State News

In Linda Muellenberg v. Redfield Ace Hardware d/b/a Investment Enterprises and First Dakota Indemnity Company HF No. 33, 2022/2023, Linda Muellenberg (“Claimant”) worked for Redfield Ace Hardware (“Employer”) as a cashier, but she would also stock products on shelves. On December 3, 2020, Claimant sustained a work injury to her left eye when she was struck by the metal end of a bungee cord after it detached from a shelf (the “Injury”).

Following the Injury, Claimant required surgery on her left eye. After surgery, she was released to full-duty work by her treating doctor, Dustin Dierks. Following her release to full-duty work, no permanent work restrictions were imposed by any of her medical providers. Later, Claimant treated with her new doctor, Alex Ringeisen, who found Claimant to have a visual acuity of 20/40 in her injured eye with glasses or contact correction.

Claimant alleged she was permanently and totally disabled under SDCL § 62-4-53 and primarily relied on the alleged fact that she could not safely drive the approximate 10 miles from her home in Zell, South Dakota, to nearby Redfield, South Dakota for employment opportunities. Further, Claimant admitted she had previously driven herself from her home in Zell, South Dakota, to her mother-in-law’s home approximately five miles away but did not feel comfortable driving to Redfield, South Dakota, 10 miles away.

However, Claimant’s treating doctor testified there was no medical reason why Claimant could not drive, but he ultimately left the choice of whether to drive up to the discretion of the patient. Employer had an Independent Medical Examination completed by Dr. Douglas Martin, who opined there was no medical reason why someone with partial vision in one eye cannot drive and noted patients with partial vision drive personal and commercial vehicles.

Claimant provided a vocational assessment from their expert, Tom Audet, who concluded that Claimant was unemployable due to her inability to drive to work. He testified that his opinions were based on what Claimant felt she was able to do. Employer provided a vocational assessment from their expert, Chad Kollars, who concluded that Claimant was capable of driving to and performing work in Redfield. Chad based his assessment on the medical opinions of Claimant’s treating physicians, which indicated Claimant could drive and had no formal work restrictions.

Employer’s main argument, and biggest concern, in this file, was that workers’ compensation claimants should not be allowed to determine their restrictions based on their subjective beliefs or limitations when no formal medical restrictions have been imposed.

The South Dakota Department of Labor (the “Department”) relied on Billman v. Clarke Mach., Inc., 2021 S.D. 18, 956 N.W.2d 812, in which the Court held “[t]he Department must take a holistic approach to a claimant's condition, as each factor affects the severity of the others. The statute explicitly requires the Department to examine the ‘employee's physical condition, in combination with the employee's age, training, and experience[.]’” Id. at ¶ 37.

The Department ultimately held that while Claimant had symptoms that made her uneasy about driving, her feelings, without formal restrictions related to her condition, failed to prove she was “obviously unemployable.” Further, the Department found Chad Kollars’ assessment more persuasive because it did not rely on Claimant’s subjective views of her condition. Therefore, the Department concluded Claimant was not entitled to Permanent Total Disability (PTD) benefits.

The Muellenberg ruling is still ripe for appeal at this time. In South Dakota, Claimant can appeal to the circuit court who will make a ruling. That decision can then be appealed as a matter of right to the SD Supreme Court.  

LEGISLATIVE UPDATE

In the 2024 session several bills were considered that addressed workers’ compensation, but no statutes were passed.  Some of the legislation considered (but not passed) included raising the number of weeks for permanency of the cervical spine (now 117 weeks versus 374 for the lumbar spine), requiring carriers to file a notice to terminate prescription medication before cutting off drugs unilaterally, making medical providers provide health records timely or face potential fines, and disallowing municipalities from reducing pension benefits due to the receipt of permanency benefits.

CONNECTICUT WORKERS’ COMPENSATION COMMISSION NEWS

IS THE REBUTTABLE PRESUMPTION OF EXECUTIVE ORDER 7-JJJ STILL IN PLACE FOR COVID-19 CLAIMS?

On July 24, 2020, Governor Lamont issued Executive Order 7-JJJ which established a rebuttable presumption in favor of COVID-19 injuries if the injury occurred between March 10, 2020 and May 20, 2020 and was sustained by an “essential employee.” This changed the burden of proof for a workers’ compensation claim in Connecticut; generally, a claimant has the burden to prove causation and compensability of a claim. Murchison v. Skinner Precision Industries, Inc., 162 Conn. 142, 151-52 (1972); 

Governor Lamont’s power to issue Executive Order 7-JJJ is derived from the Connecticut Legislature’s enactment of Connecticut General Statutes §28-9.  In that statute, the Governor is given the power to proclaim a civil preparedness emergency and issue an order modifying or suspending a statute, however, the Governor’s power to modify the statute is for a period “not exceeding six months unless sooner revoked ....” § 28-9(b)(1).  Executive Order 7-JJJ went into effect on July 24, 2020; the Governor stated in the order it was to “remain in effect for six months.”  If Executive Order 7-JJJ ended in 2021 and is therefore no longer in place or operable then a valid argument can be made that the rebuttable presumption of Executive Order 7-JJJ no longer is applicable.

The Connecticut Supreme Court in the case of Casey v Lamont, 338 Conn. 479 (2021), confirmed that the Executive Orders issued by the Governor during the pandemic were not permanent changes to the statute. Id., 664-65.  In Casey, the plaintiffs questioned the constitutionality of the Executive Orders which required them to provide only “take out” service at their pub; due to this order the plaintiffs were forced to shut down their business. Id., 653. Ultimately, the Supreme Court determined that the Orders and Statute were not an unconstitutional delegation of legislative powers to the Governor, to wit, a violation of the Separation of Powers, Connecticut Constitution, Article Second.  In reaching the decision that the Executive Orders passed constitutional muster,  the Court noted that  §28-9 provided limits as to how long the Executive Order can be in place:  “Finally, the governor's actions have temporal limitations, namely, the period of time the modification or suspension may be enforced is limited to six months.  Therefore, any actions the governor takes under subsection (b)(1) are temporary, that is, he cannot modify or suspend any statutes or regulations permanently.” Id., 664-65.  Accordingly, Executive Order 7-JJJ has specific time limits to its application, six months, and cannot be applied after that period has run.  Per Casey, the Executive order ended in 2021; to suggest otherwise would make Executive Order 7-JJJ a permanent modification of the statute, something forbidden by the language of §28-9 and the actual words of Executive Order 7-JJJ. If Executive Order 7-JJJ is applied now, more than six months after it was signed, then the Order may be a constitutional violation of the Separation of Powers.  

The legislature post the termination of Executive Order 7-JJJ has had ample opportunity to permanently codify through statutory modification Executive Order 7-JJJ. The legislature has chosen, however, not to modify the statute to amend the burden of proof in a COVID-19 workers’ compensation claim for essential workers/health care workers.  

Based on the above, Executive Order 7-JJJ and its rebuttable presumption in favor of compensability of COVID-19 may no longer be in place.  Although many COVID-19 claims have been resolved there remain some that were not fully litigated. For those that are continuing to defend these types of claims they may wish to consider the argument that the Executive Order is no longer in place. 

ADMINISTRATIVE LAW JUDGES MOVING

Judge Zachary Delaney resigned from the Connecticut Workers’ Compensation Commission as of October 4, 2024. Judge Delaney has taken a position at Travelers. We extend our best wishes to Judge Delaney in his next endeavor. Both claimants and respondents appreciated the professional manner in which Judge Delaney administered over Workers’ Compensation claims. All parties will miss his guidance.

In view of Judge Delaney‘s departure, Judge Fatone will now be moved to the First District in Hartford. Judge Fenlator will preside in the Sixth District in New Britain. Judge Blake and Colangelo will be splitting their time between the Third District in New Haven and the Fourth District in Bridgeport.

Judge Barton likely will be retiring at the end of 2024. Once he does retire, there will be three judgeships which will have to be filled.

MEMORANDUM 2024-07

Memorandum 2024-07 has been issued by Chief Administrative Law Judge Morelli regarding maximum compensation rates.  The Chairman has ordered that the maximum total disability rate for injuries occurring after October 1, 2024 is $1,654.00 (based on the estimated average weekly wage of all employees in Connecticut).  The maximum temporary partial/permanent partial disability rate for accidents after October 1, 2024 is  $1,191.00 (based on the average weekly earnings of production and related workers in manufacturing in Connecticut).

BURIAL EXPENSES

As of January 1, 2024, the burial fee for deaths covered under the Workers’ Compensation Act is $13,885.25 based on the overall 2023 CPI-W increase for the northeast of 3.2%. Connecticut General Statutes Section 31-306 was amended in 2021 to reflect that the compensation for burial benefits will be adjusted by the percentage increase in the consumer price index for urban wage earners and clerical workers in the Northeast as defined in the United States Department of Labor’s Bureau of Labor

Statistics.

https://portal.ct.gov/WCC/Home-News/Workers-Compensation-News/2024/2024-Burial-Expense-Adjustments

MILEAGE REIMBURSEMENT

As of January 1, 2024, the mileage reimbursement rate is 67 cents per mile.

As of January 1, 2023, the mileage rate had been 65.5 cents per mile.  Prior to that the rate had been at 62.5 cents per mile since July 1, 2022

https://portal.ct.gov/WCC/Home-News/Workers-Compensation-News/2024/2024-Mileage-Reimbursement-Rate-Rises

MEMORANDUM 2024-05

The Chairman has issued the following new memo which stated that physicians can charge for causation or permanency opinions in a denied case:

Effective July 1, 2024, a treating physician who is asked to provide a causation opinion or a Permanent Partial Disability (PPD) rating on a denied claim may charge up to $400 for this report.  The report must be affirmatively requested by the patient or their representative, and the patient would be responsible for payment. As with standard special report fees, if a physician feels that an additional fee is warranted, they may seek permission to charge that higher rate from an administrative law judge. However, physicians considering requesting additional fees should keep in mind that the patient bears the responsibility for payment and should proceed accordingly.

The Professional Guide for Attorneys, Physicians, and Other Health Care Practitioners and the Payor and Medical Provider Guidelines to Improve the Coordination of Medical Services will be updated to reflect this change. 

MEMORANDUM 2024-04

Effective June 14, 2024, the following changes have been made to WCC forms:

·         Form 30C has been updated with “Check, if Firefighter Cancer Claim pursuant to C.G.S. Chapter 568” and “Check, if Firefighter Cancer Claim pursuant to C.G.S. Section 7-313p” to help WCC better track Firefighter Cancer claims pursuant to Public Act No. 22-139. Language on Post Traumatic Stress Injuries has also been updated to reflect such injuries are pursuant to C.G.S. Section 31-294k. 

·         Form 30D has been updated with “Check, if Firefighter Cancer Claim pursuant to C.G.S. Chapter 568” and “Check, if Firefighter Cancer Claim pursuant to C.G.S. Section 7-313p” to help WCC better track Firefighter Cancer claims pursuant to Public Act No. 22-139.

·         The Hearing Request Form has been updated to allow the option for an email address to be added under the Injured Worker section.

·         Voluntary Agreement Form has been updated with “Check, if C.G.S. Sec. 5-142”to help WCC better identify wage calculations which are pursuant to C.G.S. Sec. 5-142.

·         WCR-1: Rehabilitation Request Form has been updated with options to either fax or email the form to Rehabilitation Services in addition to mailing or submitting the form in-person. An optional line has also been added for applicants to add their email address.

Effective June 14, 2024, the following form is now available:

·         Indemnity Only Stipulation and What it Means. 

MEMORANDUM 2024-03

Effective July 1, 2024, wage statements should be attached to all Voluntary Agreements. If the claimant is concurrently employed, wage statements from all employers should be included with the submission. Failure to attach a wage statement(s) will result in the rejection of the Voluntary Agreement.

MEMORANDUM 2024-02

2024 Official Connecticut Fee Schedule for Hospitals and Ambulatory Surgical Centers effective April 1, 2024 has been issued by the Workers’ Compensation Commission.

To order, please contact OPTUM360 at 1-800-464-3649, option 1, or visit https://www.optum360coding.com/reference-products/workers-compensation/,
keyword “Connecticut”.

MEMORANDUM 2024-01

The Commission has immediately suspended the mediation program and is beginning a review of the guidelines for the program.  The suspension is due to “parties failure to comply with the program guidelines and misuse of the program.”

We are sure that we will hear more about this in the future.  We hope that the Commission will be able to begin the program again.  In the meantime, there are a number of private mediation services that are available to assist in resolving claims.  Please contact us if you have any questions about private mediation.

https://portal.ct.gov/WCC/Workers-Compensation-News/Commission-Memorandums/2024/Memorandum-No-2024-01

 NEW WORKERS’ COMPENSATION PORTAL

A new Worker’s Compensation portal has been established at this site:

https://wccct.govqa.us/WEBAPP/_rs/(S(ee5fdcqgfjppdvhg3ssjxq1e))/supporthome.aspx

The old Worker’s Compensation website remains in place. However, this new portal will allow a search of managed care plans for a particular date of injury. Also, workers’ compensation coverage searches and requests for workers’ compensation files and freedom of information requests can be performed through this new portal.  The prior worker’s compensation history of an individual and information concerning a particular file (forms filed, hearing requests, hearings held, voluntary agreements approved) can be searched through this portal as well. Information regarding self-employers in the system can also be reviewed.

https://portal.ct.gov/WCC/Home-News/Workers-Compensation-News/2023/Records-and-Information-Request-Service

The Commission does have a website where you can look up such information as to whether a hearing is assigned, list of all claims for an employee, status of a Form 36, and interested parties.  This is quite a useful site and is a different website than the Commission’s main site.  It can be found at:

http://stg-pars.wcc.ct.gov/Default.aspx

 NEW COMPENSATION REVIEW BOARD PANEL

The new CRB panel beginning January 1, 2024 will be Administrative law Judges Delaney and Schoolcraft along with Chief Administrative Law Judge Morelli.

MEDICARE NEWS FROM CMS

 LIFE EXPECTANCY TABLES

Beginning February 24, 2024, CMS will utilize the CDC's "Table 1: Life Table for the total population: United States, 2021" for the Workers' Compensation Medicare Set Aside life expectancy calculation.

 CASE LAW

New rules for oral argument at the Compensation Review Board!  There will be a clock set up for oral argument and the parties will only be allowed fifteen minutes for their presentation. 

EILEEN POST V.  RAYTHEON TECHNOLOGIES/PRATT & WHITNEY, 6524 CRB-8-23-12 (September 6, 2024)

The claimant alleged that she fell at work on the company premises on February 14, 2022 causing a fracture to her left leg. While the respondents acknowledged that the claimant fell at work they denied liability in the case. The respondents contended that the claimant’s injury did not “arise out of” her employment; rather, respondents asserted that the claimant’s fall was because of a pre-existing, non-occupational foot drop. The claimant had several prior left hip surgeries which caused a foot drop. As a result of this, the claimant became more susceptible to falling. The claimant did wear a brace on her left ankle to stop falls although she admitted that it was uncomfortable. The claimant fell at a restaurant outside of work in January 2022, one month before the work accident. A fellow worker testified that he saw the claimant prior to the work accident, and she was having difficulty walking. The claimant came in to work early in the morning and was walking to her workstation at the time of the fall. Following the fall, the claimant reported to numerous medical providers that she had fallen on rock salt. At the formal hearing, however, the claimant acknowledged that she did not see any rock salt at the time of her fall but did say that there had been rock salt outside of work as she entered the premises. The claimant also testified at the formal hearing that there may have been a small puddle of water on the floor where she fell. The claimant did not know why she fell, however. The respondents presented the testimony of Dr. Raymond Sullivan, a foot specialist, who opined that the claimant’s pre-existing left foot drop was a substantial factor in causing her fall at work. The Administrative Law Judge concluded that Dr. Sullivan’s testimony was persuasive that the claimant’s foot drop was a substantial factor in causing the fall. The Judge found there was no credible or persuasive evidence that there was rock salt on her shoe when she fell or that there was water on the floor. The Judge dismissed the claim concluding that the fall was caused solely by her left foot drop condition.  The Compensation Review Board affirmed the dismissal on appeal finding that the record was “devoid of evidence that any workplace condition or activity contributed to the claimant’s injury.” The Board found that the respondents had successfully rebutted any presumption of compensability. This case is now on appeal to the Appellate Court of Connecticut. This claim was successfully defended by Attorney Jason Dodge of SDAZ.

VITTI V. CITY OF MILFORD, 6515 CRB-7-23-9 (August 30, 2024)

The claimant was seeking interest pursuant to Connecticut General Statutes §31-295(c), 31-301c(b), or 31-300 due to a delay in his permanent partial disability benefits. On February 1, 2018 the commissioner made a determination that the claimant reached maximum medical improvement on November 21, 2013 and provided a 23% impairment rating to the heart. Because there was conflict over the award, the claimant’s counsel notified the respondent on March 14, 2018 that the claimant “did not wish to get paid until all appeals are concluded.” The CRB concluded that interest is not payable under §31-301c(b) because the respondent’s appeal for compensability had no effect on the “sum certain,” however, the claimant’s appeal for the award did. The CRB also concluded that §31-295 does not apply. The claimant asserted that because their provider issued a 23%, and the respondent’s examiner issued a 12% rating, there was a meeting of the minds for the 12% rating. The CRB held that because the claim was still subject to litigation, and there was no way it could be inferred that the claimant would have accepted the 12% rating, a claim for interest could not be made. Additionally, because of the notice from claimant’s counsel to withhold payment, the claimant was estopped from making any claims for interest until all litigation concluded.

JANE DOE V. XYZ, (Judge Oslena, JULY 23, 2024)

The claimant, a night attendant at a hotel, alleged an unwitnessed foot injury caused by a falling coffee carafe. She reported the injury late and was ultimately diagnosed with a fracture in her foot. Three months later, claimant had a sudden onset of left knee pain.  She went to the physician treating her for her foot fracture who opined that the claimant had an altered gait from the foot injury that was causing pain in her arthritic knee.  The Respondents fully denied the claim as the injury was unwitnessed and reported late. 

The claimant attended an RME and did not mention that she had an altered gait before this date of injury. RME physician related both the left knee and the right foot. Claimant was recommended for a total knee replacement which was related to the altered gait caused by the foot injury. Respondents’ Counsel met with claimant’s assistant manager who advised that claimant had an altered gait before the work injury. The assistant manager was deposed and testified consistently. The RME physician was deposed and testified that the claimant never told him that she walked with a limp prior to this date of injury and indicated that his opinion might be different if she had given him an accurate history. At the formal hearing, claimant testified that she walked with a limp before the work injury and that she wasn’t sure if she told her doctor or the RME doctor that. The deposition of claimant’s manager and the RME doctor came in as exhibits. The respondents argued that the opinions relating the left knee complaints were unreliable and not credible because the claimant never told the doctors that she walked with a limp prior to this injury. 

The ALJ found the right foot fracture to be compensable but dismissed the left knee claim on the basis that the doctors’ opinions relating the knee complaints were not credible because the claimant did not provide an accurate history of a previously altered gait. A motion to correct was filed by claimant’s counsel and was objected to by Respondents’ counsel. The motion to correct was denied. No appeal followed. Attorney Ariel MacPherson of SDAZ successfully defended this case. The name of the claimant has been changed for confidentiality purposes.

COCHRAN V. DEPARTMENT OF TRANSPORTATION, 220 Conn. App. 855 (August 8, 2023) and MARTINOLI V. STAMFORD POLICE DEPARTMENT, 220 Conn. App. 874 (August 8, 2023),

The appeals in the “retirement” cases of COCHRAN V. DEPARTMENT OF TRANSPORTATION, 220 Conn. App. 855 (August 8, 2023) and MARTINOLI V. STAMFORD POLICE DEPARTMENT, 220 Conn. App. 874 (August 8, 2023), were argued before the Connecticut Supreme Court on September 23, 2024.  We expect decisions to be issued by the Court in these important cases in early-2025.  In Cochran, the Appellate Court held that a worker who is retired and took himself out of the workforce was not entitled to a claim for total disability benefits made post-retirement.  The claimant sustained a compensable back injury in 1994. Surgery was performed in June 1994; a further back surgery was performed in April 1995. A voluntary agreement was issued and approved in 1995 for 29.5% of the lumbar spine. On April 1, 2003 the claimant, at age 54, took an incentivized early retirement from the employer. The plaintiff had no intention of returning to work. In 2013 the claimant had back surgery with an allegedly unauthorized New York physician. A CME by Dr. Dickey in 2017 gave the “lightest” work capacity to the claimant. Dr. Sabella, a vocational specialist, found the claimant unemployable. The trial judge found the 2013 back surgery related and ordered a three-month period of total disability following the 2013 surgery and ongoing total disability beginning on December 30, 2017. The CRB affirmed the decision. The Appellate Court reversed the Board decision; in doing so, the Court stated it had plenary review over the case (meaning that they did not have to defer to the CRB below regarding the application of the law).   The Court’s decision stated that: “he elected to remove himself from the workforce where he had no intention of returning and more than 10 years later sought to obtain Section 31–307(a) benefits. We cannot conclude the plaintiff is entitled to Section 31307(a) benefits when he removed himself from the workforce with no intention of returning.”   

In MARTINOLI V. STAMFORD POLICE DEPARTMENT, the claimant sustained a compensable heart condition in January 1999. He retired at age 64 in October 1999. In 2015, at age 80, he sustained a stroke and claimed entitlement to total disability at that time. The Judge and CRB found the stroke related to the initial claim and awarded total disability benefits to the retiree. The Appellate Court, however, reversed and said a retiree was not entitled to claim total disability benefits post-retirement.

It is uncertain what the Supreme Court will do in these cases.  Whatever the outcome, it will significantly affect the value of claims for older injured workers who choose to take a voluntary retirement.  We will advise you immediately once the Supreme Court issues its decisions.

WATERBURY V. BRENNAN, 228 CONN. APP. 206 (2024)

The Appellate Court affirmed a summary Judgment ruling in favor of the City of Waterbury which found that the municipality, per union contract, was entitled to a credit against the permanent partial disability award of the heart for Section 7-433c benefits based on the disability pension that the injured worker had received.  In view of the contractual credit no permanency was owed.

JANET BRENNAN, EXECUTRIX (ESTATE OF THOMAS BRENNA) v. CITY OF WATERBURY, 228 CONN. APP 231 (2024)

In this longstanding heart and hypertension case under Connecticut General Statutes Section 7-433(c), the Compensation Review Board affirmed that an estate was entitled to payment of a permanent partial disability award of 77.5% of the heart, however, the Board remanded the case for further findings regarding mandatory interest under Connecticut General Statutes Section 31 – 295(c) and order for penalties for undue delay in violation of Connecticut General Statutes Sections 31–288 and 31–300. This case had previously been heard by the Connecticut Supreme Court, Brennan v. City of Waterbury, 331 Conn. 672 (2019). The Supreme Court dealt with the issue as to whether the estate of a decedent was entitled to a permanent partial disability award. The Supreme Court had found that “matured section 7–433c benefits-those that accrued during the claimant’s lifetime-properly passed to the claimant’s estate.” (Emphasis supplied.) Id., 693. The case had been remanded to the Administrative Law Judge for further findings regarding the permanent impairment award. At the formal hearing, evidence was presented that the parties had a meeting of the minds regarding an award for permanent impairment of the heart for 77.5% with a maximum medical improvement date of October 13, 1993. The evidence revealed that the claimant had received two advances totaling 77,182.32 against the award; there was also some evidence that the claimant may have received weekly advances against permanency from the date of maximum medical improvement until his retirement in 1995. The former risk manager for the municipal employer, testified that there was an agreement as to the permanent impairment award. Additionally, documentary evidence between the parties confirmed this. Notwithstanding this agreement between the parties, no written award was ever approved by the Commission.  After the rating had been issued the parties had discussed settlement of the case but no agreement had ever been reached. Apparently, the claimant’s condition deteriorated and during the period February 19, 2003 through his death on April 20, 2006 the claimant received total disability payments. At the trial level, the Administrative Law Judge concluded that there was an agreement for 77.5% of the heart which was owed to the estate of the decedent; additionally, the Administrative Law Judge determined that mandatory interest was owed under Section 31–295(c) and that there had been undue delay in violation of Sections 31–288 and Section 31–300. No specific monetary award was issued either for the interest or undue delay penalty. The Compensation Review Board exhaustively reviewed the facts in the case and determined that there was an agreement for 77.5% of the heart, that it had matured, and that the estate was entitled to the award. On the other hand, the Board stated that it was unclear as to when interest would have been owed under Section 31 – 295(c) and therefore remanded the case to the Trial Judge for determination as to when the mandatory interest would be triggered. Regarding the penalties for undue delay, the CRB also remanded that to the Administrative Law Judge for further findings. The Board noted that the issue of undue delay had not been listed as an issue for the formal hearing and that the Trial Judge had not ordered a specific amount to be paid. The City of Waterbury took this appeal to the Appellate Court seeking review of finding that the award had matured during the lifetime of the decedent, that statutory interest was owed, and that there was unreasonable delay and contest of the claim.  The Appellate Court held that the issue was moot based on the decision in WATERBURY V. BRENNAN, 228 CONN. APP. 206 (2024) (see above), which concluded that nothing was owed because the City was entitled to a credit against the permanency owed, per contract, based on the pension benefits received be the decedent.  Since the credit was greater than the permanency, no additional benefits, including interest, were owed.

KILLARD V. BROCK INDUSTRIAL SERVICES, 6512 CRB-7-23-8 (October 25, 2024)

This case concerns an insulator injured in a workplace slip and fall who claimed compensable injuries to his cervical spine, hip, and hernia, with accepted injuries to his upper arm and shoulder. The Administrative Law Judge deemed the cervical spine and hernia injuries compensable but denied the hip injury claim, citing pre-existing conditions. Both parties appealed parts of the decision.

The claimant argued the judge erred in denying the hip injury claim, but the Compensation Review Board upheld the decision, noting the hip condition was pre-existing, with prior medical records from 2017-2018. The claimant also challenged the admission of a late report by Dr. Clinton A. Jambor, arguing due process violations, but the Board found no violation, due to the fact that the claimant had an opportunity to respond but did not act. The Administrative Law Judge allowed the claimant additional time to cross-examine Jambor but noted that the claimant did not avail himself of this opportunity.

The respondents argued that the evidence did not support the claimant's position that the work injury was a substantial factor in the development of the hernia. They contended that the judge should have relied on their expert, Dr. John P. Amodeo, who opined that the hernia was unrelated to the work incident. The Administrative Law Judge found the claimant's treating physician, Dr. Teresa A. Esposito, more credible. Esposito opined that the claimant's work contributed to the hernia's worsening, and the judge found this evidence persuasive. The Compensation Review Board upheld the judge's decision, finding sufficient evidence to support the compensability of the hernia.

The Compensation Review Board upheld the Judge’s decision, affirming the cervical spine and hernia injuries as compensable while denying the hip injury claim due to lack of proof and pre-existing conditions.

SABIA V. VALERIE MANOR INCORPORATED, 6520 CRB-5-23-12

At issue was whether the Administrative Law Judge was required to credit the opinion of a commission or respondent medical examiner if they determine that the treating physician’s opinion is more persuasive. The claimant sustained an injury to her finger that spread to her wrist and other fingers in 2021, when a tendon ruptured in her right hand. She previously underwent surgery for this same hand in 2009, however, the claimant’s treating physician opined that these new symptoms are different than what she treated for in 2009, but rather the tendon rupture the claimant experienced was likely caused by significant repetitive motion. The claimant underwent both a commission medical exam as well as a respondent medical exam. The respondent’s examiner opined that the injury was unrelated to the workplace, and the commission’s examiner believed that while the rupture did happen at work, it could have happened anywhere. The Administrative Law Judge weighed the evidence and found that the evidence proffered by the claimant’s treating physician was the most credible and persuasive and provided benefits to the claimant. The respondents then argued that the Administrative Law Judge erred by failing to weigh the other opinions more heavily, and that the evidence used was inadequate to support an award of benefits. The CRB however found that the Administrative Law Judge was “well within his discretion” to find the treating physician’s opinion more credible than the commission or respondents examiner, and that unless the administrative law judge’s opinion is “without evidentiary support, contrary to the law, or based on unreasonable or impermissible factual inferences,” it must stand.

TARTAGLIONE V. CITY OF DERBY, 6529 CRB-7-24-2 (October 25, 2024)

The claimant began working as a police officer for the City of Deby in 2016, and testified in the summer of 2019 he began experiencing lumbar pain. He attributed this pain to sitting long periods of time in his police cruiser with a bad seat, wearing a heavy gear belt, and the weight of his bulletproof vest. The claimant’s treating physicians opined that his complaints were either caused by a work-related injury or were a work-related aggravation of a pre-existing condition. Both the respondent’s medical examiner and commission’s medical examiner found that there was insufficient evidence linking the lumbar spine condition to the claimant’s work, as there was a clear disc herniation dating back as far as 2006, when the claimant was a college student. The Administrative Law Judge weighed all the medical opinions as well as the claimant’s prior involvement in both high school and college football and power training. The Administrative Law Judge found that while the claimant was credible, the testimony that he did not recall any prior injury or treatment was inconsistent with the evidence. In addition to the testimony, the Administrative Law Judge did not find the claimant’s treating physicians credible or persuasive since there was documentation of a disc herniation in 2006 and dismissed the claim. The claimant appealed on the basis that it was erroneous for the Administrative Law Judge to not rely on the treating physicians’ opinions, however the CRB stated that an administrative law judge’s opinion may only be overturned “if they are without support, contrary to the law, or based on unreasonable or impermissible factual inferences.” The CRB stated it was a “reasonable conclusion from the evidence presented,” and that no error was made by the administrative law judge.

Recent significant cases:

Tea v Ramsey Cty., 5 N.W.3d 114 (Minn. 2024)

For Minnesota workers' compensation defense, this case underscores the importance of expert testimony, reinforces PTSD compensability under statutory definitions, and provides a clear avenue for dismissing improperly pled psychological conditions like major depressive disorder (MDD). It also limits challenges to DSM-based PTSD diagnoses while reinforcing defense strategies centered on exposure thresholds and expert credibility.

This case reinforces that PTSD is a compensable occupational disease under Minn. Stat. § 176.011, subd. 15, provided it meets the DSM criteria. The ruling confirms that Minnesota courts will defer to credible medical expert opinions when determining whether an employee’s PTSD is work-related. However, the ruling makes it clear that MDD alone is not compensable under Minnesota workers’ compensation law. Defense counsel can use this precedent to argue against the inclusion of standalone psychological conditions unless explicitly pled as consequential to PTSD. In this case, the employer successfully had the MDD finding vacated, setting a precedent for strictly interpreting psychological injury claims.

The Smith v. Carver Cnty., 931 N.W.2d 390 precedent played a crucial role, limiting the WCCA from independently assessing whether an expert’s PTSD diagnosis conformed precisely to DSM-5. This limits a defense strategy that challenges expert opinions by dissecting DSM compliance, shifting the focus instead to credibility and evidentiary weight of expert testimony.

The case highlights the necessity for plaintiffs to explicitly plead consequential injuries (e.g., MDD resulting from PTSD). From a defense perspective, this ruling strengthens motions to dismiss improperly pled psychological claims that are not explicitly tied to a compensable primary injury. This case emphasized repeated exposure to traumatic details as a qualifying factor for PTSD. Employers may attempt to distinguish future claims by arguing that an employee’s level of exposure was insufficient to trigger PTSD.

Peterson v. City of Minneapolis, No. A22-0518 (Minn. 2022)

This case has several significant implications for Minnesota workers’ compensation defense, particularly in the areas of PTSD claims, consequential mental injuries, and penalties for frivolous denials.

This decision expanded the scope of PTSD diagnoses under the DSM-5-TR test. Here, the court acknowledged that the DSM-5-TR may create a "lifetime" PTSD diagnosis, meaning that once an employee is diagnosed with PTSD, it may be difficult for employers to argue that the condition has been resolved. Relying on the Tea v Ramsey Cty., 5 N.W.3d 114 (Minn. 2024) precedent, compensation judges must defer to medical experts in determining whether an employee meets the DSM criteria for PTSD. However, judges are permitted to evaluate expert opinions in light of the DSM but may not independently interpret the DSM to make their own diagnoses. Accordingly, employers and insurers will face greater challenges in arguing that PTSD has resolved or no longer meets DSM criteria, potentially leading to longer-lasting claims and increased liability for PTSD-related wage loss and medical benefits.

The court expressly held that mental health conditions that develop because of a compensable PTSD injury are themselves compensable. This decision extends previous case law (e.g., Rohr v. Knutson Constr. Co. and Radermecher v. FMC Corp.) to apply to mental health conditions resulting from PTSD, such as other specified trauma- and stressor-related disorders (OSTD). Thus, employers may no longer argue that PTSD is the only compensable mental health diagnosis. If an employee’s PTSD leads to depression, anxiety, or other psychological conditions, those secondary conditions will also be compensable, significantly increasing the cost of claims.

Further, the court reinforced the statutory presumption (Minn. Stat. § 176.011, subd. 15(e)) that PTSD in first responders (such as police officers) is presumed work-related unless rebutted by substantial evidence. Under the holding, employers and insurers must communicate all substantial factors used to rebut the presumption at the time of denial, or the denial may be deemed frivolous. Employers and insurers defending PTSD claims from first responders will need strong and immediate medical evidence to rebut causation. Delaying medical evaluations or failing to communicate reasons for denial can lead to penalties.

In addition, the court affirmed a 30% penalty on temporary total disability (TTD) benefits because the employer denied liability without substantial evidence until it obtained an independent medical report. This ruling reinforces Juntunen v. Carlton Cnty., 982 N.W.2d 729 (Minn. 2022) where the Minnesota Supreme Court emphasized that employers must have substantial evidence before denying liability, or they risk penalties. Employers and insurers must carefully evaluate PTSD claims before issuing denials. Any denial without substantial supporting evidence at the time of denial could lead to significant penalties and increased litigation costs.

Johnson v. Concrete Treatments, Inc., 7 N.W.3d 119 (Minn. 2024)

The court was asked to decide two issues (1) whether an employee can assert a direct claim for unpaid medical bills when the unpaid medical providers’ intervention interests were extinguished under Minn. Stat. Section 176.361; (2) whether the WCCA erred in affirming the compensation judge’s findings that Johnson sustained a permanent work-related injury in October 2018 and that 60% of the responsibility for Johnson’s low back condition is properly apportioned to that injury.

This case strengthens employees' ability to seek direct compensation for medical expenses, regardless of provider intervention, and reinforces the deference given to compensation judges' factual determinations on causation. Employers and insurers must be prepared to defend medical claims even when procedural defenses (such as lack of provider intervention) would have previously been successful.

The ruling clarifies that an injured employee retains the right to directly assert claims for medical expenses, even if a medical provider’s intervention interest has been extinguished under Minn. Stat. § 176.361. Previously, there was ambiguity as to whether an employee could still seek reimbursement for medical bills after a provider failed to intervene properly. The court's decision reaffirms that workers' compensation benefits, including medical expenses, are ultimately the employee’s right, and failure by a provider to intervene does not extinguish the employee’s claim. Employers and insurers can no longer rely on a provider’s failure to intervene as a complete bar to liability for unpaid medical expenses. Employers and insurers should ensure that denial of medical expenses is well-documented and supported by substantial evidence to withstand claims directly brought by employees.

The court upheld the compensation judge’s determination that the employee’s 2018 work injury was a substantial contributing factor to his ongoing low back condition, even though conflicting expert opinions existed regarding apportionment. The ruling reinforces that factual findings on causation and apportionment are subject to deference unless manifestly contrary to the evidence. Employers and insurers face a high burden to overturn compensation judges’ factual findings on causation. Even minor errors in medical reports (such as a misdated MRI) may not be enough to discredit an expert opinion entirely. In practice, defense counsel should meticulously scrutinize expert reports for internal consistency and ensure that medical experts provide clear, well-supported opinions on causation and apportionment.

Statutory changes:

Minn. Stat. Section 176.137

The increase in the remodeling cap from $75,000 to $150,000 under Minn. Stat. § 176.137 has significant implications for workers' compensation defense in Minnesota, particularly for employers and insurers managing permanent disability claims.

First, the statutory increase doubles the employer’s potential financial responsibility for home modifications. Insurers and self-insured employers must anticipate higher costs associated with permanent disability claims, particularly for catastrophic injuries requiring extensive home modifications. Adjusters and risk managers must account for increased exposure when setting reserves for claims involving permanently disabled employees.

Previously, the $75,000 cap may have limited modifications to basic accessibility features (e.g., wheelchair ramps, widened doorways). The new $150,000 cap allows for more extensive renovations, including modifications to kitchens, bathrooms, and entire living spaces, leading to higher overall claim costs.

The statute continues to require certification by a licensed architect, but now includes an alternative approval process (i.e., through a certified building official or accessibility specialist, per Subd. 4(b)). This may create looser standards for approval, leading to less stringent scrutiny of requested modifications, increasing employer/insurer liability.

Subd. 3 allows for the purchase of a new residence if remodeling is impractical. The higher cap may lead to more claims for new home purchases, shifting liability from renovations to entire home acquisitions. Employers/insurers should evaluate whether a proposed new home purchase is necessary or merely a preference when contesting such claims.

This statutory increase significantly raises the financial exposure for employers and insurers in permanent disability claims. Employers and defense attorneys should anticipate higher costs, more extensive modifications, and increased litigation over necessity and scope of remodeling projects. The burden will fall on insurers to proactively scrutinize, negotiate, and contest unwarranted claims to control costs effectively.

Minn. Stat. Section 176.081, subd 1

The increase in the attorney fee cap from $26,000 to $55,000 under Minn. Stat. § 176.081 has significant implications for workers’ compensation defense in Minnesota, particularly for employers and insurers managing claims and litigation costs.

First, the higher fee cap makes workers’ compensation claims more attractive to plaintiffs’ attorneys, likely leading to increased litigation over disputed benefits. Plaintiff’s attorneys may take on complex medical and rehabilitation disputes, knowing they can recover higher fees.

Second, Employers and insurers face increased liability for attorney fees, particularly in cases involving disputed medical or rehabilitation benefits. The previous cap of $26,000 often limited extensive legal battles; with a $55,000 cap, attorneys may pursue longer, more complex litigation. Settlement values may increase as claimants’ attorneys push for higher fee recoveries in negotiations.

Third, Under Subd. 1(a)(1), attorney fees for medical or rehabilitation disputes are presumed covered under the 20% contingency fee model, unless inadequate. With the higher cap, attorneys may more frequently argue that contingency fees alone are insufficient, leading to more employer-funded fee awards. Under Subd. 1(c), attorneys can place liens on compensation payments for legal fees. The increased cap means larger portions of employee benefits may be withheld, possibly leading to more employee disputes over fee deductions. Insurers must ensure proper notice is given when withholding compensation for fees.

Lastly, the statute requires attorneys to file a fee statement and provide documentation of hours spent under Subd. 1(d). Employers and insurers should closely review fee requests, challenging excessive or unjustified fees. Under Subd. 1(f), fees not claimed within 12 months must be released to the employee, giving insurers a potential cost-containment strategy.

Taken together, the increased fee cap significantly raises litigation exposure for employers and insurers, incentivizing more aggressive claimant representation and longer legal disputes. Employers should prepare for higher costs, more frequent attorney fee claims, and increased challenges to excessive fees while implementing strategies to mitigate financial impact.

In Arneson v. GR Mgmt., LLC, 2024 S.D. 61, 13 N.W.3d 206, the claimant, Mr. Michael Arneson (“Arneson”), worked as a maintenance manager at a hotel and casino in Deadwood, South Dakota. On July 18, 2018, Arneson was working on a commercial exhaust fan for his employer (Employer”) when the fan shorted and sent 440 volts of electricity through Arneson’s hand, which exited through his foot (“the Work Injury”).

Arneson when to the emergency room for treatment. Within the next few days, he began suffering from mild heart palpitations. Almost two weeks later, Arneson went to the hospital for his heart palpitations and was diagnosed with hyperthyroidism and Atrial Fibrillation (“AFib”).

Arneson then brought a petition for workers’ compensation benefits arguing that the Work Injury caused his AFib and that he was permanently and totally disabled.

Arneson’s treating doctor, Dr. Holloway, provided an expert opinion that Arneson’s AFib was likely caused by his hyperthyroidism and the Work Injury.  Dr. Holloway acknowledged that Arneson’s hyperthyroidism could cause AFib itself. However, he also opined that electrical shocks like the Work Injury can cause heart arrythmias, such as AFib. Dr. Holloway did not provide an opinion on how commonly hyperthyroidism causes AFib or how commonly electrical injuries, like the Work Injury, cause AFib. He simply stated he believed both hyperthyroidism and the Work Injury causally contributed to Arneson’s AFib.

Employer countered by providing testimony from two non-treating experts. First, Employer presented the testimony of a cardiologist, Dr. Brody. Dr. Brody stated that he has rarely treated electrical injuries and that electric shock-induced AFib is extremely rare, occurring in less than 1% of cases based on his review of medical literature. In contrast, Dr. Brody testified that “the association” between hyperthyroidism and AFib “is a lot stronger” and more well accepted in the medical community. Dr. Brody then opined that the Work Injury was unlikely to have caused Arneson’s AFib, and the more likely cause was Arneson’s hyperthyroidism.  Employer also provided the testimony of Dr. Elkins. Dr. Elkins, like Dr. Brody, stated that it was statistically far more likely that hyperthyroidism caused Arneson’s AFib than an electrical shock like the Work Injury.

The Department of Labor (“Department”) found that the Work Injury was a major contributing cause of Arneson’s AFib and that he was permanently and totally disabled. Employer appealed arguing it was error for the Department to accept Dr. Holloway’s testimony that the Work Injury caused Arneson’s AFib when Employer presented unrebutted evidence that the Work Injury was statistically highly unlikely to have caused Arneson’s AFib.

The South Dakota Supreme Court (“Court”) rejected Employer’s argument and relied on a Minnesota case in support, stating “[a]n opinion based solely on statistical improbability ignores the fact that, by definition, improbable events do occur.” Arneson v. GR Mgmt., LLC, 2024 S.D. 61, ¶ 35, 13 N.W.3d 206, 217 (citing Ingram v. Syverson, 674 N.W.2d 233, 237 (Minn. Ct. App. 2004) (noting “medicine is an imperfect science and a plaintiff's symptoms may not always be proven by tests and statistics.”). The Court then found Dr. Holloway’s opinion was sufficient to show the Work Injury was a major contributing cause of Arneson’s AFib and affirmed the Department.

While the Court has still not defined “major contributing cause.” The Arneson opinion provides additional information on what “major contributing cause” is not. In this case, the Court was offered an opportunity to define major contributing cause in terms of probability and soundly rejected it. Employers should be aware of cases like this that continue to define the casual standard for compensable injuries.  

The NH Department of Labor has issued the following guide to assist parties when corresponding with them:

DOLHEARINGS@dol.nh.gov    -    Continuances/Withdrawal Requests, 1st level CD/Transcript Requests, Attorney Fee                                 Requests, Reconsideration/Clarification Requests, Add Issue/Time Requests, Video/Telephonic Requests

DOLSCHEDULING@dol.nh.gov    -    Hearing Requests, LSS Hearing Requests, Attorney Availability/Unavailability,                     Notification/Withdrawal of Representation, Hearing Submissions (medical and non-medical), Witness Disclosure

FirstReport@dol.nh.gov    - First Reports of Injury, Memos of Denial

MOPSUBMISSION@DOL.NH.GOV    -    Memos of Payment, Notices of Accidental Injury/Occ Disease, General WC                                                                        questions

WorkersComp@dol.nh.gov    -    Permanent Impairment Awards, Reimbursement for Job Modification, COLA, Death                                                             Allocation, Administrative Suspension/Termination, Third Party Settlement Approval, Pro Se                                                             Dispute Resolution

WorkersCompRecordsRequests@dol.nh.gov    -    Copy Requests, Employment Verifications

DOL.CABAppeals@dol.nh.gov        -    Appeal Requests, Appeal Submissions     

 SIFMC@dol.nh.gov     -    Second Injury Fund, Managed Care, Third Party Administrator Licensing    

NHCoverage@dol.nh.gov    -    General Coverage Requirements Questions, Verification of Coverage in Place,                                                     Questionnaires/Exclusions  

DOL.WCCarrier@dol.nh.gov    -    Certificates of Insurance, Coverage from Carriers, Requests for Penalty Waivers

NHLeasing@dol.nh.gov    -    Leasing Applications, Client Add/Term Forms, Quarterly Audits

DOL.WCSelfInsurance@dol.nh.gov    -    Self-Insurance

On July 16, 2024, the New Hampshire Supreme Court  issued a decision in Petition of City of Manchester & a., Docket No. 2022-0696.  This case was accepted by the full court from Bernard & Merrill’s Writ of Mandamus requesting that the Court address whether employers and their insurance carriers have a right to a department level hearing when the Second Injury Fund denies claims pursuant to RSA 281-A:43, I(a).

This Writ of Mandamus (an order directing a government official to properly fulfill their official duty or correct an abuse of discretion) was filed on behalf of eight employers who had filed claims against the New Hampshire Second Injury Fund (Fund) seeking reimbursement for indemnity and medical benefits paid out on behalf of claimants who sustained a prior permanent condition.  In all eight cases, the Fund denied the reimbursement claims, and the Department of Labor (DOL) refused to grant the employers a first level hearing to address the merits of the claims.  The question presented for review was whether the DOL was statutorily required to grant a request to hold a department level hearing when an employer’s request for reimbursement from the Fund is denied.

The Court agreed with the petitioner’s that RSA 281-A:43, I(a) grants employers a department level hearing before an authorized representative of the commissioner when they have been denied reimbursement from the Fund.  The Court disagreed with the DOL that hearings under this section of the statute are only allowed when the issue to be addressed is whether a claimant is entitled to benefits and that petitioner’s rights instead fall under the Administrative Procedures Act. The Court stated that it did not read the statute so narrowly and that at issue is “who is ultimately responsible for the payment of compensation to the employee-the employer or the Fund.”  The Court interpreted RSA 281-A:43,I(a) to provide for review of a denial of reimbursement and held, “to construe the statute otherwise – to provide no right to a contested hearing -a as the DOL would have us do, would subvert the purpose of the statute.” 

The Court observed that their interpretation of the statute “serves the purpose sought to be advanced by the statutory scheme” noting that the purpose of the Fund was “created to encourage employers to hire or retain employees with permanent physical or mental impairments of any origin by reducing the employer’s liability for workers’ compensation claims.”  Finally, it noted that  the legislature is free to amend the statute if it disagreed with their construction.

The Second Injury reimburses carriers and self-insured employers upwards of 16 million dollars annually.  The right to a first level hearing provides employers and their carriers the opportunity to flush out the basis of a denial and has resulted in a number of decisions awarding Second Injury Fund reimbursement.  

Michelle A. Broadhurst, Esquire

Bernard & Merrill PLLC

814 Elm Street, Suite 407

Manchester, NH 03101

Tel: 603-622-8454

Fax: 603-626-8490

E-mail: michelle@bernard-merrill.com

Ohio Bureau of Workers’ Compensation Update 

BWC Actions

The Board of the Ohio Bureau of Workers’ Compensation (“BWC”) met in January 2025to discuss another potential rate reduction for Ohio’s private employers. The proposed rate reduction would be 6% which would amount to almost $60 million less in premiums paid by Ohio private employers. It would apply to the next fiscal year effective July 1, 2025. If approved at the Board’s next meeting on February 28, 2025, this reduction would be the sixth straight reduction since Governor DeWine took office and the 16th rate decrease in the last 17 years going back to 2008.  Overall, the average rate levels for the 257,000 private and public Ohio employers are at their lowest in over 60 years.

The proposed 6% rate cut represents an average statewide premium change, including administrative costs. The actual premium paid by individual private employers depends on several factors, including the expected future claims costs in their industry, their company’s recent claims history, and their participation in various BWC programs.

Ohio Judicial Decisions

Temporary Total Compensation 

State ex rel. Ohio State Univ. v. Pratt, 169 Ohio St.3d 527, 2022-Ohio-4111, 206 N.E.3d 708

On June 20, 2017, the claimant, a food and beverage manager for OSU at the Blackwell Inn, submitted her two-week notice, to resign on July 5, 2017. She had an offer of employment from a different employer. Four days later, on June 24, 2017, the claimant sustained a trip and fall injury. The claimant’s claim was allowed, and she underwent surgeries on June 27, 2017, and May 29, 2018, and was paid TTD compensation. The employer moved to terminate TTD. The commission’s SHO determined TTD was payable because the claimant did not voluntarily abandon the workforce as she was leaving her position at OSU for another position. The commission voted not to exercise continuing jurisdiction, but, in the dissent, one commissioner asserted the majority misinterpreted and misapplied State ex rel. Klein v. Precision Excavating & Grading Co., 155 Ohio St.3d 1446, 2018-Ohio-3890, 119 N.E.3d 386, by evaluating whether the claimant intended to abandon the workforce instead of whether the claimant intended to abandon her former position of employment.

The Court of Appeals granted the employer’s requested writ of mandamus and ordered the commission to vacate the award of TTD after July 5, 2017. The commission’s order was issued after the decision in Klein but before the effective date of the amendment to R.C. 4123.56(F). The Court found that, under Klein, the commission is to consider only whether the claimant has voluntarily abandoned her former position of employment and not whether she has removed herself from the workforce generally.

The Ohio Supreme Court reversed the decision of the Court of Appeals and found that the commission did not abuse its discretion by determining that, but for the injury, the claimant would have remained in the workforce. The Supreme Court explained that while Klein referenced whether the claimant “voluntarily removes himself from his former position of employment,” the analysis was specific to the facts of the case and that “Klein’s abandonment of his former position was therefore equivalent to abandonment of the workforce during the period for which he sought TTD compensation.” Thus, the Supreme Court concluded, “The question is whether those circumstances demonstrate a voluntary abandonment of the workforce – permanent or temporary – such that the injured worker’s wage loss is not the result of the work injury. In other words, do the circumstances indicate that the injured worker would be working – somewhere – but for the injury?”

 Permanent Partial Disability

State ex rel. Hobbs v. Indus. Comm., 10th Dist. Franklin No. 22AP-308, 2023-Ohio-1759

Tenth District Court of Appeals found the commission did not abuse its discretion in denying the claimant’s application for another increase in his percentage of permanent partial disability under R.C. 4123.57(A). The commission found the request was not supported with “substantial evidence of new and changed circumstances developing since the time of the hearing on the original or last determination,” as required by R.C. 4123.57(A). The record did not show the clamant underwent any medical treatment since 2002, that his condition became disabling following his last treatment, or that the claim was amended to include an additional medical condition, nor does the record support employee's contention that he testified that his medical condition was worsening since no such testimony appears in the record. The Tenth District Court of Appeals found the claimant failed to meet the burden in mandamus to demonstrate a clear right to relief, and denied the claimant’s requested writ of mandamus. Following this decision, the claimant filed a Notice of Appeal to the Ohio Supreme Court, which is currently pending.

Scheduled Loss

State ex rel. Harris v. Indus. Comm., Supreme Court of Ohio, Slip Opinion No. 2023-Ohio-3081. The claimant sustained a head injury that impacted his vision. The commission denied his motion for scheduled loss of vision compensation pursuant to R.C. 4123.57(B), relying on a physician’s medical opinion that the claimant’s vision impairment was not due to an actual injury to the eyes. The Tenth District Court of Appeals found the commission did not abuse its discretion and denied the requested writ, finding there was some evidence in the record that established the claimant’s loss of vision was not attributable to damage to the structure or function of the claimant’s eye, but was due to the loss of brain function. R.C. 4123.57(B) did not authorize loss of use compensation when the loss of brain function was the cause of the vision loss rather than actual damage to the eye structure itself. The Supreme Court affirmed the Court of Appeals’ decision and denied the writ of mandamus, albeit on different grounds. The Supreme Court determined the commission’s order, which was based upon “the absence of a credible assessment” of loss of vision, was based upon some evidence. The Supreme Court declined to address the Smith case, finding the commission’s order did not deny compensation in reliance upon that case.

Substantial Aggravation of a Preexisting Condition

Dunn v. Devco Holdings, Inc., 3d Dist. Union No. 14-22-18, 2023-Ohio-680

The claimant suffered a workplace injury to her hip, and she later filed for additional psychological conditions in her workers’ compensation claim. The commission additionally allowed the claim for “substantial aggravation of persistent depressive disorder, with anxious distress, late onset, with persistent major depressive disorder, moderate.” The employer appealed to common pleas court under R.C. 4123.512. The trial court found in favor of the claimant, finding the testimony of Dr. Black to be persuasive in that her diagnosis is based upon objective diagnostic findings, objective clinical findings, or objective test results as required by R.C. 4123.01(C), and that the psychiatric condition arose from the injury.

The employer appealed, arguing the claimant did not present evidence of objective diagnostic findings, objective clinical findings, or objective test results that demonstrated a substantial aggravation of her psychological condition. Specifically, the employer argued the MMPI-2 test that Dr. Black had administered to the claimant is not an objective test and did not show substantial aggravation. The Third District Court of Appeals found Dr. Black testified at trial that the MMPI-2 is a standardized objective test. It gives you the idea of the person’s personality characteristics and helps with your diagnosis formulation. It has 567 true and false questions and the responses are combined together and scored to give you kind of a concrete and quantifiable results. She added that the MMPI-2 was developed out of standardized testing and provides a concrete and quantifiable result. She explained that although the person’s answers are subjective, the actual results and scoring of it makes it objective. The appellate court affirmed the trial court’s decision, finding the Dr. Black’s testimony showed that the MMPI-2 test provided objective results, and her testimony that the claimant’s injury substantially aggravated a pre-existing condition was based on objective findings, as required by R.C. 4123.01(C).

© Copyright 2025 by Christopher Ward and Raymond Tarasuck Calfee, Halter & Griswold, LLP. All rights reserved. Reprinted with permission.

Is injured worker failing to report to offered light duty work, or failing to keep medical appointments or schedule medical procedures recommended by the authorized treating physician for work injury care?  A valuable tool in Indiana to control uncooperative employees is the ability of the adjustor or defense attorney to suspend benefits under Indiana Code 22-3-3-11 for not reporting to light duty work, and 22-3-3-4(c) for refusing medical treatment or services.

Often simply noticing the injured employee, in writing, of the plan to suspend TTD and/or medical treatment is enough to convince the employee that compliance is mandatory.  The Indiana Board Form, 54217, is available on the Indiana Board website, www.wcb.in.gov, and must be submitted in completed form to the Board through 1) the adjustor portal or 2) by the defense attorney, with copy to the injured worker or its attorney, and benefits may be suspended.   Only when the injured employee begins complying, benefits are reinstated.

The Commonwealth Court recently addressed the use of CBD oil in Schmidt v. Schmidt, Kirifides & Rassias, P.C., _ A.2d _ (Pa. Cmwlth. 2023).  There the claimant’s treatment for a back injury treatment was mostly pain management, for which he was prescribed various medications, and CBD oil.  The CBD oil was prescribed to avoid the use of increased narcotics.  The employer refused payment on the basis that CBD oil is not a pharmaceutical drug.  Consequently, the claimant filed a Penalty Petition.  The Workers’ Compensation Judge granted the Penalty Petition, concluding that the CBD oil was a medical supply under the Act, and was reasonable and necessary.  While the Judge ordered payment, she did not assess a penalty.

On appeal, the Workers’ Compensation Appeal Board reversed the decision and order of the WCJ.  The Board concluded that CBD oil could not be a reasonable and necessary medical treatment when the FDA has issued several warning letters to firms marketing CBD products for violating federal law.  The WCAB also reasoned that the claimant did not submit the required medical reports and forms to trigger the employer’s reimbursement obligations.  The claimant appealed to the Commonwealth Court.

As was the case in the medical marijuana decisions of Fegley and Appel, dealing with the issue of whether medical marijuana is payable as treatment for a work injury, the Commonwealth Court reversed the decision of the Board.  This decision, as did the medical marijuana reimbursement cases, reflected a lack of understanding by the Court regarding application of the Medical Cost Containment Regulations in Pennsyvlania.  If there is no submission of medical bills with reports, the time frame to issue payment under the Medical Cost Containment Regulations never starts to run.  In fact, in this matter, the claimant’s medical provider appears to have “prescribed” topical treatment and the Claimant, on his own volition, elected to change what was “prescribed” or recommended to be ingestible CBD oil.  Thus, the treatment that was subject to reimbursement may not have actually had been “prescribed” by the medical provider.

If all that is required is a “recommendation” by the medical provider for medical marijuana or a CBD product or any other potential treatment modality, do we no longer need to have specific prescription provided for this to be treatment for which a insurer/employer/carrier is required to issue payment for reimbursement?  Why are reimbursements to be treated differently than payment of a medical bill under the Act and Regulations?  A medical provider does not simply indicate in a note that he is prescribing or recommending “narcotics” or pain medication and the Claimant is then allowed to determine the type, dosage, and frequency of what pain medication they feel works best.  The narcotic medication is actually being prescribed by a physician in terms of type, amount, dosage and frequency. 

This may now not necessarily be the case in Pennsylvania with recent reimbursement cases being handed down by the Commonwealth Court.  The Court either did not consider this issue or lost sight of what actually happens when there is a prescription provided by a medical provider.  The Claimant now apparently simply gets “prescribed” medical marijuana or a CBD product and then has carte blanche to determine what he or she wants so as to obtain this “treatment” without any actual further guidance from his or her medical provider.

With narcotics or any other actual prescription, a Utilization Review can find it to be reasonable and necessary but at a lower dosage or frequency than what was actually prescribed by the treating physician if the matter is referred to utilization review.  With reimbursement cases, there will not be ongoing bills submitted along with office notes from the prescribing physician so as to trigger the time period to file for utilization review.   If the submission of the invoice by the Claimant is what triggers the need to file Utilization Review, it is the Claimant who is picking the strain and amount of medical marijuana or the type and amount of CBD product such that the Claimant may potentially be the “provider” subject to review since they are actually determining what is being purchased and used as “medical treatment” based upon a recommendation as opposed to an actual prescription.  If so, there is no reviewer of the same specialty, as is required to be the peer conducing Utilization Review, given the Claimant is not an actual medical provider such that a proper Utilization Review may not be able to be properly performed.  A Utilization Review of the “prescribing” doctor would not be able to comment on what is actually being prescribed if there is no actual prescription in terms of type, amount, dosage, frequency, which is what is present on a normal prescription should it be subject to utilization review.

Regardless of how one feels about the benefits of medical marijuana and CBD oil, there is an established body of law and procedures to deal with these very issues of prescription medication and recommended medical treatment. However, years established procedures are now being short-circuited by the Court in allowing for unregulated “prescriptions” and treatment in the form of medical marijuana and CBD products for which the employer is responsible.  This same issue could later be applied to other “treatment” modalities for which reimbursement is sought.  This could be recommendations for a “firm bed”, “soaking tub” or “transportation device” or other such “treatment” where the Claimant has carte blanch to interpret as they see fit and then seek reimbursement for what is “prescribed.”

Do any and all recommendations of a medical provider that result in the Claimant purchasing a something arguably related to treatment of a work injury now need to be reimbursed in Pennsylvania given the recent Court holdings concerning reimbursement or should payment for all medical treatment still be subject to the terms and provisions of the Act and corresponding Regulations before payment need be made for such “treatment”? The recent holdings are problematic as they allow for circumvention of the Act and Regulations and if they continue to be followed by the Court, can allow for potential abuses and deny Employers and Carriers the rights afforded under the Act and Regulations before payment is required to be remitted for treatment of a work-related injury.  The Pennsylvania Supreme Court has granted allowance of appeal in the Schmidt matter such that hopefully these issues can be further reviewed and properly addressed by the Court. 

Bradley R. Andreen, Esq.

Rulis & Bochicchio LLC