and raises a number of important questions for workers’ compensation practitioners.  Will the decision include Division I scholarship athletes for all sports at private universities?  What kind of benefits will the labor union(s) be bargaining for?  If the athletes are employees within the meaning of the Act, are they entitled to workers’ compensation benefits for injuries that occur while they are working? Should the scholarships received by the athletes be taxed as income and used to establish a wage?  The ultimate impact of the decision remains to be seen and we will keep readers posted as this case moves forward.

Bobbie Kehoe and Scott Sunkimat began cohabiting in their home in Point Pleasant, New Jersey in 1999.  They made a life-long commitment to each other to spend their lives together but declined to marry.  They shared utility bills and bank accounts and both of their names were on the deed to their home.  Bobbie Kehoe was the sole beneficiary of Scott Sunkimat’s retirement plan, but she was not the beneficiary of his life insurance policy.  The two represented themselves as husband and wife in public. 

 

            In March 2007, the decedent fell from a platform while engaged in the performance of his duties as an employee of Ultralum Enterprises.  The fall arose out of and in the course of employment.

 

Bobbie Kehoe filed a dependency claim petition asserting that she was the decedent’s surviving spouse.  She argued that during a two-week visit to Texas in 2004, she and decedent established the elements of a common law marriage under Texas law by (1) agreeing that they were then married; and (2) cohabitating as husband and wife; and (3) representing to others that they were husband and wife. A family relative testified that the two did indeed represent themselves as husband and wife while in Texas.

 

            The Judge of Compensation denied the claim because New Jersey does not recognize common law marriages.  The Court said, “Here, it is undisputed that petitioner and the decedent were never formally married under New Jersey law.  On the facts presented, petitioner is not entitled to benefits under N.J.S.A. 34:15-13(f).  Petitioner’s argument based on the recognition of common law marriages by the State of Texas lacks sufficient merit to warrant discussion in a written opinion.”

 

            This case can be found at Kehoe v. Ultralum Enterprises, Inc., A-4531-12T4 (App. Div. March 18, 2014).

In a surprising decision from the New Jersey Supreme Court, an award to Cheryl Hersh, an employee of Morris County, was reversed on April 1, 2014.

 

Ms. Hersh was employed by the County since September 2002 as a Senior Clerk in the Board of Elections.  In 2004 the County assigned her free parking at a private garage on Cattano Avenue located about two blocks from the Administration Building where she worked.  The garage contained several hundred parking spaces of which the County rented about 65 for its employees.  Hersh was unable to park next to the county building in the county parking lot because she lacked sufficient seniority.  Instead, she was permitted to park at the Cattano Garage but she was not given an assigned space.

 

On January 29, 2010, Hersh parked her car in the Cattano Garage, exited on Cattano Avenue, and began walking one-half block to Washington Street.  As she crossed Washington Street, she was struck by a motor vehicle that ran a red light. Hersh brought a workers’ compensation claim and prevailed in the Division of Workers’ Compensation.  The Appellate Division affirmed her award.  The County appealed.

 

The County argued that this case was different from the decision in Livingstone v. Abraham & Strauss, Inc., 111N.J. 89 (1989).  In that case, the employer required its employees to park in a distant location of a mall parking lot so that the customers of the store would have access to the lot closest to the store. The petitioner was injured when she was struck by a vehicle walking to the store, and the Supreme Court found that injury compensable.   Here the County argued that there was no real benefit to the employer in having employees park in the Cattano Garage. 

 

The Supreme Court agreed with the County in finding that two factors distinguished theLivingstone case that were missing from Ms. Hersh’s case:

 

Of chief concern in Livingstone, supra, was the employer-derived benefit that was created by dictating that employees park at the far end of the lot. Ibid.  The employer’s business benefit, along with the added hazard employees were forced to endure by the employer while they walked through the parking lot, made the injury compensable.Ibid. 

 

The Court found that the Cattano Garage was not part of the premises of the County, and significantly, the County did not control the garage.  It was neither owned nor maintained by the County.  “The County derived no direct business interest from paying for employees to park in the Cattano Garage.  Most importantly, the accident occurred on a public street not under the control of the County.  In walking a few blocks from the Cattano Garage to her workplace, Hersh did not assume any special or additional hazard.”

 

            The case is significant because on the surface, the facts appeared to be on all fours withLivingstone as noted by the Judge of Compensation and the Appellate Division.  The Supreme Court seemed to suggest that there must be a special benefit to the employer or additional hazard for an accident of this nature to be found compensable.  The tenor of the case is that parking privileges were a perquisite, much like having a company-paid car, but these facts do not make the injury compensable.

 

            This case may be found at Hersh v. County of Morris, A-59-12, (April 1, 2014).  

The Court of Appeals recently reversed a trial court’s decision awarding benefits outside of the statutory schedule inAmerican Cast Iron Pipe Company v. Sharon Blackmon. The Court also reversed the trial court’s decision to grant the employee an additional authorized treating physician after she had already chosen a doctor from a panel of 4.

Blackmon worked as a pipe processor for ACIPCO, and sustained injuries to her wrist in 2008 and to her ankle in 2010. There was no dispute that the injuries were compensable, but there was disagreement over whether Blackmon’s injuries were subject to the statutory schedule.

At trial, Blackmon testified that her wrist pain did not normally extend to or affect other parts of her body, but that the pain would sometimes run up her arm. As for her ankle injury, the evidence indicated that prolonged standing would cause aching, but it did not prevent her from taking care of herself. There was no evidence that the ankle injury affected other parts of Blackmon’s body.

The trial court considered evidence provided by Blackmon’s vocational expert, and found that Blackmon suffered a 35% permanent partial disability, and awarded benefits outside of the statutory schedule. The court also granted Blackmon’s request that ACIPCO provide her treatment with a new physician of her choice.

On appeal, ACIPCO argued that the evidence did not support the trial court’s decision to award benefits outside of the statutory schedule and that the trial court should not have considered vocational evidence. The Court of Appeals agreed and stated that injuries may only be removed from the schedule when the effects of an injury to a scheduled member extend to other parts of the body and interfere with their efficiency. The Court found no substantial evidence indicating that the effects of either scheduled injury extended to or interfered with other parts of Blackmon’s body. The Court also noted that vocational evidence is generally irrelevant when compensation is limited to the statutory schedule.

The Court also agreed that ACIPCO should not have to provide Blackmon with yet another treating physician. The evidence was clear that Blackmon had already exercised her right in selecting a new treating physician from a panel of 4, and the Court held that she was not entitled to another new doctor.

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About the Author

This post was written by Trey Cotney, Esq. of Fish Nelson LLC, a law firm dedicated to representing employers, self-insured employers and insurance carriers in workers’ compensation matters. Fish Nelson is a member of the National Workers’ Compensation Network (NWCDN). If you have any questions about this article or Alabama workers’ compensation issues in general, please feel free to contact the author at tcotney@fishnelson.com or any firm member at 205-332-3430.

The Alabama Court of Civil Appeals recently released an opinion wherein it considered the difference between a temporary flare versus a permanent aggravation of a preexisting condition. InMadison Academy v. Hanvey, the plaintiff, worked as a janitor on the defendant’s campus. In May and June 2011, Hanvey was exposed to chemicals at work which aggravated her respiratory system. The symptoms continued to get worse over the next few months.

It was not until September 2011 that Hanvey was finally diagnosed with a rare disease known as myesthenia gravis (MG). Her doctors treated the disease, and by March 2012, Hanvey’s symptoms were gone and her condition was stable. Although MG cannot be cured, it can be controlled with the right medication. The medical evidence showed that Hanvey’s MG existed before her exposure to the chemicals at work and was not caused by the exposure. Her doctors stated that the preexisting condition was temporarily aggravated by the chemicals, but not worsened.

The trial court found that Hanvey was totally and permanently disabled due to her exposure to the chemicals at work. On appeal, Madison Academy argued that the root of Hanvey’s disability was her MG which the evidence indicated was not caused by her employment. And since the temporary flare up had resolved, they believed they were no longer responsible for providing benefits under the Act.

The Appeals Court noted that Hanvey’s MG was aggravated, but found that there was no evidence that the chemicals had worsened the underlying condition. Once the temporary aggravation had resolved, Hanvey was back to her baseline condition and no longer entitled to benefits since there was no permanent injury. Therefore, the Court reversed the trial court’s award of permanent and total disability benefits.

My Two Cents:

The Court of Appeals has made it very clear that employers in Alabama will not be responsible for disability stemming from preexisting conditions which are not permanently worsened by a work accident. In cases where the employment temporarily exacerbates a preexisting condition, the employer is only responsible for providing benefits for the temporary disability period caused by a work accident. Any other resulting disability from the natural progression of an underlying or preexisting condition is not compensable.

________________________

About the Author

This post was written by Trey Cotney, Esq. of Fish Nelson LLC, a law firm dedicated to representing employers, self-insured employers and insurance carriers in workers’ compensation matters. Fish Nelson is a member of the National Workers’ Compensation Network (NWCDN). If you have any questions about this article or Alabama workers’ compensation issues in general, please feel free to contact the author at tcotney@fishnelson.com or any firm member at 205-332-3430.

                                                 
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                   

MISSOURI WORKER'S COMPENSATION

CASE LAW UDATE

JANUARY 2014 - MARCH 2014

Court Defers to Commission on Credibility and Findings of Fact

Maness v. City of De Soto and Treasurer of Missouri, Case No. ED100074 (Mo. App. 2014)

FACTS: The claimant worked as a supervisor performing maintenance for the employer’s water, street, sewer, and parks department. On June 14, 2007, the claimant gave his supervisor a report stating that he injured his neck moving decorative concrete stones three days prior on June 11, 2007. Each of the three doctors who evaluated the claimant stated that he reported to them that his injury occurred on or about June 11th. During the hearing, the claimant admitted that the employer’s time records showed he did not actually work on June 11th, but he insisted that he must have just been mistaken as to the dates, and was in fact injured on or about June 11, 2007. The ALJ awarded compensation.

On appeal, the Commission modified the ALJ’s award, but affirmed in finding for the claimant. The employer appealed arguing that the Commission erred in finding that the claimant sustained an accident on June 11, 2007 because the finding was not supported by competent and substantial evidence. Specifically, the employer alleged that the claimant’s testimony was not credible because it conflicted with statements the claimant made to doctors about the incident and because time records of the employer showed that he did not work on June 11th.

HOLDING: On appeal, the court affirmed and ruled in favor of the claimant, finding that the employer’s argument was merely a challenge to the weight of evidence and the claimant’s credibility as a witness. The court stated that because it defers to the Commission on findings of fact, credibility of witnesses, and weight to be given to conflicting evidence, it must affirm the Commission’s decision.

If Claimant is Placed at MMI and Continues to Treat the Issue of When Claimant Actually was or is at MMI can be Disputed

Hoven v. Treasurer of State of Missouri, Case No. ED98842 (Mo. App. 2014)

FACTS: In 2004, the claimant filed a claim for carpal tunnel syndrome. He had a subsequent work-related right knee injury in September 2007. With respect to the 2004 claim, the claimant was evaluated by Dr. Crandall in November 2007, at which time the doctor placed him at MMI and assessed 5% disability to the right wrist.  The claimant settled his claim with the employer and then proceeded to a hearing against the Second Injury Fund (“SIF”). After he was released by Dr. Crandall at MMI in November 2007 he underwent two additional surgeries in 2009 with Dr. Schlafly, who believed that the claimant had not yet reached MMI.  

At a hearing, the claimant argued that he was entitled to compensation from the SIF with respect to his wrists because Dr. Crandall opined that he had reached MMI, and his settlement with the employer stated he was at MMI.  The ALJ determined the claimant was at MMI, and therefore was entitled to recover from the SIF.  However, the Commission reversed and found for the SIF. The claimant appealed.

HOLDING: The court affirmed the Commission’s decision, finding that in order to receive compensation from the SIF, the claimant must first prove that he had a compensable injury that resulted in PPD.  The Commission determined that the claimant did not have PPD because he was not at MMI. The court also found that the settlement agreement between the employer and the claimant did not establish that the claimant was MMI for purposes of this case because the SIF was not a party to the settlement agreement. Finally, the Court noted that Dr. Schlafly opined that the claimant had not yet reached MMI following the surgeries in 2009.  In essence, the Court held that if a claimant is placed at MMI for a particular injury but then has subsequent medical procedures on that same body part, the issue of whether the claimant has reached MMI may again become an open question.

Claimant Not PTD Prior to Last Injury Because Could Compete in Open Labor Market Without Any Accommodation

Stewart v. Treasurer of the State of Missouri,Case No. SD32827 (Mo. App. 2014)

FACTS: The claimant sustained an injury while working for the employer in early 2009.  After a hearing, and a subsequent appeal, the Commission found that the claimant was PTD following the work injury. The SIF appealed arguing that the claimant was PTD even before the work injury and therefore, the SIF should not be liable.  The claimant’s medical history included arthritis, reflex sympathetic dystrophy, degenerative joint and bone disease, carpal tunnel syndrome, and a host of other maladies. The claimant qualified for SSD in 1997. Thereafter, the claimant worked sporadically, a total of 29 months over 11 years, at five different part-time jobs.  The claimant was able to perform all of her occupational duties without accommodation until the injury in 2009.  The Commission found that the claimant’s ability to compete on the open job market prior to her 2009 injury precluded a finding of PTD before working for the employer.

HOLDING:The Court affirmed the Commission’s finding that the claimant was not PTD prior to her work injury.  The Court was particularly persuaded by the fact that the claimant had competed for and won all of her jobs in the open labor market prior to her work injury.  Additionally, the Court noted that the claimant worked these jobs without any accommodation.  Thus, the Court found that the Commission did not err in finding the claimant was not PTD prior to her work injury because she was able to compete on the open labor market without any accommodation.

Claim Compensable When Claimant Tripped and Fell While Walking Across Street

Dorris v. Stoddard County,Case No. SD32830 (Mo. App. 2014)

FACTS: The claimant worked in the employer’s collector’s office.  While a new office building was being built, the claimant’s supervisor asked her to go over to the new building and inspect the counter tops that were being installed. As she was crossing the street to reach the new building, she tripped and fell causing a torn rotator cuff.  She was on the clock at the time of her injury. The employer denied the claim arguing that the injury did not occur in the course and scope of her employment. The ALJ found the injury compensable and the Commission affirmed the decision. The employer appealed.

HOLDING: The Court affirmed the Commission’s ruling, finding that the claimant was within the scope of her employment when she was injured.  The Court noted that in order to demonstrate the injury arose out of employment, the claimant must show a causal connection between the injury and her work activity.  In this case, the Court noted that because she was crossing the street at her supervisor’s behest and because she was on the clock when the accident occurred, she was within the scope of her employment.

Claimant PTD Because Credibly Testified That Needed to Recline Frequently Throughout Day to Relieve Pain

Ballard v. Woods Supermarkets, Inc.,Case No. SD32590 (Mo. App. 2014)

FACTS: While working for her employer, the claimant slipped and fell on grease causing her to land on her back and left arm.  As a result of the accident, the claimant was diagnosed with a comminuted distal left radius fracture, disc herniations at L4-5 and L5-S1, and strain/sprain of her cervical and thoracic spine.  The employer sent the claimant to Dr. Woodward for an IME. The claimant’s attorney obtained a report from Dr. Koprivica.  Dr. Koprivica diagnosed failed laminectomy syndrome and stated that the claimant needed to recline frequently in order to reduce and cope with the pain.  

At a hearing, the ALJ found the testimony of Dr. Koprivica and the claimant credible. Consequently, the ALJ found that the claimant needed to recline for at least 30 minutes several times a day to cope with the pain.  Based on this restriction, the ALJ determined that the claimant was unable to compete in the open labor market and found her PTD. The employer appealed to the Commission, which affirmed.  The employer again appealed, arguing that the ALJ erroneously concluded that the claimant needed to recline throughout the day because that conclusion was based on Dr. Koprivica’s subjective medical findings and not based on objective medical findings.

HOLDING: The court noted that there is no objective test for pain and that the extent to which a claimant experiences pain is a credibility determination for the Commission to decide. Thus, the Court found that assessing pain is inherently subjective, and therefore, Dr. Koprivica’s opinion qualified as competent and substantial evidence that the Commission may justifiably base their decision on.

Employer Responsible for All Past Medical Expenses Reasonably Required to Cure and Relieve Effects of Work Injury

Downing v. McDonald’s Sirloin Stockade,Case No. SD32683 (Mo. App. 2014)

FACTS: The claimant worked as a waitress for the employer from 1985 until 2007.  She first began to experience back pain in 2005 and sought treatment from her own chiropractor.  The claimant’s chiropractor eventually determined that an MRI was needed.  The claimant then spoke with the employer, at which time the employer suggested that she seek treatment through workers’ compensation. However, a claims representative at the insurer spoke with the employer and advised that they would be denying the claim because they did not feel that the claimant suffered a compensable injury.  Nonetheless, the employer referred the claimant to Dr. Ipsen, who ordered an MRI to determine if surgery was necessary. The claims representative authorized the MRI, which revealed disc degeneration at L5-S1, as well as a large extrusion causing impingement on the right S1 nerve root.  Dr. Ipsen subsequently scheduled surgery. However, the claims representative told the claimant that the surgery was not authorized because more information was needed. Nevertheless, the claimant took out a loan and underwent surgery as scheduled.  

Following surgery, the claimant filed a Claim and at a hearing the ALJ found in favor of claimant and awarded her unpaid medical expenses, TTD, and PPD. However, the ALJ did not award the claimant the cost of the two surgeries she had paid for with the loan.  The claimant appealed and the Commission modified the Award to include past medical benefits for the two surgeries.  The employer then appealed arguing that the Commission should not have awarded past medical benefits for the surgeries because the medical expenses were not authorized and the treatment was not needed on an emergency basis.

HOLDING: The Court first noted that the statute requires an employer to provide medical treatment that may be reasonably required to “cure and relieve” the effects of the injury.  The Court went on to say that the statute has been interpreted to mean that if an employer wrongly refuses requested treatment, the employer will be liable for medical treatment obtained at the claimant’s own expense. Therefore, the Court affirmed the Commission’s ruling, holding that the employer was responsible for reasonable and necessary medical expenses regardless of whether or not they were authorized by the insurer.

Claimant Not PTD Prior to Work Injury

Scott v. Treasurer of the State of Missouri,Case No. WD76602 (Mo. App. 2014)

FACTS: The claimant worked operating heavy equipment and doing excavation work on a contract basis.  Eventually, the claimant incorporated his business under the name Gary Scott Excavating, and was an employee of this business. Due to the claimant’s troubles with reading, a hearing problem, and a ninth grade education, most of the administrative bookkeeping and paperwork of the company was handled by his brother, wife, or other employees.  
The claimant had numerous injuries throughout his career.  In 1998, he had right rotator cuff repair.  In 2001, he fell from a grain bin fracturing his right leg, right foot, and left foot.  In 2004, he had bilateral carpal tunnel releases.  In 2006, he had colon surgery, and in 2007, he was diagnosed with arthritis. On January 11, 2008, the claimant had this work related injury, at which time he injured his back while operating a bulldozer.  Due to the back injury, the claimant saw Dr. Reintjes who performed back surgery.  On October 29, 2008, Dr. Reintjes found that the claimant had reached MMI and gave him a 50 pound lifting restriction. The claimant also received treatment for his back from Dr. Scott.  While treating for his back condition, Dr. Scott diagnosed two hernias, which were surgically repaired.  

The claimant returned to work operating machinery and supervising his employees, but limited how much lifting and vehicle maintenance work he did. On December 3, 2009, he was attempting to install a battery in a piece of equipment when he injured his chest and right shoulder.  He was eventually released to return to work with restrictions of no lifting over 50 pounds and no repetitive lifting or reaching above the shoulder.  Fearful of re-injuring his shoulder, he stopped working after the 2009 injury.  

He filed claims against his employer and the SIF for the hernias, the back injury, and the chest and shoulder injuries.  He settled all claims with the employer. He went to a hearing against the SIF for the 2008 back injury and the 2009 shoulder injury.  At the hearing, the ALJ found that the claimant was PTD prior to both injuries, and therefore, the SIF was not liable for any benefits. The ALJ was persuaded by claimant’s testimony that Dr. Scott had told him to stop working in 2007.  The ALJ also cited vocational expert, Mr. Dreiling’s testimony, that although the claimant was able to return to work after his 2008 and 2009 injuries, he was only able to do so because he self-accommodated by only supervising employees and such accommodation would not be made elsewhere. Therefore, the claimant was unable to compete on the open labor market. The claimant appealed to the Commission who adopted and affirmed the decision of the ALJ. The claimant appealed.

HOLDING: The Court reversed the Commission’s decision and remanded for further findings. The Court held that the Commission’s decision was not supported by substantial and competent evidence and was against the overwhelming weight of the evidence.  The Court noted that after his injuries, the claimant resumed lifting, loading, and vehicle maintenance duties, and would operate pieces of heavy equipment for as much as 8 to 12 hours a day.  Thus, the Commission erred in determining that the claimant’s sole function was overseeing the work of other employees. Additionally, the Court noted that there were no doctors’ opinions stating that the claimant needed to stop working prior to the 2008 and 2009 injuries. More specifically, the Court noted that the Commission erred in determining that Dr. Scott advised the claimant to stop his workload in 2007 because he did not see Dr. Scott until after his 2008 back injury.  Finally, the Court noted that the vocational expert, Mr. Dreiling, testified that it was only after the claimant’s back surgery in 2008 that he stopped performing the heavier physical lifting activities at work and needed to be accommodated.

Claimants are Not Entitled to Pre-Judgment Interest

Harrah v. Tour St. Louis,Case No. ED100185 (Mo. App. 2014)

FACTS: The claimant was injured in a motor vehicle accident while working as a bus driver.  At the time of the injury, the employer did not carry workers’ compensation liability insurance.  Consequently, the claimant sought medical treatment on her own, and as a result of that treatment, incurred over $150,000.00 in past medical expenses.  Following a hearing, the ALJ found the employer and the SIF liable for the claimant’s past medical expenses. Additionally, the ALJ declined to award prejudgment interest on medical expenses to the claimant.  The Commission affirmed the ALJ’s decision.  The claimant appealed from the Commission, arguing that she was entitled to prejudgment interest on her medical expenses.

HOLDING: The court upheld the decision of the Commission and found that prejudgment interest on medical expenses is not recoverable based on the new strict construction standard.

Must First Look to Last Injury Alone to Determine Whether SIF or Employer is Responsible for PTD Benefits

Blackshear v. Adecco,Case No. ED100251 (Mo. App. 2014)

FACTS: The claimant sustained injuries to her back and legs and brought a claim against the employer and the SIF.  Both the employer and the SIF agreed that the claimant was PTD, but they disagreed about who was responsible for the PTD benefits. The ALJ concluded that the claimant’s last injury alone rendered him PTD. Therefore, the employer was responsible for benefits, not the SIF. The employer appealed. The Commission modified the ALJ’s Award finding that the claimant’s disability was a combination of a pre-existing psychiatric condition and the primary injury. Specifically, the Commission found that the primary injury caused 85% of the claimant’s PPD, and that the claimant also had a pre-existing disability resulting from her psychiatric conditions. The Commission determined that the claimant was entitled to recover PTD benefits from the SIF because her disability resulted from a combination of her pre-existing conditions and the primary injury.  The SIF appealed, arguing that the Commission erred in allocating PTD liability to the SIF because the Commission  did not first determine whether the primary injury alone resulted in PTD.

HOLDING: The Court agreed with the SIF’s assertion that the first inquiry is the degree of disability incurred from the last injury. Additionally, the Court agreed that if the claimant’s last injury in and of itself rendered the claimant PTD, then the SIF has no liability and the employer is responsible for the entire amount.  However, the Court noted that the Commission found that the last injury had caused 85% PPD and that the claimant was not PTD as a result of the primary injury alone. Thus, the Commission correctly followed procedure by first evaluating the amount of disability resulting from the last injury alone and therefore, the SIF’s liability for PTD benefits is affirmed.

Credibility is Determination of Commission

Payne v. Treasurer of the State of Missouri,Case No. SD3254174 (Mo. App. 2014)

FACTS: The claimant worked as a truck driver for employer.  On December 24, 2004, the claimant tripped and fell on ice while at a truck stop, injuring his back and both of his shoulders. He was diagnosed with bilateral rotator cuff injuries. The claimant also had several pre-existing conditions including heart problems, diabetes, and sleep apnea.  Following the 2004 work injury, the claimant saw Dr. Bennoch who issued a report in May 2010 finding him PTD due to the effects of the 2004 work injury alone.  At Dr. Bennoch’s deposition, he opined that the claimant was PTD as a result of both his work related injury and his pre-existing medical issues. The claimant was also evaluated by a vocational rehabilitation counselor, Ms. Titterington, who opined that the claimant had transferrable job skills and therefore, was not PTD.  

A hearing was held, at which time both Dr. Bennoch and Ms. Titterington testified live. During the hearing, Dr. Bennoch testified that the claimant’s work injury alone was enough to make him PTD.  Ms. Titterington’s testimony was consistent with her prior statements, asserting that the claimant was not PTD. The ALJ ruled in favor of claimant finding that he was PTD as result of the 2004 work injury and his pre-existing conditions.  The SIF appealed arguing that the ALJ’s finding that the claimant was PTD did not comport with his pursuit of full time, regular employment.  The Commission amended the ALJ’s ruling, finding that although the claimant did have pre-existing disabilities, he was PTD as a result of the work injury alone.  The claimant appealed arguing that the SIF was prevented from arguing that the claimant was PTD as a result of the last injury alone because the SIF had previously argued at the hearing and in its Application for Review that the claimant was not PTD.  The claimant also argued that the Commission’s finding was against the weight of the evidence because it found Dr. Bennoch’s testimony to be most credible.

HOLDING: The Court began by noting that when the SIF appealed the ALJ’s finding that it was liable for PTD benefits, it triggered the Commission’s duty to first determine the degree of disability resulting from the last injury alone. Thus, the Commission was allowed to find that the claimant was PTD as a result of the work injury alone, regardless of whether the SIF requested or argued for such a finding.  The Court then focused on the claimant’s next argument – that the Commission’s finding was not supported by substantial and competent evidence. The Court stated that when the evidence before the Commission would warrant either of two findings, the Court is bound by the Commission’s determination. Thus, the Court affirmed the Commission’s decision, noting that the credibility of experts is to be determined by the Commission.

Claim Compensable When Claimant Walking Across Parking Lot to Take Trash Out and Smoke Cigarette

In Glenda Hunter v. Benchmark Healthcare of Harrisonville, Injury No. 13-021747, the claimant, a housekeeper, was walking across the employer’s parking lot when she slipped and fell, sustaining an injury on February 28, 2013. The claimant testified that she fell when she walked out the door of the facility while carrying trash. She was walking with another co-employee and they were planning on taking a smoke break. The dumpster was located in close proximity to the shed, which was built for employees to smoke cigarettes. Employees were allowed to smoke in the shed without clocking out and on a scheduled break. The claimant planned to clock out for her lunch break shortly after returning from the smoking shed. There were some inconsistencies with respect to the claimant’s testimony and the other employee’s testimony as the co-employee was not sure when the claimant fell and whether he was carrying the trash or the claimant actually had the trash in her hand.

In any event, the ALJ found the claimant credible and the claim compensable. He noted that the employer required employees to smoke in a designated shed and did not require the employees to clock out. Also, the employer had ownership and control of the parking lot. Furthermore, the claimant was exposed to the risk due to the placement of the dumpster and the instructions of her employer to smoke in a designated area, which required her to cross an icy lot. The ALJ further noted that whether or not the claimant was injured going to the dumpster or coming back from a smoke break is not material. The fact that she smoked a cigarette in the shed by the dumpster does not impact the analysis as she would be required to cross the same parking lot to return to work. The Commission affirmed the Award of the ALJ.

Claimant Gave Proper Notice When Filed Claim Prior to Diagnostician Connecting Condition to Job Duties

In Tamara Lynn v. McClelland Marketing, Inc., Injury No. 10-111727, the claimant worked for the employer as an office assistant and her job duties included data entry, filing and customer service. She estimated that she typed on the computer for about 5 - 6 hours per day, but acknowledged that this task was interrupted by other duties such as answering phones and handling boxes of files. In 2008 or 2009 she began developing symptoms of carpal tunnel syndrome and in December 2010 she sought treatment on her own. She underwent carpal tunnel releases with Dr. Schlafly in April and May 2011. She filed a Claim for Compensation on May 31, 2011. Thereafter she saw Dr. Berkin, who connected her symptoms to her job duties. The employer sent the claimant to Dr. Rende, who also connected the claimant’s symptoms to her job duties. The ALJ, of course, found that the claimant’s condition was work-related. However, he found that the claim was barred as the claimant did not provide the employer with proper notice.

The Commission reversed the decision of the ALJ finding that the employer was given proper notice. The Commission noted that a person cannot be diagnosed with an occupational disease or repetitive trauma until a diagnostician makes a causal connection between the underlying medical condition and some work-related activity or exposure. The Commission noted that in this case, the claimant’s condition was not connected to her job duties until she saw Dr. Berkin on August 31, 2011. In light of the fact that she filed her Claim on May 31, 2011, prior to a diagnostician connecting her condition to work, the claimant gave timely notice and her claim was not barred.

Claim Denied Because Claimant’s Testimony Was Inconsistent With Medical Records and Claimant Had History of Prior and Subsequent Injuries

In David Luka v. FedEx Ground, Injury No. 10-101154, the claimant worked for the employer as a tech specialist. On July 14, 2010 he was working with a co-worker repairing a conveyor belt, at which time he heard a snap and felt a sharp pain in his lower back. He did not report his accident to the employer because he was concerned about his job. He testified that the next day he went to his family physician and advised that he possibly hurt his back at work but asked the doctor not to mention his low back pain in his chart, as he was not sure whether he wanted to pursue workers’ compensation benefits. He continued to undergo conservative treatment. He was off work and received short-term disability benefits. When he returned to work on December 3, 2010, he sustained another injury and he testified that his low back condition permanently worsened. The first mention of the July 14, 2010 work injury was in the medical records of Dr. O’Boynick, dated December 6, 2010, five months after the date of injury. Dr. Hopkins, the claimant’s expert, testified that the work injury on July 14, 2010 was the prevailing factor in causing his condition. Dr. Bailey, the employer’s expert, diagnosed degenerative disc disease and opined that the accident of July 14, 2010 was not the prevailing factor in causing the claimant’s diagnosis. The claimant did have a prior history of back injuries, the first being in 1986 for which he underwent a lumbar discectomy. A few years later he suffered from an acute episode of low back pain for which he underwent injections. The ALJ found the claimant sustained an accident on July 14, 2010, which was the prevailing factor in causing his back condition and need for treatment.

The Commission disagreed, noting that they were not persuaded by the claimant’s evidence on the issue of medical causation. The Commission noted that there were multiple potential causes for the claimant’s current low back and lower extremity problems, including the 1986 surgery, the work accident on July 14, 2010, a subsequent incident which lead the claimant to the emergency room on September 2, 2010, and another incident at work on December 3, 2010. The Commission also noted they were not convinced that they could reasonably rely on the claimant’s history of events since it conflicted with the medical  records. Therefore, the Commission found that the accident of July 14, 2010 was not the prevailing factor in causing any medical condition in the claimant’s lumbar spine, or any disability. Therefore, the claim was denied.

Claimant PTD Because Vocational Expert Not Credible Because Did Not Use Correct Standard

In Grace Ketchum v. Missouri Department of Corrections, Injury No. 07-109955, the claimant was working for the employer and her job duties included supervising inmates, providing food and maintaining supplies. The claimant was a passenger in a food supply truck and the driver backed into a loading dock, at which time she sustained whiplash. Dr. Coyle performed an arthrodesis and the claimant was placed at MMI. The claimant then worked for a month and applied for extended medical leave and long term disability. After the claimant was released from Dr. Coyle, she treated with Dr. Guarino for pain management. Dr. Volarich assessed 65% disability and opined the claimant would need additional treatment as a result of her work injury. Mr. Eldred, the claimant’s expert, opined that she was permanently and totally disabled as a result of her injury. Mr. England testified on behalf of the employer, and opined that the claimant “would still be physically able to perform some types of entry level service employment such as some cashiering positions, security positions such as working in an office building or as an alarm monitor for a security company. She would be a logical person for some home health positions with ambulatory patients or working as a companion.” The ALJ found that the employer would be responsible for additional medical treatment to cure and relieve her from the effects of the work injury, as the ALJ found Dr. Volarich’s opinion credible. The ALJ also found that the claimant was not permanently and totally disabled as he believed that Mr. England’s opinions were more credible. The ALJ did assess 50% disability to the body.

The Commission modified the Award opining that the claimant was permanently and totally disabled as a result of the work injury. The Commission noted that Mr. England stated that the claimant would be “physically able” to perform some limited jobs, and that the claimant could perform “some” positions. The Commission noted that “the test for permanent total disability is whether the worker is able to compete in the open labor market, and the critical question is whether in the ordinary course of the business, any employer reasonably would be expected to hire the injured worker, given his present physical condition.” The Commission noted that they were left to speculate as to whether such positions actually exist in significant numbers in the open labor market and whether the claimant could reasonably compete for such positions. Therefore, they found the opinion of Mr. Eldred credible, and that the claimant was permanently totally disabled.

Claimant Found PTD Despite the Fact That He Worked For Employer For Over Two Years after Injury

In Rusty Archer v. City of Cameron, Injury Nos. 08-011470 and 10-075527, the claimant, a concrete layer, sustained an injury on January 16, 2008, when he struck a manhole while driving a skid loader. He underwent conservative care for cervical and thoracic strains, including physical therapy and epidural injections. The claimant was given permanent restrictions by two treating physicians, Dr. Zarr and Dr. Wheeler. Dr. Zarr provided a rating of 3% and Dr. Wheeler assessed 8%. Dr. Wheeler, the claimant’s last treating physician, advised that he would need ongoing medication to cure and relieve him from the effects of the January 2008 accident. The claimant continued to receive conservative care and continued to work from the fall of 2008 until September 16, 2010, when he sustained another work-related injury.

While the claimant was working up until his second injury, he received assistance from co-workers if he was unable to perform certain activities, and was accommodated by his employer due to his work restrictions. The claimant was permitted to take frequent breaks throughout the day.

On September 16, 2010 the claimant sustained another injury while bending over to shape a newly formed curb of concrete. He was diagnosed with a chronic and acute thoracic strain, myofascial syndrome, chronic lumbar strain and muscle spasms. He was released from care three weeks later, at which time the doctors indicated that his pain had returned to baseline. He was given the same restrictions.

The claimant actually alleged that he was permanently and totally disabled as a result of the January 16, 2008 accident, and had expert testimony supporting that allegation. However, the ALJ found that the claimant was not permanently and totally disabled as a result of the 2008 injury because he worked in the open labor market laying concrete from 2008 up through his September 16, 2010 injury. The ALJ did not find that the claimant’s work with the employer between that time period so accommodating to render him unemployable, especially when he received a raise and medical records reveal he was laying concrete every day in June 2010. The ALJ did assess 35% disability referable to the January 2008 accident. The ALJ also assessed 7.5% disability to his body as a whole due to the September 16, 2010 accident.

With respect to the January 16, 2008 injury, the Commission modified the decision of the ALJ, and found that the claimant was in fact permanently and totally disabled as a result of this injury. The Commission found that two experts opined that the claimant was PTD as a result of the 2008 injury. The Commission noted that the ALJ disregarded both opinions because the claimant worked in the open labor market laying concrete from 2008 up until September 16, 2010. The Commission disagreed noting the position was not in the open labor market, and the claimant simply went back to the job he already had. The Commission found that the claimant’s return to his job after his injury is not proof that he could compete in the open labor market. The Commission noted that since the claimant was not performing the usual duties of his employment in the manner that such duties were customarily performed by the average person engaged in his line of work, concrete laying, the claimant’s return to work did not constitute proof that he could compete in the open labor market.

With respect to the September 16, 2010 injury, the Commission noted that the Judge assessed 7.5% of the body. The Court reversed this decision opining that the claimant did not sustain any disability as a result of this injury. The Commission noted that none of the medical experts believed the claimant sustained any permanent disability and noted that an injury by accident is compensable only if the accident was the prevailing factor in causing both the resulting medical condition and disability. Since the accident did not cause any disability the claim was not compensable.

Motor Vehicle Accident Found to be In Course and Scope of Employment

In Anne Poole v. Preferred Hospice of Missouri, S.W., LLC, Injury No. 10-049134, the claimant was employed as an admissions coordinator and 80% of her job duties required travel away from the principal office to off site locations to perform in-person interviews with patients who are being admitted to hospice care. The claimant was required to maintain reliable transportation and was reimbursed for her mileage. She was provided a stipend for a cell phone, and she carried medical equipment with her at all times. On the day of her injury she had traveled to various patients’ houses, and her last appointment was in Seymour, Missouri. There was information that she needed to fax to a physician, and therefore she went back to the employer’s place of business. On the way there she was in a motor vehicle accident. The employer’s witness did indicate that the claimant’s decision to return to the office would have been highly unusual, particularly since the doctor’s office would have been closed. It was noted that the accident occurred at a location where the claimant reasonably would have been irrespective of whether she was traveling directly home or back to the office.
The main issue in this case is whether the claimant’s injuries were caused by an accident arising out of and in the course of her employment. The ALJ found that the claimant was credible and that her testimony showed that she was on the way back to the employer’s office to fax something to a physician’s office, which was benefitting the employer. The ALJ further noted that whether the claimant intended to return to the office or was going home, was not relevant since the accident occurred in close geographic proximity and time to the last appointment on the exact same route the claimant would have taken for either destination. The Judge did note that an accident occurring while an employee is going to and from work generally is not compensable. However, there is an exception for employees whose job duties entail travel. The ALJ did note that the legislature eliminated benefits for injuries sustained while traveling between home and an employer’s principal place of business. However, the claimant was not doing so in this case. The ALJ noted that the claimant was traveling from a facility in Seymour, Missouri, and therefore her claim was compensable.

The Commission affirmed the decision of the ALJ, however, came to the conclusion using a different analysis. The Commission did point out that the ALJ concluded that it did not matter whether the claimant had intended to return to the office or was going home. The Commission noted that the claimant’s actual destination at the time of the motor vehicle accident was dispositive of the issue in favor of the claimant. The Commission concluded that the claimant’s injuries arose out of and in the course and scope of employment because her injuries did not come from a hazard or risk unrelated to the employment to which workers would have been equally exposed outside of and unrelated to the employer in normal unemployment life. Basically, the Commission is saying that the claimant testified that she was going back to the employer’s office, and since the ALJ found the claimant credible, it was presumed the claimant was returning to work and not to her home. Therefore, this is the only fact scenario the Commission found relevant.

Editor’s Note: It appears as if the Commission is saying that it is possible that if the claimant was going home, the claim may not be compensable. However, they do not go into any discussion regarding this issue.

Claimant’s Fusion Related to Work Injury Despite Prior Herniations and Symptoms On and Off For Two Years Prior to Injury

In Elizabeth Lake v. Best Buy, Injury No.: 08-123984, the claimant was moving microwave ovens from department overhead storage to floor level on September 5, 2008, when she developed pain at the base of her neck. She did not report her injury to the employer until 2 weeks later. She continued to experience neck pain and went to her primary physician and treated conservatively. She was taken off work by her primary care physician and underwent MRIs. The claimant was then seen by Dr. Doll, the claimant’s cousin (this was not authorized care), who recommended that she see Dr. Raskas, a spinal surgeon. Dr. Raskas performed a two level fusion. Both Dr. Doll and Dr. Raskas believed that the claimant’s work activities in September 2008 were the prevailing factor in causing her medical condition and symptoms. This is significant in that the claimant did have a prior injury in 2006 for which she underwent physical therapy, chiropractic care and acupuncture for a disc herniation to the left at C4-5, the same level the claimant underwent the fusion after the work injury.

Dr. Volarich testified on behalf of the claimant, noting that although the C4-5 disc herniation was present in 2006, it was essentially asymptomatic prior to the 2008 injury, and the right disc bulge at C5-6, which was also present in 2006, had caused no radicular symptoms other than occasional finger tip tingling, prior to the 2008 injury. On cross examination, Dr. Volarich acknowledged that the claimant’s 2009 MRI and 2006 MRI were essentially the same. He also acknowledged that the claimant’s medical records demonstrated that the claimant had some cervical spine symptoms on and off between 2006 and 2008.

Dr. Kitchens testified on behalf of the employer and believed that the claimant had cervical degenerative disc disease which was not related to the work injury. The ALJ concluded that Dr. Kitchens’ opinion was credible and that the claimant’s work was not the prevailing factor in causing her medical condition and disability.

The Commission reversed the decision of the ALJ, noting that Dr. Kitchens based his premise on the fact that a specific incident or injury did not occur at work and he opined that overhead lifting activities cannot cause neck pain. Basically, the Commission did not find Dr. Kitchens’ opinions credible, and found the opinion of Dr. Volarich and the claimant’s testimony credible. Therefore, the employer was responsible for PPD, TTD, past medical expenses and future medical treatment.