State News

Minnesota's Cousineau, Waldhauser, & Kieselbach P.A. is proud to announce that several of our attorneys have been included in the 2020 edition ofMinnesota Super Lawyers. The selection of distinguished Minnesota attorneys is presented annually. Attorneys Jim Waldhauser, Thomas Kieselbach, and Jennifer Fitzgerald have been listed in 2020 Minnesota Super Lawyers. Attorneys Whitney Teel and Elizabeth Cox were listed as 2020 Minnesota Rising Stars. 

We are proud to have recognition for these talented attorneys!

                                                      Simon Law Group, P.C.

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                      MISSOURI WORKERS’ COMPENSATION CASE LAW UPDATE

                                                      April 2020 – June 2020

Court Found Civil Procedure Rule Regarding Time Limit For Substitution of Parties Did Not Preclude Final Award

Butterball, LLC v. Madeleine Dobrauc and Treasurer of the State of Missouri as Custodian of the Second Injury Fund, Case No. SD36205 (Mo. App. 2020)

FACTS:  The claimant alleged an occupational disease involving his right shoulder. He worked for the employer from 2006 to 2009.

The claimant filed a Claim in March of 2011 and a Hearing was held in April of 2017, at which time the ALJ found that the claimant sustained an occupational disease arising out of and in the course and scope of his employment. 

Employer then appealed and while the Award was still under review, the claimant died of health issues unrelated to his work injury.  The claimant’s counsel did not notify the Commission or employer’s counsel of the claimant’s death at Oral Arguments before the Commission in February of 2018 or any time before May 10, 2018 when the Commission affirmed the ALJ’s Award. 

On June 25, 2018 employer filed a Suggestion of Death, stating that it had just become aware of the claimant’s death.  On September 25, 2018 employee’s attorney filed a Motion for Substitution of Party in which counsel informed the Commission the employee’s daughter had taken the deceased’s place. In October of 2018 the Employer objected to the Motion.

The Commission found that Rule 52.13 of Civil Procedure which requires a 90-day time limit for substitutions did not apply and therefore the Substitution of Party was timely. In March of 2019 the Commission received documentation showing a probate court had named Daughter as PR of employee’s estate on January 29, 2019. The Commission found the daughter to be Employee’s successor in interest. On June 13, 2019 the Commission unanimously adopted the award of ALJ. The employer appealed.

HOLDING: The Court of Appeals found that Rule 52.13 of Civil Procedure did not apply in Workers’ Compensation Cases unless a workers’ compensation statute implicates the application under a specific rule which was not the case here. When an employee dies while his/her claim is pending, the specific workers’ compensation statute that applies is section 287.580 which says nothing about a requirement to file a Suggestion of Death within 90 days of death or about the proceeding being dismissed without prejudice for failure to do so.  The Award was proper because all of the requirements of the statue were satisfied such that the employee’s claim did not abate, and the employee’s personal representative was presumably appointed correctly.

Commission Found Claimant’s Application for Review Deficient as Claimant Did Not Explain why ALJ Ruling was in Error

Hayes v. Sweetie Pies Upper Crust, Injury No. 17-061793

The claimant worked for employer as a cashier and server.  As a server the claimant worked at a steam table and while serving food, the claimant constantly felt steam on her face.  A dial controlled the temperature of the steam but the claimant did not adjust the dial.  The claimant testified corrosion from the water and steam from the steam table affected her throat and caused her to have a stroke. 

While at work in May of 2017, the claimant testified she had difficulty with speech and she lost feeling on her left side.  She reported her symptoms to a co-worker and later her friends noticed she had a slur.  The employer refused the claimant’s request for medical treatment and she treated on her own. 

The claimant proceeded pro se to a hearing at which time the ALJ found that the claimant did not establish that she sustained an unexpected traumatic event or unusual strain identified by time and place which produced at the time objective symptoms of injury from a specific event during a single work shift.  It was noted the claim form lists the date of accident as 2017 and therefore the claim does not identify a single work shift where a traumatic event or unusual strain occurred and produced objective symptoms.  The claimant presented no medical or scientific evidence that rust, corrosion or water from the steam table where she worked affected her throat and caused her to have a stroke.  Therefore, the ALJ denied compensation to the claimant.  The claimant then appealed. 

The claimant’s Application for Review alleged that she was disabled and has a walker, a leg brace and no feeling on her left side.  She further alleged that the ALJ did not understand her case.  The Commission noted that the claimant’s Application for Review was deficient because it did not explain why the ALJ’s finding on the controlling issues are in error.  The Commission affirmed the decision of the ALJ.

Employer’s Application for Review Dismissed Because Untimely Filed

Keeler v. Associated Wholesale Grocers and Treasurer of the State of Missouri as Custodian of the Second Injury Fund, Case No. SD36432 (Mo. App. 2020)

FACTS: The employer appealed a decision from the Commission dismissing the employer’s Application for Review as untimely.  An ALJ found in favor of the claimant and an Award was entered and delivered to the parties on March 26, 2019.  Enclosed with the opinion was a cover letter which stated if an Application for Review is not postmarked or received within 20 days of the above date, the enclosed Award becomes final and no appeal may be made to the Commission or to the Courts.  The 20-day time period expired on April 15, 2019.  Employer’s Application for Review was filed by the Commission on April 17, 2019. 

The Commission issued an Order to Show Cause why the Application should be dismissed as untimely.  The Order stated that: 1. The Commission received Employer’s Application for Review on April 22, 2019; 2. The Application was received via United States Postal Service; and 3. The markings on the envelope containing the Application bore a private postage meter mark that affixed a mailing date of April 17, 2019.  Employer argued that neither the claimant nor The Fund were prejudiced because they received copies of the Application on April 9, 2019.

HOLDING: The Court found that the Commission was correct when it decided that employer’s Application for Review was not timely as the Commission received the Application untimely as the time for filing an Application for Review had expired.

Claimant Entitled to Review of all Motions While Application Pending Before Commission

Rowe v. Southeast Missouri Residential Services, Southeast Missouri Hospital and Treasurer of the State of Missouri as Custodian of the Second Injury Fund, Case No. SD36275 (Mo. App. 2020)

FACTS: The claimant filed a Claim for Compensation against her employer and the Fund. The case was tried and was denied by an ALJ.  The claimant then appealed and while her Application was pending before the Commission, the claimant filed a series of four Motions to Submit Additional Evidence on February 27, 2019, April 5, 2019, April 9, 2019 and May 10, 2019.  The Commission then denied compensation, and in its Award, explicitly identified, addressed and denied the claimant’s first three Motions to Submit Additional Evidence but did not mention or address her fourth motion filed on May 10, 2019.  The claimant then appealed. 

HOLDING: On Appeal, the claimant contended that the Commission failed to properly apply the law – 8CSR20-3.030(2)(B) by failing to agree or deny her fourth Motion to Submit Additional Evidence.  The Court agreed that the Commission failed to properly apply the law and reversed and remanded the Decision back to the Commission with directions to consider and to enter an Order either granting or denying the claimant’s fourth Motion to Submit Evidence filed on May 10, 2019.

Payments Made on Kansas Claim Tolled Statute of Limitations to File Claim in Missouri

Austin v. AM Mechanical Services and Treasurer of the State of Missouri as Custodian of the Second Injury Fund, Case No. WD82778 (Mo. App. 2020)

FACTS:  In November 2010, the claimant began working for employer as a sales and service manager.  The claimant was offered and accepted the job with employer in a telephone conversation which occurred while the claimant was at his home in Missouri.  However, the claimant worked at the employer’s warehouse in Olathe, Kansas.  On March 20, 2011, the claimant was injured while climbing a ladder to retrieve a part located on an upper shelf.  Employer paid TTD from March 20, 2011 through December 21, 2012. On February 28, 2013, a Kansas ALJ approved a settlement between the claimant, employer and its insurer. The claimant filed a Claim for Compensation in Missouri referable to the March 22, 2011 work accident. The claimant sought additional compensation from the employer and its same insurer in the amount of $11,314.38 representing the difference between the claimant’s rate in Kansas of $545.00 and the claimant’s rate in Missouri of $666.67.

The claimant then appealed to the Commission who affirmed the ALJ’s Award that the claim was barred by the statute of limitations. The claimant then again appealed.

HOLDING: The Court of Appeals found that the Commission erroneously misapplied the law when they denied the claim on the basis that it was untimely filed.  Since the claimant appealed within three years from the last payment made on his Kansas claim and these were payments that the employer would have been obligated to pay in Missouri, his Application was timely filed.

Application for Review Submitted by Fund Defective on Face and Therefore ALJ’s Ruling Stands

Treasurer of the State of Missouri as Custodian of the Second Injury Fund v. Mickelberry, Case No. WD82997 (Mo. App. 2020)

FACTS:  On February 6, 2015 the claimant injured his neck when picking up a 50-pound radiator.  Ultimately, he underwent a neck fusion surgery.  Despite the surgery, the claimant testified that he had constant neck pain even using narcotic pain medication. He was also diagnosed with bilateral carpal tunnel syndrome.  Medical testimony supported a finding that although the claimant’s carpal tunnel syndrome pre-dated his neck injury, it only became symptomatic as a result of a secondary crush to the nerves associated with his neck injury; a phenomenon known as “double crush”. 

He never returned to work following his neck injury and once his FMLA expired he was terminated by his employer.  Prior to his neck injury, the claimant had a history of chronic back pain and had changed job positions multiple times while working for the employer in order to accommodate his limitations.  The claimant filed an Amended Claim for Compensation seeking benefits from the Fund for permanent total disability alleging that his pre-existing disabilities combined with his neck injury rendered him PTD. 

A Hearing was held before an ALJ who found that the claimant was PTD as a result of his pre-existing disabilities and work injury.  The Fund then appealed and the Commission adopted the Award and Decision of the ALJ.  The Fund again appealed and the claimant filed a Motion to Dismiss for lack of subject matter jurisdiction based on an allegation of an improper Application for Review filed by the Fund with the Commission.

HOLDING: The claimant argued that the Commission lacked subject matter jurisdiction based on the fact that the Application for Review filed with the Commission by the Fund incorrectly referenced the facts of an entirely unrelated case.  Although the claimant framed his motion as a question of subject matter, the Court interpreted his motion as an argument that the Commission had no statutory authority to entertain the Fund’s appeal from the ALJ’s Award, to which the Court agreed. Additionally, the Fund’s Application for Review plainly failed to identify any of the ALJ’s findings and conclusions that were being challenged and thus failed to “state specifically” why the challenged findings and conclusions were not properly supported by the evidence. By submitting an Application for Review that substantively had nothing to do with the facts and the circumstances of claimant’s case, the Fund submitted an Application for Review that at best challenged the ALJ’s Award without any of the specificity required by law.  Since the ALJ’s Award was never properly challenged by the Fund, the Court set aside the Commission Award and adopted the ALJ’s Award.

Claimant Failed to Meet Burden of Proof to Show his Pre-Existing Condition Combined with the Work Injury Rendered him PTD

Guinn v. Treasurer of the State of Missouri as Custodian of the Second Injury Fund, Case No. SD35694 (Mo. App. 2020)

FACTS:  The claimant began working for employer in February of 1987.  He stopped working for the employer on March 1, 2006 when he was about 56 years old. 

In January of 2013, the claimant filed a Claim against the employer alleging hearing loss and tinnitus due to harmful noise.  The claim was settled on April 11, 2014 and on May 7, 2014 the claimant filed a Claim against the Fund for PTD based on the claimant’s hearing loss and tinnitus and his pre-existing Parkinson’s Disease. 

The claimant developed symptoms of Parkinson’s Disease as early as 2002 and was formally diagnosed in August 2003.  He continued to work for the employer until March of 2006 during which time the claimant was highly accommodated by the employer due to his declining health, tremors, weakness, lack of balance and difficulty concentrating. 

Upon leaving work in 2006, the claimant applied for Social Security Disability and was awarded the same on the basis of his Parkinson’s Disease. 

The Fund obtained a report of Dr. Parmet who opined the claimant was PTD due to the Parkinson’s Disease alone. Also, he opined that he claimant’s hearing loss and subjective complaints of tinnitus could have been secondary to his Parkinson’s Disease in whole or in part.  The ALJ found the Fund responsible for PTD benefits. The Fund appealed. The Commission found Dr. Parmet’s opinion persuasive. Therefore, the Commission denied the claimant’s claim against the Fund because the claimant did not meet his burden of proof to show that his Parkinson’s Disease combined with his work injury rendered him PTD.  The claimant then appealed. 

HOLDING:  The Court found that the claimant failed to convince the Commission that he was PTD due to a combination of his pre-existing Parkinson’s Disease and his primary hearing loss and tinnitus disability and therefore the Commission appropriately denied his claim against the Fund on that basis.  The burden of proving an entitlement to compensation is on the employee.  Additionally, the claimant failed to address or find any relevant legal authority supporting his claim.  Therefore, the Court of Appeals affirmed the Commission’s decision denying PTD.

Court Reversed Commission’s Decision That Claimant Not PTD Due to Not Meeting Burden of Proof

Williams v. Treasurer of the State of Missouri as Custodian of the Second Injury Fund, Case No. ED108262 (Mo. App. 2020)

FACTS: The claimant worked for the employer for approximately 24 years, from 1993 to 2008.  In 2005 the claimant suffered the first work-related injury to her neck, treated with Dr. Lange and had surgery, resulting in almost complete symptom relief and returned to work full duty.  In 2008 the claimant was again injured and treated with Dr. Raskas and underwent an MRI which revealed a cervical disc herniation at C6-7.  She underwent an injection and a selective nerve root block.  When that failed to provide relief, Dr. Raskas ordered an FCE which revealed that the claimant’s maximum work capacity was not up to the level required by her job duties.  Therefore, Dr. Raskas recommended another surgery.  The claimant underwent the surgery with Dr. Lange whom she had treated with previously. 

The claimant reported the second surgery did not ultimately help her symptoms and therefore she started treating with Dr. Coyle.  After examination, Dr. Coyle recommended further surgery and performed two surgeries one in 2010 and one in 2011.  Afterwards the claimant still had ongoing neck pain as well as weakness and numbness in her arm.  Dr. Coyle then re-evaluated the claimant in 2011 and placed permanent lifting restrictions of 20 pounds, and no pushing or pulling greater than 44 pounds. 

The claimant was evaluated by Dr. Berkin first in 2011 and again in 2018.  Dr. Berkin opined that the 2008 work injury was the prevailing cause of the claimant’s herniated disc at C6-7, the resulting surgeries and continuing pain and complications.  He rated the claimant as having 42.5% PPD referable to the 2008 injury.  He further opined that the claimant’s 2005 injury represented 30% PPD to the body as a whole.  In Dr. Berkin’s 2011 report, he implemented lifting restrictions and also noted that the claimant would need to pace herself during exertion and take frequent breaks.  The results of Dr. Berkin’s 2018 report were largely the same. 

The claimant also presented testimony of Mr. Dolan who concluded that the claimant was unable to perform any job in the open labor market and that no reasonable employer could be expected to hire the claimant in her present physical condition. 

The ALJ awarded the claimant PPD but denied the claim for PTD.  The ALJ found the medical evidence insufficient to establish total disability. The ALJ noted the Workers’ Compensation Act requires an individual’s disability “be demonstrated and certified by a physician.” The ALJ found Dr. Berkin had testified and reported extensively on the claimant’s work-related injuries and their resulting limitations on the claimant’s ability to function. However, Dr. Berkin came short of meeting the statutory requirement of demonstrating and certifying total disability.  The claimant appealed and the Commission affirmed the decision of the ALJ.  The claimant again appealed.

HOLDING:  The claimant made two claims of error on appeal.  First, she claimed the Commission misapplied the law by deciding Dr. Berkin’s testimony was statutorily deficient to sustain a claim of PTD.  Second, she claimed the Commission’s decision denying PTD and granting only PPD was against the overwhelming weight of the evidence and unsupported by substantial evidence.  The Court found that while Dr. Berkin did not use the “magic words” of “total disability” in his testimony, nothing in the record suggested he explicitly avoided doing so.  The Court noted that the Commission’s arbitrary and subjective characterization of Dr. Berkin’s testimony was not substantial evidence upon which it may have based its decision.  The Court also found the Commission’s decision to be against the overwhelming weight of the evidence and not supported by sufficient and competent evidence as it arbitrarily ignored the uncontroverted evidence presented by the claimant.  Therefore, the Court reversed the Commission’s decision and found that the Fund was liable to the employee for PTD benefits.

Assault Not Compensable as Claimant Provoked Assault

Ford v. Associated Electric Cooperative Inc., Injury No. 15-047091

The claimant testified by deposition prior to the hearing. On the date of the incident the claimant worked a 12-hour shift from 7 PM until 7 AM. His assignment was to obtain or reclaim coal. The claimant knew that the coemployee’s assignment for the evening was to run shift. He used a truck in the area to go reclaim the coal. He then returned the truck and drove to where the coemployee was working. The claimant testified that at that point he saw that the coemployee had already put his workpapers in the truck, in essence claiming the truck for his use during the work shift. The claimant waited for the coemployee to complete the work he was doing and then offered to let the coemployee drive the truck with the claimant as the passenger to drive around the property. According to the claimant while both men were seated in the truck the coemployee told him to get his own truck and cursed while he said it. The claimant then cursed back at him and then the coemployee exited the truck and started beating the claimant. He then described running away from the coemployee.

The coemployee also testified by deposition. He testified that his shift began at 7 PM and he put his workpapers in a truck and began working. The claimant then drove up in the truck he had put his papers in and the claimant got in the passenger seat and the other employee got into the driver’s seat and he told the claimant to get his own truck and the claimant became angry and was complaining about the personnel and management. The coemployee said that he did not want the claimant riding in his truck because all he did was complain the night before. The claimant became angry and cursed and the coemployee got out of the truck. He further testified that the claimant grabbed him by the collar and started pulling. The coemployee then said that he hit the claimant in self-defense.

Pursuant to statute an accident includes but is not limited to an injury or death of an employee caused by the unprovoked violence or assault against the employee by any person. Therefore provoked assaults are not compensable.

The ALJ noted that the testimonies of both men are consistent, including the coemployee exiting the truck after harsh words were exchanged. The judge noted that the coemployee’s testimony is that the claimant grabbed him by the collar and pulled him towards him and the claimant did not deny the accuracy of this testimony. Therefore the judge found that the claimant provoked the assault since he first laid hands on the coemployee. Therefore, the claim was denied.

The claimant appealed arguing that he never had the opportunity to respond to the testimony of his coworker because the coworker’s deposition was taken after the claimant’s deposition. The Commission found that the claimant could have easily testified and presented evidence at the hearing before the ALJ but chose not to do so. Therefore the Commission affirmed the ALJ’s decision.

Fund Liable for Benefits as Court Found Pre-Existing Injury Does Not Need to Be Symptomatic to Render Claimant PTD

Atchison v. Treasurer of the State of Missouri as Custodian of the Second Injury Fund, Case No. SD36431 (Mo. App. 2020)

FACTS: On July 8, 2007 the claimant fell, sustaining a compensable injury to his back. He was found to have a herniated disc at L4-L5. He also suffered from both degenerative disc and degenerative joint disease from L2-L3 through L5-S1 which was a permanent and potentially disabling medical condition. Dr. Russell testified that the herniated disc from the work resulted in 35% disability and the pre-existing degenerative processes created 65% disability. The Commission determined that the claimant suffered from 35% PPD due to the compensable injury. They further held that the pre-existing condition, combined with the primary injury, rendered the claimant PTD.

HOLDING: The Fund then appealed arguing that the Commission erred when they found that the claimant was PTD as a result of a pre-existing condition combined with the work injury. The Fund argued that the pre-existing permanent partial disability was not symptomatic and therefore not compensable. However, the Commission specifically found, based on expert testimony, that the degenerative diseases were serious enough to be a hindrance or obstacle for future employment or re-employment. The Court held that there was no requirement in the statute that any of the pre-existing injuries be symptomatic. The requirement is simply that the Commission must find that the combination of the last injury and the pre-existing disabilities resulted in permanent total disability. The Court therefore affirmed the Commission’s Award. 

Fund Liable for Benefits After First MMI Release as Claimant’s Condition Did Not Improve with Subsequent Treatment

Williams v. Treasurer of the State of Missouri as Custodian of the Second Injury Fund, Case No. ED108319 (Mo. App. 2020)

FACTS: The claimant sustained a knee injury; the claim was denied and he treated on his own. In May 2002 the claimant underwent a repair of a torn medial meniscus. In August of 2002 he underwent a partial knee replacement. In August of 2003 the claimant underwent a revision of the previous knee replacement. On September 8, 2003 his knee surgeon released him from care. The claimant continued to seek treatment for ongoing left knee symptoms for the next several years and underwent a total knee replacement on April 8, 2016. He was released from care on May 9, 2016.

In the summer of 2006, the claimant attempted to return to work but his job duties increased the pain in his left knee, back and right foot. He did not return to any type of employment. The claimant sought disability from the Fund due to his working injury and his pre-existing condition concerning his right ankle. Dr. Cohen testified on behalf of the claimant and found that he was PTD due to his work injury as well as his pre-existing condition. Dr. Nogalski offered testimony at a deposition on behalf of the employer, which the Fund submitted as evidence at the hearing. He opined the claimant had reached MMI as of February 5, 2004 and that his work injury did not cause his disability. Mr. Lalk testified for the claimant and concluded that he would not be able to maintain employment in the open labor market. The ALJ concluded that his pre-existing disability combined with the work-related disability rendered him PTD. The ALJ found the claimant reached MMI on May 9, 2016 and found the Fund liable for benefits starting on that date. The claimant then appealed and the Commission affirmed. The claimant again appealed.

HOLDING: The claimant’s sole point on appeal was that the Commission erred in finding that he reached MMI on May 9, 2016 rather than September 8, 2003. The Court held that since both physicians testified that the claimant’s condition was of a permanent nature following his third surgery in 2003 and his condition did not improve after his surgery in 2016 he reached MMI on September 8, 2003 and benefits were to begin on that date.

Claimant’s Death Due to Hyperthermia Compensable

Halsey v. Townsend Tree Service Company, LLC and Ace American Insurance Company, Injury No. 16-053905

In July of 2016 the claimant, a 23-year-old was hired by Townsend Tree to perform tree trimming, brush and limb chipping/removal and other activities associated with the employer’s contract with a local electrical cooperative to remove obstacles around or near electrical lines. The claimant worked approximately ten hours a day from July 19-22, 2016. July 22, 2016 was one of the hottest days of the year in Southeast Missouri with heat index temperatures at 2p.m. of approximately 114 degrees. By that afternoon the claimant was suffering from heat exhaustion. Around 4p.m. he was asked to collect some caution signs and in the process of doing so he passed out. 911 was called and the claimant was taken to Poplar Bluff Regional Medical Center where he died the next day. The cause of death was listed as hyperthermia.

Dr. Deidiker, the forensic pathologist who conducted the claimant’s autopsy, was deposed at which time he testified that the claimant’s cause of death was hyperthermia or increased body temperature. Dr. Deidiker identified the claimant’s manner of death as “accident.”

Dr. Studyvin, the doctor who treated the claimant upon arrival to the ER, was deposed and testified that he believed the claimant’s cause of death was hyperthermia.

Dr. Jardine was deposed on behalf of the employer and opined that the claimant’s obesity contributed to the cause of his heat stroke.

Dr. Cantrell also testified on behalf of the employer and opined that the claimant’s occupational activities and the heat on July 22, 2016 were the prevailing factor to cause his heat stroke and ultimate death. It was also his opinion that the claimant’s underlying obesity was not the prevailing factor in the cause of his death.

The ALJ found that the claimant had sustained an accident arising out of in and in the course of his employment on July 22, 2016. Additionally, the ALJ found that Dr. Cantrell’s opinion was more persuasive than Dr. Jardine’s and therefore found that the claimant’s work accident on July 22, 2016 was the prevailing factor in causing the claimant’s death. The ALJ also found that the claimant’s obesity was not an idiopathic condition, ruling that an idiopathic condition qualifies for the exclusion only if it exposes the individual to a special risk of injury that only exists because of the presence of idiopathic condition in that employee. The employer then appealed.

The Commission affirmed the decision of the ALJ.

Last Employer to Expose Claimant to Asbestos Responsible for Benefits

Landis v. St. Luke’s Hosptial, Children’s Mercy Hospital and Truman Medical Center, Injury No: 17-098196

The claimant testified he was exposed to asbestos when he was employed at The Kansas City Star from 1968-1976, St. Luke’s Hospital from 1981-1985 and Children’s Mercy Hospital from 1985-1987. The claimant last worked for Truman Medical Center, however, was not exposed to asbestos at this facility.

Dr. Shen testified by deposition for the claimant that it was his opinion that it was more likely than not that Mr. Landis died of mesothelioma that was contracted and associated with exposure in his employment. He also testified that it was not unusual for 20 to 40 years to lapse between exposure and development of mesothelioma.

Mr. Kannenberg, an environmental scientist, testified by deposition on behalf of St. Luke’s Hospital on August 5, 2019. He concluded that the claimant was exposed to asbestos on every job he had as an operating engineer.

Dr. Kibby testified by deposition for Children’s Mercy Hospital and stated that the exposure likely would have been sufficient to explain the cause of his mesothelioma, since most, if not all mesothelioma is related to some type of asbestos exposure.

The ALJ concluded that the claimant filed his claim timely as his surgical report of his right lung containing his final diagnosis of mesothelioma was dated November 8, 2017 and his claim for compensation was filed December 22, 2017. He amended his claim on May 7, 2018 again within the two-year statute of limitations to add Truman Medical Center. 

With respect to notice, St. Luke’s Hospital was given notice on December 22, 2017 and Children’s Mercy Hospital as well as Truman Medical Center were given notice on May 7, 2018. Therefore, the employers met their burden of proving that the claimant did not provide timely notice of his alleged occupational disease. The burden then shifted to the claimant to prove the employers were not prejudiced by the delay. Due to the testimony of Dr. Shen who testified that a 30-day notice requirement was not feasible with asbestos-related lung diseases, because there was no known medical treatment or medication that would prevent the development of asbestosis and asbestos-related mesothelioma the ALJ concluded that the employers were not prejudiced by receiving notice in 44 days rather than 30.

The ALJ further concluded that the claimant’s son proved that the claimant sustained an occupational disease resulting from his exposure to asbestos in his employment causing his mesothelioma and death. The ALJ found the testimony of Dr. Shen and Mr. Kannenberg credible and that the evidence supported their testimony.

Finally, the ALJ relied on 287.063 which states that the last employer to expose the employee to the hazard of the occupational disease prior to evidence of disability is liable, regardless of the length of time of the last exposure. As the claimant worked for Children’s Mercy Hospital from 1985-1987, they were the last employer to expose the claimant to the hazard and exposure to asbestos. Therefore, they are liable for medical bills and benefits. Children’s Mercy Hospital then appealed.

The Commission affirmed the decision of the ALJ.

Claimant’s Work as Hairdresser Not Prevailing Factor in Causing Mesothelioma

Hayden, Deceased and Hayden v. The Cut-Zaven and Papillon, Injury No. 14-103077

FACTS:  The employee worked as a hairdresser for 47 years. He worked at multiple salons. He alleged that he used hand-held hair dryers which he believed contained asbestos. He could not remember the specific hairdryers he had used over the years. There is documentation that there were certain hairdryers that contained asbestos and most of those were discontinued as of 1979. He was diagnosed with mesothelioma on June 26, 2014 and died on April 26, 2016.

The claimant’s attorney obtained a report of Dr. Hyers who concluded that the employee’s mesothelioma was related back to his use of asbestos-containing hairdryers.

Cut-Zaven obtained a report of Dr. Barkman who did note the employee was diagnosed with mesothelioma but there was no comment regarding whether the disease was asbestos related. He did not believe that the employee’s employment as a hairdresser was the prevailing factor in the  development of his mesothelioma. He also noted that the employee’s hairdryers could have been asbestos free because only certain versions and serial numbers of the hairdryers contain asbestos.

The ALJ concluded that the employee did not meet his burden of proof regarding medical causation. The judge noted that the employee could not specifically recall the types of hairdryers he used. She also noted that Dr. Hyers’ conclusion that the employee’s condition was work-related was simply based on the employee’s deposition testimony. She found Dr. Barkman’s opinion more credible. She went on to note that the employee simply presented a version of events he believes could have happened. The employee could have owned the specific serial numbers and models containing asbestos and it is also possible that he could have used one of the serial numbers that did not contain asbestos. She noted that what “could” have happened is not competent and substantial evidence of what did happen. There was no testimony confirming the employee was ever exposed to any of the specific models of asbestos-containing hairdryers during any particular time with any of the named employers. She noted that the employee’s testimony lacked specificity required to prove his claim, and therefore the claim was denied. The claimant appealed.

The Commission affirmed with a supplemental opinion. The Commission noted that the ALJ denied the claim based on a finding that the opinion of Dr. Barkman was more persuasive than that of Dr. Hyers and they were not inclined to reverse the determination to deny the claim on the issue of medical causation. However they provided a supplemental opinion with respect to the proper burden of proof in occupational disease claims. The Commission noted the case law states that the claimant is not required to present evidence of specific exposure to an occupational disease in the workplace but rather is required to submit medical evidence establishing a probability that working conditions caused the disease. The Commission noted that despite the ALJ’s comments regarding specificity, they were confident that she properly understood the relevant factual and legal issues in the claim and agreed that the testimony of Dr. Barkman was more credible, and therefore affirmed the decision of the ALJ.

A3945 was signed into law on July 1, 2020 by New Jersey Governor Phil Murphy.  The law provides for both an accidental disability pension for an eligible member who becomes totally disabled from COVID-19 as well as a death benefit for eligible beneficiaries if the covered member should die from COVID-19.  

This new pension law applies to certain members of three pension systems:  PERS (Public Employees’ Retirement System), PFRS (Police and Firefighters’ Retirement System), and SPRS (State Police Retirement System).  Those covered by the new pension law are solely law enforcement officers, state troopers, firefighters and emergency medical responders who are enrolled in one of the three pensions systems.

COVID-19 claims are normally considered occupational exposure claims for workers’ compensation purposes, but for pension purposes A3945 transmutes such claims into traumatic events for those pension applicants covered under this law.  This is crucial because an accidental disability pension is only available for traumatic work-related events.  Under current law members of PFRS and SPRS who are eligible for accidental disability retirement benefits receive a pension of 66% of their final compensation.  In addition, an amount that is equal to three and a half times their final compensation is paid to the member’s beneficiary on death.   In the case of accidental death, eligible spouses or partners of PFRS and SPRS members receive an annual pension equal to 70% of the member’s final compensation and an amount that is equal to three and a half times the compensation paid in the last year of service.  Eligible widows or widowers of PERS members are paid an annual pension of 50% of the compensation paid in the last year of service.

Below are the only conditions that must be met for the COVID-19 accidental disability pension and death benefits:

Accidental Disability Pension:

1.     The law enforcement officer, firefighter, or emergency medical responder must sustain a total and permanent disability from an on-the-job COVID-19 illness.  Such an illness will be considered “traumatic” for purposes of his or her pension application.

2.     The applicant must begin showing symptoms within 14 days of interacting with the public or supervising other personnel who interacted with the public as part of their job.

3.     There must be proof of a positive COVID-19 test.

4.     The exposure must occur beginning March 9, 2020 and prior to the termination date of either the public health emergency or state of emergency, whichever occurs later.

Death Benefit:

1.     The eligible widow or widower must prove that the deceased law enforcement officer, firefighter, or emergency medical responder contracted COVID-19 during the period of the public health emergency beginning March 9, 2020.

2.     The decedent must have died as a result of the disease.

3.     The decedent must have begun to show symptoms within 14 days of interacting with the public or supervising other personnel who interacted with the public as part of their job.

An unusual provision of this COVID-19 pension law is that the covered pension applicant does not have to offer any proof at all that “more likely than not” he or she contracted the disease in the line of duty.  That is the requirement for all other accidental disability pension applications.  This law is much stronger than so-called rebuttable presumption laws being passed around the United States. This is an absolute presumption law.   Evidence presented by the public entity that the member developed the disease at home or outside work is not relevant.  There are only two relevant issues: first, did the pension applicant develop COVID-19 symptoms within 14 days of interacting with the public or supervising other personnel who interacted with the public as part of their job? If the answer is yes, that satisfies the on-the-job criterion.  Second, does the Division of Pensions and Benefits agree with the applicant’s medical report stating that the member is totally disabled from COVID-19?

The law provides that new onset diseases or chronic psychological disease that may appear later in possible connection to prior COVID-19 exposure and subsequent recovery will not be considered a permanent and total disability caused by the virus.  However, the law does apply to complications from COVID-19 or aggravation or acceleration of a preexisting condition.  The distinction is between “new onset diseases” (meaning a disease that the individual never had been diagnosed with before) as opposed to medical conditions that were already diagnosed prior to the COVID-19 exposure but were aggravated by the virus.

The new law applies to any law enforcement officer, firefighter, and emergency medical responder who was performing regular or assigned duties but not yet enrolled in either PFRS, PERS or SPRS who would otherwise be eligible for benefits from this Bill. 

The law will not apply to any member who has already retired and subsequently returned to employment pursuant to the Executive Order without reemployment to assist during the public health emergency.

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John H. Geaney, Esq., is an Executive Committee Member and a Shareholder in Capehart Scatchard's Workers’ Compensation Group.  Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at jgeaney@capehart.com. 

On Tuesday, July 21, 2020 at 10:00 am (CST) a panel of experienced workers’ compensation defense attorneys representing different states will present a timely and comprehensive webinar entitled: Pandemonium in the Time of the Pandemic.  This is the eighth in a series of free webinars sponsored by WorkersCompensation.com in collaboration with the National Workers' Compensation Defense Network at the Center for Education Excellence.

The webinars are free. All you have to do is register.

REGISTER HERE FOR THE WEBINAR

About the Author

This blog submission was prepared by Mike Fish, an attorney with Fish Nelson & Holden, LLC, a law firm dedicated to representing self-insured employers, insurance carriers, and third party administrators in all matters related to workers’ compensation. Fish Nelson & Holden is a member of the National Workers’ Compensation Defense Network. If you have any questions about this submission or Alabama workers’ compensation in general, please contact Fish by e-mailing him at mfish@fishnelson.com or by calling him directly at 205-332-1448.

JULY 2020

2020 TENNESSEE WORKERS’ COMPENSATION LEGISLATIVE UPDATE

The Tennessee General Assembly passed two workers’ compensation bills in 2020.  Both implement important statutory changes.  For the most part, these changes tend to favor the injured worker.

I.    Tennessee Public Chapter 731 (Senate Bill 2190)

The more significant of the two workers’ compensation bills for 2020 was Senate Bill 2190.  This bill was signed by Governor Bill Lee on June 22, 2020.

A.    Period of Compensation for Permanent Partial Disability

Permanent partial disability (PPD) under the current workers’ compensation law is typically addressed at two separate points in the claim.  The original award of PPD is calculated simply by multiplying the impairment rating by 450 weeks, and then multiplying the result by the employee’s compensation rate. The result is a sum of money to which the employee is entitled regardless of his or her work status. However, the original award of PPD also creates a period of compensation, which is the amount of time represented by the original award.  For instance, if the employee has an impairment rating of two percent (2%) to the body as a whole, then the period of compensation is nine (9) weeks – because two percent (2%) of 450 weeks is nine (9) weeks.

The period of compensation will begin on the date of maximum medical improvement and will expire at a specified date in the future depending on the number of weeks involved.  On that date, the employee’s work status is examined, and if the employee is not back at work at the same or greater wages for any employer, then the employee may be entitled to additional PPD based on the application of certain enhancement factors for work status, age, education, and unemployment rate.  This additional PPD is referred to as the “resulting award” of PPD.

That two-part system looks fine on paper, but in practice, the system breaks down a bit when the employee has a small impairment rating.  For instance, if the employee has an impairment rating of one percent (1%), then the period of compensation is only four and a half (4½) weeks.  In many cases, that period will have come and gone before the impairment rating is even known, let alone allowing enough time to settle the original award and then subsequently examine the employee’s entitlement to a resulting award of PPD.

In Senate Bill 2190, the General Assembly has addressed this issue by adding an additional amount of time after which the employee’s entitlement to a resulting award of PPD will be determined.  That is, under the new law, the employee’s entitlement to a resulting award of PPD will be determined as of the date the period of compensation expires,or 180 days after the employee reaches maximum medical improvement, whichever is later.  The effect of this change will be to allow greater opportunity for employees with smaller impairment ratings to seek additional PPD if they do not return to work within 180 days of reaching maximum medical improvement.

Likewise, under prior law, the employee had one (1) year after the period of compensation expired to file a Petition for Benefit for Determination seeking additional PPD benefits.  That time period has also been modified to allow the filing within one (1) year after the period of compensation expires,or within one (1) year after the 180 day period after the employee reaches maximum medical improvement, whichever is later.

B.    Uninsured Employers Fund

The Uninsured Employers Fund (UEF) was created to help provide some compensation benefits to employees who suffered work injuries while working for employers who did not have workers’ compensation insurance.  To be eligible to receive compensation from the UEF under the statute and prior law, an employee had to satisfy five criteria.  First, the employee had to be employed by an employer who failed to properly secure workers’ compensation insurance coverage.  Second, the employee suffered an injury that would be considered compensable under the workers’ compensation law, at the time the employer had no worker’s compensation insurance coverage.  Third, the employee was a Tennessee resident on the date of injury. Fourth, the employee provided notice within sixty (60) days after the date of injury to the Tennessee Bureau of Workers’ Compensation of the injury and of the employer’s failure to secure insurance coverage.  Finally, the employee must have secured a judgment for workers’ compensation benefits against the employer for the injury.
 
Senate Bill 2190 left this system mostly intact, but slightly modified the fourth element of employee eligibility to make it easier for an employee to seek benefits from the UEF.  Specifically, the sixty (60) day notice requirement was extended to 180 days.
Senate Bill 2190 also removed a statutory requirement that the Court of Workers’ Compensation Claims must convene a full and final hearing no more than sixty (60) days after the notice of hearing has been filed.  This requirement was deemed to be unrealistic, and it was therefore deleted from the statute.

C.    Effective Date

The statutory changes discussed above under Senate Bill 2190 are effective for injuries on or after June 22, 2020.

II.    Tennessee Public Chapter 682 (Senate Bill 2189)

Senate Bill 2189 is a relatively narrow bill targeted at a very specific issue: jurisdiction and enforcement over out-of-state construction companies.

Under prior law, extra-territorial jurisdiction over out-of-state construction services providers was analyzed using the same statutory standard that would apply to any other employer.  However, under Senate Bill 2189, a new scheme now applies for out-of-state construction companies.

Under the new law, any construction services provider performing work in the state of Tennessee must maintain workers’ compensation insurance coverage throughout the duration of that work and must designate “Tennessee” in section 3A of the construction services provider’s workers’ compensation insurance policy or endorsement.

To help enforce this requirement, Senate Bill 2189 also added a new statutory mechanism to collect penalties issued against violators of the workers’ compensation insurance coverage requirements, who try to avoid the penalties by closing the business down and opening a similar business under a new name. That will no longer work, because the Bureau can now seek to enforce penalties against a successor in interest. 

Senate Bill 2189 was signed by Governor Lee on June 15, 2020, and it is effective as to penalties assessed on or after that date.

Fredrick R. Baker, Member
Wimberly Lawson Wright Daves & Jones, PLLC
1420 Neal Street, Suite 201
P.O. Box 655
Cookeville, TN 38503-0655
Phone: 931-372-9123
Fax:  931-372-9181
fbaker@wimberlylawson.com
www.wimberlylawson.com

Below is an update to Operations at the Office of Administrative Hearings:

Until further notice, in-person hearings continue to be limited to critical, priority matters that cannot effectively be held by a remote method (e.g. telephone). Judges are making decisions on a case-by-case basis in consultation with the parties. This policy will be in effect for the indefinite and foreseeable future.

Virtual proceedings

In the last OAH update, it was announced that they were adding a web-based platform for video proceedings to replace some telephone proceedings. On May 20, 2020, it was announced that Microsoft Teams is the platform that OAH will use for virtual proceedings. Judges and staff have engaged in mock hearings using Microsoft Teams and provided feedback around the technology itself and business processes.

OAH will start with highly predictable, lower-risk proceedings that are already being held by telephone. We will slowly and deliberatively incorporate more judges and more complicated proceedings as we all become accustomed to this new experience. Judges will continue to make decisions on a case-by-case basis and in consultation with parties. Starting in June, judges will contact parties to suggest converting select proceedings to Teams. Parties should not contact the assigned judge.

OAH chose Microsoft Teams for the following reasons:

• OAH already has the software, meaning quicker implementation is possible;
• There’s no additional cost to the state and no cost to participants;
• It has Microsoft’s O365 Government Community Cloud security certification;
• Each meeting has a waiting room, meaning that people can only join if the judge approves them;
• Participants can share their screen to help present exhibits;
• Participants do not need to create an account;
• Participants can connect from computers, mobile devices, or tablets.
  

What are the next steps at CWK Law?

With virtual Hearings on the horizon, we are working to become proficient in using Microsoft Teams. This will be important to the effective presentation of cases, especially when it comes to seamlessly presenting exhibits and arguments. We will also need to prepare our witnesses to use this software as well. Our plan is to participate in training sessions, demos, and possibly mock hearings. Below are links provided by OAH for sessions and instructions to utilize as training.

https://microsoftteams.eventbuilder.com/MaximizingTeamsMeetings

https://support.microsoft.com/en-us/office/meetings-in-teams-e0b0ae21-53ee-4462-a50d-ca9b9e217b67

https://support.office.com/en-us/article/join-a-teams-meeting-078e9868-f1aa-4414-8bb9-ee88e9236ee4

By: Parker T. Olson

(952) 525-6930

As of July 1, 2020, the maximum workers’ compensation payable is increased to $920.00 per week and the minimum is increased to $253.00 per week.  The memorandum regarding the new minimum and maximum rates issued by the Director of the Alabama Department of Labor Workers’ Compensation Division, Steve Garrett, can be accessed here. 

Unfortunately, this newsletter does not contain good news for Georgia’s employers and Insurers. The Supreme Court has dealt a final blow to the scheduled rest break defense, leaving it essentially ineffective absent the most narrow of circumstances.    

As is always the case, prepared employers are ever-adapting to changing conditions within our comp system and this ruling should cause us to rethink the manner in which we handle employee breaks and “free time”.  

Casey B. Foreman

Levy, Sibley, Foreman & Speir, LLC

cforeman@lsfslaw.com 

(866) 995-8663

Employers, third party administrators and insurance carriers have for months been expending a great deal of time collecting information needed to make compensability decisions in respect to COVID-19 claims.  There are many important questions to be asked in making such decisions.  This blog focuses not so much on specific questions but on areas of inquiry.

PCP and Hospital Records

Primary care physician records as well as hospital records related to COVID-19 are often pivotal in making compensability decisions.  The PCP records often document when symptoms first appeared and what those symptoms were.  The physician almost always asks the patient questions about the source of the coronavirus, specifically whether that source is a family member, friend, work associate, or someone whom the employee was assisting or caring for.  Similarly, initial hospital admission records may assist in confirming the start of symptoms and source information.  

Source and Exposure Identification

Questions should focus on where and how the employee believes he or she contracted the virus. Sometimes the employee knows no specific source and other times the employee is quite certain of the source.  Whether the employee indicates the source is a colleague, patient, or customer, follow-up questions should address how much time the employee spent working with this individual or individuals and how close they physically were.  Was there daily contact and what was the physical work situation?  Does the employee know whether the source has tested positive for COVID-19? Were masks or protective devices being used?

Quarantine Issues

One area of inquiry should be whether any colleagues, close friends or family members have been quarantined within the past month.  If the answer is affirmative, follow-up questions need to focus on the reason for the quarantine and whether the employee is aware of positive or negative test results for the individual who was quarantined.  If the quarantined individual is a family member, it is important to ask about contact which the employee had with the family member before, during and after the period of quarantine.  The dates of the quarantine period should also be identified. 

Travel Issues

Each states has had somewhat different approaches to responding to the coronavirus, so it is important to ask questions about travel both within and outside the employee’s home state and places where the employee visited and stayed.  By the same token, inquiry should be made about any friends or relatives who have visited the employee in the last month and the health of the visitor.

Timeline Questions

The CDC advises that respiratory symptoms of COVID-19 usually appear an average of 5-6 days after exposure, but symptoms may appear in as few as 2 days or as long as 14 days after exposure.  This is important to keep in mind in the event that the employee has just recently tested positive for COVID-19 but is pointing to a source that the employee has not been around for four weeks.   It is often difficult for any of us to remember what we were doing a few weeks ago.  Calendars and emails are often helpful in refreshing recollection. 

                                                    Outside Activities

Questions need to be asked about recent gatherings, whether they be religious, social, or entertainment oriented. Family get-togethers have been documented in many articles as a source of spreading coronavirus.  It is worthwhile to ask the employee whether he or she has been shopping in the past month and worthwhile to confirm that the employee wore a mask or similar covering.

Symptoms and Medications

Questions about symptoms and medications are significant because one can have COVID-19 long before a positive test confirms it.  The questions should document when symptoms occurred, what they were, what medications were taken, and whether symptoms changed over time.  This information can often be checked against family doctor or hospital records.  For those who have had symptoms, it is helpful to pin down the nature and severity of the symptoms.  This information may take on added significance if a claim petition should later be filed in the Division with allegations of impairment of specific bodily organs.  Of course, as has been well documented, some people who are positive for COVID-19 have no symptoms at all.

                                                   COVID -19 Testing

It is necessary to ask about positive and negative COVID-19 test results and the dates of those tests. If a physician or hospital was involved in facilitating the testing, those records should be obtained.

Last Employment Date and Second Jobs

An employee who reports a COVID-19 claim should be asked when he or she last worked, whether the work was performed on site or remotely, and whether the individual has another job.  There are hundreds of thousands of employees in New Jersey who work part-time jobs.  An EMT may work part-time in that position but have another full-time position.  A nurse or technician may work part-time for two hospitals.  Decisions on compensability are obviously much more complicated when someone has two jobs since there may be potential exposure in one or both jobs or no exposure at all.  In multi-employment situations, it becomes critical to obtain a record of the days worked in each position.  That information should be compared with the timeline of symptoms and illness.

Summary

These are some of the key areas of inquiry that will facilitate decisions on compensability.  Employers, third party administrators and carriers should bear in mind that when if a decision is made to accept a COVID-19 claim, that does not mean that the allegations of the formal Claim Petition have necessarily been accepted.  For instance, if an employee has contracted work-related COVID-19 and files a claim petition alleging permanent pulmonary impairment and psychiatric impairment, the pulmonary and psychiatric aspects of the claim petition may still be denied.   Just as in any workers’ compensation claim, there must be a showing of objective evidence of causally-related impairment to support an award in workers’ compensation.

The author has a useful list of questions for clients and readers to help make COVID-19 determinations.  Readers are welcome to send an email to jgeaney@capehart.com for a request for this list.

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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.