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Supreme Court of South Dakota
Jason Petrik v. J.J. Concrete, Inc. and EMC Insurance Company, 2015 S.D. 39
Michael Bornitz and Joseph Dylla/Charles Larson
Issues: (1) Whether the Circuit Court erred in holding that Petrik’s injury "arose out of" his employment but did not occur "in the course of" his employment?
Jason Petrik ("Claimant") was an employee J.J. Concrete ("Employer") when he was injured running away from a co-worker on a job-site. The Department ruled that Claimant’s injury "arose out of" his employment, but did not occur "in the course of" the employment, thereby denying benefits. The Circuit Court approved the Department’s holding, and Claimant appealed to the Supreme Court who reversed in part, affirmed in part, and remanded to the Department to establish benefits.
Claimant was a concrete laborer with Employer since 2011. His employment sometimes involved idle times when he and his co-workers were required to sit and wait for other work to be completed before they could continue with their own. During the idle times, the testimony established that Claimant and his co-workers were expected to clean up the job-site, put away tools, and other like-activities. Testimony also established that Petrik and his co-workers liked to play jokes on each other during the work day. On the date of injury it was very hot outside and Petrik tricked a co-worker into getting out of the air-conditioned truck. After about 5 minutes, Petrik got out of the truck and the co-worker he tricked started chasing him through the construction site and Petrick tried to jump across a trench. Petrik fell into the trench, ultimately breaking his ankle.
Employer and Insurer denied the claim, stating that Claimant was engaging in horseplay. Claimant argued that his horseplay was insubstantial and that the injury did arise out of and in the course of his employment. In reviewing the "arising out of" portion of the arguments, the Supreme Court found that the activity in which Claimant was engaged – playing a prank on a co-worker during an idle period – was on in which employees might reasonable engage. Accordingly, the Supreme Court affirmed then Department finding that the injury did arise out of the employment.
The Supreme Court then addressed the "in the course of the employment" standard. In doing so, the court first addressed the extent and seriousness of the deviation from the employment activities. The Court stated that "however misguided, the extent of Petrik’s momentary impulsive deviation during a lull in work was insubstantial." The Court then addressed the completeness of the deviation to determine whether the act was commingled with the performance of a duty or whether it involved a complete abandonment of job duties. The Court found that although he engaged in prohibited horseplay, "the act was accomplished while [he] was waiting for the concrete truck," therefore finding he did not abandon his job duties.
The Court went on to find that it is expected that in the nature of the employment that certain horseplay would occur, and that a moment’s deviation from work should be expected. Accordingly, the Supreme Court found that although Claimant’s actions were misguided, that his act did not come from a deliberate or conscious excursion and did not require him to abandon any job duties.
If you have questions about this decision, please contact Charlie Larson at 605-336-2424 orcalarson@boycelaw.com. Thanks!Read More
On July 6, 2015, Governor Hassan signed into law Senate Bill 133, which makes significant changes to RSA 281-A:24 (Payment for Reasonable Value of Services), the statute that governs the manner in which disputes over the reasonable value of medical services are decided in workers’ compensation claims.
Under the old version of RSA 281-A:24, an employer or carrier was required to “pay the full amount of the health care provider’s bill unless… [it] can show just cause as to why the total amount should not be paid.” This language provided employers, carriers, and their representatives little leverage in a dispute about the cost of medical procedures. “Just cause” was never defined, but suggested a heightened burden of proof the carrier had to reach to overcome the assumption that the full amount of the bill was to be paid.
Concerns over the rising cost of medical care – particularly medical care in workers’ compensation claims – have been present in New Hampshire for some time. In September of 2014, the Governor and New Hampshire Legislature created a commission to study the issue, noting that medical costs had grown to nearly 75% of total workers’ compensation dollars spent in New Hampshire (versus 60% nationwide) and that the average workers’ compensation surgical procedure in New Hampshire was 83% more expensive than similar procedures in the region and more than twice as expensive as they are nationally.[1] The report produced by the commission, released in December of 2014, noted that medical costs for procedures performed for a workers’ compensation injury were 107% to 263% higher than identical treatments for similar injuries not caused at work.[2]
With that in mind, the legislature crafted a change to RSA 281-A:24 to address the high cost of medical care in workers’ compensation claims. Effective September 4, 2015, RSA 281-A:24 is changed in relevant part below:
(a) The employer or the employer’s insurance carrier shall pay the reasonable value of medical services provided under this chapter.
(b) The health care provider shall have the burden of establishing that its bill for services is reasonable.
A carrier need no longer pay the “full amount” of the bill, and now need only pay the “reasonable value” for the services provided. More importantly, the carrier no longer has the burden of showing “just cause” as to why the total amount should not be paid; health care providers have the burden of showing a charge is reasonable when a carrier objects to the amount of a medical bill. This burden shifting levels the playing field by forcing providers to present evidence that charges are reasonable, rather than placing that onus on the carrier to show why a bill is unreasonable. This change will hopefully counteract the continued rise of medical costs in workers’ compensation claims as referenced above, and in turn lower the costs of workers’ compensation insurance across the state.
The full text of the bill can be found here.
Bernard & Merrill represents employers, insurance carriers, and third-party administrators in workers’ compensation cases, civil litigation, and insurance defense. The firm has offices in Manchester, NH, represents clients across the state of New Hampshire, and can be reached at 603.622.8454 or josh@bernard-merrill.com.
As previously reported in Risk Alert: Special Edition (New IC Rules) published in October 2014, Industrial Commission costs associated with settlement agreements and mediations were increased, but the fees for Forms 21, 26, and 26A and hearing costs have now been eliminated. Effective back on November 1, 2014, the processing fee for compromise settlement agreements, or clinchers, increased from $375 to $400. Additionally, a fee of $200 is now charged for the filing of the “Report of Mediator” form, regardless if the mediation is mandatory or voluntary. As before, the employer or carrier pays the processing fee for the clincher and the “Report of Mediator” in their entirety, but is entitled to a credit for the employee’s 50% share of the fees against any settlement proceeds or final award, unless the parties agree otherwise.
Most recently, effective July 1, 2015, the $120 fee for Deputy Commissioner hearings and the $220 fee for Full Commission hearings was eliminated. The $300 processing fees for Forms 21, 26, and 26A were also eliminated effective July 1, 2015.
Simon Law Group, P.C.
720 Olive Street, Suite 1720, St. Louis, MO 63101
314-621-2828
MISSOURI WORKERS’ COMPENSATION CASE LAW UPDATE
APRIL 2015 - JUNE 2015
Claimant’s Fall on Path Cleared by Employer Compensable
In Savage v. Kaiser Electric, Injury No. 13-016943, the claimant worked as a journeyman electrician. On the date of the alleged injury, the claimant arrived at the job site and went into the trailer in which he and his co-workers received their assignments. Also in the trailer at this time was Mr. Gerling, the claimant’s foreman, who advised the claimant and other workers to use a specific pathway that he had cleared. The claimant walked out of the trailer and slipped on the pathway Mr. Gerling had cleared. At a hearing, an ALJ found the claimant’s injury compensable.
On appeal, the employer/insurer argued that the extension of premises doctrine barred recovery. The Commission disagreed with this argument and stated that since Mr. Gerling cleared snow from the pathway in which the claimant fell, the employer exercised control over that area. Furthermore, the pathway in which the claimant was walking was a customary and acceptable route that employees used to depart from the job site trailer. Therefore, the Commission affirmed the decision of the ALJ.
Claimant’s Fall on Lunch Break in Employer’s Lunch Room Compensable
In Wright vs. Roto-Rooter Services Co., Injury No. 11-110863, the claimant was injured when the chair he was seated in at work collapsed. He settled his claim against the employer and proceeded to a hearing against the Fund. At the hearing, the ALJ found in favor of the claimant.
On appeal, the Fund argued that the claimant’s injury came from a risk to which he was equally exposed to in his normal non-employment life. The Commission disagreed and stated that the claimant was not exposed to the risk of that particular chair collapsing under him. Additionally, the Fund argued that the claimant’s injury was not compensable because he was on lunch break when his chair collapsed and was not working. The Commission again disagreed and stated that the extension of premises doctrine applied because the claimant was in the employer’s lunch room, which was property controlled by the employer. Therefore, the Commission found that it did not matter that the claimant was not working when he was injured because the injury occurred prior to or subsequent to the performance of his job duties and he was on the premises which was controlled by the employer.
Claimant’s Fall Compensable After Syncopal Episode Due to Sleep Pattern
In Riggins v. My Camp, Injury Nos. 11-019035, 11-102401, the claimant was 13 hours into her second consecutive 17.5 hour work shift when she fell and injured her foot/ankle. The claimant testified that she remembered reaching for her purse, but nothing else until after the fall. The St. Francis Medical Center record from her date of injury states that she had a syncopal episode, did not have good memory of the event, and the doctors did not have a good explanation for her syncope. One of the claimant’s experts, Dr. Schwartz, opined that the claimant’s work schedules contributed to changes in the sleep-awake pattern which lead to a circadian disorder consistent with a type of sleep schedule disorder. He believed that condition was the prevailing factor in her loss of consciousness.
The employer/insurer obtained a report from Dr. Eisenstein who believed there was inadequate evidence to diagnose the sleep schedule disorder as that diagnosis would require a schedule of her work shifts over the course of at least one month. Dr. Eisenstein stated the claimant was likely sleep deprived but there was no evidence that she had a disorder. At a hearing, an ALJ found that the claimant’s long overnight work shifts were a “risk source” to which she was not equally exposed to in her normal non-employment life. Therefore, the matter was found compensable.
On appeal, the employer/insurer argued that the claimant’s injuries should be denied as she failed to identify a specific risk or hazard that caused the accident. However, the Commission disagreed with this assertion and stated that the claimant did identify a specific risk or hazard that caused her incident, namely, her work schedule and resulting circadian misalignment and sleep deprivation.
One Commission member dissented and argued that there was no evidence on the record of the claimant’s normal sleep patterns and her off-work time. Therefore, the claimant did not establish that she slept less due to her work schedule than she would have in her normal non-employment life.
Traveling Nurse’s Fall on Client’s Stairs Compensable
In West v. Pheonix Home Care, Injury No. 14-006600, the claimant was an LPN and her duties required her to travel and provide home health services. She was compensated for her mileage. On her date of injury, she arrived at a home and as she was walking up the steps, she slipped and fell on ice. The employer/insurer argued the claimant’s injury was outside the course and scope of her employment because she had not yet clocked in or arrived for work. At a hearing, an ALJ found the injury compensable. On appeal, the Commission affirmed and noted there is no requirement that the claimant be “on the clock” to be in the course and scope of her employment. The Commission stated traveling was part of the claimant’s duties and she was essentially traveling into the home when she fell.
Claimants Need Not Compare Their Stress to Similarly Situated Employees for Psychiatric Injuries
In Mantia v. MODOT, Injury No. 08-096413, the claimant was employed as a highway worker and her duties involved assisting and providing traffic control at scenes of motor vehicle accidents. The claimant would respond to the worst of accidents, which often included fatalities. She alleged psychiatric disability as a result of an occupational disease. Dr. Jovick, the claimant’s psychiatric expert, and Dr. Stillings, the employer/insurer’s psychiatric expert both agreed that the claimant’s job duties were the prevailing factor in her psychiatric condition. Despite this, at a hearing, the ALJ denied compensability largely on the basis that the claimant’s co-workers were routinely exposed to the same experiences and therefore, she did not show that her work exposure was extraordinary and unusual as compared to other highway workers or similarly situated employees.
On appeal, the Commission reversed. The Commission essentially went on to hold that claimants need not compare themselves to similarly situated employees in order to satisfy the burden that their stress was extraordinary and unusual as measured by objective standards. The Commission stated that all cases requiring claimants to compare their stress to similarly situated employees pre-dated the 2005 amendments and the plain language of the Statute does not require such a comparison. Therefore, the Commission stated that the claimant had met her burden and awarded 50% disability of the body.
Expert’s Notice Defense Failed Due to Their Expert’s Misdiagnosis
In Brown vs. Nestle Purina Petcare Company, Injury No. 05-144425, the claimant alleged that she sustained asthma as a result of occupational exposure to products and chemicals in cat litter. The employer/insurer’s expert, Dr. McCants diagnosed restrictive lung disease on October 26, 2005, which was work-related, but the claimant did not notify her employer within the 30 days of that diagnosis. Therefore, the employer/insurer raised a notice defense. However, Drs. Hyers and Tepper diagnosed asthma, which is an obstructive (not restrictive) disease. At the hearing, an ALJ found in favor of the claimant.
On appeal, the employer/insurer again raised their notice defense. The Commission did not find this defense persuasive and stated that the evidence best supported Drs. Hyers and Tepper who concluded that the claimant suffered from asthma, which is an obstructive disease of the lungs, as opposed to a restrictive disease of the lungs, as diagnosed by Dr. McCants. Therefore, the Commission did not believe that Dr. McCants’ incorrect diagnosis triggered the 30 day period to report the condition to work and affirmed.
Notice to Employer is Imputed to the Insurer
In Harrington v. Employers Solutions Staffing, Injury No. 12-051309, the claimant was injured in the course and scope of his employment. He filed for a hardship, and subsequently, for a hearing. Notice of both proceedings was provided to the employer, but due to error by the Division of Workers’ Compensation, was not provided to the insurer. The employer did not appear at either the hardship or the hearing, and Awards were issued in favor of the claimant. The employer failed to comply with the Awards and therefore, the benefits granted to the claimant were doubled. The insurer appealed arguing it had no notice of the proceedings and should not be liable. The Commission disagreed and held that notice to the employer is sufficient to give notice to both the employer and insurer.
Claimant’s C5-6 Disc Herniation Compensable Due to Her Repetitive Lifting
In Buffington v. Hubell Kiloark Electric, Injury No. 10-111151, the claimant a 5' 2", 120 pound assembler, began working for the employer in 2007. She assembled light fixtures which required her to work at a waist-high table, work with her arms extended, and lift up to 75 pounds. The claimant alleged that after three years of working for the employer, she developed an occupational disease resulting in injuries to her bilateral wrists, bilateral elbows, and neck. The medical experts agreed that her bilateral elbow and wrist conditions were work related but disputed causation with respect to the neck. Specifically, Dr. Kitchens, believed that the C5-6 disc herniation was not work related opining that repetitive activity cannot cause a disc to rupture and such an injury would require an acute incident. Conversely, Dr. Volarich, the claimant’s expert, believed that the fact that she lifted with her arms extended and lifted weights up to 75 pounds, which was over half her body weight, did cause a disc protrusion at C5-6. At a hearing, the ALJ found Dr. Volarich more persuasive in light of the fact that the claimant lifted weights in excess of half her body weight and worked with her hands extended. The ALJ found that the claimant sustained a compensable disc herniation at C5-6 and awarded 15% PPD of the body referable to the cervical spine. On appeal, the Commission smarmily affirmed.
Claimant’s Occupational Disease and Accident Claims Denied Because Claimant Did Not Meet Burden of Proof
In Blyzes v. General Motors Corporation, Injury No. 09-070136, the claimant worked for the employer for nearly 27 years in the personnel department, on the factory line, in the chassis department, in the body shop, and other positions. She alleged three different theories of injury: 1) that on September 9, 2009 she was working on the left front door install job when her knees “were frozen” and she experienced pain in her knees; 2) that on September 9, 2009 she tripped over a study guide and fell landing on her knees and body; 3) that she sustained an occupational disease to her knees on September 9, 2009. The claimant’s occupational disease claim was addressed in a companion decision (Injury No. 04-148011) and the Commission found in favor of the employer and denied benefits. The claimant’s expert, Dr. Meyers, opined that her traumatic injury to the right knee was the prevailing factor in her osteoarthritis and necessitated the surgery. While Dr. Meyers did admit the claimant had pre-existing bilateral osteoarthritis in her knees, he did not apportion disability referable to the alleged work injury versus her pre-existing disability. She had also undergone prior total knee replacement surgeries in 2006. At a hearing, the ALJ found that the claimant’s job duties were the prevailing factor in causing her knee condition.
On appeal, the Commission reversed. They were particularly persuaded by the fact that Dr. Meyers did not apportion disability between the work injury and any pre-existing disability. They also did not find Dr. Meyers’ opinion with respect to the occupational disease credible because he did not identify any new injury occurring after the claimant’s total knee replacement surgeries, which occurred in 2006 and before. Therefore, the Commission found that Dr. Meyers’ testimony did not support a finding of any injury on September 9, 2009 or leading up to that date.
Minimal Stress to Shoulder Still a Compensable Injury
In Clutter v. Conagra Foods, Inc., Injury No. 13-051044, the claimant testified that she was lifting a door, like a garage door, so that she could work on it. Once she had lifted the door overhead with both hands, she kept her outstretched left hand on the door to keep it in place while her right hand reached for something. It was at that point that she felt a pop in her left shoulder. She testified that after she felt the pop, and removed her left hand from the overhead door, the door did not move at all and remained in place. The employer/insurer’s expert, Dr. Strong, believed that the claimant had degenerative changes and a possible loose body in her shoulder. Dr. Strong did not believe those conditions were work related but stated she was unsure whether the pop the claimant sustained at work caused more damage. The claimant’s expert, Dr. Hopkins, stated that the claimant had no pre-existing symptoms and believed that her current condition was consistent with holding a door above her head which produced compression and shearing force on her shoulder. Therefore, Dr. Hopkins opined that her work injury was the prevailing factor in her current condition. At a hearing, the ALJ found Dr. Hopkins more persuasive and a Temporary/Partial Award ordered that additional treatment be provided to cure and relieve the effects of the work injury.
Employer/Insurer Liable for PTD Despite Pre-Existing Low Back Pain Requiring Hydrocodone Use
In Chesser v. Pepsi Americas, Injury No. 08-067091, the claimant was injured when she was struck by a falling pallet. Authorized treatment was provided and the claimant underwent two three-level cervical fusions. The claimant had several pre-existing injuries, including multiple injuries to the neck, bilateral carpal tunnel syndrome for which she underwent releases, and low back pain. The claimant testified that her prior cervical and wrists symptoms resolved before the work injury but she did have ongoing low back pain for which she received injections and was taking Hydrocodone on a daily basis. The claimant had a high school degree but her grades were poor, she attended some college but did not graduate, and her employment background consisted almost exclusively of unskilled labor positions.
The ALJ stated that the first inquiry is whether the claimant was permanently and totally disabled as a result of the last injury in isolation. The ALJ believed that given the claimant’s advanced age, poor educational background, restrictions which put her in the light demand level, and a lack of transferable work skills, she was unemployable in the open labor market. PTD liability was imposed against the employer/insurer and the ALJ stated that although the claimant did have pre-existing disabilities which were a hindrance or obstacle to her employment, the Fund was not liable because she was PTD as a result of the last injury in isolation. On appeal, the Commission affirmed.
Employer/Insurer Responsible for PTD After 3 Knee Surgeries, RSD, and Depression
In Rose v. Par Electric Contractors, Inc., Injury No. 08-107881, the claimant was working when he lost his footing on some rocks and fell sustaining injury to his left knee. He underwent three surgeries on the knee and was eventually diagnosed with reflex sympathetic dystrophy (RSD). He subsequently developed depression and anxiety which he claimed was due to the work injury. The claimant did have a prior left knee injury in 2004 but returned to work thereafter without restrictions. At a hearing, an ALJ found that the claimant was PTD as a result of the primary injury in isolation, namely his RSD, and imposed liability solely against the employer/insurer. On appeal, the Commission summarily affirmed.
Claimant PTD From Primary Injury Alone Despite Prior Psychiatric Diagnosis and Medications
In Styles v. Fulton State Hospital, Injury No. 10-062547, the claimant was struck in the face by a patient on August 10, 2010. Subsequently, the claimant received treatment from a neurologist for headaches, nausea, dizziness, panic attacks, neck pain, and memory problems. While still treating and on light duty, the claimant suffered a fall at his employer’s on two occasions. The claimant was seen by a variety of physicians and there was no consensus as to his diagnosis. However, most of the physicians agreed that there was a significant psychological aspect to his ongoing symptoms. The claimant had been assaulted by clients previously in 2009 but stated that he recovered from those assaults without any ongoing symptoms. However, the claimant had been placed on psychiatric medications in 2006 for work related stress and did admit to an increase in depressive symptoms in 2009 due to the assaults.
At the hearing, the claimant testified that he had ongoing daily headaches, dizziness, ringing in his ears, nightmares, mood swings, memory issues, and social anxiety. The ALJ found that the claimant was PTD from the primary injury in isolation and imposed liability solely against the employer/insurer. The ALJ acknowledged that the claimant filed claims for the two subsequent falls that he sustained at work, but the ALJ determined that those two injuries were part of his August 10, 2010 injury. Therefore, the last injury was considered to be the August 10, 2010 injury. On appeal, the Commission summarily affirmed.
Employer/Insurer Liable for PTD Despite Claimant’s Pre-Existing Injuries Which Impacted Job Performance
In Johnston v. Saladino Mechanical, Injury No. 07-123247, the 49 year old claimant worked as a journeyman plumber. His entire vocational history consisted of plumbing jobs and he most recently worked as a foreman. He sustained an injury to his back at work and underwent a fusion. Post-operatively, he developed a rapid heartbeat and was diagnosed with atrial fibrillation, for which he also underwent surgery. The claimant developed severe complications following his heart surgery including stroke and stenosis of his veins. The stroke affected his vision, memory and endurance. The claimant also had numerous pre-existing injuries, including prior injuries to his back, and testified he had ongoing intermittent problems from these pre-existing injuries and they impacted his ability to perform his job duties. However, he denied any pre-existing heart problems. The ALJ stated the first question is whether the claimant is PTD from the primary injury alone. The ALJ found the claimant PTD from the work injury alone and held the employer/insurer liable. The Commission affirmed.
Employer/Insurer Liable for PTD Despite Two Prior Surgeries to the Same Vertebrae
In Buerk v. King Auto Glass, Injury No. 09-019616, the claimant sustained a September 2009 work injury, and underwent a fusion in the neck. He also underwent a two level fusion at L4-5 and L5-S1 after an MRI showed a herniated disc at L5-S1. Dr. Coyle, the surgeon who performed the lumbar fusions, testified that the claimant needed to be fused at L4-5 because of his two prior lumbar surgeries. However, in his report, Dr. Coyle did not assess any pre-existing disability because the claimant told him he was fine following his two prior lumbar surgeries and Dr. Coyle had no evidence to the contrary. After his 2007 surgeries, the claimant returned to work and there was no indication he had any difficulty performing his job duties. At a hearing, the ALJ acknowledged the claimant’s pre-existing disabilities but stated he was PTD from the work injury alone and imposed liability solely on the employer/insurer. On appeal, the Commission affirmed.
Fund not Liable for PTD Due to Subsequent Deteriorating Condition
In Gleason v. Treasurer of Missouri as Custodian of the Second Injury Fund, Injury No 07-072826, the Commission addressed this claim on remand from the Court of Appeals, who found the claimant did sustain a compensable injury after falling from a railcar due to the increased “risk source.” Prior to the work injury, in June 2007, the claimant suffered a stroke due to a cerebral vascular condition. In August 2007, the claimant sustained his work injury and surgery was considered but was not recommended given his pre-existing cardiac condition. Subsequently, in September 2009, the claimant underwent bypass surgery for his cardiac condition.
The claimant’s expert, Dr. Poppa, evaluated him in March 2008 and assessed 37% disability referable to the work injury as well as 40% pre-existing disability referable to his cardiac and cerebral vascular conditions. Dr. Poppa believed the claimant was PTD as a combination of his work injury and pre-existing disabilities. The Commission found Dr. Poppa generally credible but disagreed with his disability assessments and assessed 15% disability from the work injury (or the amount the employer/insurer and claimant settled for) and 20% pre-existing disability. The Commission stated that they had no question the claimant was PTD when he was evaluated by Dr. Poppa on March 8, 2008 but believed the claimant’s condition on that date could not be attributed solely to the work injury and pre-existing conditions, as they found the claimant’s cardiac and vascular conditions had deteriorated following the work injury and leading up to Dr. Poppa’s evaluation. Therefore, the claimant was awarded PPD benefits against the Fund but was found not to be PTD.
For Fund to be Liable for Claimant’s Worsened Pre-Existing Condition After the Primary Injury, the Primary Injury Must be a “Significant” Factor in Worsening that Condition
In Wilkerson v. Treasurer of Missouri as Custodian of the Second Injury Fund, Injury No. 09-020605, the claimant had pre-existing major depression and a personality disorder which affected her ability to perform her job duties. On March 21, 2009, she sustained a blow to the head when she was struck by a basketball while at work. She received treatment and was diagnosed with a concussion and a neck strain. She claimed that following the work injury she had much more stress. Following the work injury, the claimant had a number of non-work related stressors leading to at least one failed suicide attempt and three inpatient psychiatric admissions.
The claimant’s expert, Dr. Cohen, believed she was PTD from the work injury and her pre-existing conditions. The employer/insurer’s expert, Dr. Jarvis, did not believe the work incident played any part in the claimant’s psychiatric condition. At the hearing, the ALJ found the claimant’s head and neck conditions were work related but the work injury was not the prevailing factor in her psychiatric condition and disability. The ALJ awarded 15% PPD against the Fund for the claimant’s pre-existing psychiatric disability but found she was not PTD, either from the work injury alone or in combination with her pre-existing conditions.
On appeal, the Fund argued that if the claimant was PTD, it was due to post-accident deterioration (e.g, her three psychiatric admissions following the work injury). The Commission agreed with the ALJ that the primary injury was not the prevailing factor in causing her psychiatric condition, and agreed that her pre-existing conditions were the prevailing factor in her condition. The Commission found the claimant’s pre-existing conditions were the prevailing factor in her current condition, but those did not render her PTD. Instead, the subsequent deterioration of her pre-existing conditions rendered her PTD. The Commission stated for the Fund to be liable for PTD benefits, it is enough that the primary injury be a “significant” factor in progressing the pre-existing disability. If so, and the claimant is unable to compete on the open labor market, the Fund is liable for PTD.
Claimant’s Expert Need Not Specify Percentage of Disability From Primary Injury to Reach Fund
In Marciante vs. Treasurers of the State of Missouri, Injury No. 09-004245, the claimant sustained three prior injuries to his back. For each of these three prior injuries, he underwent surgery and received workers’ compensation settlements. The total of his three prior settlements amounted to 60% PPD of the body as a whole. In 2009, the claimant bent over to “pop a line” at work when he sustained another injury to his back and again underwent surgery.
After settling his claim with the employer/insurer, he obtained a report from Dr. Musich who stated his pre-existing back injuries resulted in 60% PPD of the body. Additionally, Dr. Musich stated that the sum of the claimant’s past and present disabilities are greater than their simple sum and are a hindrance or obstacle to his daily activities of life. Dr. Musich did not provide a percentage of disability from the primary injury but noted that the claimant was awarded 35% PPD of the body. At the hearing, the Fund argued that the claimant did not meet his burden in proving the extent of disability he suffered from the last injury alone and therefore, he did not meet his burden in showing that he was not PTD as a result of the last injury alone. The ALJ agreed and denied the claim against the Fund.
On appeal, the Commission reversed. The Commission stated that Dr. Musich did determine the extent of disability resulting from the last work injury. Specifically, the Commission stated that Dr. Musich noted he was awarded 35% PPD of the body and the record indicated that the claimant settled his claim against the employer for 35% PPD of the body. The Commission further stated that proof of permanent disability need not be established within mathematical precision and proof of permanent disability can be shown by providing medical evidence establishing the nature and extent of permanent symptoms, restrictions, and/or limitations, and identifying the medical causes thereof. The Commission noted that Dr. Musich identified the claimant’s symptoms, restrictions, and medical causes related to the primary injury. However, the Commission stated that the claimant was not PTD in light of the fact that he returned to work for nearly two years following the primary injury and he provided little evidence as to the nature of his post-injury work or how much assistance was needed or provided to him in order to accomplish his work. Additionally, the Commission noted that Mr. England found that the claimant could perform some function in the medium work demand level. Finally, the Commission stated that the claimant continued to ride an ATV and hunt twice a year. Therefore, they found the claimant was not PTD.
Claimant PTD From Combination of Primary and Pre-Existing Injuries
In Hallock v. Second Injury Fund, Injury No. 12-047298, the claimant sustained three work injuries. He settled his first injury for 7.5% of the body referable to the thoracic and lumbar spine sprain/strains, settled the second claim for 17.5% disability of the left middle finger for a conservatively treated trigger finger, and settled his third claim for 30% of the right wrist/hand after undergoing two ORIFs. He then proceeded to a hearing against the Fund. The claimant had a ninth grade education, did not obtain his GED, and had worked in construction, farming, roofing, and remodeling businesses. An FCE placed him in the medium work demand level. His pre-existing injuries included chronic lumbar pain, radiculopathy of the leg, and a heart attack for which he underwent a four vessel bypass. At the hearing, the ALJ found that the claimant was PTD as a result of his work injury and pre-existing conditions. On appeal, the Commission summarily affirmed.
Claimant PTD From Last Injury Alone Despite Conservative Treatment
In Sartin v. The Second Injury Fund, Injury No. 11-076995, the claimant alleged an occupational disease to her back. Authorized treatment was provided with Dr. Jordon, who believed that her pre-existing scoliosis was the prevailing factor in her pain and inability to lift at work. The claimant was placed at MMI and released by Dr. Jordon. She then treated on her own with Dr. Peterson who prescribed anti-inflammatories and pain medications as well as a cortisone injection twice per year, but did not perform or recommend surgery. The claimant also had pre-existing bilateral rotator cuff tears which were surgically repaired. She settled her back claim against the employer/insurer for 12.5% and proceeded to a hearing against the Fund.
At the hearing, the claimant testified that she could barely turn her head due to neck soreness and stiffness and needs to lie down multiple times per day, which she did not need to do prior to the work injury. The Fund’s vocational expert, Mr. England, testified that if the claimant’s complaints were true, her need to lie down throughout the day would in and of itself, preclude all forms of alternative employment. Conversely, the claimant’s vocational expert, Mr. Eldred believed the claimant was unemployable as a combination of her pre-existing disabilities and work injury. The ALJ agreed with the Stipulation entered into by the employer/insurer and claimant and found that she sustained 12.5% disability of the body referable to the work injury. The ALJ then found that the claimant was PTD as a result of a combination of her pre-existing shoulder conditions and the work injury.
On appeal, the Commission reversed the ALJ’s finding and denied compensation with respect to the Fund. The Commission found that the work injury in isolation rendered the claimant PTD. Therefore, no liability was imposed against the Fund.
Fund Liable for PTD but Employer/Insurer Liable for Future Medical
In Comic v. Wal-Mart Associates, Inc., Injury No. 10-006350, the claimant was lifting a box when she felt pain in her back. She also alleged psychiatric injury. The claimant had pre-existing stressors which included involvement in the Bosnian War, her house being bombed, and having to live in a shelter. The claimant’s psychiatric expert, Dr. Brockman, and the employer/insurer’s expert, Dr. Stillings, both believed that the work injury was the prevailing factor in causing her major depressive disorder. At a hearing, an ALJ found that the claimant’s back strains were compensable and awarded 20% disability. However, the ALJ found that the work injury was not the prevailing factor in her psychiatric condition.
On appeal, the Commission modified the ALJ’s Award. They agreed with the ALJ’s findings with respect to the claimant’s physical injuries, but disagreed with the ALJ’s ruling on her psychiatric injury. They stated that in light of the fact that both Drs. Brockman and Stillings agreed that the injury was the prevailing factor in her major depressive disorder, the claimant did sustain a compensable psychiatric injury. They awarded 2% disability of the body referable to psychiatric disability from the work injury. However, the Commission stated that the majority of the claimant’s psychiatric issues were pre-existing. Ultimately, the Commission found that the claimant was PTD as a result of the work injury and her pre-existing psychiatric stressors. The Commission found the Fund liable for PTD but the employer/insurer liable for future medical to cure and relieve the effects of the work injury.
Statutory Threshold Does not Apply to Pre-Existing Hearing Loss
In Priest v. Treasurer of Missouri as Custodian of Second Injury Fund, Injury No. 10-097781, the claimant sustained a work injury to his shoulder and neck and settled his claim against the employer/insurer. He then proceeded to a hearing against the Fund, alleging pre-existing conditions including hearing loss. At the hearing, the ALJ denied benefits as the claimant’s hearing loss did not meet the statutory threshold. On appeal, the Commission reversed and found the Fund liable. The Commission held the statutory threshold does not apply to pre-existing hearing loss. Instead, the claimant need only show that her hearing loss combined with the primary injury to result in greater disability.
Claimant Can File Civil Claim Against Employer Who Does not Have Workers’ Compensation Insurance
Harman vs. Manheim Remarketing, Inc., Case No. SD33414 (Mo. App. Ct. 2015)
FACTS: The claimant was employed by Securitas as a security guard at Manheim. The claimant sustained a work injury in the course and scope of his employment. He filed and settled a workers’ compensation claim solely against Securitas. He then brought a civil suit against Manheim alleging negligence and naming Manheim as well as one of its employees as defendants. Manheim argued the claimant’s exclusive remedy lay in workers’ compensation. The claimant conceded that he was a statutory employee of Manheim at the time of the injury but argued that Manheim’s failure to carry workers’ compensation insurance allowed him to pursue a civil suit against them. Manheim responded that statutory employers are not required to carry workers’ compensation insurance to avoid civil liability. The trial court found in favor of Manheim and dismissed the civil suit.
HOLDING: On appeal, the Court reversed. In a fairly straightforward opinion, the Court stated that the plain language of the workers’ compensation statute requires all employers to carry workers’ compensation insurance. The Court further noted that following strict construction, there is nothing in the Statute which exempts a statutory employer from civil liability simply because another employer is responsible for Workers’ Compensation benefits. Also, the Court stated that being a statutory employer does not excuse that employer from having to carry Workers’ Compensation insurance.
Employer/Insurer Liable for Total Knee Replacement to Cure and Relieve the Effects of the Work Injury
In Bertels vs. Houghton Mifflin Harcourt Publishing Co., Injury No. 09-072091, the claimant sustained an injury to her right knee. Authorized treatment was provided and she underwent arthroscopic surgery. She subsequently underwent an unauthorized total knee replacement. The employer/insurer’s expert, Dr. Gross, opined that the claimant’s need for a total knee replacement did not result from the accident but instead was the product of a spontaneous breakdown in the cartilage in her knee after she was released from care. Conversely, the claimant’s expert, Dr. Volarich, believed that her work injury was the prevailing factor in both her traumatic injuries in the knee and the breakdown in her knee following her release from authorized care. At a hearing, the parties stipulated the claimant sustained a work related injury. The ALJ found that the claimant sustained a compensable injury to her right knee and awarded past medical expenses but did not award medical expenses for the claimant’s total knee replacement. The claimant appealed.
On appeal, the claimant argued that in light of the fact that the parties stipulated that she sustained an injury by accident arising out of and in the course of her employment that she need only show that her total knee replacement was reasonably required to cure and relieve the effects of the work injury. Conversely, the employer/insurer argued that the first step in the process is to determine whether the accident was the prevailing factor in the claimant’s resulting medical condition which necessitated the knee surgery and then to decide whether the total knee replacement was reasonably required to cure and relieve that condition. The Commission agreed with the employer/insurer but went on to find the claimant’s expert more credible and believed that the work accident was the prevailing factor in both her acute condition as well as her subsequent breakdown after being released from authorized care. They further found that the total knee replacement was reasonably required to cure and relieve the effects of the work injury and awarded past medical expenses for the total knee replacement.
Heat Exhaustion Compensable After Working in 100 Degree Weather
In Brown v. City of Columbia, Injury No. 11-049932, the claimant filed three separate claims, all of which alleged injury due to heat exhaustion. The claimant drove a trash truck, which did not have air conditioning, and he was also often required to wear a haz-mat suit for several hours. The heat indices on his alleged dates of injury were over 100 degrees. As a result of his heat exhaustion, he developed headaches and dizziness. He sought medical treatment on two of the three alleged dates of injury, but no medical evidence was introduced regarding the third alleged date of injury. At a hearing, the ALJ found that the claimant provided evidence of heat exhaustion on two of the three dates of injury and awarded 10% disability of the body for each of those two instances. On appeal, the Commission summarily affirmed.
Heat Exhaustion Not Compensable Due to Lack of Medical Evidence
In Fowler v. State of Missouri/Department of Corrections, Injury No. 09-065204, the claimant worked in a control/surveillance tower. On the alleged date of injury, June 27, 2009, she claimed the tower was extremely hot and a thermometer near her desk read 100 degrees. She began to feel lightheaded and testified she contacted her primary care physician on or shortly after June 27, 2009, and reported her symptoms. However, her primary care physician’s records showed the claimant called on June 29, 2009 for unrelated reasons and there was no mention of heat exhaustion. The claimant testified to a similar work incident of heat exhaustion on August 4, 2009 and her work log, which she filled out, did indicate the heat was making her sick. Her primary care physician’s records showed she did call and report sickness from heat on August 4, 2009 but she was not seen. The claimant saw Dr. Elliott on August 11, 2009 and was diagnosed with heat exhaustion based on her self-reported history. At a hearing, the ALJ denied compensation finding that the claimant may have sustained an injury on June 27, 2009 or August 4, 2009 but there was no contemporaneous objective evidence of heat exhaustion in the medical records. The Commission affirmed.
Employers are aware that if the claimant has not pursued his or her third party civil action within a year of the injury, the employer can provide a 10-day notice and then sue in the name of the injured worker. But what happens if the injured worker will not cooperate with the law suit? Can the employer settle the third party case without the consent of the injured worker?
The most helpful decision yet on this subject isElhelou v. CVS Pharmacy, Inc., v. Lipinski Outdoor Services v. All State Power Wash, A-4731-13T1, (App. Div. July 9, 2015). Mr. Elhelou, the manager of a CVS store inJamesburg, N.J., was injured in February 2010 when he slipped and fell while shoveling snow from a loading dock in the rear of the CVS. He retainedRaymond Shebell, Esq. and recovered medical and indemnity benefits in workers’ compensation. Elhelou did not pursue any third party law suit arising from this accident.
On February 16, 2011, the third party administrator, Gallagher Bassett Services, wrote to Elhelou stating that his injuries may been caused by the negligence of a third party. GB provided the proper 10-day notice stating that if Elhelou did not settle with the third party who may have been responsible for his injuries, then GB would protect its rights and file suit.
On March 1, 2011, Shebell wrote to attorney Laub, representing CVS and GB, advising Laub that GB was not to contact his client directly. GB then wrote to the insurance carrier for Lipinski Outdoor Services, which was responsible for the snow removal at the CVS, putting Lipinski on notice of its workers’ compensation lien. The lien at that time was $90,630.87.
Laub wrote again to Shebell on December 9, 2011 asking whether Shebell intended to file suit against Lipinski. When Laub received no response, he filed a complaint against Lipinski on January 23, 2012 in the name of Elhelou, CVS and GB. Lipinski filed an answer and a third party complaint against All State PowerWash asserting that All State was responsible for clearing ice and snow on the premises.
On January 24, 2013, Lipinski’s lawyers wrote to Laub requesting that Elhelou appear for an IME. Laub wrote to Shebell also advising that he needed to take the deposition of Elhelou. Laub asked for permission to contact Elhelou and then followed with another request. Finally, Laub wrote directly to Elhelou advising that his deposition would be taken on February 15, 2013. Elhelou appeared for the deposition but not for the IME because he had upcoming surgery. The lien was by then $105,129.45.
Laub next wrote to Elhelou to advise that his presence would be needed at an arbitration. Elhelou appeared at the arbitration and his testimony was taken. The arbitration resulted in a non-binding award in the amount of $105,129.45. CVS negotiated a settlement of $93,500 to resolve its lien against Lipinski andAll State. The lien eventually climbed to $198,000. Laub then wrote to Elhelou requesting that he sign and return a release of his claim against Lipinski andAll State. Robert Morley of the Shebell Law Firm then wrote to Laub advising that Elhelou was seeking the firm’s advice regarding whether he should sign the release. Morley explained that it advised Elhelou not to sign the release until the Shebell firm could review the entire litigation file.
Several months went by without progress, so in March 2014, Laub filed a motion to compel Elhelou to sign the release or alternatively the court should enter an order declaring that Elhelou’s release was not required. Elhelou filed a cross-motion seeking the following: 1) permission for the Shebell firm to appear in the action; 2) denying the relief requested by CVS and GB; 3) disqualifying Laub’s law firm; 4) substituting Shebell as counsel, and 5) compelling the turnover of the entire litigation file.
The Superior Court ruled in favor of CVS and GB and held that the suit by CVS was more a “subrogation action” than a personal injury action. The Court said that there was no attorney-client relationship between Laub and Elhelou and no obligation on Laub’s part to do anything other than to protect the Section 40 lien rights on behalf of CVS. The Court further held that there was no obligation on the part of CVS to seek a settlement in excess of the lien, which was then $198,000. Elhelou appealed.
The Appellate Division made a number of very important rulings in this case:
A) “Thus, to the extent that N.J.S.A. 34:15-40(f) grants an employer or compensation carrier a right of statutory subrogation, it cuts off the employee’s right to participate in settlement or file a lawsuit, and limits the employee’s right of recovery to the excess of the compensation lien.”
B) The employer or carrier has a right “to settle with the third party or its insurance carrier, or to bring an action to recover personal injury damages from a third party when the employee fails to do so.”
C) The employer or carrier’s action “shall constitute a bar to any further claim or action by the injured employee . . . against the third person.”
D) “If the amount recovered ‘is in excess of the employer’s obligation to the employee . . . and the expenses of suit, such excess shall be paid to the employee.’”
E) “Even though the statute requires no notice of the settlement to the employee, its consummation acts as ‘a bar to any further claim or action by the injured employee.’ “
F) “Similarly, the statute does not require that the employee be given notice of a suit brought by the employer or its carrier. The only notice required by the statute is the ten-day notice of the employer or carrier’s right to bring such suit, which must be given prior to the filing of the complaint. There are no notice requirements after that point.”
G) “[I]f the employee has brought and abandoned his or her own action, the statute allows the employer or carrier to reopen the action and prosecute it ‘in the name of the injured employee,’ rather than on behalf of the employee directly.”
H) The statute does not “mention any right of the employee to participate in reaching a settlement, whether in lieu of litigation or to conclude litigation.”
I) Just as an employee can settle his or her third party action without involvement by the workers’ compensation carrier, the workers’ compensation carrier is authorized to settle or bring suit against the third party after providing a 10-day notice following one year from the date of accident.
The Appellate Division said, “In summary, we hold that CVS and Gallagher had no obligation to inform Elhelou in advance of the settlement. Instead, they had the right to settle the subrogation action without Elhelou’s consent.” It said that since the Shebell loaw firm took no steps to file suit in Elhelou’s name during the one-year period and during the 10-day notice period, neither Shebell nor Elhelou could bring any action after the 10-day period.
This case poses the most complete analysis of the rights of an employer to protect its statutory lien when the employee files no civil suit. The case is particularly helpful because it dealt with an attempt by the injured employee to engineer a last minute derailment of the settlement effected by CVS. The Court made clear that no consent was needed by CVS from the injured employee.
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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.
The long awaited proposed re-write of the VT WC Rules has been unveiled and will be ready for public comment soon.
Shaffer v First Choice Communications, Opinion No. 15-14WC (Oct. 21, 2014)(HO Phillips).
Claimant’s request for Synvisc injections found reasonable and necessary medical care relying on doctor’s opinion who is supplying the injections since 2012 over those of IME doctor. “While [IME Doctor’s] concerns as to the efficacy of Synvisc injections when used ‘off label’ are worth noting, I do not consider them determinative in this case.” PTD claim denied relying upon IVE which found that “if Claimant avails himself of additional vocational rehabilitation services such as tutoring, access to assistive technology and focused job development, it is reasonable to expect that he will be able to resume regular gainful work.”
Simmons v Landmark College, Inc., Opinion No. 07F-13WC (Oct. 23, 2014)(HO Woodruff)
On remand from successful Superior Court Appeal, Claimant awarded attorney fees and costs at DOL rate ($145/hour for attorneys and $75/hour for paralegals) and only for those costs associated with DOL hearing, not those incurred at Superior Court..No statutory basis for an award of interest on attorney fees and thus none awarded.
Rodrigue v Enterprises Precision Inc., Opinion No. 16-14WC (Nov. 4, 2014)(HO Woodruff)
Voc Rehab denied at this point in time as Claimant is back to work, may become available in the future if current employment is no longer suitable. “As the circumstances of this case demonstrate, at times the concept of suitability involves more than merely comparing pre-and post-injury wages earned, or hours worked, during discrete snapshots in time. The goal of vocational rehabilitation is to return the injure worker to work that resembles, as nearly as possible, the conditions of his or her pre-injury employment. Where the pre-injury job involved consistent hours at a consistent weekly wage, a simple mathematical comparison will determine whether a post-injury job is suitable or not. However, where, as here, the pre-injury job involved widely fluctuating hours resulting in widely fluctuating weekly wages, a broader perspective is required.” Claimant is entitled to TTD of TPD benefits for those weeks in which he earned less that his AWW even though his co-workers were also working less given the seasonal nature of the job.
Moreton v State of Vermont Department of Children and Families, Opinion No. 17-14WC (Dec. 24, 2014)(HO Phillips).
Claimant slips and falls upon entering a Starbucks to meet co-workers to travel to a training session. Injury found compensable on cross-motions for summary judgment. The fact that injury occurred a half hour prior to her scheduled start of work time does not sever connection to work.
Also, meeting at a Starbucks was not a personal or substantial deviation as for the day of the injury, Claimant was a “traveling employee”.
In New Jersey it remains extremely difficult to bring an intentional harm claim against one’s employer. Mere knowledge and appreciation of a risk is not intent. That was the holding inKeller v. Township of Berkeley, A-5767-12T3 (June 22, 2015).
Mr. Keller worked as a laborer for the Township sanitation department and suffered serious injuries when he fell from a moving garbage truck after the passenger-side door suddenly opened. He argued that there had been many complaints about the truck’s door over several years and that the Township was aware that the door latch mechanism was not functioning well. Keller further argued that the Township violated safety standards by failing to repair the problem.
The Township, for its part, denied that it was aware of any problem with the truck and noted that an inspection by the State Police post-accident did not reveal any problem with the locking mechanism. No OSHA violations were ever issued.
The trial judge granted summary judgment dismissing the law suit and plaintiffKeller appealed. The trial judge did concede that there was evidence that the door latch mechanism had not been working well for a long time, and the Township was aware of this but did not fix the problem. Nonetheless, the trial judge concluded that knowing there is a risk is not the same as intentional harm.
The Appellate Division affirmed the dismissal of the case. It stated, “Having reviewed the record in light of these precedents, we agree with the trial court that the unfortunate accident that Keller suffered does not satisfy the substantial-certainty standard required to vault the Act’s exclusivity bar.” Even if the conduct of the Township was grossly negligent, that is not enough to prove an intentional harm claim. There were no OSHA violations at all, and there was no evidence of a prior similar incident where an employee was actually injured. The court noted that there was no effort by the Township to remove the latch or perform some action that created additional danger to employees. While the truck’s door was difficult to open and close, that in itself does not prove intentional harm.
The Appellate Division also affirmed the trial judge’s dismissal of a claim for fraudulent concealment of evidence and spoliation of evidence. The Court said “At best, plaintiffs established sloppy record keeping by the Township. There was simply no showing ‘[t]hat defendant intentionally withheld, altered or destroyed the evidence with purpose to disrupt the litigation’ as required byRosenblit v. Zimmerman, 166 N.J. 391, 406-07 (2001).’”
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John H. Geaney, Esq., is
PENNSYLVANIA’S VALIDATION OF AN IMPAIRMENT
RATING EVALUATION (IRE)
By
Kevin L. Connors, Esquire
“Facts are meaningless. You could use facts to prove anything that’s even remotely true.” Homer Simpson.
A recent Decision by the Pennsylvania Commonwealth Court in Duffey v. WCAB (6/26/15), recently resulted in the Court, in an Opinion authored by Judge Cohn Jubelirer, validating an Employer Impairment Rating Evaluation that was the Claimant sought to invalidate by alleging that the IRE had not considered all of the Claimant’s work-related injuries, as the Claimant argued, thankfully unsuccessfully, that the IRE, which had considered the Claimant’s accepted work-related injuries in the course of determining the Claimant’s impairment rating under the AMA’s Guides, resulting in a conversion of the Claimant’s temporary total disability benefits (lifetime absent death, or change in medical condition effectuating full recovery or ability to return to available work), to temporary partial disability benefits (capped at 500 weeks), had not taken into account the medical opinion of treating physicians who testified that the Claimant was suffering from post-traumatic stress disorder as a result of the work injury.
With the above sentence seemingly setting a syntactical record for inconsequentially-related phrases, it would be simple enough to leap to the end point, being that the Commonwealth Court affirmed the underlying Decision of the Appeal Board (charged with the first level of appeals of comp claims in Pennsylvania), reversing the underlying Decision of the Workers’ Compensation Judge, who had invalidated the Employer’s IRE, which preceded the employer filing a Notice of Change, converting the Claimant’s temporary total disability benefits to temporary partial disability benefits, in reliance upon the testimony of the Claimant’s treating physicians, that the Notice of Compensation Payable, describing the Claimant’s originally-accepted work-related injury, should be amended to include the newly-adjudicated injury of post-traumatic stress disorder.
No doubt, another run for your money piecing together the above paragraph.
In any event, this is an important Decision since it fixes the effective timeline for validating an IRE used by an Employer to mitigate the potential lifetime exposure for temporary total disability benefits into the more limited exposure of 500 weeks for temporary partial disability benefits, still representing a significant chunk of time in both the life of the Claimant and the workers’ compensation claim, as it represents 9.6 years during which an injured Claimant might still be entitled to receive indemnity workers’ compensation benefits for wage loss.
Like Homer, ready for a few facts?
It begins with the March 6, 2009 injury of the Claimant, who injured his hands, when picking up hot wires while working for Trola-Dyne, Inc. This occurred while the Claimant was repairing a machine for his employer.
In the course of accepting the Claimant’s injuries as being work-related, the employer issued a Notice of Compensation Payable (NCP), under which the Claimant’s injuries were described as “bilateral hands, electrical burn, stripping some electric wires”.
The same description always tugs at the inherent conflict between exclusion versus inclusion, as descriptions that focus on body parts as opposed to medical diagnoses are almost always vulnerable to future enlargement and expansion, with the practical tip being to avoid use of describing injuries in terms of body parts, as opposed to describing the work injuries in terms of reasonable medical diagnoses.
With the issuance of the NCP, the Claimant began receiving his temporary total disability benefits for wage loss, with the employer requesting an IRE under Section 306(a.2)(1) of the Act after the Claimant had received 104 weeks of wage loss benefits.
Requesting an IRE, the employer described the Claimant’s work injuries as “bilateral hands-nerve and joint pain”, which, technically, was already expanding the description of injury under review by the IRE, with the IRE resulting in a determination that the Claimant had a 6% impairment rating, in terms of the work injuries, resulting in his compensation benefits being converted from the lifetime temporary total disability benefits to the partial disability benefits subject to the 500 week cap under Section 306(b).
Challenging the conversion of his compensation benefits, the Claimant filed a Review Petition, alleging that the IRE was invalid, as it had not included a complete description of injury, since the Claimant alleged that the IRE should have also considered the Claimant’s post-traumatic stress disorder, although that injury had never formally been accepted as compensable and work-related by the employer, nor had there been any litigation adjudicating a determination that the Claimant’s PTSD was related to his 2009 work injury.
Conflicting medical testimony was then presented by the parties, in support of and in opposition to the Claimant’s Review Petition, with the Claimant’s physicians testifying that the PTSD was related, and the employer’s medical expert testified that the PTSD was not related, as well as that the Claimant was fully recovered from that diagnosis.
Finding in favor of the Claimant, the WCJ granted the Claimant’s Review Petition, amending the description of injury to include the PTSD diagnosis, as well as invalidating the IRE, on grounds that the IRE had not considered the Claimant’s PTSD.
Appealing the WCJ’s Decision, the employer was successful in convincing the Appeal Board to reverse the WCJ’s Decision, with the Board finding the IRE to be valid as the Claimant had never formally sought to amend the NCP to include the diagnosis of PTSD and depressed mood, and the WCJ had accepted the testimony of the IRE physician that the Claimant was at MMI as of the IRE, requiring the IRE to be valid when performed.
Petitioning for review before the Commonwealth Court, the Claimant again argued, as he had before the WCJ, that the IRE failed to consider all of his work-related injuries, as the PTSD had not been considered, with the employer countering that acceptance of the Claimant’s argument would essentially eviscerate the IRE provisions of the Act, as Claimants could always challenge IRE determinations on grounds that the IRE failed to consider injuries never formally accepted or adjudicated as being work-related, although they might be injuries of an overlay nature, as was the case in Duffey.
In the course of affirming the Appeal Board’s determination that the IRE had been valid, based upon the Claimant never challenging the accepted description of injury prior to the IRE and the Claimant being at MMI in terms of work injuries as of the IRE being performed, the Court determined that both the statutory language and IRE legal precedents required the validity of an IRE to be dependent upon two factors, one being the Claimant’s medical state, whether at MMI or not, when the IRE is performed, as well as, secondarily, the IRE focusing in on the injuries that were determined to be work-related, whether described on an NCP, or determined in a Decision issued by a WCJ.
Relying upon Westmoreland Regional Hospital v. WCAB, 29 A.3d 120 (Pa. Cmwlth. 2011), the Court held that “the IRE produces a snapshot of the Claimant’s condition at the time of the IRE, not a survey of the Claimant’s work-related injuries over a period of time”.
For that reason, the Duffey Court held that the validity of the IRE is determined by “the Claimant’s physical condition at the time of the IRE”.
The Court also ruled that it interpreted Section 306(a.2) of the WCA to not infer that the General Assembly intended to nullify performed and otherwise valid IREs, being challenged with claims of new or additional injuries not considered by the IRE physicians.
This ruling does not necessarily foreclose Claimant’s from challenging the conversion of their compensation benefit status from total disability to partial disability, if Claimants obtain impairment ratings of at least 50% under the AMA Guides.
Holding that an IRE that considers a Claimant’s work injury as defined and existing at the time the IRE is performed, to be valid notwithstanding an after-the-fact expansion of the scope of a Claimant’s work-related injury, the Court held that to find otherwise would be inconsistent with the WCA, and the Court’s own prior precedents.
As Shakespeare might have said in Richard III, “My Kingdom, My Kingdom for an IRE!”
ConnorsO’Dell LLP
Trust us, we just get it! It is trust well spent!
We defend Employers, Self-Insureds, Insurance Carriers, and Third Party Administrators in Workers’ Compensation matters throughout Pennsylvania. We have over 100 years of cumulative experience defending our clients against compensation-related liabilities, with no attorney in our firm having less than ten (10) years of specialized experience, empowering our Workers’ Compensation practice group attorneys to be more than mere claim denials, enabling us to create the factual and legal leverage to expeditiously resolve claims, in the course of limiting/reducing/extinguishing our clients’ liabilities under the Pennsylvania Workers’ Compensation Act.
Every member of our Workers’ Compensation practice group is AV rated. Our partnership with the NWCDN magnifies the lens for which our professional expertise imperiously demands that we always be dynamic and exacting advocates for our clients, navigating the frustrating and form-intensive minefield pervasive throughout Pennsylvania Workers’ Compensation practice and procedure.
Teague Campbell’s Medicare Settlement Solutions recently obtained a favorable MSA approval from CMS in a case where the plaintiff sustained a compensable back injury in 2002. He was provided authorized medical care until his release in 2009, when his authorized treating orthopaedist indicated that he would not need any additional treatment. In 2012, an outside MSA vendor was hired to prepare a MSA proposal. The proposal recommended a MSA in excess of $288,000, based largely on medications prescribed for unrelated conditions. Teague Campbell’s Medicare Settlement Solutions analyzed the file materials and relevant issues, and worked with the parties to formulate a strategy for more accurately projecting the lifetime Medicare-covered expenses specifically related to the at-work injury. Medicare Settlement Solutions prepared a new MSA proposal and handled submission of this proposal to CMS. CMS approved the new MSA amount with total funding of less than $9,000, which resulted in significant savings and ultimately allowed the parties to proceed with full and final settlement of the claim.
Florence Godin has retired as a Specialist I after 23years in state service.
DEPARTMENT DECISIONS
Wood v. Fairpoint Communications Opinion No. 7-15WC (Apr. 10 2015)
Attorney fees awarded following informal conference when initial denial based upon “‘lack of investigative evidence to determine causal relationship to employment.’” Treating physician altered initial treatment note to show causal connection to work but Defendant did not rescind denial.
Kurant v Sugarbush Soaring Association, Inc. (Kurant III), Opinion No. 8-15WC (April 13, 2015). Attorney fees awarded without formal hearing when Carrier refused to pay ongoing medical treatment based upon an IME report stating that such ongoing treatment is not reasonable or necessary, but no Form 27 filed in support of the IME and no other medical records filed in support thereon. “Defendant’s failure to comply with the requirements of Rule 18.2100 amounted to misconduct or neglect under Rule 10.1330. It thus became necessary for Claimant to retain an attorney, whose efforts resulted in an interim order requiring Defendant to continue benefit payments. Notably, because the benefits at issue involve ongoing medical coverage rather than a cash award, under the circumstances of this case Claimant has no other workers’ compensation-related fund from which topay his attorney for her work. If he is to be made whole, an award of attorney fees is necessary.”