State News

MISPLACED PRIVACY

By Kevin L. Connors, Esquire

“No matter where you go, there you are!”

If the above quotation, mouthed by the character of Buckaroo Banzai, played without lips by Peter Weller, later infamous as the RoboCop character, when Buckaroo, playing with  his rock band, the Hong Kong Cavaliers, tried to talk Penny Pretty, played by Ellen Barkin, out of committing suicide, as the band was playing at a bar in Grover’s Mill, New Jersey, also infamous as the Martian landing site in Orson Wells’ radio broadcast in 1937, in the classic, and yes, it should be watched at least once a year, movie, The Adventures of Buckaroo Banzai Across the 8th Dimension.

If that “no matter…” sounds vaguely familiar, it is and will always remain, incisively existential in perhaps an all too obvious paradoxical universe of Berkleyan idealism, posited by the English philosopher, George Berkley, credited with the development of the philosophy of subjective idealism, also sometimes referred to as empirical idealism, which point will soon prove all too true for you the reader, as Berkley asked “if a tree falls in the forest, and no one is there, does it make a sound”?

Now, if you are Dirty Harry, you would ask “Well, did it feel lucky”?

So what, if anything, do the above ramblings have to do with litigation, a question perhaps best answered by Jack Sparrow’s character in Pirates of the Caribbean, who quixotically confessed “It’s nice to be here, it’s nice to be anywhere”.

And, of course, it might well depend upon the presidential precedent of “it depends upon what the meaning of the word is, is?”

Yes, there is a point.

At what point is anything private, or can legally be expected to support a claim of privacy, when posting stuff about yourself, in whatever medium or format, on the internet, seemingly the most public medium in the history of human civilization, where you have no control over what happens to whatever you post after it is posted, to include what others who have been exposed to your posting might do with it, with or without your permission.

And if you think that whomever or whatever you have shared this personal information or data with, should stop to consider what they should or should not do with it, after they have been exposed, then you are, quite simply, both clueless and naive.

One might precede the other, although the more relevant thought might be, what were you thinking if at all, when you posted that thought you thought so brilliant?

And yes, we are finally at our point of departure, which is the always fascinating battles, in the context of discovery, motions and arguments, over what is, or is not, discoverable, with the flashpoints being relevance and expectations of privacy. 

And into that conundrum, with those against whom social media and discovery requests are made, claiming “expectations of privacy”, and with those seeking social media discovery, contending that there can be no “expectation of privacy” in a medium so universally visible and accessible.

Having previously reported on several Facebookian Court rulings in the past, the newest rulings, by Courts in Pennsylvania, and in other jurisdictions, continue to cement the requirements both for seeking and disclosing social media discovery.

Recent Pennsylvania Rulings

Two recent Pennsylvania rulings are of interest.

The rulings areMazzarella v. Mount Airy Casino Resort,a case decided in the Monroe County Court of Common Pleas, andSimms v. Lewis,decided in the Indiana County Court of Common Pleas.

Mazzarella v. Mount Airy Casino Resort

Mazzarellais a ruling issued on November 7, 2012.

It involved a premises liability slip, and fall case, with the Trial Court Judge deciding, correctly we think, that the Plaintiffs expectation of privacy in her social media activity was “misplaced”, as the Trial Judge, the Honorable David Williamson, ruled that “those who elect to use social media, and place things on the internet for viewing, sharing and use with others, waive an expectation of privacy”.

So ruling, Judge Williamson held that the Defendant’s social media discovery request was not a violation of privacy, with the Plaintiff being ordered to answer the Defendant’s discovery request.

The discovery request in question sought disclosure of the Plaintiff’s social media user name and password, with there being no time limitation imposed upon the Defendant for access, as general prior Court rulings on this issue in other jurisdictions, have imposed a time limitation on the requesting parties’ access to the disclosing parties’ social media.

Simms v. Lewis

Simms is a ruling decided by the Honorable Thomas Bianco in the Indiana Court of Common Pleas.

Simms involved the Plaintiff’s personal injury lawsuit, following a motor vehicle accident, with the Plaintiff claiming that her injuries were both serious and permanent.

After determining that the Plaintiff had a social media account with Facebook, My Yearbook, and MySpace, and that each of the accounts had been active after the Plaintiff was injured in the motor vehicle accident, the Defendant sought access to the Plaintiff’s social media accounts, filing a Motion to Compel when the Plaintiff refused to allow access.

In the Defendant’s Motion to Compel, the Defendant indicated that the front page of the Plaintiff’s MyYearbook account contained the Plaintiff stating “chillin with my girl tonight.  We’re going to do some Zumba fitness: ) so excited!!! HTC:p,”.

Not surprisingly, the Defendant sought the Plaintiff’s user name and passwords for her social media accounts with Facebook, MyYearbook, and MySpace.  Access to the accounts was sought in order to view private portions and pages on the site, with the Plaintiff impolitely declining to provide that information, resulting in the Defendant filing a Motion to Compel.

TheSimmsCourt began with the premise “as a general rule, discovery is liberally allowed with respect to any matter, not privileged, which is relevant to the cause being tried.” George v. Schirra, 814 A. 2.d 202 (PA.Supr. 2002).

It also reflected on Pennsylvania Rule of Civil Procedure No. 4003.1.

However, the Court indicated that there were no Pennsylvania Appellate Court cases that addressed the issue of discovery requests for information concerning an individual’s social networking account.

While there were no Appellate rulings on that issue, there were a number of Trial Court rulings, with theSimmsCourt citing to the Zimmerman v. Weiss Markets Decision out of Northumberland County in May of 2011, where the Plaintiff had been ordered to provide login and password information for the Plaintiff’s Facebook account, although the Trial Court in Zimmerman specifically limited access to a threshold determination obtainable from access to the Plaintiff’s public page, requiring that the public pages indicate that private postings might contain relevant information.

Adopting theZimmerman threshold, theSimmsCourt ruled that the Defendant must first show that access to the Plaintiff’s social media account would lead to the discovery of relevant information, which the Defendants were able to sustain inSimms, but only as to the Plaintiff’s MyYearbook account.

TheSimms Court denied the Defendant’s request for disclosure of the Plaintiff’s social media account user name and password for the Plaintiff’s Facebook and MySpace accounts, as the Court indicated that the Defendant “has failed to articulate the factual predicate necessary to meet his burden” with regard to those accounts.

So, while an expectation of privacy might be “misplaced”, the right to seek disclosure of social media user information is not absolute, and may well require a requesting party to meet a threshold pre-requisite, proving that public postings implicate the potential relevance of private postings.

New York, New York

Hot off the presses, is the ruling of the United States District Court for Eastern District of New York in the Federal District Court case of Karissa Reid v. Ingerman Smith LLP, which involved the Plaintiff suing the Defendant for economic and non-economic damages arising from the Plaintiff’s alleged sexual harassment by an employee of the Defendant.

In the course of discovery being conducted, the Defendant sought information relating to the Plaintiff’s social media accounts.

The Federal District Court Judge granted that Motion in part, and denied the Motion in part.

Recognizing that the law regarding the scope of discovery of electronically-stored information (ESI) remained unsettled, the Court also indicated that there was no dispute that social media information may be a source of relevant information that is discoverable.

This is particularly true in cases involving claims of personal injury, where social media information may reflect a “Plaintiff’s emotional or mental state, their physical condition, activity level, employment, this litigation, and the injuries and damages claimed.”

The Court cited toSourdiff v. Texas Roadhouse Holdings, LLC a case decided by the United States District Court for the Northern District of New York, in 2011.

As an example, the Court indicated that Plaintiffs who had placed their emotional well-being at issue, in the course of asserting claims of sexual harassment or discrimination, had been subject to some Courts finding that “Facebook usage depicts a snapshot of the user’s relationships and state of mind at the time of the contents’ posting.” Bass v. Miss Porter’s School, 2009 WL 3724968 (D. Conn. 2009).

Conversely, other Courts had observed that “the relevance of the content of a Plaintiff’s Facebook usage… is more in the eye of the beholder than subject to strict legal demarcations.” Bass.

Tripping the light fandango, whether electronically-stored and disseminated on the internet or not, “anything that a person says or does might in some theoretical sense be reflective of their emotional state.” Rozell v. Ross-Holst, 2006 WL 163143 (S.D.N.Y. 2006).

InReed, the Defendant claimed that the Plaintiff’s Facebook postings were relevant, as those postings contradicted the Plaintiff’s claims of mental anguish, allegedly resulting from her alleged sexual harassments, and subsequent termination of employment.

Not surprisingly, the Plaintiff argued that she should not be subject to broad discovery, to include the entirety of her social media accounts, potentially resulting in disclosure of private information.

Considering both arguments, for disclosure and in opposition to disclosure, the Court held in Reed that photographs and comments that the Plaintiff had posted on her publicly available Facebook pages provided probative evidence of her mental and emotional state, and the same could reveal the extent of activities in which she was engaged.

The Court also found that her private postings might likewise contain relevant information similarly reflective of her emotional state.

More germane, maybe to the point of this discourse, the Court further ruled that “even had the Plaintiff used privacy settings that allowed only her ‘friends’ on Facebook to see her postings, she had no justifiable expectations that her friends would keep her profile private”, citing toU.S. v. Meregildo, 2012 WL 3264501 (S.D.N.Y. 2012).

Moreover, the Courts founds that the wider the Plaintiff’s circle of friends might be, the more likely that her post would be viewed by someone that she never expected to view her post.

Although the Court declined to require full disclosure of all materials in the Plaintiff’s social media accounts, holding that not all postings might be relevant to her claims, the Court did order the Plaintiff to provide access to postings on her social media accounts that dealt with her social activities, where relevant to her claims of emotional distress and loss of enjoyment of life.

The Court also indicated that those postings might also provide information regarding potential witnesses with knowledge as to the Plaintiff’s social activity, as well as to the Plaintiff’s claims of emotional distress and loss of enjoyment of life.

So, in conclusion, it really does depend on what the meaning of the word is, is, aswell as no matter what your post, it might become relevant in discovery.

All three of the social media decisions reflected upon herein, clearly established a requesting parties’ right, dependent upon a threshold factual predicate, being that the parties subject to disclosure, and their public postings, suggests the availability of relevant information entitling the requesting party to seek disclosure of private postings, with there being a secondary predicate, being that the information being sought is “relevant” to the claims being asserted by the party to disclosure, as well as obviously relevant to the party seeking disclosure.

Kevin L. Connors can be reached at: kconnors@connorslawllp.com

Notice of Compensation Rate Changes:

The maximum compensation benefit rate for work-related injury and illness occurring during the periodbeginning November 1, 2012 and ending October 31, 2013,has changed to$771 per week for Temporary Total Disability (TTD), Permanent Total Disability (PTD), and Death.

The maximum compensation benefit rate for work-related injury and illness occurring during the periodbeginning August 27, 2010 and ending August 26, 2015,remains at$323 for Permanent Partial Disability (PPD)/Permanent Partial Impairment (PPI).

OVERVIEW OF OKLAHOMA WORKERS’ COMPENSATION

WHAT IS WORKERS’ COMPENSATION?

Workers’ compensation is an insurance program that provides compensation for disability, and medical and rehabilitation benefits, for employees injured on the job. In the case of accidental death of an employee, it includes benefits to the employee’s dependents. Under workers’ compensation, both workers and employers are protected. Each covered worker has a right to benefits for a compensation injury. In return, employers are protected from liability lawsuits outside the workers’ compensation system.

DEFINITIONS

“Compensable injury" means any injury or occupational illness, causing internal or external harm to the body, which arises out of and in the course of employment if such employment was the major cause of the specific injury or illness. An injury, other than cumulative trauma, is compensable only if it is caused by a specific incident and is identifiable by time, place and occurrence unless it is otherwise defined as compensable in this act. A compensable injury must be established by objective medical evidence. The employee has the burden of proof to establish by a preponderance of the evidence that such unexpected or unforeseen injury was in fact caused by the employment. There is no presumption from the mere occurrence of such unexpected or unforeseen injury that the injury was in fact caused by the employment.

"Compensable injury" means a cardiovascular, coronary, pulmonary, respiratory, or cerebrovascular accident or myocardial infarction causing injury, illness, or death, only if, in relation to other factors contributing to the physical harm, a work-related activity is the major cause of the physical harm. Such injury shall not be deemed to be a compensable injury unless it is shown that the exertion of the work necessary to precipitate the disability or death was extraordinary and unusual in comparison to the usual work of the employee, or alternately, that some unusual incident occurred which is found to have been the major cause of the physical harm.

"Consequential injury" means injury or harm to a part of the body that is a direct result of the injury or medical treatment to the part of the body originally injured in the claim. The Court shall not make a finding of a consequential injury unless it is established by objective medical evidence that medical treatment for such part of the body is required.

"Cumulative trauma" means a compensable injury which is repetitive in nature and engaged in over a period of time, the major cause of which results from employment activities, and proved by objective medical evidence.

"Light duty" describes the status of an employee when a physician has declared the employee available for work with specific temporary physical restrictions.

"Maximum medical improvement" means that no further material improvement would reasonably be expected from medical treatment or the passage of time.

"Permanent partial impairment" means any anatomical abnormality or loss of use after maximum medical improvement has been achieved which can be evaluated by a physician. Any examining physician shall only evaluate impairment in accordance with the method prescribed in Section 33 of this act. All evaluations of permanent impairment must be supported by objective medical evidence.

"Permanent total disability" means incapacity, because of accidental injury or occupational disease, to earn wages in any employment for which the employee may become physically suited and reasonably fitted by education, training or experience, including vocational rehabilitation. Loss of both hands, or both feet, or both legs, or both eyes, or any two thereof, shall constitute permanent total disability.

"Temporary partial disability" describes the status of an injured worker who is under active medical care that is expected to improve his or her condition and who is unable to perform some of the normal activities of his or her work or is limited to a portion of his or her normal hours of employment.

OKLAHOMA WORKERS’ COMPENSATION COURT
L. Brad Taylor, Presiding Judge
Michael Clingman, Court Administrator
Joyce Sanders, Court Clerk
www.owcc.state.ok.us

Useful websites:

Oklahoma Workers’ Compensation Court

http://www.owcc.state.ok.us

Oklahoma Insurance Department

http://www.ok.gov/oid

Oklahoma Department of Labor

http://www.ok.gov/odol

Currently in South Dakota you cannot force a claimant to attend an IME unless the doctor conducting the IME is licensed in South Dakota.  If the claimant volunteers to go to a non-SD licensed doctor, the IME is valid and can be used.

There is going to be some legislation proposed where the defense bar would be allowed to use non-SD licensed doctors in exchange for increasing the notice period from 3 days to 7 days.  This seems like a good compromise as there are very few doctors licensed in SD who will do IMEs, and there are lots of exceptions to the notice provision.  We will wait and see if this compromise gets passed.  If it does, the new law would take effect on July 1, 2013. 

If you have questions, please contact Charlie Larson at 605-336-2424 or calarson@bgpw.com

South Dakota had a recent SD Supreme Court case where the department and appellate court held for the employer and insurer on a medical issue.  The case went up to our high court.  The issue was whether the work injury remained a major contributing cause of the claimant's need for treatment.

The treating doctor testified on behalf of the employee.  The insurer had a record review done by an orthopedic surgeon. The court reversed the department's ruling on causation for two very important reasons: 1. the court indicated a strong preference for the treating doctor; and 2. the court indicated it's disdain for record reviews.

Record reviews are helpful, but in order to have a fighting chance in SD, you must have the patient examined.  The court discussed how the record review doctor never took a history and found that to be very important. 

Record reviews are still a helpful tool as you do not need to disclose them if they are adverse.  If you have a favorable record review and the case is litigated, you need to get an IME and have that doctor testify at hearing in order to have a chance at prevailing.

Please contact me if you have any questions.  Charles Larson - (605) 336-2424 -calarson@bgpw.com

Whitney Teel is a contributing author toThe Complete Guide to Medicare Secondary Payer Compliance, a comprehensive handbook published by Matthew Bender and that be purchased throughLexisNexis.

This legal treatise covers Medicare reporting requirements nationwide, techniques to avoid pitfalls and delays under CMS’ policies and procedures to obtain MSAs, state specific WCMSA requirements, overview of understanding MSA evaluations, avoiding rejection of MSA proposals, achieving better CMS outcomes and avoiding overly inflated MSAs. Teel is the contributing author for the Minnesota section on State Specific WCMSA. Other contributions were provided by insurance industry in-house counsel and private firm attorneys.

  Industry news outlet Work Comp Central recently interviewedTom Atchison regarding the Supreme Court ruling inDykoff v. Xcel Energy.

The article discussed the Minnesota Supreme Court’s endorsement of the “increased risk” test as the standard for compensability.

The article also discussed how Minnesota courts have previously interpreted the statutory requirement that injuries “arise out of and in the course of” employment. According to Atchison, the interpretation has “varied from court to court and case to case” over the years and the recent ruling “clears up a point of uncertainty” for workers, employers, and carriers.

The full article is available from Work Comp Central here.

Thomas Coleman will be a presenter at the March 7 Advanced Workers' Compensation Seminar. The covered topics include: Undocumented Workers’ Right to Work Comp Benefits, Permanent Total Disability Claims Litigation, Evaluating Exposure and Settlement, Employer Protections, Legislative and Case Law Update, WC Attorney and Ethical and Professional Behavior, and A View from the Department of Labor and Industry provided by Commissioner Ken Peterson.

Tom will present on ethics and professional behavior and evaluating exposure and settlement.

For more information on this all day seminar or to register, please visit: Advanced Workers' Compensation Seminar

James Waldhauser will moderate and speak at theWorkers' Compensation Update in Minnesota hosted by Lorman on February 7.

Attendees will hear speakers discuss a general overview of forms, benefits, time lines and penalties, as well as case law, new legislation, interplay between ADA and work comp, subrogation, retaliation and a panel on settlements, fraud and return-to-work.

To learn more specifics about this event or to register, visit www.lorman.com

Requirement to Provide Notice to Employer

Anderson v. Frontier Communications

Minnesota Supreme Court, filed September 5, 2012

The Minnesota Supreme Court reversed the WCCA and affirmed the Compensation Judge’s findings, holding that the failure of the employee to give timely notice of his work related injury to the employer, as well as the employer’s lack of actual knowledge regarding the work related nature of the employee’s injury, precludes recovery of benefits under the Minnesota Workers Compensation Act.

 The Employee worked from 1987 to 2007 as a lineman for a communications company, which was a physical job that required frequent heavy lifting and bending over to mark underground cables.  Pursuant to his testimony given to the Compensation Judge, following the gradual onset and progressive worsening of his low back pain symptoms from 2004 to 2005, and following his consultation with a surgeon in May 2007, the Employee knew that his work activities at the Employer were causing or aggravating his low back problems. However, it was not until May 2009 that the Employee, through his attorney, gave notice to the Employer of the claimed work related nature of his low back condition.

 As the Anderson court held, pursuant to Minn. Stat. § 176.141 and Issacson v. Minnetonka (Minn. 1987), in order to recover workers compensation benefits, an employee must either: (1) give notice of injury no more than 180 days after “it becomes reasonably apparent to the employee that the injury has resulted in, or is likely to cause, a compensable disability,” or (2) must show that the employer had actual knowledge of the injury, or in other words, that the employer had “some information connecting work activity with an injury.”

Here, where the Employee knew in May 2007 that his work activities were contributing to his low back problems, but failed to provide notice to the Employer of this fact until May 2009, and also failed to show that the Employer had actual knowledge of the injury, he was barred from recovering benefits under the Minnesota Workers Compensation Act.

Justices Paul Anderson, Alan Page, and Helen Meyer all dissented. In his dissent, Justice Paul Anderson noted the stoic attitude of the Employee with respect to his own pain symptoms, and provided an interesting and somewhat animated discussion on the point at which the Employee, as a reasonable person, may have realized the compensable nature of the disability he sustained from his work injury.

Causation

Preston vs. Hitchin Rail

W.C.C.A., June 4, 2012 ~ Reviewed by Natalie K. Lund

The Employee sustained a work-related injury to her back on September 28, 2004. After subsequent settlement and return to work, the Employee alleged a second specific injury to her back and neck on December 22, 2006. She continued to work with the pre-injury employer, and ultimately alleged her work duties aggravated her back and neck conditions. A Claim Petition was filed asserting injury dates of September 28, 2004, December 22, 2006 and a Gillette injury culminating in July of 2006. Dr. Wengler testified on behalf of the employee, concluding the Employee’s work activities after April 2005 and/or her fall on December 22, 2006 were a substantial contributing cause of her lumbar and cervical spine conditions.  The compensation judge found the employee sustained a Gillette injury to her cervical and lumbar spine arising out of and in the course of her employment in 2005 and 2006, which culminated on March 5, 2007, when the employee was taken off work, and that the December 22, 2006 injury further aggravated the employee’s conditions. Both injuries caused the employee’s need for medical treatment and disability. The employer and insurer appealed.

The WCCA affirmed in part and vacated in part. The employer and insurer’s contention that the employee’s expert, Dr. Wengler, lacked foundation was denied.  The fact that Dr. Wengler did not mention prior chiropractic records in his report was not sufficient to show he assumed there were no prior low back complaints where he acknowledged having read such records in his deposition.  The determination of the compensation judge on the credibility of the employee was also affirmed despite the employee’s inconsistent recollection of her medical history.  The WCCA vacated the finding of the compensation judge that the Gillette injury culminated on March 5, 2007, as the date was irrelevant given the finding as to a specific injury on December 22, 2006. The award was affirmed.

Causation/Evidence

Myhre vs. Public Storage, Inc.

W.C.C.A. file June 5, 2012 ~ Reviewed by Natalie K. Lund

The WCCA affirmed the findings of the compensation judge that the employee was not exposed to mold in her employer-furnished apartment and that she was not disabled as a result of that exposure.  From June 2008 through August 2010, the employee lived in an employer-furnished apartment. She reported a foul odor from the basement of the apartment and water damage on the wall of the basement to her district manager. A February 8, 2009 x-ray indicated a one centimeter ovoid nodular density in the right lung. In late 2009 and 2010, the employee treated with symptoms including heavy feeling in her chest and coughing. She reported there was black mold in her basement. However, her medical history included heavy smoking and she had treated in the past for respiratory infection, cough and shortness of breath.  On August 5, 2010, the employee’s residence was inspected for mold exposure by EFI Global, Inc.  The inspection found that there was evidence of water and moisture damage in the basement, but there were no visible signs of fungal growth in the living or basement area of the residence. At hearing, the employee made a claim for temporary total disability benefits and medical expenses based, in part, on two exhibits of medical journal articles. The employer and insurer objected, which the compensation judge sustained. The judge found the employee failed to prove she was exposed to mold in the employer-furnished apartment or that she was temporarily and totally disabled. Within her memorandum, the judge discussed the articles submitted by the employee’s attorney. The employee appealed the decision and the employer and insurer cross-appealed the judge’s consideration of the employee’s exhibits.

The WCCA found substantial evidence supported the compensation judge’s finding that the employee was not exposed to mold. The employee was not disabled as a result of mold exposure.  Finally, where there was no indication the judge’s consideration of the article exhibits formed the basis for her decision, any error by the judge in discussing the exhibits not admitted into evidence was harmless.

Notice

Dahlen vs. Hiway Amoco, Inc.

W.C.C.A., June 7, 2012 ~ Reviewed by Natalie K. Lund

The WCCA affirmed the findings of the compensation judge that the employee failed to prove she sustained a personal injury on March 9, 2009 and that she failed to provide notice of an injury as required by Minn. Stat. 176.141. The employee alleged that on March 9, 2009, her foot became stuck between two pallets.  As she pulled her foot out, she experienced an onset of pain and her foot began to swell. The employee testified she told her supervisor about the injury the following day. The supervisor testified she was not told about the injury at work. She was only told the employee had injured her foot.  This was supported by a medical records stating the injury had not been reported to workers’ compensation.  Further, another employer witness testified there was no way the employee could have fit her foot in between the two pallets. The compensation judge accepted the testimony of the employer witnesses, as well as the report of the employer’s IME doctor, Dr. Segal. The WCCA found there was substantial evidence to support the compensation judge’s denial of a compensable claim.

Jurisdiction

Stevens-Stevenson vs. Greater Lake Country Food

W.C.C.A., May 18, 2012 ~ Reviewed by Natalie K. Lund

The employee sustained three work-related injuries in the course and scope of her employment with Greater Lake Country Food: a 1996 right shoulder injury, a 1997 right ankle injury, and a 1998 cervical injury.  In May 2011, the employee filed a medical request for payment or approval of recommended cervical and lumbar MRI scans. The attached medical records included an MRI order form, which indicated the employee had right hand pain and numbness “shooting down legs”. Physical therapy records noted chronic neck pain, bilateral hip pain and decreased lumbar and hip range of motion. In a Decision and Order, the mediator/arbitrator denied the medical request based on his conclusion that inadequate documentation had been established to support the request. A request for formal hearing was filed.  Counsel for the employer and insurer argued at hearing that the compensation judge lacked jurisdiction to determine the employee’s entitlement to the claimed treatment where the employer and insurer had never admitted liability for lumbar spine or hip injuries. The compensation judge awarded the lumbar MRI. The employer and insurer appealed.

The WCCA vacated the decision of the compensation judge on separate grounds. The Court found that a claim that a work injury has produced or contributed to a condition in a different body part than the original injury – what is commonly referred to as a consequential injury – raises the issue of causation, not primary liability.  A consequential injury is not a separate injury that must be pleaded by claim petition.  Jurisdiction was appropriate.  However, the employee had produced a medical report two months prior to the hearing, which formed the support for her claim. The employer and insurer had not received sufficient notice of that report, and had been unable to perform responsive discovery. On that basis, the judge’s decision was vacated and remanded for additional proceedings.

Causation – Occupational Disease – Expert Medical Opinion

Vandenberg v. Swanson & Youngdale, Inc.

WCCA, filed 9/18/12 ~ Reviewed by Joseph D. Amos

The WCCA affirmed the Findings of the Compensation Judge that the employee sustained a work-related injury to his kidneys.

The employee was exposed to various solvents and chemicals, including latex products, xylene and epoxy products during his career as a commercial painter. The employee obtained causation opinions from three different doctors, who opined that the exposure was the cause of the employee’s kidney problems because they were unable to come up with any other cause. The employer’s expert opined that the exposure was not the cause because it was not the result of an acute, high-level exposure.

The compensation judge accepted the opinions of the treating physicians. The WCCA rejected the employer’s arguments that the treating physician’s opinions lacked foundation and were not given to the degree of medical certainty required by law. The WCCA affirmed, granting deference to the province of the compensation judge to decide questions of medical causation.

Petition to Discontinue PTD

Stevens v. S.T. Services

WCCA, filed October 8, 2012 ~ Reviewed by Jennifer Augustin

The Employer and Insurer filed a Petition to Discontinue the Employee’s PTD benefits with the WCCA, alleging that he was no longer permanently and totally disabled because he had engaged in and was capable of gainful employment. A prior Stipulation for Settlement provided the Employee would continue to receive PTD benefits “subject to the terms and conditions of Chapter 176.” Given this language, the court determined it was evident the parties contemplated continued payments only so long as the Employee continued to qualify as permanently and totally disabled under the statute. The WCCA refused to issue a decision and referred the matter to the Office of Administrative Hearings for a full evidentiary hearing to determine if the Employee was permanently and totally disabled, and whether the Employer and Insurer were entitled to a credit for benefits paid while the Employee was gainfully employed.

Res Judicata Effect of § 176.106 Decisions

Abbett, Jr. v. Georgia-Pacific Corp.

WCCA, filed October 11, 2012 ~ Reviewed by Jennifer Augustin

The WCCA reiterated its prior decisions acknowledging the potential for res judicata effect by unappealed Minn. Stat. § 176.106 decisions from the Department of Labor and Industry, but only for those issues specifically decided in the prior proceeding. Problems exist in using administrative decisions to bar future claims and defenses since there is no record of the administrative conference, no sworn testimony, and no formal exhibits. Giving res judicata effect to an administrative decision concerning future treatment may be particularly inappropriate.

Independent Contractor v. Employee

Price v. David Fox

WCCA, filed October 15, 2012 ~ Reviewed by Jennifer Augustin

Where a homeowner hired Price to mow the lawn, remove leaves, and shovel snow, Price was paid a guaranteed salary based upon 16 hours per week with payment on an hourly basis for any time expended in excess of 16 hours, where Price decided what days and hours he worked, where the homeowner provided 90% of the tools and equipment, where Price was allowed to hire whomever he wished to assist him, and those assistants were paid based upon the hours Price billed to the homeowner, the WCCA concluded that Price substantially met all of the safe harbor criteria for an independent contractor pursuant to Minn. R. 5224.0110, subp. 1, and reversed the decision of the compensation judge.  Even had they not concluded he met all of the safe harbor criteria, they would nevertheless have concluded he was not an employee under the general rules, where the right to control the means and manner of the performance of the work is the most significant factor to consider. The court pointed out that the homeowner may control the quality or description of the work without controlling the means or manner by which the person performs the work.

Traveling Employee

Eide v. Award Const. Co.

W.C.C.A., filed Oct. 16, 2012 ~ Reviewed by Jennifer Augustin

The Employee was required to travel to California for work. While in California and after his work shift, he died from a heart attack in his hotel room. The WCCA affirmed the Compensation Judge’s denial of dependency benefits holding that, while the death occurred “in the course of employment” under the traveling employee doctrine, it did not “arise out of the employment,” because there was no causal connection between the Employee’s work and his fatal heart attack.  In other words, there was no increased risk or hazard with its origin or source in the employment and beyond the exposure of the general public.

Milbrat v. The MarketPlace, Inc.

W.C.C.A., filed Oct. 22, 2012 ~ Reviewed by Jennifer Augustin

The Employee sustained a work-related injury. While traveling from her treating physician’s office to her usual and customary pharmacy to fill prescriptions related to her injury, she was involved in a motor vehicle accident, sustaining further injury. The WCCA concluded that coverage shall be granted for this injury that occurred during travel to obtain medication for a work injury. They cite prior case law extending coverage to those employees injured during travel to or from a doctor for treatment of a work injury, which says the employer has an obligation to provide medical treatment and the employee has an obligation to receive such treatment and thereby avoid further medical complications.  The proper treatment of an employee’s injury is in the interests of both the employee and employer.  This same rationale is equally applicable to cases in which an employee is traveling to obtain medication prescribed to cure and relive her from the effects of the work injury.