State News

Mary Liu worked as a dealer at Bally’s Casino in Atlantic City.  On November 10, 2012, she was dealing a game of poker.  A customer whom she knew well “signified a check by forcibly striking the table very hard.” Petitioner was not facing the customer and felt startled by the noise.  She said her heart began to race and her hands cramped up.  Petitioner initially rejected an offer to take her to the hospital.

            An hour or so later, petitioner felt her body shaking with numbness in the back of her head.  She felt her heart rate increase with chest pain and was transported by wheel chair to a taxi, having declined the use of an ambulance.  She was treated and released by the hospital.

            The next day petitioner requested medical leave.  She saw Dr. Arvind Patel, M.D., an authorized physician, who diagnosed an acute anxiety reaction and suggested she could return to work.  The following day petitioner advised Bally’s that she did not feel well enough to return to work.  She said her own family doctor diagnosed a heart problem and took her out for a month.

            On November 16, 2012, petitioner resumed working but again found her heart rate increasing with hand cramping.  She was taken to the ER by ambulance and discharged.

            Dr. Patel saw petitioner again and suggested that she return to see him in a week.  Petitioner did not feel that Dr. Patel was helping her and was sent to Dr. Gary Glass, a psychiatrist.  He recommended a three-week absence from work. 

            Petitioner saw Dr. Glass on January 7, 2013.  He recommended an additional two to three weeks before returning to work.  On January 23, 2013 Dr. Glass saw her for follow-up and recommended a neurological consultation given petitioner’s ongoing complaints of weakness and headaches.  When he saw her again on February 7, 2013, he also recommended that she return to work on February 11, 2013.  At that point petitioner became more animated and began complaining about cramping in her arms and fingers.

            When Dr. Glass saw her on February 9, 2013, he kept her out of work again until March 4, 2013.  In the interim, the neurological evaluation was done, including an EMG, EEG, and MRI, all of which were normal.  The neurologist recommended physical and occupational therapy and found that her problems were caused by anxiety.

            On March 1, 2013, Dr. Glass wrote that he disagreed with the neurologist and felt that petitioner had become accustomed to being off work and simply did not want to return to work any longer.  He cleared petitioner to return to work on March 7, 2013.

            Petitioner claimed that her family doctor, Sun Miao, M.D., prescribed psychiatric care and put her out until May 31, 2013.  She never produced the report, however, from Dr. Miao.

            On March 28, 2013, petitioner contacted Bally’s Las Vegas HR office and sought medical leave with a projected return to work date of May 31, 2013.  She was informed that she was not eligible for FMLA and would need to request a personal leave.  She also called Dr. Glass to report that her symptoms were severe.  Dr. Glass felt petitioner was exaggerating her symptoms and concluded that she was at maximal medical improvement.

            Petitioner next applied for personal leave per the employee contract, which allowed for up to 60 days.  She also requested an IME.  Bally’s arranged a consultation  with Dr. Charles Meusburger, M.D.   When petitioner contacted HR she failed to inform Bally’s that she was departing for an extended trip to China to see her parents.  HR tried to reach her but she had already left for China.  She did reach Bally’s at one point and said that her “phone was not working and she was out of the country relaxing.” 

            Petitioner missed the first appointment with Dr. Meusburger but when she returned from China, she rescheduled the exam for June 6 and June 13, 2013.  In the interim Ballys notified her on May 9, 2013 that her employment was terminated for violating the personal leave policy. 

            Dr. Meusburger saw petitioner in June and opined that petitioner suffered from an adjustment disorder with anxiety and depression as well as a panic disorder related to work.  Petitioner filed a claim petition and motion for medical and temporary disability benefits relying on the opinion of Dr. Meusburger. 

            The Judge of Compensation did not conduct a hearing on the motion.  Instead, he reviewed the papers filed by both parties and entered an order against Bally’s to retroactively reinstate temporary disability benefits.  He also ordered that such benefits would continue into the future.  The Judge of Compensation prepared a supplemental opinion stating that he “abided by Dr. Meusburger’s findings that petitioner’s condition, that of post-traumatic stress, was a direct result of her experience on November 10, 2013.”  He did not comment on why he disregarded the opinion of Dr. Glass, nor why he did not require testimony from the medical experts. The Judge also rejected the applicability of the decision inCunningham v. Atl. States Cast Iron Pipe Co., 386 N.J. Super. 423 (App. Div.),certif.. denied. 188 N.J. 492 (2006).

            The Appellate Division recited numerous reasons for its reversal of the Judge of Compensation in this matter. 

            1) The court said that the Judge of Compensation erroneously relied on a statement Dr. Mesuburger made that petitioner’s family physician kept her out of work from March 26, to May 31, 2013.  No such report was ever produced.

            2) When Dr. Glass wrote his report on March 7, 2013 stating petitioner could work, there was no countervailing medical report from any doctor.  The Appellate Division noted, “Rather, the petitioner decided to take an extended vacation out of the country, claiming that leave was ordered by her family physicians.” 

            3) The Court noted that the Judge of Compensation made no causation findings and completely ignored Dr. Glass’s opinion that petitioner could return to work in March.  There was no analysis of why the Judge of Compensation chose to rely on the IME doctor, who saw petitioner twice, over Dr. Glass, who saw petitioner seven times over many months. 

            4) There was no discussion in the Judge of Compensation’s opinion about why the Judge disagreed with Dr. Glass’s view that petitioner was exaggerating her symptoms because she did not want to return to work, nor any discussion about the Judge’s disregard of Dr. Patel’s opinion.

            5) The Court also pointed out that there was no support in the record for the Judge’s conclusion that Dr. Glass “mistakenly sent petitioner back to work.”  Nor did the Judge evaluate the normal neurological reports that showed no objective explanation for petitioner’s symptoms in her chest, arm or hands.

            6) The Judge of Compensation also assumed facts that were not in the record in deciding that there was a traumatic event at work.  The Court observed that the Judge inaccurately described the work event as “a fight broke out at the petitioner’s table while she was dealing cards.”  There was nothing in the record about such a fight.

            7) The Judge also failed to address the issue of petitioner’s choosing to go on an extended vacation to China without clearing the leave with HR.  The Judge of Compensation found petitioner “did not abandon her job.”  Yet he did not mention anything about the trip to China.

            8) Most significantly, the Court concluded that the Judge erred in finding thatCunningham did not apply.  That case says that when an employee is terminated or quits, he or she is not eligible for temporary disability benefits unless the employee can prove he or she would have been working but for the work injury.  In this case, Bally’s argued that petitioner was not entitled to temporary disability benefits because she had been fired and because she never proved she would have been working.  In an unusually blunt comment, the Court said, “We further note the legal conclusion that Cunningham is inapplicable is wrong.”   The Court commented that “[p]etitioner’s voluntary removal from the work force preceded Dr. Meusburger’s medical evaluation diagnosing her as suffering from post-traumatic stress and other disorders.”

            9) Lastly, the Court cited to the Rules of the Division of Workers’ Compensation which require a Judge of Compensation to conduct a hearing and hear testimony from witnesses when a respondent rebuts the allegations of petitioner’s motion for benefits.  In this case, the Appellate Division concluded that petitioner should have produced live testimony, and the Judge of Compensation should not have ruled on the papers alone. 

            This decision can be found at Liu v. Bally’s Casino, A-0737-13T3 (App. Div. July 18, 2014).  Perhaps the most unusual aspect of the decision is the final paragraph: “Reversed and remanded to a different judge of compensation for review, including an evidentiary hearing, in accordance with our opinion.”

South Dakota Supreme Court

Whitesell v. Rapid Soft Water & Acuity

James Leach/Charles Larson

Issue: Whether a workers’ compensation carrier must pay the full amount of medical expenses incurred or whether it has to simply reimburse the health carrier for expenses actually paid.

The background of this case is not all that important, but the holding will have significant impacts going forward. This was a workers’ compensation claim whether the insurer denied surgery to the cervical spine. The department held a hearing and found the surgery was related to the work injury and the employer and insurer were responsible for the surgery.

Claimant had very good health insurance, which paid for the cervical fusion. The amount billed by the health providers was over $100,000. However, the amount paid by the health carrier was just over $20,000. After the department’s decision, the insurer reimbursed the health carrier their $20,000, and paid the claimant his out of pocket expenses. The claimant filed a motion with the department seeking to require the insurer to pay the full amount of the charges.

The department held the insurer satisfied its obligation by reimbursing the health carrier for what was actually paid. The circuit court reversed and held the full amount of the bills had to be paid to the health carrier, with the claimant’s attorney receiving a fee on those bills. The matter was appealed to the South Dakota Supreme Court.

The court reversed and held the insurer’s obligation was only to reimburse the health carrier for payments actually made. The applicable statute indicates that in the event a denied claim is later determined to be compensable, the insurer shall immediately "reimburse" the parties who made payments. The court said the plain language of the statute must be applied, and rejected the claimant’s argument that this would encourage wrongful denials.

This decision will have a huge impact going forward. With the requirement that everyone have health insurance, we will hopefully see more claims where a claimant has personal health insurance. If health insurance pays for something that is later determined to be responsible, your obligation is to reimburse the health carrier. The amount paid by the health carrier will be a substantial reduction on what was charged, depending on the health carrier.

Isack v. Acuity

Jon Sogn/Rick Orr

Issue: Whether the claimant’s attorney in a third party action is entitled to an attorney fee on the amount recovered by the insurer.

The claimant in this case was in a horrible automobile accident (semi versus car), and will be living in an assisted living facility his entire life. The claimant brought suit against the driver of the semi seeking damages from the accident. The claimant was also receiving benefits from the insurer as the injury occurred while he was working.

The insurer paid for medical expenses, and was to be reimbursed when the claimant settled with the semi driver. The insurer also received a credit on future "like damages" that the claimant received (lost time and medical benefits). The question was whether the insurer had to pay a fee to the claimant’s attorney for recovery of past and future medical expenses. The court held the insurer had to pay a fee, but the decision was very factual, and will not have much impact going forward.

The court indicated an insurer can hire its own attorney to protect its subrogation interest, and to negotiate the future credit. The insurer is not required to pay a fee to the claimant’s attorney as long as the insurer’s attorney takes an active role and actively participates in the litigation. The finding in this case was that the insurer’s attorney’s contribution was "de minimum" when compared to the work of the claimant’s attorney. The court could have held that an insurer is never allowed to protect its own interest, which would have had a huge impact on future claims. Instead, the decision states it is a factual question on whether the attorney did enough to warrant not paying the claimant’s attorney.

While this was case adverse to the insurer, it likely will not have any real bearing on future cases. The court’s language allows for a carrier to protect its own interest and avoid paying an attorney fee, but only if their attorney actively participates and substantially contributes to resolving the underlying claim.

South Dakota Department of Labor

Jacobson v. Rupp Masonry Construction

Robert A. Christenson/Eric Kerkvliet

Issue: Whether employer’s denial of specific medical benefits triggered the two year statute of limitations on future medicals.

Claimant suffered a work-related injury in 1987 that was primarily denied. The parties settled the dispute and Employer agreed to pay for future medical treatments directly and causally related to claimant’s alleged 1987 work injury. In 1998, Claimant suffered a slip and fall that was not work related and submitted medical bills related to that slip and fall to work comp. Employer denied medical benefits specifically associated with the slip and fall. On September 4, 2012, Claimant treated with Dr. Mitchell Johnson from Orthopedic Institute and Dr. Johnson recommended surgery. Dr. Johnson opined that the surgery was needed to correct problems caused by the 1987 injury. Employer filed for summary judgment stating that its denial of benefits in 1998 triggered the two year statute of limitations, barring Claimant’s claim for medical benefits.

The Department denied summary judgment and stated that the settlement agreement left open all medical benefits directly related to the 1987 injury. The 1998 denial only applied to that specific claim for medical benefits and did not prevent any future claim for medical benefits. Since SDCL 62-7-35 allows for a partial denial, the statute of limitations only applies to those benefits denied. In other words, the denial was too specific, and so it only applied to the dates of treatment identified. Moral of the story: it’s better to draft denial letters broadly.

Anderson v. Global Polymer Industries, Inc. and Cincinnati Insurance

Gary Schumacher/Charles Larson

Issue: Whether Claimant’s case should be dismissed for failure to prosecute.

I tried to get a case dismissed for failure to prosecute. There had been more than a year with no activity so it was up to the discretion of the department whether to dismiss the case. I was hoping that with one of the judges leaving, the other two would be a little more prone to get cases off of their desk. The motion to dismiss was denied as the claimant’s attorney had been gathering medical records within a couple weeks of the motion. While that should not count as "activity," the department felt it would be unfair to dismiss the claimant’s case.

Jordan Baker v. Rapid City Professional Hockey and Ace American Insurance Co

Steve Siegel/Greg Erlandson

Issue: Whether the collective bargaining agreement removes Claimant’s claim from the Department’s jurisdiction.

This is a case where a semi-professional hockey player was injured while playing hockey for the employer. The claimant sought medical treatment for his injury and the employer refused to pay for the treatment. The collective bargaining agreement specifically addressed how players would receive worker’s compensation benefits and directed that any disputes will be resolved through arbitration. Claimant filed a petition for benefits with the Department and Employer claimed the Department had no jurisdiction pursuant to the arbitration clause in the collective bargaining agreement.

In analyzing the jurisdictional issue, the Department held that SDCL 62-3-2 (work comp exclusive remedy for work injuries) precluded Claimant from seeking a remedy via arbitration as arbitration is contrary to law. The Department was quick to note that the arbitration clause was only unenforceable as it related to workers’ compensation matters and may be utilized for all other matters.

This case really has little bearing going forward. The interesting part is that I just saw where the Department signed an order allowing two parties to entire into a binding arbitration. The difference was that the Department entered the order allowing arbitration versus the parties simply putting it into a contract that is not approved by the Department.

Klinkner v. Lamont Company and Midwest Family Mutual Insurance Co.

Kara Semmler/JG Shultz

Issue: Whether certain withheld documents pursuant to Attorney Work Product are discoverable.

This is another case dealing with withheld documents and a motion to compel those documents. Claimant had a compensable injury to his hand in 2012. Eventually, Employer retained a nurse case manager on April 2, 2013. On April 9, 2013, Claimant’s attorney made contact with the nurse case manager and on April 10, 2013, Claimant’s attorney contacted Insurer. Claimant filed a petition for hearing on August 14, 2013. Employer answered the petition and denied any further benefits. Claimant sent discovery to Employer and Employer, who objected to the production of the nurse case manager notes claiming they were created in anticipation of litigation. Claimant moved to compel the production of the nurse case manager notes.

The Department used the same analysis as prior cases when determining whether the documents requested were protected by the attorney work product doctrine. Specifically, the Department held that "the test we apply for determining whether a document or tangible thing is attorney work product is whether in the light of the nature of the document and the factual situation in the particular case, the document can fairly be said to have been prepared or obtained because of the prospect of litigation."

Employer argued that it anticipated litigation from the time Claimant hired an attorney. Claimant argued litigation could not be anticipated prior to the denial of benefits in Employer’s answer to the petition. The Department disregarded both arguments. It stated that the fact that Claimant hires an attorney to insure his rights are protected does not automatically signal that litigation is imminent. In this case, the correspondence from Claimant’s attorney was focused on insuring that the claims process proceeded smoothly. The Department also held that the date of denial was not pivotal as litigation could be anticipated prior to a denial, thus prompting a petition for hearing. In the end, the Department found that the date Claimant filed his petition was the date Employer could anticipate litigation.

While the Department used the correct test, I believe it reached the wrong conclusion. It’s absurd to think that the insurer in this case didn’t anticipate litigation until the petition was filed. I think that if the decision was appealed, the circuit court would find a different date applied. This is a good warning to be careful what is in your notes, and the nurse case manager notes, as that information will likely be produced.

Clyde v. Hardees and American Family Insurance

Brad Lee/Jeremy Nauman

Issue: Whether sheltered employment is considered regularly and continuously available employment to defeat a perm total claim

This case deals with a worker who was injured at Hardees and suffered elbow and cervical pain. It was a compensable claim. Claimant was given permanent work restrictions of no push, pull or lift greater than 5-10 pounds and avoid repetitive bending or twisting of the cervical spine. Hardees was unable to accommodate those restrictions and Claimant was terminated.

Claimant filed for unemployment and received such benefits. Claimant made about 150 job contacts while receiving unemployment benefits. Employer denied indemnity benefits while Claimant was receiving unemployment benefits. Eventually, Employer arranged for Claimant to work for All Facilities, Inc. doing telephone survey work. Basically, Employer paid All Facilities, Inc. to hire Claimant, thus subsidizing Claimant’s wages with All Facilities, Inc. Claimant only worked for All Facilities, Inc. for a short time due to alleged increased pain symptoms from doing her work activities.

Eventually, Claimant made a perm total claim on the fact that she was 58 years old, had only a high school education, had no real work experience outside of fast food (was a stay at home mom for 20 years) and her physical condition limited the available jobs. Employer denied benefits. The Department held that Claimant carried her burden to show that she was obviously in the odd-lot disability category and that the burden shifted to Employer to show that some form of suitable work was regularly and continuously available to Claimant. Employer argued that the All Facilities, Inc. position met that burden.

Among her arguments against Employer’s allegation that the All Facilities, Inc. position met Employer’s burden, Claimant argued that the All Facilities, Inc. position was not a bona fide opportunity because it was sheltered employment. Basically, Claimant argued that the only she had the position with All Facilities, Inc. was because Employer was paying All Facilities, Inc. for every expense associated with Claimant’s employment at All Facilities, Inc. In relying on an US Department of Labor case and an Illinois work comp case, our Department held that a single offer of employment for a sheltered position does not meet the Employer’s burden to show that work is regularly and continuously available to Claimant that fits within her work restrictions and meets or exceeds her workers’ compensation rate. This case applied to a perm total case, and likely will not have an impact on non-PTD cases.

On a side note, the Department also held that receiving unemployment benefits does not automatically mean that Claimant is not disabled for purposes of workers’ compensation.

If you have any questions, please contact Charlie Larson at 605-336-2424 orcalarson@bgpw.com. Thanks!

Issue: Whether a workers’ compensation carrier must pay the full amount of medical expenses incurred or whether it has to simply reimburse the health carrier for expenses actually paid.

The background of this case is not all that important, but the holding will have significant impacts going forward. This was a workers’ compensation claim whether the insurer denied surgery to the cervical spine. The department held a hearing and found the surgery was related to the work injury and the employer and insurer were responsible for the surgery.

Claimant had very good health insurance, which paid for the cervical fusion. The amount billed by the health providers was over $100,000. However, the amount paid by the health carrier was just over $20,000. After the department’s decision, the insurer reimbursed the health carrier their $20,000, and paid the claimant his out of pocket expenses. The claimant filed a motion with the department seeking to require the insurer to pay the full amount of the charges.

The department held the insurer satisfied its obligation by reimbursing the health carrier for what was actually paid. The circuit court reversed and held the full amount of the bills had to be paid to the health carrier, with the claimant’s attorney receiving a fee on those bills. The matter was appealed to the South Dakota Supreme Court.

The court reversed and held the insurer’s obligation was only to reimburse the health carrier for payments actually made. The applicable statute indicates that in the event a denied claim is later determined to be compensable, the insurer shall immediately "reimburse" the parties who made payments. The court said the plain language of the statute must be applied, and rejected the claimant’s argument that this would encourage wrongful denials.

This decision will have a huge impact going forward. With the requirement that everyone have health insurance, we will hopefully see more claims where a claimant has personal health insurance. If health insurance pays for something that is later determined to be responsible, your obligation is to reimburse the health carrier. The amount paid by the health carrier will be a substantial reduction on what was charged, depending on the health carrier.

This was my case so if you have questions on it, please give me a call at 605-336-2424 or email me atcalarson@bgpw.com.   Thanks!

Charlie Larson

Shaun Conrath, a Burlington County College employee, was injured at work when he was attacked by a fan while coaching a basketball game.  He filed a claim petition, and Travelers Casualty Insurance Company of America (hereinafter “Travelers”) filed an answer on behalf of the College.  Travelers negotiated a settlement of $35,000 on behalf of the College on a Section 20 basis on February 3, 2012.  Three weeks after the settlement occurred, Travelers first became aware that it did not insure the College. 

            Nine months after the order was entered, Travelers moved to modify the award to reflect that Travelers was not the correct carrier for Burlington County College.  The College opposed the motion and argued that Travelers was bound by the settlement agreement. 

            The Judge of Compensation held that he did not have a statutory basis nor jurisdiction to reopen the settlement. Travelers disagreed and contended that the interests of justice required the Judge of Compensation to reopen the settlement and amend the order to name the correct carrier, which was the New Jersey Community College Insurance Pool as administered by Qual-Lynx.  Travelers appealed the decision of the Judge of Compensation to refuse to amend the order.

            The Appellate Division held that in certain cases of mistake or inadvertence, a record may be reopened.  However, in this case the Court concluded that the Judge of Compensationdid not have jurisdiction to reopen this matter:

Travelers, however, did not present sufficient cause to reopen the settlement to change the identity of the settling entity.  If Travelers is entitled to reimbursement for a settlement it mistakenly entered into, it must seek such reimbursement from the liable entity in another court.  As Travelers acknowledges, petitioner is not at blame nor should petitioner be involved in litigation seeking to modify the settlement.  Workers’ Compensation Court is not the proper forum for litigation between two insurers after a judgment has been entered and payment of that judgment made to petitioner.

The Court went on to say that the Division of Workers’ Compensation is the forum for deciding issues of compensability or appropriate benefits for work-related injuries but not for disputes between employers after a mistaken settlement occurs.  It said that the Division should not be involved in a post-judgment dispute between two insurers.  “The Judge of Compensation correctly determined that he lacked jurisdiction to entertain Travelers’ litigation against BCC to amend the judgment.  This is particularly true in light of the fact that Travelers waited until October 19, 2012 to move to correct the Judge’s February 3, 2012 judgment.  Travelers could have sought to be dismissed from the action prior to paying the judgment.”

            As practitioners know, it is a common problem in New Jersey that the wrong carrier is listed by the claimant on the claim petition.  This case underscores why it is important for carriers and third party administrators to work promptly to amend the pleadings before final orders get entered with incorrect information.

MISSOURI WORKERS’ COMPENSATION

CASE LAW UPDATE

April 2014 – June 2014

Retaliatory Discharge Standard Changed To “Contributing Factor”

Templemire v. W & M Welding, Inc., Case No. SC93132 (Mo. App. 2014)

FACTS: The claimant was injured when a fork lift fell and crushed his left foot. He later returned to work with restrictions. Upon returning to work, the claimant was placed on light duty.

According to the claimant, he did not speak with his boss on the morning of his discharge, but instead stated Mr. Twenter, his supervisor, advised him to wash a railing once it had been prepped. While the railing was being prepped for washing, the claimant performed other duties and around 2:00 pm he returned to the wash bay to treat the railing but first stopped to rest his foot. He was then confronted by his boss for not completing his tasks quickly enough and was then terminated.

According to the claimant’s boss, he spoke with the claimant on the morning of his discharge and advised that he was to wash the railing immediately and to disregard any other instructions. He then returned two hours later to find the railing unwashed and the claimant taking a break and he then discharged the claimant for insubordination.

Evidence showed that the claimant was yelled at by his boss for his work injury; his boss referred to other injured workers as “whiners;” former employees were belittled as a result of their injuries and did not receive work accommodations; one employee was terminated shortly after filing a claim; the claimant was regarded as a good worker who performed tasks efficiently; and adjuster notes showed that the claimant’s boss “went on a [tirade] about [the claimant] ‘milking’ his injury and that he can sue him for whatever reason that is what he pays his premiums for.”

The claimant filed a civil suit against his employer alleging that he was discharged in retaliation for filing a workers’ compensation claim. At trial, the jury was instructed that in order to find in favor of the claimant, they must find that his filing of the workers’ compensation claim was the “exclusive factor” in the employer’s decision to terminate him. The claimant appealed to the Missouri Court of Appeals, stating that the “exclusive factor” standard was erroneous. The Missouri Supreme Court granted transfer.

HOLDING: The Court began by stating that its decisions in the past have upheld the exclusive factor standard as the appropriate standard to be used in jury instructions for retaliatory discharge cases. However, the Court went on to note that nowhere in the Workers’ Compensation Statute do the terms “exclusive causal” or “exclusive causation” appear. Ultimately, the Court held that the appropriate standard in retaliatory discharge cases should no longer be whether the filing of a workers’ compensation claim was the “exclusive factor” in the discharge of the employee, but rather, whether the filing of the workers’ compensation claim was a “contributing factor” in the claimant’s termination.

Editor’s note: This represents a marked change in retaliatory discharge cases. Specifically, the “contributory factor” standard imposes a lesser burden on claimants and increases their odds of bringing a successful claim.

To Recover For Acts of Co-Employee Negligence Between 2005 and 2012, Claimant Need Only Show the Co-Employee Owed Him/Her a Duty of Care

Leeper v. Asmus, Case WD76772 (Mo. App. 2014)

FACTS: The claimant filed a civil suit when his co-employee was guiding a large pipe with a drilling rig when the cable became loose and the pipe broke free, crushing the claimant’s arm. The claimant alleged that his co-employee breached his personal duty of care owed to him when the defendant failed to perform his job duties in a safe manner. The Trial Court dismissed for failure to state a claim. The plaintiff appealed arguing that his Petition sufficiently plead a cause of action for co-employee negligence.

HOLDING: The Court noted that in the wake of the 2012 Amendment to §287.120.1, in order to state a cause of action, the claimant must show that they were injured as a result of the co-employee’s “affirmative negligent act that purposefully and dangerously caused or increased the risk of injury.” However, the Court noted that the incident and resulting injury occurred between 2005 and 2012, so the Court was required to apply the previous standard, which was that the claimant must show only that the co-employee owed him a duty of care. The Court went on to specify that under this previous standard, a co-employee violates their personal duty of care when the employer has performed its nondelegable duties, and an otherwise safe workplace is rendered unsafe due solely to the co-employee’s negligent act or omission. The Court found that the claimant’s amended Petition sufficiently alleged facts to support the existence of a personal duty of care, and therefore reversed and remanded the case for further proceedings.

Replacement Crowns Considered Future Medical Not Disfigurement

Johnson v. City of Carthage, Case Nos. SD32936 & SD32958 (Mo. App. 2014)

FACTS: The claimant sustained an injury resulting in the loss of his front tooth. The Commission awarded the claimant past medical expenses, permanent partial disability, future medical care and disfigurement. The employer appealed arguing that the Commission acted without or in excess of its powers by awarding disfigurement, and also argued that the loss of a tooth does not qualify as disfigurement. The claimant appealed arguing that he should have been awarded disfigurement for the instant loss of his tooth and also for every time that the crown needs to be replaced.

HOLDING: In a brief Decision, the Court affirmed the Commission’s findings. The Court stated that the Statute provides disfigurement for the loss of a front tooth in an amount sufficient to cover the reasonable costs of artificial replacement teeth. Additionally, the Court stated that disfigurement is a separate and distinct benefit which may be awarded in addition to the other benefits. The Court also stated that while the claimant will need several replacement crowns in the future, the claimant is only entitled to an Award compensating him for these future medical expenses and is not entitled to an additional Award of disfigurement for each time the crown is replaced.

Pre-Existing Disability Should Be Evaluated Based on the Potential to Combine With Work Injury in the Future Rather Than Past Issues

Navis v. Premium Standard Farms, Inc. and Travelers Indemnity Co. and the Treasurer of the State of Missouri, Case Nos. WD76756 & WD76766 (Mo. App. 2014)

FACTS: The claimant was diagnosed with Legionnaire’s Disease, a type of pneumonia allegedly related to her work exposure. At a hearing, the ALJ found for the claimant, and determined that she was exposed to Legionella bacteria as a result of working for the employer, and that she was permanently and totally disabled against the Second Injury Fund as a result of the work injury and her pre-existing COPD. On appeal, the Commission affirmed the Award but reversed the ALJ’s Award of future medical treatment. In its sole point on appeal, the Fund argued that the Commission erred in finding that it was liable for the claimant’s PTD benefits because such a finding was against the weight of the evidence, and that the claimant was PTD as a result of the work injury alone. Specifically, the Fund argued that it should not be liable because the claimant’s pre-existing condition of COPD did not effect her ability to do her job before she contracted Legionnaire’s Disease.

HOLDING: On appeal, the Court affirmed noting that there is sufficient and competent evidence to support the Commission’s Decision. The Court stated that the Commission’s Decision was supported by testimony of the claimant’s expert that it was not unusual for patients to be unaware that they have COPD. Additionally, the Fund misplaced its argument by focusing on the lack of difficulties that the pre-existing condition caused in the past. The Commission noted that the focus should be on the potential that the pre-existing condition may combine with a work-related injury in the future so as to create a greater degree of disability than would have resulted in the absence of the condition.

SIF Has the Ability to Depose Its Own Experts

Lutes v. Honorable Lee B. Schaefer, Case No. ED100381 (Mo. App. 2014)

FACTS: In response to the Claim for Compensation, the Second Injury Fund hired a vocational expert, Mr. Dolan, to determine whether the claimant was totally disabled. Mr. Dolan performed a record review and then produced a report. The Fund sent a copy to the claimant and also sent the claimant a notice to depose Mr. Dolan. After receipt of the notice, the claimant filed a Motion to Quash the Deposition. Chief Judge Schaefer denied the claimant’s Motion to Quash and entered an Order permitting the Fund to depose Mr. Dolan. The claimant filed a Writ of Prohibition or Mandemus in the Circuit Court requesting that Chief Judge Schaefer be prohibited from denying claimant’s Motion to Quash the Deposition of Mr. Dolan. The Circuit Court granted the claimant’s Petition and ordered Chief Judge Schaefer to Quash. The Fund appealed arguing that the Statute vests an ALJ with the authority to grant the deposition of any witness, including non-physician experts.

HOLDING: The Court noted that if it were to permit claimants the ability to offer their own vocational expert testimony but deny the Fund such an opportunity, the Fund’s purpose would be obliterated. Thus, the Court determined that Chief Judge Schaefer did not exceed her authority in granting the Fund’s request to depose Mr. Dolan. However, the court did constrain its holding, noting that simply because Mr. Dolan could be deposed, it did not mean that his deposition would be admissible given that only facts admitted into a hearing are those that are reasonably calculated to lead to the discovery of admissible evidence.

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

Brandenburg v. Treasurer of the State of Missouri, Case No. SD32849(Mo. App. 2014)

FACTS: The claimant sustained injury to his back and neck. He settled his claim with the employer for 60% disability to the body. The claimant also had several prior injuries and filed a claim against the Fund, asserting that he was permanently and totally disabled. At a hearing, the ALJ determined that the claimant was permanently and totally disabled as a result of his pre-existing injuries and primary injury, and ordered the Fund to pay permanent total disability benefits. The Fund appealed. The Commission affirmed. The Fund again appealed, arguing that the Commission erred because it failed to consider whether the claimant’s disabilities from his work injury alone were sufficient to render him permanently and totally disabled.

HOLDING: The Court stated that the Fund’s argument was not supported by the record because the Commission’s Award explicitly stated that the Fund would not be liable if the last injury alone rendered the claimant permanently and totally disabled. Additionally, the Court held that the Commission correctly followed procedure by first determining the degree of disability from the last injury alone before considering any pre-existing injuries. Therefore, the Commission’s finding that the claimant was permanently and totally disabled as a combination of his pre-existing and work injuries was supported by competent and substantial evidence, and accordingly the Court affirmed.

Claimant Has Burden of Proving Jurisdiction

Franco-Lopez v. Martinez, Case No. WD76942 (Mo. App. 2014)

FACTS: The claimant worked for the employer on a contract basis. In November 2007, he went to a local home improvement store in Columbia, Missouri to purchase materials for a roofing project in Lawrence, Kansas. He later drove to Lawrence, Kansas by himself with supplies. While working on the roof in Kansas, the claimant fell off and sustained injury. At a hearing, an ALJ determined that Missouri lacked jurisdiction over the claim. The claimant appealed to the Commission, primarily arguing that jurisdiction existed because a contract was formed in Missouri. 

HOLDING: The Commission noted that the claimant failed to provide any receipts or records regarding the alleged purchases in Columbia, Missouri; failed to testify that the employer wanted the materials purchased in Missouri; was unable to provide the date that he drove from Missouri to Kansas; and could not even provide the exact date on which he began working on the Kansas project. In light of the claimant’s “cursory, vague, and disjointed” testimony, the Court found it was difficult to determine where the contract was formed. Therefore, it felt that the claimant had failed to meet his burden of proving that the contract was formed in Missouri and affirmed the decision of the Commission. 

Claimant Found PTD as a Result of His 2004 Injury Despite the Fact that He Continued to Work and Had a Subsequent 2005 Injury

Sage v. Talbot Industries, Case Nos. SD32901, SD32906, SD32907 (Mo. App. 2014)

FACTS: The claimant sustained an injury in February 2004 to his back while pulling wire. He underwent treatment in October 2005 for an L5-S1 disc herniation, after which the claimant stated he was “doing pretty good, [and] didn’t have any problems.” The claimant continued to work for employer through December 2005, at which time he was transferred to maintenance to disassemble parts, because the wire-drawing division was being closed. While working in maintenance, the claimant fell and re-injured his back. He worked for the employer for only five more days following the second accident because the wire-drawing division was closing. Following the 2005 injury, the claimant stated he immediately started having the same kind of pain he experienced from his 2004 injury, but magnified. In 2006 the claimant underwent a total disc replacement at the L5-S1 level. Dr. Koprivica, the claimant’s expert, stated that the claimant was PTD as a result of his 2004 injury alone, due to his need to lie down throughout the day for pain relief. The ALJ found Dr. Koprivica’s testimony to be credible and determinative, and therefore, found the employer responsible for PTD benefits. The employer appealed. The Commission affirmed. The employer again appealed, arguing amongst other things, that the liability to pay the claimant’s PTD benefits lies with the Fund because the Commission erred in finding that the claimant was PTD as a result of the 2004 work injury alone, since it did not first determine the degree of disability resulting from the claimant’s 2005 injury.

HOLDING: The Court noted that the employer sited no case, nor was the Court aware of any case, that supported the employer’s position. The Court stated that when multiple claims are involved, the injury is evaluated within each claim and each claim is considered in order of occurrence. Therefore, the Commission and the ALJ acted properly in determining the disability resulting from the 2004 claim first. 

The Commission Determines Credibility of Experts 

In McLeary v. Arvin Meritor, Injury No. 05-123810, the claimant was injured on December 1, 2005 when a large industrial plastic bin crashed into her left side and knocked her into an adjacent bin, causing injury to her back and neck. The claimant’s expert, Dr. Musich, and the employer’s experts, Dr. Kitchens and Dr. Cantrell, all agreed the claimant had suffered a work-related injury but disagreed as to the amount of disability.

At a hearing, the ALJ found that the claimant lacked credibility and credited the employer’s medical experts over the claimant’s medical expert. Specifically, the ALJ found that the claimant was not credible because her primary care physician did not consistently note her back and neck complaints.

On appeal, the Commission modified the Award of the ALJ, concluding that the claimant and her expert were more credible than the employer’s experts. First, the Commission noted that while the claimant was not a perfect historian, the visits to her primary care physician and the records tended to focus solely her unrelated diabetes. The Commission stated that the primary care physician’s occasional silence as to the neck and back when he was seeing the claimant for unrelated illnesses did not cast any material doubt on the claimant’s testimony.

Second, the Commission noted that the employer’s experts were not entirely credible. Regarding Dr. Kitchens, the Commission found his testimony flawed because his opinion was based on the erroneous assertion that the claimant was struck only in the left side, thus failing to account for trauma to the claimant’s right side that occurred when she was knocked into the adjacent bin. Regarding Dr. Cantrell, the Commission noted that his medical opinion of March 7, 2006 pre-dated the claimant’s May 30, 2006 cervical MRI and consequently deserved little weight.

Finally, the Commission turned its attention to Dr. Musich’s testimony, who diagnosed the claimant with several injuries and found she was PTD as a result of the primary injury. The Commission noted that it need not adopt each expert’s opinions and may reject any part of an opinion that it does not find persuasive. The Commission noted that while it found Dr. Musich most persuasive on the issue of causation, it did not agree that the claimant was PTD as a result of the work injury, because she returned to work full duty (including over-time) for over a year following her work injury. Ultimately, the Commission determined that the claimant suffered 50% disability to the body resulting from her work injury.

The Commission Need Not Adopt Every Aspect of an Expert’s Testimony

In Yount v. Circle K, Injury No. 10-026805, the claimant injured her right ankle. Her expert, Dr. Volarich, assessed 50% PPD of the right ankle, while the employer’s expert, Dr. Krause, assessed 0% PPD, based on his assertion that the claimant had “returned to normal.” At a hearing, an ALJ found that the claimant suffered 7.5% PPD of the ankle as a result of the work injury. The claimant appealed. 

On Appeal, the Commission modified the nature and extent of PPD in light of the fact that the claimant’s medical records suggested she continued to suffer from pain and swelling when she returned to work, and that she presented uncontested and credible testimony that her doctors informed her at the time of her release that her right ankle would never be the same. Therefore, the Commission modified the Award and found that the claimant suffered 25% PPD of the ankle.

Additionally, in an interesting piece of dicta, the Commission noted that the parties asked the ALJ to address the issue of whether medical causation is a fact that is deemed admitted if the claimant alleges it in the Claim and the employer files a late answer. The Commission noted that the ALJ disposed of the issue by concluding that medical causation is a question of law and not fact, but the question was not in issue when the claimant filed an application with the Commission. However, the Commission, on its own initiative, stated that should the claimant have alleged medical causation and the employer’s answer been untimely, medical causation would in fact be deemed admitted. 

If the Claimant Settles a Third Party Claim Before the Workers’ Compensation Claim the Dollar-For-Dollar Credit Applies to Future Benefits Not Past Unpaid Benefits 

In Huff v. Jones Financial Companies, LLP, Injury No. 06-080670, the claimant was injured in a car accident.  She suffered a brachial plexus injury that affected the thoracic nerve resulting in chronic severe pain.  While the employer/insurer initially authorized medical treatment, they stopped after her first few medical visits, causing her to incur $238,471.93 in unpaid unauthorized medical bills. The majority of these unpaid unauthorized medical bills were used for pain treatments that could not improve the claimant’s ability to function, and only attempted to relieve her pain symptoms. 

The claimant had a third party civil suit, which she settled prior to settling her workers’ compensation claim, for $580,000.00. By the conclusion of her civil suit, the claimant had incurred $235,479.33 in attorney’s fees and expenses. Therefore, the claimant personally recouped $344,520.67. It was determined that the claimant was 32% responsible for her third party injury. At the time of the settlement, the employer-insurer had paid medical and TTD to the claimant in the amount of $23,200.19. Therefore, pursuant to Ruediger, the employer-insurer was entitled to a subrogation interest of $7,992.91. The claimant then pursued a workers’ compensation claim against the employer and insurer.

At a hearing, the ALJ determined the claimant was permanently and totally disabled.  The employer/insurer argued that it should not have to reimburse the claimant for the unpaid unauthorized medical expenses because they were not necessary to “cure and relieve” the effects of the injury.  In response, the ALJ noted that while these medical visits would not improve the claimant’s ability to function and therefore, did not cure the claimant, they did attempt to relieve the claimant’s pain symptoms.  Therefore, the ALJ determined that the employer/insurer were liable for the expenses.

The employer/insurer also argued that because some of the claimant’s medical bills were paid by her healthcare provider they should be entitled to a credit.  Specifically, the employer/insurer argued that because those healthcare payments were made through its own self-insured medical plan, they should be entitled to a credit.  However, the ALJ noted that the claimant was required to pay a premium for her coverage and therefore, the medical plan did not qualify as fully funded.  Thus, the ALJ denied the employer/insurer a credit. 

Finally, the employer/insurer argued that they were entitled to a dollar-for-dollar credit in light of the fact that the claimant settled her civil suit prior to settling her workers’ compensation claim. They alleged that the amount they were entitled to was $228,838.87. This amount was calculated by taking the amount the claimant received in her civil suit, $344,520.67, and subtracting the employer’sRuedigersubrogation interest, $7,992.91 and then taking 68% of that amount in light of the claimant’s comparative fault, pursuant to statute. The ALJ further noted that this $228,838.87 was insufficient to cover the $238,471.93 which was the amount she awarded to the claimant for past unpaid medical expenses, travel expenses, past PTD benefits, and disfigurement. Therefore, the ALJ ordered the employer/insurer to pay an additional $9,633.06 to cover the difference. The claimant appealed arguing that  the ALJ improperly allocated the credit to the past unpaid benefits. 

On appeal, the Commission agreed with the claimant that the credit was improperly allocated.  Specifically, the Commission noted that the $228,838.87 credit did not apply to past medical expenses, but was rather an advance on future medical expenses, and that the employer/insurer owed the claimant an additional $238,471.93 to compensate for past unpaid medical expenses. Once the $228,838.87 was exhausted, the employer would then owe future PTD benefits. 

Employer Responsible For PTD Benefits After Claimant Sustained Hand Injury

In Gonzales v. Butterball, LLC, Injury No. 09-059326, the claimant worked in the evisceration department cleaning and separating gizzards.  The claimant was operating machinery used to sort gizzards when the machine became stuck. While there were no guards or safety warning labels on the machine, the employer had an established safety policy that employees were to call their supervisor if gizzards became stuck rather than trying to correct it on their own. Despite being educated on the safety policy, the claimant attempted to fix the machine and sustained injury to his dominant right hand.  Following the injury, the claimant attempted to return to work but was unable to perform his duties and was terminated because he was unable to use his right hand. The claimant was subsequently denied by potential employers because of inability to pass employment tests. Evidence showed the claimant left school in 3^rd grade; had not obtained a GED; spoke limited English; and all of his past employment involved physical, hand intensive duties. 

The ALJ heard testimony from multiple experts and determined that the claimant was permanently and totally disabled and found the employer responsible for benefits. The ALJ reduced the claimant’s PTD payment by 25% as a safety penalty for failure to follow the employer’s safety protocol. Specifically, the ALJ noted that the claimant attended safety training regarding the machinery, should have been aware of the safety protocol, and most other employees followed said protocol. The claimant appealed.  On appeal, the Commission summarily determined that the ALJ’s findings were supported by competent and substantial evidence and affirmed.

Extension of Premises Doctrine Still Alive

In Viley v. Scholastic, Inc., Injury No. 10-050708, the claimant slipped and fell on the employer’s ice covered parking lot sustaining injury. The employer was leasing the premises and the lease stated that all “common facilities” are subject to the exclusive management of the landlord. Additionally, the lease stated that the landlord agreed to perform some responsibilities regarding the parking lots including snow removal. However, the employer had the power to direct persons to remove their vehicles from the lot and the power to modify the way the landlord cleared the lots. Despite the lot having been plowed for vehicles to pass through, snow and ice remained and rendered it an unsafe condition, upon which the claimant slipped. The ALJ determined that the accident did not arise out of and in the course of employment. The claimant appealed.  

On Appeal, the Commission reversed and found that the claimant was injured in the course and scope of his employment. The Commission began by noting that because the landlord granted exclusive use of the parking lot to the employer, those lots were not “common facilities.” The Commission then stated that the Extension of Premises Doctrine permits recovery of benefits for injuries sustained by workers going to or coming from work if: A) The injury producing accident occurs on premises which are owned or controlled by the employer; and B) That portion of such premises is a part of the customary, expressly or impliedly approved, permitted, usual and acceptable route or means employed by workers to get to and depart from their places of labor and is being used for such purposes at the time of the injury. In this case, the Commission determined that since the employer directed persons to remove their vehicles from the lot and contacted the landlord to request maintenance for the lots, the employer did control the lot. Also, testimony established that the claimant was walking his customary route when injured. Therefore, the claimant was injured within the course and scope of his employment.

In Scola v. Miller Multi Plex, Injury No. 08-054336, the claimant was a 52-year old welder and given that his hands were full during work, he would jerk his neck in order to close his welding mask. He was eventually diagnosed with osteoarthritis of the neck, spondylosis, degenerative disc disease and disc expansion. The claimant’s expert, Dr. Volarich, opined that the claimant’s injuries were an aggravation of underlying cervical spondylosis, and that his work activities were the prevailing factor in his neck condition. In contrast, the employer’s expert, Dr. Howard, noted that the claimant had significant degenerative disc disease in the cervical spine and concluded that the claimant’s problems were the result of a degenerative condition and not work-related. The ALJ determined that the claimant failed to prove that his occupational disease was the prevailing factor in causing his disability. The claimant appealed. The Commission summarily affirmed.

Shoulder Injury Compensable Despite Only One Record Two Weeks After the Injury Noting Shoulder Pain

In Moseley v. Elite Stucco, Injury No. 07-115559, the claimant sustained injuries to his right shoulder and back due to a fall on November 16, 2007. The claimant testified that he fell on his right shoulder while working from a scaffolding and experienced immediate pain. The employer’s expert, Dr. Strege, stated that the claimant’s right shoulder problems were not a result of the work accident because his medical records did not note any complaints of right shoulder pain. The claimant’s expert, Dr. Paul, found the work injury to be the prevailing factor of the claimant’s right shoulder problems. The  ALJ determined that the claimant’s right shoulder injury was not caused by his work injury, that the claimant sustained a lumbar strain resulting in 10% PPD of the body, and that the claimant was not PTD, and therefore not entitled to any benefits from the Second Injury Fund. Both the employer and the claimant appealed.

On Appeal, the Commission modified the Award of the ALJ. The Commission noted that the claimant had no right shoulder complaints before the work injury and first complained of shoulder pain on December 4, 2007, two weeks after his injury.  Specifically, the Commission found that the claimant’s right shoulder injury was work-related and that the absence of medical records connecting employment as a source of the injury did not prevent them from finding Dr. Paul’s causation opinion more persuasive. Additionally, the Commission modified the Award to find that the claimant was PTD as a result of his pre-existing injuries and current injuries, and therefore, in light of the fact that the claimant was not rendered PTD as a result of the work injury alone, liability against the Second Injury Fund was appropriate.

Under Strict Construction Principal Place of Business Can Only Be One Place

In Jansen v. Jackson County, Missouri, Injury No. 12-024808, the claimant worked as a supervisor for the employer and supervisors were sometimes required to respond to after hour emergencies. Therefore, the employer allowed supervisors, including the claimant, to drive employer owned vehicles to and from work. The employer had many offices but the majority of them were located in Kansas City, Missouri. However, the claimant worked at the employer’s office in Lees Summit, Missouri, and was injured in a motor vehicle accident while driving from his home to his designated office in Lees Summit. An ALJ determined that the claimant was traveling from his home to his office, and therefore, his injuries were not compensable. The claimant appealed.

On Appeal, the Commission noted that according to the ALJ’s reasoning, the employer’s principal place of business would be where an injured worker customarily worked. However, the Commission stated that precedent has established that a principal place of business, under the rules of strict construction, can be only one location, which in this instance was the office in Kansas City, Missouri. Therefore, the claimant was not traveling to his employer’s principal place of business when he was injured and is not barred from compensation. Thus, the Commission reversed.

Unexplained Fall Not Compensable

In Gleason v. Ceva Logistics and the Second Injury Fund, Injury No. 07-072826, the claimant was on a rail car performing his job duties when he fell and sustained an injury. He did not remember the circumstances leading up to the fall, the fall itself or the three days afterwards, and no witnesses saw the fall. An ALJ denied compensation. The claimant appealed.

On Appeal, the Commission noted that there was simply no evidence on the record to establish why the claimant fell. The Commission then went on to state that the claimant’s inability to explain why he fell was fatal to his claim, as they were unable to discern whether or not the hazards or risk were related to employment. Therefore, the claimant failed to meet his burden of establishing that his injury arose out of and in the course of his employment and affirmed the decision of the ALJ.

Claimant Lacked Credibility and Failed to Meet his Burden

In Frazier v. Sullivan County Sheriff’s Office, Injury No. 12-064760, the claimant was assigned the task of converting an old storage room into a new evidence room. Upon taking the stairs to complete this task, the claimant alleged that a radio transmission came across which caused him to turn his head, at which time he missed a step and fell backwards. An ALJ determined that the claimant did not meet his burden of proof. Specifically, the ALJ stated that the claimant was not a credible witness; the vocational expert testified that the claimant never told her that he slipped as a result of listening to a radio transmission; and the Report of Injury, initial medical records, and the Claim for Compensation did not mention a radio transmission. The ALJ determined that the claimant was walking up the stairs and simply fell, and therefore his injury did not arise out of and in the course of his employment. The claimant appealed. The Commission summarily affirmed.

Only Need to Show Future Medical Treatment is Reasonably Required to Cure and Relieve the Effects of the Injury

In Barnhart v. Eldon Nursing and Rehabilitation Center, Injury No. 11-072406, the claimant sustained an injury to her lumbar spine when lifting a resident off of a toilet. She underwent extensive treatment and it was noted that pain killers provided little to no relief. The claimant’s expert, Dr. Volarich, noted that she continued to experience ongoing difficulties as a result of the injury and would require future medical treatment to cure and relieve the effects of her work injury. At a hearing, the employer argued that based on the treatment of Dr. Norregaard, the treating neurosurgeon, there was no medical proof that a narcotic medicine regimen would be of any value in treating the back pain. An ALJ found the claimant and Dr. Volarich credible and awarded 20% PPD of the body related to the lumbar spine. Additionally, the ALJ noted that the claimant needed only show that future medical treatment is reasonably required to cure and relieve the effects of the injury, and that the employer would be liable for future prescriptions or pain medications, as well as any future treatments recommended by Dr. Volarich. The employer appealed.

The Commission affirmed, but noted that practically speaking, they did not anticipate that the employer would be required to provide all of the modalities identified Dr. Volarich, although they did believe that the claimant was entitled to any or all of the modalities that she chose to pursue and that any doctor contemporaneously recommends.

Beginning July 1, 2014, the maximum worker’s compensation payable was raised to $794 per week and the minimum was raised to $218 per week. This change was based on the Commissioner of Labor’s determination that the State’s average weekly wage was $794.27, and the change is effective for any injury occurring on or after July 1, 2014.

Beginning July 1, 2014, the maximum TTD/PTD rate will be $861.04 per week and the maximum PPD rate will be $451.02 per week.  The mileage allowance for travel expenses will be 53.0 cents per mile.

With Tennessee implementing its new administrative system this week, Alabama is now one of the only states left to use state courts to adjudicate its workers’ compensation cases. For that reason, if more than one venue is proper, it is still possible to gain a strategic advantage in Alabama by filing the lawsuit first.

Case in point, the Alabama Court of Civil Appeals released its opinion in Ex parte Blair Logistics, LLCon June 27, 2014. In Blair, the Court considered a situation where the plaintiff filed a complaint for workers’ compensation benefits in Jefferson County. A little over 7 months later, the employer filed a motion to have the venue transferred to Chilton County. The employer claimed that it was entitled to the transfer based on the doctrine of forum non conveniens which allows for such transfers for the convenience of the parties and witnesses or if it betters serves the interests of justice.

In support of its motion, the employer pointed out that the plaintiff was living in Chilton County at the time of the accident and at the time the complaint was filed. It also noted that the plaintiff received some medical treatment in Chilton County including the initial treatment following the accident. Finally, the employer stated that the accident occurred at the plaintiff’s home in Chilton County and that it intended to call as witnesses certain Chilton County residents such as the plaintiff’s wife and some medical service providers.

The plaintiff supported his objection to the motion by noting that the employer’s principal place of business was in Jefferson County and that the depositions of the employer representatives and the plaintiff had already taken place in Jefferson County. Further, the plaintiff pointed out that all of the relevant medical treatment had occurred in Jefferson County. Finally, the evidence revealed that there existed an employment contract that provided that all disputes be resolved in Jefferson County.

Based on the above facts, the trial court denied the employer’s motion and the employer filed a petition for a writ of mandamus. Such a petition is an extraordinary remedy and will only be granted if the trial court clearly abused its discretion.

The Court of Appeals noted that it was conceded by the parties that both venues were proper. It further noted that the employer had the burden of proving that the inconvenience and expense of defending the action in Jefferson County was so great that the plaintiff’s right to choose the venue should be overcome. In other words, the employer had to prove that Chilton County was significantly more convenient than Jefferson County.

With facts obviously supporting the convenience of the parties and the interests of justice for both counties, it could not be said that the trial court abused its discretion in denying the motion. As such, the employer’s petition was denied.

MY TWO CENTS:

When you have multiple proper venues, it is a good idea to look at the pros and cons of each venue early on. The Alabama Workers’ Compensation Act provides that either party can file the lawsuit. Since the party seeking a venue transfer has the burden of proving that another venue is significantly more convenient, it is better to be the party that initially filed the lawsuit. In the above case, had the employer filed in Chilton County, the plaintiff (or in that case, the defendant) would not likely have been successful in having the case transferred to Jefferson County. In fact, in either scenario, had the trial court granted the motion to transfer venue, the Court of Civil Appeals would likely have granted a petition for writ of mandamus and ordered the trial court to reverse its decision since, at least based on the above facts, it is unlikely that either party could have satisfied its burden of proof.

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About the Author

This article was written by Michael I. Fish, Esq. of Fish Nelson & Holden LLC, a law firm dedicated to representing employers, self-insured employers and insurance carriers in workers’ compensation matters. Fish Nelson is a member of The National Workers’ Compensation Network (NWCDN). If you have any questions about this article or Alabama workers’ compensation issues in general, please feel free to contact the author atmfish@fishnelson.com or any firm member at 205-332-1448.

Telecommuting is a trend that is rapidly growing in the United States, and telecommuting requests are also on the rise as a potential reasonable accommodation under the ADA.  A recent Sixth Circuit Court of Appeals case,EEOC v. Ford Motor Company, 2014 U.S. App. LEXIS 7502 (6^th Cir. 2014) illustrates how difficult it can be for an employer to oppose a request for telecommuting.

Jane Harris was hired in 2003 by Ford as a resale buyer, serving as an intermediary between steel suppliers and “stampers,” which are companies that use steel to produce parts for Ford.  Her job was to respond to emergency supply issues to ensure no gap in steel supply to parts manufacturers. The most important part of the job was group problem solving, requiring that a buyer be available to interact with members of the resale team, suppliers and others in the Ford system when problems arose.

Harris suffered from IBS, an illness that caused her fecal incontinence.  Some days she could not drive to work or stand up from her desk without potentially soiling herself.  She took intermittent leave when severe symptoms occurred.  In 2005 her supervisor allowed her to work from home on a flex-time telecommuting schedule on a trial basis.  The company did not view the trial period as a success. She continued to work occasionally from home doing remote work, including on evenings and weekends.  However, Ford did not credit Harris with the time she spent working during non-“core” hours and marked the days she stayed home because of her illness as absences.  The company stressed that core business hours were important because that was the time when employees do team problem solving. 

On occasion Harris submitted a purchase order with incorrect pricing information because she could not immediately access the supplier on a weekend to obtain updated quotations. This caused problems with co-employees and suppliers.  Under Ford’s system of marking absences, Harris was absent in the first seven months of 2009 during core hours more than she was present. 

In 2009, Harris requested that she be permitted to telecommute on an as-needed basis as a reasonable accommodation.  Harris felt that she could get most of her work done by computer or telephone.  Ford had a telecommuting policy but not for all jobs. Harris’s supervisors did not feel that her position was suitable to telecommuting and denied the request.  Instead, the company suggested that it could move her cubicle closer to the restroom or she could seek an alternative position within Ford that would be more suitable for telecommuting. 

Harris filed a charge of discrimination with the EEOC.  Eventually Ford terminated Harris for poor performance.  In 2011 the EEOC filed a complaint alleging that Ford violated the ADA by failing to accommodate Harris’s disability. The district court followed precedent that indicated an employer should not second guess the employer’s assessment of the essential functions of the job and ruled against Harris. The Sixth Circuit Court of Appeals  reversed.

The Circuit Court noted that Ford believed physical attendance at the workplace was critical to the group dynamic of the resale-buyer team.  The Court did not defer to Ford’s description of the essential job functions:

While Ford has provided substantial evidence of its business judgment and the experience of other resale buyers, the EEOC has also offered evidence that casts doubt on the importance of face-to-face interactions at Ford.  Harris’s own experience over several years as a resale buyer indicates that in-person interaction may not be as important as Ford describes: Even when Harris was physically present at Ford facilities, the vast majority of communications and interactions with both the internal and external stakeholders were done via conference call.

The Court noted that Ford did allow other resale buyers to telecommute, albeit on a more limited basis than the request Harris was making.  The Court moved away from a previous position in prior cases that telecommuting is not a reasonable accommodation, saying that telecommuting may be reasonable when someone can perform all the essential functions at home. 

Ford also argued that it made two alternative accommodations to Harris, as noted above, but Harris rejected those accommodations.  The Court said that moving her cubicle closer to the restroom would not relieve Harris of the “humiliation of soiling herself on a regular basis in front of her workers, merely because she could use Depends to contain the mess or bring a change of clothes to clean herself up after the fact.”   It said that allowing her to apply for another job was not adequate because there was no guaranty that such a position would be available.

The Court said that because the EEOC provided evidence that Harris was qualified for her position with a reasonable telecommuting accommodation, the burden shifted to Ford to show an undue burden on the company.  “Although setting up a home workstation for Harris might entail some cost, considering Ford’s financial resources and the size of its workforce, this cost is likely to be de minimis. Indeed, Ford has created a written policy in which it pledges to absorb these costs for all employees approved to telecommute.”

The case shows that telecommuting is inevitably going to be viewed as a reasonable accommodation, no matter that earlier cases on the ADA did not find it to be.  Employers that have telecommuting policies will be hard pressed to deny requests for accommodation where there is evidence that the employee can perform the essential job functions at home. 

On June 13, 2014, the Alabama Court of Civil Appeals issued its opinion in Alabama Forrest Products Industry Workmen’s Compensation Self Insurer’s Fund v. Harris. In 1990, Harris sustained a severe work-related injury to his pelvis and right leg. As a result of his injuries, Harris was permanently and severely limited in his lifting, bending, stooping, squatting, climbing, and walking. Those limitations allegedly prevent him from performing ordinary activities of daily living without assistance. Since his injury, Harris’s daughter had been assisting him in getting in and out of bed, using the bathroom, bathing, dressing, administering his medications, and preparing meals. In the fall of 2011, Harris sent notice to his employer’s insurer, Alabama Forrest Products, that he wanted his future son-in-law to replace his daughter as his designated care giver. However, Alabama Forrest Products later discovered that the future son-in-law was employed full time in another town, and stopped paying him to take care of Harris. Harris then filed a declaratory judgement action, requesting that the trial Court order Alabama Forrest Products to reinstate the payments.

Alabama Forrest Products took the deposition of Harris’s authorized treating physician, who stated that Harris continued to require assistance with activities of daily living. The doctor also testified that although the attendant care provided by Harris’s daughter in the past had not improved his underlying physical condition and further attendant care would not improve his condition, it did allow and would continue to allow Harris to maintain his function and prevent deterioration of his condition. The doctor further testified that without in home attendant care provided by his family, Harris would have to be admitted into a skilled nursing facility. Based on the testimony of Harris’s family members and his doctor, the trial Court ordered Alabama Forrest Products to reinstate the payments, and Alabama Forrest Products appealed.

On appeal, Alabama Forrest Products argued that an injured employee has no right to payment for attendant care based on the holdings inOsorio v. K & D Erectors, Inc. and Ex parte City of Guntersville, which previously held that employers were only responsible to reimburse an employee for services designed to improve his condition. Harris argued that the case ofEx parte Mitchell overruled Osorio, in that it held that preventive and functional aids aimed at preventing the deterioration of an employee’s condition or improving his function are also compensable.

In its analysis, the Court of Appeals noted that Alabama Administrative Code Rule 480-5-5-.30 provides that authorized services by non-professional family members may be reimbursable when certain conditions are met. Based on this, the Court of Appeals upheld the trial Court’s decision and ordered Alabama Forrest Products to reinstate payment to Harris’s family for his in-home care.

MY TWO CENTS

Given the potential impact this decision on the cost of workers’ compensation claims, I expect that Alabama Forrest Products will petition the Supreme Court for review. If this decision stands, it could increase the costs of many workers’ compensation claims by over $21,000 per year (based on current minimum wage). One possible end-around that the Court of Appeals mentioned, but did not address (because the issue was not raised), would be to challenge the Department of Labor’s authority to promulgate and enforce the provisions of Rule 480-5-5-.30. The Alabama Workers’ Compensation Act does not explicitly provide for non-medical treatment such as the services at issue in this case, so the question is whether the Act gives the Department of Labor the authority to require benefits that were not specifically enumerated by the legislature in the Act.

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ABOUT THE AUTHOR

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