NWCDN Members regularly post articles and summary judgements in workers’ compensations law in your state.
Select a state from the dropdown menu below to scroll through the state specific archives for updates and opinions on various workers’ compensation laws in your state.
Contact information for NWCDN members is also located on the state specific links in the event you have additional questions or your company is seeking a workers’ compensation lawyer in your state.
In Wissing v. Walgreen Company, 20 Neb. App. 334 (2012), the Nebraska Court of Appeals addressed the latent and progressive exception to the two-year statute of limitations in workers’ compensation cases. Claimant had a compensable shoulder injury in January 2007. He reached MMI with permanent impairment in March 2008; there was a notation the claimant would continue to have some shoulder pain. In July 2010, more than two years from the date of last payment of compensation, claimant had an increase in pain over what he expected. He was ultimately diagnosed with a cervical condition. The trial court found that the conditions were latent and progressive, and thus were not barred by the statute of limitations, because the petition was filed within two years of the time the condition became apparent, and the Court of Appeals affirmed. While claimant was told to expect a certain amount of continuing pain in his shoulder, he had an increase in pain that was unexpected, which was when the condition was apparent. One medical expert opined that the neck injury was compensable as a result of the 2007 incident because of the reported symptomsat the time of the initial diagnosis, even though only a shoulder injury was diagnosed. This suggests the neck condition was reasonably discoverable at that time (since he had symptoms suggesting it). However, the Court of Appeals analyzed it from the claimant’s perspective and the misdiagnosis or incomplete diagnosis at the time of injury did not make the condition reasonably discoverableby the claimant at that time, even if it may have been reasonably discoverable by the physician.
The Nebraska Workers’ Compensation Court has announced that the new mileage rate effective January 1, 2013, is $.565.
Membership in the Alabama Workers’ Compensation Organization offers a number of professional and social opportunities. Among these is the popular 3 day Annual Spring Conference usually held in early May. If you pay your dues by January 31st the 2013 Spring Conference is FREE.
A link to the application is below.
http://awcotoday.com/tyfoon/site/fckeditor/file/2013AWCOMembershipApplication.pdf
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About the Author
This article was written by Michael I. Fish, Esq. of Fish Nelson 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 at mfish@fishnelson.com or any firm member at 205-332-3430.
Effective January 1, 2013, the standard mileage reimbursement rate for Alabama was increased to 56.5 cents per mile.
_________________________________________
About the Author
This article was written by Michael I. Fish, Esq. of Fish Nelson 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 at mfish@fishnelson.com or any firm member at 205-332-3430.
On December 14, 2012, the Alabama Court of Civil Appeals released its opinion in Goodyear Tire & Rubber Company v. Marvin Wilson. On appeal, was the trial court’s holding that the employee’s current complaints of back pain were caused, at least in part, by a 1986 lumbar back strain. The 1986 claim resulted in a 1987 lawsuit which was subsequently settled with future medical benefits remaining open. Per the authorized treating physician, he had been treating the employee from time to time from 1987 until the present. However, it was his opinion that the employee’s current complaints were likely due to his degenerative arthritis rather than the original compensable lumbar strain. In holding the employer to be responsible for the current care, the trial judge noted that the physician could not rule out with certainty that the lumbar strain did not, at least, contribute to the employee’s degenerative arthritis. In reversing the trial court, the Court of Appeals noted that the physician’s testimony only provided a mere possibility that the current back pain and the 1986 injury were related. As such, the trial judge’s holding was not considered to be supported by substantial evidence.
My Two Cents: At the trial of this case, it was assumed that the burden of proof was on the employer to prove that the current complaints of pain were not related to the previously accepted and compensable injury. However, it should be noted that it is always the burden of the employee to prove, by a preponderance of the evidence, that the complaint for which he or she seeks medical treatment arose out of and in the course of his or her employment.
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About the Author
This article was written by Michael I. Fish, Esq. of Fish Nelson 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 at mfish@fishnelson.com or any firm member at 205-332-3430.
NC Risk Handling Hint - Futile Job Search
TheThompson Court reinforces the Commission’s discretion to weigh evidence, draw inferences from the evidence and paraphrase testimony. Defendants challenged the Commission’s factual conclusions regarding Thompson’s vocational and educational history, but the Court found that while Thompson may not have used the ‘precise’ words in the Full Commission’s decision, the Commission’s findings ‘paraphrased’ Thompson’s testimony and that the Commission drew reasonable inferences from his testimony. The Court continues to clarify that it will not disturb the Commission’s credibility determinations on appeal.
Kelvin D. Thompson filed a claim for workers’ compensation benefits on October 21, 2008. One year later, the Deputy Commissioner entered an Opinion and Award concluding that Thompson had suffered a compensable back injury and awarding him temporary total disability benefits, payment of past and future medicalexpenses, and attorney’s fees. On appeal by Defendants, the Full Commission adopted the Deputy Commissioner’s Opinion and Award with minor modifications. In its Opinion and Award, the Full Commission incorporated language from both the first and third prongs ofRussell v. Lowes Prod. Distribution, 108 N.C. App. 762, 425 S.E.2d 454 (1993), to justify its determination that Thompson was disabled (“[G]iven plaintiff’s current physical andvocational limitations, plaintiff is incapable of work in any employment”). Defendants appealed, and the North Carolina Court of Appeals remanded the case for clarification of the basis for the Full Commission’s conclusion that Thompson was disabled.
The Full Commission entered a new Opinion and Award on remand, finding that Thompson had “met his initial burden to show that he was totally disabled . . . by showing that a job search would be futile in light of his physical and vocational limitations.” The Full Commission further concluded that “[D]efendants have not shown that suitable jobs are available for plaintiff and that plaintiff is capable of obtaining a suitable job, taking into account plaintiff’s physical and vocational limitations.” Defendants appealed again to the Court of Appeals.
On November 6, 2012, inThompson v. Carolina Cabinet Co.,the Court of Appeals first considered Defendants’ argument that theFull Commission’s conclusion of law that Thompson was disabled failed to adequately identifywhich prong of Russell the Commissionapplied. In rejecting this argument, the Court noted that although the Full Commission did not expressly state which prong ofRussell it applied, it was apparent from the Commission’s findings that it applied the third prong. In order to support a conclusion of disability, the Commission must find that Thompson was incapable of earning pre-injury wages in the same or any other employment, and that the incapacity to earn pre-injury wages was caused by his injury.Hilliard v. Apex Cabinet Co., 305 N.C. 593, 595, 290 S.E.2d 682, 684 (1982). Pursuant toRussell, an employee may meet his initial burden of production on this issue by producing one of the following: (1) medical evidence that he is physically or mentally, as a result of the work-related injury, incapable of work in any employment; (2) evidence that he is capable of some work, but that he has, after a reasonable effort, been unsuccessful in his efforts to obtain employment; (3) evidence that he is capable of some work, but that it would be futile because of pre-existing conditions, such as age, inexperience, or lack of education, to seek employment; or (4) evidence that he has obtained other employment at wages less than his pre-injury wages. Russell, 108 N.C. App. at 766, 425 S.E.2d at 457.
Defendants pointed to theCommission’s reliance on Thompson’s“physical” and “vocational” limitations, arguing the Commission improperly merged the first and third prongs ofRussell. The Court concluded, however, that any determination under the third prong necessarily required the Commission to consider both types of limitations, since a job search would be limited only to those jobs consistent with Thompson’s physical restrictions. The Court further noted that the Commission was not required to state specifically that Thompson was “capable of some work,” because a finding of futility presumes that an employee is capable of some work physically. According to the Court, there would be no need for a finding that a job search would be futile if an employee was in fact incapable of working at all under the first prong ofRussell.
The Court also rejected Defendants’ argument that the Full Commission erred in determining that Thompson meet his burden of showing disability under the third prong of Russell. With respect to vocational considerations, the Commission pointed out that Thompson was, at the time of itsdecision, 45 years-old with a high school education and limited work experience. With respect to physical limitations, the Commission noted that Thompson was restricted to lifting no more than 15 pounds and working no longer than nine hours per day. In addition, he was required to avoid repetitive bending, lifting, and twisting, and had been experiencing steady, intense pain. The Court held that these findings were supported by competent evidence and were sufficient to support the Commission’s conclusion that it would be futile for Thompson to search for a job consistent with his physical restrictions. The Court also pointed out that once an employee meets his initial burden of production underRussell, the burden of production shifts to the employer to show that suitable jobs are available and that the employee is capable of obtaining a suitable job taking into account his physical and vocational limitations and that Defendants made no argument that the Full Commission erred in concluding that they failed to meet this burden.
NC Risk Handling Hint - Necessary Findings of Facts Supporting an Opinion and Award and Credibility
The issue of credibility is squarely within the domain of the Industrial Commission and their findings rooted in the issue of credibility will rarely be disturbed on appeal.
Corey McAdams worked for Safety Kleen as a vacuum customer service representative. On March 22, 2007, he was injured under compensable circumstances as a result of a motor vehicle accident. He received ongoing medical treatment from multiple physicians, some of whom concluded that McAdams had a variety of injuries and was unable to return to work. Other physicians who treated McAdams concluded that he had not sustained any serious injuries, and that there was nothing preventing him from returning to work. In addition, McAdams provided conflicting accounts of the circumstances under which he was injured. He initially stated that he was making a left turn and the driver of another vehicle struck the rear of his car as he was turning. Contrary to this account, McAdams later indicated that his vehicle was actually stopped on the side of the road and that as he started to exit his car, the driver of the other vehicle involved rear-ended his car, throwing him around and causing him to lose consciousness. Shortly after the accident, McAdams also completed an accident report in which he checked the box indicating that he had not been injured in the accident.
After a hearing and appeal to the Full Commission, the Full Commission entered an Opinion and Award granting indemnity and medical benefits. The Full Commission did not make any Findings of Fact as to what injuries McAdams actually sustained in the accident and did not reconcile the different versions of the accident which were provided by McAdams. Defendants appealed to the Court of Appeals.
In January 2012, the Court of Appeals remanded the case to the Full Commission to make specific Findings of Fact with respect to the crucial facts upon which the question of an employee’s right to compensation depends. The Court noted that the findings must be sufficiently specific to enable a Court on appeal to determine whether they are supported by the evidence and the law appropriately applied. According to the Court, it was unclear which version of McAdams’ accident the Commission found credible, and the Findings of Fact that were made tended to indicate that McAdams had made many representations and exaggerations regarding the accident and his medical condition. Notwithstanding these inconsistencies, the Full Commission never made a determination of McAdams’ credibility. The Full Commission also failed to determine whether the doctors who had concluded that McAdams required medical care based their opinions on an entirely inaccurate description of the accident. Judge Bryant dissented, however, noting that, notwithstandingthe different versions of the accident which McAdams conveyed, defendants admitted compensability of the accident on a Form 60 and that the Court should be careful not to extend its authority to areas solely reserved for the Commission – credibility of evidence. Judge Bryant also indicated that the Findings of Fact were supported by the evidence despite the existence of contradictory evidence.
On October 5, 2012, inMcAdams v. Safety Kleen Sytems, Inc., the Supreme Court reversed the Court of Appeals for the reasons in Judge Bryant’s dissent.
The policy for settlement of cases involving child support liens is set forth in the Mississippi Workers' Compensation Notice dated June, 2012. The link for the notice is as follows: www.mwcc.state.ms.us/law-clms/Child%20Support%20Web%20Policy.pdf
If you have any questions about this article or about Mississippi's workers’ compensation system, please feel free to contact Virginia S. Gautier, Andrew D. Sweat or Jennifer H. Scott at Wise Carter Child & Caraway, PA. Information about the Wise Carter Child & Caraway PA law firm can be located at www.wisecarter.com.
Mississippi enacted legislation that became effective on July 1, 2012 that amended the Mississippi Workers' Compensation Act. A brief summary of some of the changes to the Act include the following. First, prior to the amendment to the statute, case law required the Mississippi Workers’ Compensation Act to be construed in a light most favorable to the claimant in situations where the Commission did not think the evidence clearly supported one side over the other. Miss. Code Ann. § 71-3-1 now requires the Workers’ Compensation Act to be impartially construed and applied according to the law and the evidence in the record. Second, the Legislature added language to Miss. Code Ann. §71-3-7(1),which assists the employer and carrier in the event the claimant files a Petition to Controvert and the employer had absolutely no knowledge of the injury. Where no benefits of any kind have been paid, the claimant is now required to attach medical records supporting his claim when filing a Petition to Controvert for a date of injury after July 1, 2012. If the Petition is filed near the end of the two year limitation period, the claimant will have an additional 60 days after filing the Petition to file supporting medical records with the Commission. Third, Miss. Code Ann. §71-3-7(2) contains a provision which assists the employer and carrier in seeking apportionment. Previously, apportionment was not available to the employer and carrier unless it could be shown that the pre-existing medical condition had rendered the claimant occupationally disabled in some form. The new statutory language states that the pre-existing condition does not have to be occupationally disabling for apportionment to apply. Additionally, pursuant to Miss. Code Ann. §71-3-15(1), if an employee has surgery for the injury at issue or treats with a physician for six months or longer, that physician is now deemed the employee’s choice of physician.
This article was written by Virginia S. Gautier, Esq. of the law firm of Wise Carter Child & Caraway PA. If you have any questions about this article or about Mississippi's workers’ compensation system, please feel free to contact the author atvsg@wisecarter.com. Information about the Wise Carter Child & Caraway PA law firm can be located atwww.wisecarter.com .