NWCDN Members regularly post articles and summary judgements in workers’ compensations law in your state.
Select a state from the dropdown menu below to scroll through the state specific archives for updates and opinions on various workers’ compensation laws in your state.
Contact information for NWCDN members is also located on the state specific links in the event you have additional questions or your company is seeking a workers’ compensation lawyer in your state.
The South Dakota Supreme Court has recently, and repeatedly, rejected what it calls the "temporal sequence" opinion. This opinion was accepted for years and all it contained was a statement from the treating doctor that the problems were work related because the problems did not start until after the injury.
The court recognized that just because symptoms start at work doesn't mean the underlying cause was work related. This has been a huge help in defending causation claims in South Dakota and helps with settling claims as it forces claimant attorneys to actually work up a file.
Please let me know if you have any questions. Charlie Larson - calarson@bgpw.com or 605-731-0228
Kelly Queen, plaintiff, worked as a police dispatcher for the City of Bridgeton. On October 16, 2006, she experienced a racing heartbeat and left work. Her family doctor referred her to a cardiologist. He diagnosed her with a mitral valve prolapse condition which may have been responsible for tachycardia and dyspnea. She also underwent a cardiovascular stress test.
Plaintiff returned to her family doctor on November 6, 2006. The doctor recommended no return to work until January 2007. She saw he doctor again on January 4, 2007 and January 25, 2007, and she was cleared to return to work on February 18, 2007. She never had any similar heart racing during her absence. She was able to return to work and continue in her job.
During her absence, plaintiff exhausted her 10 sick days as well as her FMLA leave. She therefore requested access to the City’s donated leave program referred to as “sick bank.” That policy was negotiated under a collective bargaining agreement in 2003.
The purpose of the sick bank policy was to allow City employees to donate earned sick time and/or vacation time to another City employee who was suffering from a catastrophic health condition or injury expected to require a prolonged absence from work. The policy provided that the employee seeking access to the sick bank must contact his or her department head, who in turn must require medical documentation concerning the nature, severity and duration of the medical emergency.
Plaintiff submitted notes from her doctor but not actual medical records. The City therefore denied the request finding the condition did not meet the test of a catastrophic event. Plaintiff filed a grievance, which was settled as follows:
The parties agree to settle the above grievance based upon permitting the grievant to invoke the procedures of Article 7 of the [CBA] without interference relative to donated medical leave if the employee’s treating physician documents a catastrophic health condition or injury as specified in the [CBA].
Plaintiff was given a second chance to provide medical documentation showing a catastrophic health condition but failed to do so. Instead, she sued alleging disability discrimination under the New Jersey Law Against Discrimination. She argued that the City failed to make reasonable accommodation to her by not approving her sick bank request.
The City proved that prior recipients of the sick bank had high risk pregnancy that required complete bed rest, Guillain-Barre Syndrome, breast cancer, a stabbing injury and esophageal cancer, and prostate cancer. One woman had been denied sick bank access who had been recuperating from pregnancy and had high blood pressure. Two men had been denied sick bank access who suffered from a back condition and from a heart condition. The Court contrasted this case with other suits alleging discrimination based on disability.
Unlike the typical claim, wherein an employee seeks an accommodation that would facilitate her return to work, maintain her employment, or remedy her condition, plaintiff here demands just the opposite, namely a monetary benefit that would permit her continued absence from work, and which defendants have no recognized legal duty to provide. Indeed, plaintiff never established that she was able to work with or without any accommodation.
As to the sick bank itself, the Court held there was no “blanket mandate” that an employer provide donated sick leave as a matter of right to anyone with a disability. The Court said that plaintiff failed to show that the City acted arbitrarily in restricting access to the sick bank to those who have catastrophic injuries. In the end, the Court said that plaintiff simply did not qualify for the sick bank.
This case can be found at Queen v. City of Bridgeton, 2012N.J. Super. Unpub. LEXIS 2425 (App. Div. October 29, 2012).
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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.
New Jersey is a state with relatively few retaliation law suits arising from workers’ compensation. For that reason, the decision in Peralta v. Joule Staffing Services, Inc., A-1004-11T3, A-1005-11T3 (App. Div. January 3, 2013) is drawing attention from practitioners.
Ronald Peralta, a native of Peru, worked as a forklift operator for Joule Staffing Services from 2003 to 2007 at 12 different work sites. On December 5, 2007, he was in a forklift accident at a warehouse owned by a co-defendant Customized Distribution Services, Inc. (hereinafter CDS). After the accident, one CDS supervisor requested that Peralta fill out an incident report. That did not occur, plaintiff alleged, because another supervisor said he would take care of this detail.
The failure to fill out an incident report and the failure to undergo post-accident drug testing became an issue. Plaintiff alleged he had back pain after the work injury and missed his next shift for that reason. CDS claimed that plaintiff did not even say anything about being injured. The next day the Operations Manager at CDS advised his assistant to inform Joule not to send Peralta to their site any longer because he failed to comply with post-accident procedures following his accident, including drug testing.
Joule’s Safety Transportation Manager also filled out an incident report on December 7, 2007 stating that Peralta was in an accident but had not been injured; nor did he fill out the post-accident report or submit to drug testing. Peralta was thereafter suspended by Joule. The Branch Manager also advised Peralta to set up a meeting with the Safety Transportation Manager. At that meeting Peralta asked the Branch Manager if he could make a claim and was told to do it through the Safety Manager, who was not able to make the first meeting.
Peralta tried a second time to meet with the Safety Manager. When that failed he sought counsel, who contacted Joule on January 7, 2008 requesting treatment. On January 17, 2008, Peralta filed a workers’ compensation claim and was treated or examined by five doctors. Eventually he received $5,000 in a workers’ compensation award.
Peralta was medically cleared to return to work commencing January 24, 2008. However, he never received any further work assignments from Joule. Thereafter he sued in civil court contending that he was terminated in retaliation for filing a workers’ compensation claim. He also alleged a violation of the New Jersey Law Against Discrimination. Joule countered that it did not terminate Peralta’s employment. Rather, he received no more assignments because of a downturn in the economy.
The trial court granted summary judgment to Joule and Peralta appealed. First, the Appellate Division held that retaliation claims in workers’ compensation should be analyzed under the “burden shifting” approach ofMcDonnell Douglas Corporation v. Green, 411 U.S. 792, 93S. Ct. 1817, (1973). The Court said that Peralta must prove that he made a claim for workers’ compensation benefits and was discharged in retaliation for making that claim. The Court said that under McDonnell Douglas, once Peralta establishes a prima facie case, there is a presumption of retaliation. The burden then shifts to the employer to rebut the presumption by offering a legitimate reason for its treatment of the employee. The Court said, “Although the reported cases under the WCA (Workers’ Compensation Act) do not specifically refer to theMcDonnell Douglas burden-shifting framework, the logical underpinnings of the WCA’s antidiscrimination provisions make it sensible to apply such an evidential framework to WCA-based retaliation claims.”
Using this approach, Peralta argued he made out a prima facie case because he was injured, filed a compensation claim, and thereafter never got any more work assignments. That shifted the evidentiary burden to Joule. The Court ruled that Joule successfully rebutted Peralta’s proofs by showing that it had a legitimate, non-discriminatory reason for not sending Peralta more assignments. The company reduced its business during the recession years and eventually closed the Passaic, New Jersey office where Peralta had worked.
In addition, the mere fact that plaintiff failed to receive more work assignments after his injury at CDS and the filing of his compensation claim does not furnish a sufficient basis to infer that unlawful discrimination or retaliation occurred. Temporal proximity alone is generally insufficient to support an inference of a causal connection as part of a prima facie case of discrimination, unless the timing at issue is ‘unusually suggestive.’
The Court said that Peralta had not been able to rebut the legitimate reason offered by Joule for not sending Peralta back to CDS or giving him further assignments. Therefore, the Court affirmed the dismissal of Peralta’s case.
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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.
Daniel Cordiero owned Danny’s Construction Company, which did masonry and concrete work. The company employed eight or nine employees. Cordeiro purchased an investment property in Asbury Park, New Jersey. He listed Danny’s as the repair and renovation general contractor on the construction permits. As general contractor, Danny’s hired plumbing and electrical subcontractors and paid the going rate for their work.
On June 17, 2010, Cordeiro drove two of his employees to a jobsite where they were supposed to perform concrete work. Due to jobsite conditions, the work they intended to perform could not be done. Cordeiro then decided to drive the two workers to the Asbury home where he and one of his co-workers climbed the roof to install a skylight. While doing cutting work, Cordeiro fell through the roof onto the concrete floor below. He suffered paraplegia from a spinal cord injury as well as multiple fractures and respiratory failure. The parties agreed that he was totally and permanently disabled from the fall.
The insurance company, Sentinel, denied the claim and asserted that Cordeiro’s injuries resulted from his personal activities in his own home. The company also produced an underwriter who identified herself as an employee of The Hartford. She said that the workers’ compensation insurance policy only covered the installation of concrete slabs for residential homes. However, there was no specific policy language confirming such a policy limitation.
The Judge of Compensation ruled for petitioner and Sentinel appealed. In a fairly brief opinion, the Court affirmed the award of 100% permanent total disability to petitioner. The Court conceded that Danny’s employees generally performed concrete and masonry work, noting that some of the renovation work done on Cordeiro’s property was beyond the usual scope of work performed by Danny’s. In this case, Danny’s employees did pour the concrete floor in the room where Cordeiro was injured.
The reasoning of the Court was that Cordeiro should be covered under workers’ compensation because, as an employee of the company, he was performing a task assigned by the employer. The Court noted that “[t]he language of the [Act] must be liberally construed in favor of employees,” citingCannuscio v. Claridge Hotel, 319 N.J. Super. 342, 249 (App. Div. 1999). The holding in this case is not surprising because there are few if any published cases in New Jersey where the defense has been accepted that the activity that the company engaged far exceeded the specific terms of the application of insurance. The Court rejected the argument that petitioner’s claim should be barred because Danny’s employees only worked more than three feet above ground level doing concrete work.
This case can be found at Cordeiro v. Danny’s Construction, A-2714-11T3 (App. Div. December 13, 2012).
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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.
Rayford H. Taylor
Of Counsel
Casey Gilson P.C.
Six Concourse Parkway, Suite 2200
Atlanta, Georgia 30328
770-512-0300 -Ext. 529
770-512-0070 -Fax
rtaylor@caseygilson.com
www.caseygilson.com
Dixie Roadbuilders, Inc. v. Sallet, (10/26/2012)
An Employer's Voluntary Payment of Benefits May Not Establish an Employer's Entitlement to Workers' Compensation Immunity
The deceased employee worked for an asphalt company and had gone to a convenience store associated with the asphalt company and used by employees. The employee was killed during a shooting at the convenience store. Mr. Sallet's adult children filed a wrongful death action against the employer. The employer sought dismissal because it had workers' compensation immunity.
The trial court found a factual question existed as to whether workers' compensation applied to the deceased employee's injuries and that plaintiffs could challenge the applicability of workers' compensation to those injuries, notwithstanding the employer's voluntary workers' compensation payment of the deceased employee's funeral expenses.
The court found a genuine issue of material fact existed as to whether the deceased employee had left work for the day or was merely on a break when he went to the convenience store. Further, a genuine issue of fact existed as to whether the deceased employee's trip to the store was a deviation from his employment and, therefore, a personal pursuit.
The court found a factual question existed as to whether workers' compensation applied to Mr. Sallet's injuries, and the plaintiffs could challenge the applicability of workers' compensation to those injuries, notwithstanding Dixie Roadbuilders' voluntary workers' compensation payment of Sallet's funeral expenses.
After the shooting, Dixie Roadbuilders filed a claim with its workers' compensation insurance carrier. In response to this claim, the carrier made a payment directly to the funeral home for Sallet's funeral expenses and a payment to the State Board of Workers' Compensation pursuant to O.C.G.A. § 34-9-265(f). The plaintiffs, however, neither sought workers' compensation benefits from Dixie Roadbuilders nor requested it file the claim with its insurance carrier. They did not know the funeral costs had been paid by Dixie Roadbuilders' carrier but believed those costs had been paid by a friend of Sallet.
Rayford H. Taylor
Of Counsel
Casey Gilson P.C.
Six Concourse Parkway, Suite 2200
Atlanta, Georgia 30328
770-512-0300 -Ext. 529
770-512-0070 -Fax
rtaylor@caseygilson.com
www.caseygilson.com
Arby's Rest. Group, Inc. v. McRae, Supreme Court of Georgia (11/05/2012)
Georgia Supreme Court Upholds an Employer's Right to Access a Workers' Compensation Claimant's Medical Records and to Discuss Case with Physician
The employee filed a claim and received workers' compensation benefits. The State Board granted the employer's motion to dismiss the employee's hearing request or for an order authorizing the treating physician to communicate with the employer's representative. The employee refused to sign the authorization and her hearing was cancelled.
The issue before the supreme court was whether O.C.G.A. § 34-9-207 required an employee who filed a claim under the Georgia Workers' Compensation Act, O.C.G.A. § 34-9-1et seq., to authorize her treating physician to engage in ex parte communications with her employer or an employer representative in exchange for receiving benefits for a compensable injury. The supreme court concluded the trial court erroneously held that an employee was not required to authorize such communications. The employer could seek relevant protected health information informally by communicating orally with the employee's treating physician.
Section 34-9-207, by its plain language authorized a treating physician to disclose not just tangible documents, but also information related to the examination, treatment, testing, or consultation concerning the employee. The supreme court further concluded that "information" under § 34-9-207 included oral communications. The supreme court also noted that § 34-9-207 did not require the physician agree to be interviewedex parte, but allowed the physician to have his own counsel or the employee or her counsel present.
Under Georgia law, an employer in a workers' compensation case is entitled to seek from any physician who has examined, treated, or tested the employee all information and records related to the examination, treatment, testing, or consultation concerning the employee. O.C.G.A. § 34-9-207(a). The employee is deemed to have waived any privilege or confidentiality concerning any communications related to the claim or history or treatment of injury arising from the incident that the employee has had with any physician, including, but not limited to, communications with psychiatrists or psychologists. This waiver applies to the employee's medical history with respect to any condition or complaint reasonably related to the condition for which such employee claims compensation.
Any privilege the employee may have in protected medical records and information related to a workers' compensation claim is waived once the employee submits a claim for workers' compensation benefits, is receiving weekly income benefits or the employer has paid any medical expenses. The occurrence of any one of these triggering events waives the employee's privilege in confidential health information and the information may be released by a treating physician.
Rayford H. Taylor
Of Counsel
Casey Gilson P.C.
Six Concourse Parkway, Suite 2200
Atlanta, Georgia 30328
770-512-0300 -Ext. 529
770-512-0070 -Fax
rtaylor@caseygilson.com
www.caseygilson.com
Medical Ctr., Inc. v. Hernandez, (11/21/2012)
Employees Traveling Long Distance to a Work Site May Not Be Entitled to Workers' Compensation Benefits under the "Continuous Employment" Doctrine
Hernandez and Alvarez-Hilario were employed by Atlanta Drywall, LLC, which was a subcontractor for Rightway Drywall, Inc. Near the beginning of January 2010, the two employees began working on a church construction project in Columbus, Georgia. Hernandez and Alvarez-Hilario lived in Savannah and would make the four-hour drive to Columbus early on Monday mornings, work ten-hour days through the week, and then on Saturdays drive back to Savannah to spend the weekends at home. They were paid only for the hours they actually worked on the job site, and were not paid for travel time. While they were in Columbus for the work week, Rightway arranged and paid for their lodging at a local motel, and would later recoup those expenses from Atlanta Drywall.
On the morning of Monday, February 8, 2010, Hernandez and Alvarez-Hilario left their homes in Savannah to drive to work in Columbus. They were passengers in a personal truck driven by a co-worker. When they were approximately five minutes away from the job site, they were involved in an accident and the truck overturned. Alvarez-Hilario died as a result of the accident and Hernandez was hospitalized for weeks with serious injuries.
In general, accidents or injuries occurring while employees are traveling to and from work do not arise out of and in the course of employment. In this case, Hernandez and Alvarez-Hilario were not yet engaged in their employment at the time of the accident. Rather, they were traveling to the work site when the accident occurred. The Administrative Law Judge ("ALJ") found the injuries sustained while traveling to work did not arise out of or in the course of their employment, and denied benefits.
On appeal, employees argued their injuries should nevertheless be held compensable under the continuous employment doctrine. Under prior cases, any continuous employment coverage would have existed only when they were back in the general proximity of the place where they were employed and "at a time they were employed to be in that general proximity." Although Hernandez and Alvarez-Hilario were arguably in the general proximity of the construction site at the time of the accident, it was undisputed they had not yet arrived at the site and had not yet resumed performing the duties of their employment.
The court distinguished earlier cases which found injuries to be compensable under the continuous employment doctrine. The court noted those cases involved employees who, unlike Hernandez and Alvarez-Hilario, were already in the midst of their employment duties for the pertinent time period.
At the time of the accident, Hernandez and Alvarez-Hilario were not engaged in any construction work. The hazards they encountered on the roadway were in no way occasioned by their jobs as construction workers, and since there was no causal connection between their employment and the accident their injuries did not arise out of [their] employment.
MISSOURI WORKERS’ COMPENSATION
CASE LAW UPDATE
OCTOBER 2012 – DECEMBER 2012
When Employer Files a Late Answer, the Alleged Rate in the Claim is Deemed Admitted
T.H. v. Sonic Drive In of High Ridge, Case No. ED98507 (Mo. App. 2012)
FACTS: The claimant alleged psychiatric injuries she sustained as a result of being sexually assaulted at work by a co-worker. The ALJ found the claimant sustained 45% PPD of the body referable to PTSD and depressive disorder caused by the work injury. The ALJ used a maximum rate of $376.55, as that is what the claimant's attorney listed on the Claim for Compensation, and since the employer did not timely file an Answer, everything was deemed admitted.
The Commission affirmed the Award of PPD benefits to the claimant. However, it modified the ALJ's Award with respect to the rate. The Commission noted that the allegation that she had an average weekly wage of "max rate" was a legal conclusion not a factual allegation, and therefore, the employer did not admit that the claimant had a "max rate" by filing an untimely Answer. The Commission also found that since the claimant failed to meet her burden of proving her average weekly wage, the applicable rate of compensation for the Award was the minimum rate of $40.00 per week.
HOLDING: The claimant appealed the ALJ's finding that the applicable rate of compensation for the Award of PPD benefits was $40.00 per week. The Court noted that an employer's untimely answer results in the admission of factual allegations in a claimant's Claim for Compensation. However, allegations in a Claim for Compensation which are legal conclusions are not deemed admitted by the employer's untimely answer. The Court concluded that wage rate is a question of fact and since the employer failed to file a timely answer, the "max" wage rate as alleged in the Claim was a factual allegation deemed admitted by the employer. Therefore, the claimant was entitled an Award of PPD benefits at the maximum rate of compensation.
Injury Compensable when Claimant Fell Down Stairs Carrying Helmet and Wearing
Work Boots
Pope v. Gateway to the West Harley Davidson, Case No. ED98108 (Mo. App. 2012)
FACTS: The claimant sustained a right ankle fracture and dislocation when he fell down the stairs. The claimant's job duties included inspecting motorcycles, washing and test driving motorcycles and performing routine motorcycle maintenance. At the end of the day, he was asked to drive motorcycles from the sales lot into showrooms for overnight storage. After moving the last motorcycle, he went to check with his supervisor in the service department, which was located down a staircase, to insure that everything was completed before he clocked out. He was walking down the stairs wearing his work boots and carrying his motorcycle helmet when he lost his footing and fell. An ALJ found that the claimant did not meet his burden of showing his injury arose out of and in the course of his employment. The Commission reversed the decision of the ALJ. The employer/insurer argued that the claimant was not injured in the course and scope of his employment, because he was equally exposed to the risk that caused his injury in his normal, non-employment life.
HOLDING: The Court agreed with the Commission finding that the claim was compensable. The Court had to consider whether the claimant was injuredbecause he was at work as opposed to being injured merely whilehe was at work. The Court found that the claimant's injury had a causal connection to his work activity, because he had just finished moving a motorcycle and he was going to check with his supervisor, which required him to descend the staircase, at which time he was wearing his work boots and carrying his work-required motorcycle helmet. He had his helmet with him because of the work activity he had performed just prior to descending the stairs.
The employer/insurer argued that the claimant was a motorcycle enthusiast who wore the same boots and helmet when operating a motorcycle outside of his employment, and therefore, he was equally exposed to the risk of injury in his normal, non-employment life. The Court was not persuaded. The Court did note a similarity between the claimant's work activities and his non-employment life, however, the record did not contain evidence to support a finding that the claimant was equally exposed to the risk of walking down stairs while carrying a work-required helmet outside of work. The Court also noted there was no evidence that the claimant's boots contributed to or caused him to fall, and although he testified he often wore his boots outside of work, the record lacked any evidence that the claimant fell because of his boots. Therefore, the Court concluded that the claimant's injury arose out of and in the course of his employment, and he was entitled to benefits.
Claimant Must Prove Work Injury was Prevailing Factor in Causing Medical
Condition and Disability
Ronald Armstrong v. Tetra Pak and Treasurer of the State of Missouri as Custodian of the Second Injury Fund, Case No. SD31971 (Mo. App. 2012)
FACTS: The claimant was at work feeding cardboard into the processing machine at which time he was not suffering any pain in his shoulder or any part of his right upper extremity. He then began working on a "rush order" which required him to stack cardboard higher than usual, which was above the head and shoulder. He reached for the cardboard and felt a sharp deep pain in his right shoulder. The following day he reported the incident to his supervisor. He was seen by Dr. Cooper and Dr. Lehman, who both believed that the claimant's shoulder condition was pre-existing and he did not sustain an acute injury to his right shoulder. Therefore, the lifting incident was not the prevailing factor in causing his right shoulder problems. Dr. Woiteshek, the claimant's physician, did note that the work incident was the prevailing factor in causing the claimant's shoulder condition. However, Dr. Cooper and Dr. Lehman were found to be more credible. The ALJ found that the claimant failed to satisfy his burden of proving he sustained a compensable accident and that the alleged accident was the prevailing factor in causing his right shoulder problems. The Commission affirmed the ALJ's decision, however, opined that the claimant did prove that he sustained an injury to his right shoulder in an accident at work. However, the more credible evidence showed that the claimant's shoulder complaints were predominantly degenerative in nature and not primarily due to his work accident. Therefore, since the claimant did not prove that his work injury was the prevailing factor in causingboth his medical condition and any disability, they affirmed the ALJ's decision to deny benefits.
HOLDING: The claimant argued that the Commission correctly found that he sustained a work injury, but erred in finding that his shoulder complaints were predominantly degenerative in nature and not primarily due to the work injury. The claimant argued that this finding was erroneous because once an accident has been sustained, the employer is responsible for all injuries and disabilities that flow from this accident. The Court found no merit in this argument. The Court noted that based on Statute, a claimant is not entitled to compensation unless he proves that he suffered an accident or work related injury, and the accident was the prevailing factor in causing both the resulting medical condition and disability. The Court found the Commission correctly used the legal standard in determining that the claimant did not sustain a compensable injury because the accident was not the prevailing factor in causing both his resulting medical condition and disability.
Hearing Loss Found Not Compensable
Burt Kersey v. Autry Morlan, Inc., Case No.: SD31883 (Mo. App. 2013)
FACTS: The claimant was an auto mechanic and was investigating the cause of an alternator noise in a customer's engine. To do so, he applied a stethoscope to the alternator and something popped causing a very loud noise, at which time the claimant noted he was deafened and immediately reported this to his employer. The claimant was prescribed hearing aids and continued to follow-up with doctors until 2010, which was paid for by the employer/insurer. The ALJ found the claimant failed to meet his burden of proof that his work accident was the prevailing factor in causing his hearing loss and tinnitus. The Commission affirmed the opinion of the ALJ.
HOLDING: The Court noted that compensability of job related hearing loss is governed by Statute and Regulation. The Court noted that if traumatic hearing loss does not meet the minimum prescribed threshold pursuant to Statute and Regulation then the work accident cannot be the prevailing factor in causing either a compensable injury or any level of compensable hearing loss. The Court noted that Dr. Mikulec, the employer's expert, was the only expert who evaluated the claimant's hearing loss pursuant to the requirements of the Statute and Regulation. The doctor determined that the claimant's hearing loss did not meet the minimum threshold for compensability and it was found that the doctor's opinion was credible.
With respect to tinnitus, the Court noted that Dr. Guidos, the claimant's expert simply provided a rating of 15% of the body and did not provide a causation opinion. The Court noted that Dr. Mikulec opined that the cause of the claimant's tinnitus was unknown and, therefore, the claimant failed to meet his burden of proof that there was a direct causal link between his tinnitus and his job. Therefore, the Commission's Award was affirmed.
After Award, Employer Only Has to Provide Medications Necessary to Cure and Relieve
Effects of Work Injury
Lynda Noel v. ABB Combustion Engineering and National Union Fire Insurance Co., Case No. ED98446 (Mo. App. 2012)
FACTS: The claimant sustained a work-related back injury in 1997 and was awarded compensation and future treatment benefits. The employer was providing treatment with Dr. Granberg for pain management, and Dr. Robinson for depression and psychiatric disorders. At some point in 2007 the employer attempted to change the claimant's treating physicians, and she objected. Therefore, at that time the employer continued providing treatment through Drs. Robinson and Granberg. However, in April 2011, the employer sent the claimant to Dr. Jarvis, who concluded that both doctors had lost their perspective ways, and he recommended several changes to the claimant's medication. Therefore, the employer denied many of the claimant's prescription medications. The claimant filed a motion with the Commission asking it to prevent such a change in medications arguing it would endanger her life, health or recovery. (Editor's note: The employer is only required to provide treatment, ie. medications, that are necessary to cure and relieve the effects of her work injury. If there is reasonable ground to believe that the life, health or recovery of claimant is endangered the Commission may order a change in that treatment.)
The Commission ordered a hearing and after reviewing the transcript, concluded the claimant failed to meet her burden of showing that all of the medications she was taking were necessary to cure and relieve the effects of her work injury. Therefore, the Commission did not even address the claimant's argument that a change in those medications would endanger her life, health or recovery. The claimant appealed the decision arguing the Commission erred in finding that she failed to show that her medications were related to her work injury.
HOLDING: The Court noted that the Commission looked to the doctors' opinions and the claimant's testimony with respect to what medication she needed as a result of her work injury. With respect to the claimant's pain management, at the hearing she testified that Dr. Granberg had been treating her for the past eleven years for chronic pain which was related to her 1997 work-related injury, and the employer did not dispute this. The Court found the claimant met her burden of proving that the need for pain management flows from the work injury. Therefore, the Commission erred in failing to make a decision with respect to the claimant's argument that changing her medications would endanger her life, health or recovery. This aspect of this case was reversed and remanded to the Commission to make this determination.
With respect to the claimant's psychiatric medications, the Court noted that the Commission believed Dr. Jarvis over Dr. Robinson, the claimant's treating physician, and therefore, found that the claimant failed to meet her burden of proving that these medications were related to her work injury. Therefore, essentially, the employer did not have to provide them.
An Occupational Disease Triggers SIF Liability
Treasurer of the State of Missouri - Custodian of the SIF v. Gloria Stiers, Case No. WD75101 (Mo. App. 2012)
FACTS: The claimant settled her occupational disease claim against the employer for 32% of the right arm and 30% of the left arm and went to a hearing against the SIF for PTD benefits. She alleged multiple pre-existing disabilities. The ALJ found that the claimant was permanently and totally disabled as a result of a combination of her pre-existing disabilities and her subsequent occupational disease. The SIF appealed arguing that the ALJ did not have the authority to hear the case because the Workers' Compensation Statute and case law do not allow for the adjudication of occupational disease claims through Workers' Compensation. The Commission affirmed the Award of the ALJ and noted that an occupational disease qualifies as a compensable injury for purposes of triggering SIF liability. The SIF appealed, arguing that an occupational disease is not a compensable injury for the purpose of triggering SIF liability.
HOLDING: The Court looked directly to the plain language of the Statute that states that a "compensable injury" triggers SIF liability. The part of the Statute dealing with an occupational disease notes that "an injury by occupational disease is compensable," and therefore, an injury by occupational disease triggers SIF liability. Therefore, the decision of the ALJ was affirmed.
Claimant Has To Prove Permanent Disability to Receive Compensation
In Kyle Hunter v. Sachs Electric, Injury No. 08-112333, the ALJ denied the claimant's claim for PPD benefits, concluding that while the claimant sustained acute synovitis from striking his knee at work, he "did not materially change the structural soundness of his knee or cause any additional chondral injury to the knee." The claimant argued on appeal that it is inconsistent to find that his injury caused synovitis but did not cause an acute change to the structure of the knee. The claimant meticulously analyzed the definitions of "synovitis," "membrane," and "inflammation," before arguing that it is impossible to have acute synovitis to the knee without an acute change to the structure of the knee. The Commission noted that the claimant focused on proving that his injury caused an acute change to the structure of the knee, however, noted that his primary focus should have been on proving that the incident was the prevailing factor in causing his permanent disability. Dr. Milne, the employer's expert, opined that the claimant had 6% PPD of the left knee which was pre-existing. The Commission noted the ALJ thoroughly reviewed the evidence and concluded that Dr. Milne's opinion was more credible than Dr. Volarich's, the claimant's expert. Therefore, the ALJ's decision was fully supported by competent and substantial evidence, and therefore, was affirmed.
Employer Not Prejudiced By Lack of Notice
In Leotha Faulkner v. Aramark Educational Services, Inc., Injury No. 10-026257, the claimant sustained an injury to her right knee after she fell at work, and the ALJ denied the claimant's claim for TTD and PPD because he found that she failed to provide the employer with proper, timely notice. Also, she failed to prove the employer was not prejudiced as a result of her failure to provide that notice. The claimant admitted that she did not provide proper, timely notice. However, she argued that the employer was not prejudiced by her failure to do so. The employer argued that it was prejudiced because it was unable to timely investigate the accident to determine causation and address safety issues.
The Commission found that the employer pointed out the potential for prejudice, but did not point toactual prejudice as a result of the claimant's untimely notice. The Commission noted that, for instance, if another individual was injured at the same location that the claimant was injured, and the employer could have prevented that injury had the claimant provided proper notice, the employer would be prejudiced. The Commission also noted that the employer stipulated to the fact that the claimant sustained 20% PPD of the right knee and did not claim any possible safety violation. Furthermore, if the employer believed that causation and safety issues were in question, it should not have stipulated to those issues at the hearing. Also the claimant did not seek reimbursement for her past medical expenses nor future medical treatment. Therefore, the employer was not prejudiced by its inability to timely investigate the accident or direct and provide medical treatment.
Claimant's Injury Sustained in Stairwell of Building Housing Employer's Business Not
Compensable
In Pamela Appt v. Fireman's Fund Insurance Company, Injury No. 09-004637, the claimant slipped and fell on stairs located inside the building which housed the employer's leased office space. The relevant facts in this case were that the employer is one of multiple tenants in a large office building containing shared entryways and stairways. The employer's office was located on the second floor. The claimant was on her way to work when she entered the building, walked up the stairwell to the second floor, and slipped and fell on top of the stairs as she was opening a door. The claimant testified that she believed she fell inside the open door at the top of the stairs. The ALJ found that her injuries arose out of and in the course of her employment. The employer appealed, alleging that the claimant's injuries did not arise out of and in the course of employment because there was no evidence that the employer owned or controlled the stairs where the claimant fell.
The Commission noted that the evidence was clear that the employer did not own the building where the accident occurred, and therefore, the issue was whether the employer exercised sufficient "power" and "influence" over the area at the top of the stairs so as to constitute control. The Commission further noted that the record was devoid of any evidence or testimony regarding whether the employer controlled this area in which the claimant fell. Therefore, because the claimant failed to prove that the employer controlled the area where the accident occurred, she failed to meet her burden in proving that the injury occurred in the course of the employment, and therefore, the Commission denied her claim.
Claim Found Not Compensable Because Claimant Found Not Credible Due to Her
Inconsistent Testimony
In Jackie Porter v. RPCS, Inc., Injury No. 09-052591, the claimant's co-workers found her on the floor in a vestibule outside the employee bathroom complaining that she had fallen. She sustained a hip injury requiring surgery, and also an aggravation of some pre-existing back problems. The ALJ found the claimant did not provide credible testimony regarding the circumstances of her fall. The Commission agreed and further noted that the testimony the claimant provided at the hearing with respect to the moments before the event (the last thing she remembers was washing her hands), contradicts her deposition testimony (the last thing she remembers was locking the bathroom door). The Commission further noted that no one saw the claimant fall.
The Commission found that the claimant did meet her burden for proving accident, however, she did not meet her burden of proving that her injuries arose out of and in the course of her employment. It was noted that the claimant attempted to advance numerous theories in an attempt to overcome the evidentiary problem, but each simply only invited the Commission to speculate that something dangerous about the employer's bathroom or the vestibule outside itmay have caused the claimant to fall. The Commission concluded that they simply did not know what risk or hazard caused the claimant to fall, and therefore, the Commission affirmed the ALJ's opinion denying benefits.
Doctor's Opinion Found Not Credible Because He Did Not Distinguish Between Disability
From the Work Injury and Claimant's Pre-existing Disability
In Aaron Dye v. Lafayette County,Injury No.10-095853, the claimant injured his left knee at work while subduing an unruly inmate. He had a prior injury to his left knee on December 28, 2009. An ALJ found that as a result of this work injury, he sustained 22.5% PPD to the left knee. The Commission noted that Dr. Wise, the employer's expert, provided a rating of 5% PPD from the work injury. Dr. Stuckmeyer, the claimant's expert, provided a 40% PPD rating based on a combination of the claimant's prior injury and the work injury. He did not attribute a specific portion to the work injury. The Commission noted that the ALJ did not even acknowledge the dissimilarity between the two doctors' ratings before simply splitting the difference. The Commission noted that in light of the claimant's two injuries, an expert opinion attributing a specific percentage of disability to the work injury was necessary for the ALJ to arrive at a decision on this issue. Since Dr. Stuckmeyer did not attribute a specific percentage to the work injury, the Commission did not give his opinion any weight and found that Dr. Wise's rating of 5% PPD was credible and awarded the claimant the same.
Claim Denied Because Claimant Alleged Two Injury Dates and Multiple Versions of the
Injury
In Hiba Sadic v. SEMCO Plastics Company, Inc., Injury No. 06-042666, the ALJ found that the claimant failed to prove an accident that caused her right shoulder injury. The ALJ noted that the Claim for Compensation alleged an accident date of "on or about 4/4/06" with no specific description of the event. It was noted the claimant was originally from Bosnia and there were language and translation issues. The Commission did take this into account, however, noted that there were at least 5 different versions of how the claimant was injured and two alleged dates of injury. She reported multiple different histories of injury to different providers which were: removing excess plastic with a knife; heavy lifting; pushing boxes; being hit by a robotic machine; and finally, pulling on a lever on a machine. The ALJ found that even though the claimant testified regarding a traumatic event or unusual strain, she did not have a specific date of injury, reporting two different dates of injury, and there were several versions of the injury. Therefore, the claimant failed to establish a compensable accident and the claim was denied. The Commission affirmed the decision of the ALJ.
Claimant Can Receive PPD Benefits Even if Found To Be PTD as the Result of a Prior
Injury
In Ricky Cantrell v. L. Krupp Construction, Inc., Injury No. 07-040226, the claimant was diagnosed with bilateral carpal tunnel syndrome in May 2007 which resulted from his job duties. Dr. Pruett treated the claimant and provided a rating of 10% of each wrist. The claimant also had a prior claim with an injury date of October 18, 2006, and was awarded PTD benefits as a result of that injury. The ALJ denied PPD benefits because he was diagnosed with a carpal tunnel condition in May 2007, at which time he was already permanently and totally disabled for conditions unrelated to that carpal tunnel syndrome. The Commission reversed the ALJ's denial of benefits. The Commission noted that the ALJ ruled that PPD benefits are only payable if an injured worker suffers an actual loss of or reduction in earning capacity. The Commission noted that the Statute states PPD shall be allowed for loss by severance, total loss of use or loss of use of one or more parts of the body. Under the plain reading of the Statute, the employer shall pay PPD benefits for impairment to the function of the body. It was noted that while loss of function will often lead to some actual impairment or incapacity, there are times that it will not. The Commission further noted that an actual impairment of earning capacity is not a prerequisite to recovery of PPD benefits. Therefore, the claimant was entitled to PPD benefits for his carpal tunnel syndrome.
Claimant Has 30 Days From the Date a Diagnostician Connects the Condition to Work to
Report to the Employer
In Sheryl Berend v. Fasco Industries Inc., Injury No. 05-142895,the ALJ denied the claimant's left shoulder repetitive motion and bilateral upper extremity repetitive motion claims for lack of notice because the claimant did not provide notice to the employer within 30 days. The Commission noted that the claimant has to report an injury resulting from an accident within 30 days. However, in the context of an injury resulting from an occupational disease, the triggering event is the "diagnosis of the condition." The Courts have defined this to be when a diagnostician makes a causal connection between the underlying medical condition and some work-related activity or exposure. The Commission found that none of the claimant's treating physicians identified a causal connection between the claimant's work and her bilateral upper extremity problems. The Commission further found that on November 17, 2008, Dr. Volarich was the first diagnostician to make the causal connection between the claimant's underlying medical condition and her work-related activity or exposure. Therefore, this is when the 30 day notice period began to run. Since the claimant filed her claim on August 10, 2006, more than 2 years prior to the date Dr. Volarich issued his report, her claim was not barred.
Rayford H. Taylor
Of Counsel
Casey Gilson P.C.
Six Concourse Parkway, Suite 2200
Atlanta, Georgia 30328
770-512-0300 -Ext. 529
770-512-0070 -Fax
rtaylor@caseygilson.com
www.caseygilson.com
JMJ Plumbing v. Cudihy, (11/30/2012)
The State Board's Denial of Workers' Compensation Based on Employee's Failure to Prove Compensable Injury Upheld on Appeal
Cudihy worked for JMJ as a plumber. On September 2, 2008, while performing a digging task on the job, Cudihy felt a sharp pain in his back that radiated to his leg. He took a break for a few minutes, then went back to work. Cudihy did not report the injury to his employer, and continued to perform his regular work duties.
After work, Cudihy went to "Physician's Immediate Med" for treatment. He told the treating physician he had developed back pain over the weekend and experienced pain while digging that morning. He was diagnosed with muscle spasms and prescribed muscle relaxers. He sought further treatment in January 2009 and was diagnosed with low back pain. He went to a chiropractor in March 2009, where he was diagnosed with muscle spasms. In May and June 2009, he saw an orthopedist, who diagnosed him with possible disk herniation. On June 3, 2009, the orthopedist recommended that Cudihy be placed on light duty work and that he might need surgery.
On June 25, 2009, Cudihy first reported the injury to JMJ, which placed him on light duty work full-time. Cudihy continued to work at JMJ on light duty until August 2009, when he was terminated for reasons unrelated to his injury.
Cudihy subsequently applied for workers' compensation benefits, alleging a June 25, 2009 injury date. JMJ controverted the claim but, after a hearing, an ALJ awarded Cudihy disability income and medical benefits. The ALJ found, among other things, that Cudihy had sustained a work-related injury to his back on September 2, 2008 and, citing the "new accident" theory (regarding a gradual worsening of condition) found that he had sustained a work-related injury on June 25, 2009.
The State Board vacated the ALJ's award and denied Cudihy's claim. The Board found the preponderance of the evidence did not support the ALJ's finding that Cudihy had sustained a new accident on June 25, 2009 related to his work. The Board found Cudihy had not established or reported the occurrence of an initial work injury, making the theory of a fictional new injury (on June 25, 2009) inapplicable; and, no disability manifested on the designated new accident date of June 25, 2009, inasmuch as that date did not represent the date Cudihy's condition had worsened as a result of his work activities to the point he could no longer perform his job. The Board noted Cudihy had continued working beyond that date (June 25) and he had acknowledged that he was capable of working as a plumber at the time he was terminated. The Board also found that no September 2, 2008 injury was compensable because: (a) Cudihy did not establish that he sustained a work injury on September 2, 2008; and (b) Cudihy did not give adequate notice of a work injury to JMJ.
The Board found he failed to show he sustained a new accident on June 25, 2009. The Board cited, among other things, evidence that: Cudihy had injured his back during the weekend preceding September 2, 2008; when seeking medical treatment on September 2, 2008, he did not indicate that he was injured on the job, even when specifically asked. He admitted he had not sustained any injury on June 25, 2009. He did not become unable to work on June 25, 2009, as he continued working until August 12, 2009, when he was fired for unrelated reasons. By his own admission, at the time of his termination he was physically capable of continuing to perform his job. He worked as a plumber after his termination, and his work activity did not worsen his condition. There was also evidence Cudihy suffered no injury on the job after September 2, 2008, that his symptoms were the same on September 2, 2008 as they were at the time of the administrative hearing, and that all of his pain was attributable to the September 2, 2008 accident.
For accidental injury to be compensable under the Workers' Compensation Act, the injury must … occur in the course of the employment … [and] arise out of the employment. Whether an injury arose out of and in the course of employment is an issue of fact.
The Appellate Court noted the Board's findings, when supported by any evidence, are conclusive and binding. Because some evidence supported the Board's findings that Cudihy had failed to prove that he was injured on the job and that he continued to perform his job duties until he was forced to stop work due to a gradual worsening of his condition, defeated his workers' compensation claim. The Board's Decision was upheld on appeal.
Rayford H. Taylor
Of Counsel
Casey Gilson P.C.
Six Concourse Parkway, Suite 2200
Atlanta, Georgia 30328
770-512-0300 -Ext. 529
770-512-0070 -Fax
rtaylor@caseygilson.com
www.caseygilson.com
Carr v. FedEx Ground Package Sys., Inc., (10/02/2012)
Statutory Employer Entitled to Workers' Compensation Immunity Following Settlement of Case Between Employee and Immediate Employer
On July 2, 2007, Lester Carr was seriously injured in a fight with a FedEx employee at a FedEx facility. At the time, Lester Carr was at the facility pursuant to his work as a truck driver for J. Wigg Trucking, Inc., a sole proprietorship owned by Jethro Wiggins ("Wiggins") that had a contract to provide trucking services to FedEx.
In a separate proceeding, Charlene Carr obtained workers' compensation benefits on Lester Carr's behalf from Wiggins. Charlene Carr then filed the instant personal injury action against FedEx, alleging negligent hiring, supervision and retention, as well as failure to maintain safe premises. The trial court granted summary judgment to FedEx on the ground that FedEx was a statutory employer immune from liability under the exclusive remedy provision of the Workers' Compensation Act.
O.C.G.A. § 34-9-8(a) provides that "[a] principal, intermediate, or subcontractor shall be liable for compensation to any employee injured while in the employ of any of his subcontractors engaged upon the subject matter of the contract to the same extent as the immediate employer." O.C.G.A. § 34-9-8(a) applies only where the principal has contracted to perform certain work for another and has subcontracted some or all of that work.
On appeal, Charlene Carr contended that genuine issues of material fact existed as to whether Lester Carr's injuries were compensable under workers' compensation as arising out of and in the course of his employment. The court noted it is undisputed that Lester Carr obtained workers' compensation benefits for those injuries under a settlement with his immediate employer, Wiggins. Because Lester Carr settled his workers' compensation claim, his representative cannot avoid summary judgment by arguing a genuine issue of material fact existed regarding the compensability of his injuries.
Since FedEx was Lester Carr's statutory employer at the time of the injury, it was entitled to workers' compensation immunity following settlement of his case.
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