What happens when an order is entered against an employer to pay a workers’ compensation award and then respondent appeals the decision? Does respondent have to pay benefits pending appeal?  If it does have to pay benefits during the appeal period, what happens if the Appellate Division reverses the award?  Can respondent get a court order for repayment of benefits and counsel fees paid during the appeal?

These are very important questions for practitioners, employers, carriers and third party administrators.  An answer was provided in Malone v. Pennsauken Bd. of Educ., No. A-3404-18T3 (App. Div. July 28, 2020). The case involved a full trial in which petitioner, a custodian, claimed that his need for bilateral total knee replacements was caused by the physical stresses of his job over several years.   Malone won a substantial award of $109,214 in permanency benefits and $7,638 in temporary disability benefits, and his lawyer received a counsel fee of $21,840.  The Board appealed and argued that there was no reliable evidence showing that the knee pathology and knee replacements were work related.

Naturally, the Board did not want to pay the award while the appeal was pending since appeals can take a very long time.  The Board therefore sought what is known as a “stay” of the award pending appeal.  In essence, that is a request by the employer for permission to suspend payments until a decision comes down on appeal.  The request for a stay was denied by both the Judge of Compensation and by the Appellate Division.  That meant that the Board had to pay the award during the many months of the appeal period.  Although the Judge of Compensation denied the request for a stay, she did alert petitioner to the potential need to reimburse the award in the event of a reversal of her decision:

I’m going to deny the motion to stay. I do believe your argument is that in the event the Appellate Division does overturn my decision that it would be difficult for you to recoup your money. Petitioner needs to be aware of the fact that those monies would, in fact, have to be repaid in the event that the Appellate Division reverses my decision . . .

On appeal, respondent persuaded the Appellate Division to reverse the award of all benefits by arguing that petitioner failed to prove that petitioner’s bilateral knee conditions were work related.

Following the successful appeal, the Board next filed a motion with the Judge of Compensation seeking an order requiring petitioner and his attorney to repay the Board of Education all the funds that had been paid pursuant to the reversed order. The Judge of Compensation denied the Board’s motion stating that she did not believe she had the power to do this:

I do believe that once the case is appealed, the Appellate Division, if they accept it, they have jurisdiction. In this case, the decision was reversed, it was not remanded. The issue of repayment was not addressed by the Appellate Division. But I have no statutory authority to do anything with the Malone matter at this point in time, because the Appellate Division still, in my mind, has jurisdiction over this matter.

That left respondent with only one more option:  to return to the Appellate Division.  The Court cited N.J.S.A. 34:15-57 stating that every Judge of Compensation “. . . shall have power to modify any award of compensation, determination and rule for judgment or order approving settlement and to provide for the commutation of any such award, determination and rule for judgment or order approving judgment.”

The Appellate Division disagreed with the Judge of Compensation and held that the statute vests the Judge of Compensation with the authority to enter a judgment against Malone and his attorney for the amounts the Board paid to them under the order which had been reversed. 

This is a very important decision because there really are few appellate decisions, if any, in workers’ compensation that address whether a Judge of Compensation has the power to order a petitioner or his/her attorney to repay benefits after an appeal. 

Congratulations to Capehart partner, Adam Segal, Esq., in winning the appeal of the award and then winning the argument that a Judge of Compensation can in fact order a petitioner to repay benefits when an award is reversed.

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John H. Geaney, Esq., is a Shareholder and Co-Chair in Capehart Scatchard's Workers’ Compensation Group.  Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at jgeaney@capehart.com. 

Legal Update by Attorney Alison Stewart and Law Clerk Jordan Gehlhaar

A recent Commissioner Appeal Decision in Deng v. Farmland Foods, Inc., Workers’ Compensation Commissioner Joseph Cortese II determined that the Iowa Legislature intended “shoulder” in section 85.34(2)(n) to encompass more than just the glenohumeral joint. It was found that the rotator cuff should be classified as a scheduled member injury of the shoulder.

Claimant Deng sustained injuries to her infraspinatus muscle and labrum. The parties agreed that the glenohumeral joint – or the “ball and socket” – falls within the parameters of the “shoulder” under 85.34(2)(n). The labrum would be compensated under this provision since it is located in the joint space. The issue, then, was whether the infraspinatus, one of four muscles of the rotator cuff, should be classified as an injury to the shoulder or body as a whole.

In interpreting legislative intent, the Commissioner looked to debates in the House and Senate files as well as the study bills preceding the files. Originally, the proposal was to make the shoulder joint and everything on the “arm side” of the joint compensable as an arm under § 85.34(2)(m). However, the changes to subsection ‘m’ were stricken and the legislature instead created an additional subsection adding “shoulder” to the list of scheduled members. The Commissioner found this reflective of the legislature’s intent for 85.34(2)(m) to encompass more than just the glenohumeral joint.

The Commissioner also considered that the legislature was aware of the courts’ prior holdings and the adopted rule that the proximal point of a joint was used to classify an injury. For example, the wrist is considered an arm injury, not a hand injury. Unlike the cases in which this rule was applied, the shoulder was specifically classified as a scheduled member.

In the former cases, it may have seemed simple that a leg clearly did not include a hip or an arm clearly did not include a shoulder as they were clearly distinct. However, in this case, the Commissioner emphasized how the shoulder is unique in that “the glenohumeral joint and its surrounding muscles, tendons, bones and surfaces are extremely intricate and intertwined.” Therefore, it could not be assumed that the legislature intended or expected the “proximal” rule to apply to section 85.34(2)(n).

The muscles surrounding the shoulder joint stabilize the socket and work as an “engine” to move the shoulder joint itself. It was reasoned that since the rotator cuff is essential to the function of the glenohumeral joint, it would seem arbitrary to exclude it from the definition of “shoulder.”

Claimant’s injuries were both considered shoulder injuries under 85.34(2)(n). The statute is silent on whether the upper extremity or whole person rating should be applied to the 400 week schedule. Ultimately, because the rating doctor relied on the “upper extremity” chapter of the AMA Guides, and the agency historically had not relied on whole person rating for scheduled member injuries, the upper extremity rating was applied. Her eight percent rating was used to determine she was entitled to 32 weeks of PPD benefits. 

In sum, this decision expanded the definition of “shoulder” beyond just the glenohumeral joint – but it is far from clearly defined. As the opinion asserted, this expansion will result in “temporary uncertainty,” and increased litigation as additional connected components are considered. Note, the impact of a distal clavicle resection was not discussed.

View our previous posting to see how the “proximal” rule was formerly applied to the shoulder.

Peddicord Wharton will continue to monitor case law on this issue.

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NOTICE TO THE PUBLIC

The determination of the need for legal services and the choice of a lawyer are extremely important decisions and should not be based solely upon advertisements or self-proclaimed expertise. This disclosure is required by rule of the Supreme Court of Iowa.

Peddicord Wharton Legal Updates are intended to provide information on current developments in legislation impacting our clients. Readers should not rely solely upon this information as legal advice. Peddicord Wharton attorneys would be pleased to answer any questions you may have about this update. ©2020 Peddicord Wharton. All Rights Reserved.

Legal Update by Attorney Alison Stewart and Law Clerk Jordan Gehlhaar

The Court of Appeals Rules on Commutation of Workers’ Compensation Benefits

In VanGetson v. Aero Concrete, LTD & Westco Ins. Co., Claimants filed arbitration petitions with the workers’ compensation commissioner in early March of 2017. At the time of filing their petitions, the commutation of future payments of compensation to a lump sum payment was allowed when “the period during which compensation is payable can be definitely determined” and the Commissioner was satisfied that commutation was for the best interest of the recipient of benefits. See Iowa Code § 85.45(1) (2016).

Amendments to Iowa’s workers’ compensation laws were passed later that March, with an effective date of July 1, 2017. One of the amendments required commutation be allowed “only upon application of a party to the commissioner and upon written consent of all parties to the proposed commutation” and that amendment was to take effect for all dates of injury, including those that predated the legislative change. Iowa Code § 85.45 (2017).

In late June of 2017, Claimants filed petitions for partial commutation. A deputy commissioner dismissed the petitions, concluding the record was inadequate to determine the period during which compensation was payable could be definitely determined, and an award or settlement was a condition precedent to a request for commutation. Subsequently, the Commissioner and District Court both ruled that the petitions for commutation were premature, since the claimants did not file commutation petitions after the effective date of the amendments to section 85.45.

On appeal, claimants argued the agency’s interpretation of section 85.45 was erroneous. The Court of Appeals found that both versions of the statute require “the period during which compensation is payable can be definitely determined.” The Iowa Supreme Court had interpreted this language to mean that applications for commutation cannot be heard “without a hearing on the merits or an agreement between the parties as to the duration of the disability and the amount of the award.”Diamond v. Parsons Co., 129 N.W.2d 608, 615 (1964).

Based on this precedent, the dismissal and ruling was affirmed. An arbitration award or settlement is a jurisdictional prerequisite necessary for the decision maker to consider a commutation petition. The claimants in this case are a few of many who faced this jurisdictional issue following the 2017 amendments. The Court determined the proper procedure to obtain standing is to proceed under the new statute and, if aggrieved, challenge its retroactive application to workers who were injured before the new statute’s effective date.

COVID-19 Impact on In Person Hearings

The Agency (Iowa Division of Workers' Compensation) recently extended the suspension of in person hearings through November 20, 2020, due to the impact of COVID-19. We will monitor the situation for further updates. Additional information can be foundhere. 

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NOTICE TO THE PUBLIC

The determination of the need for legal services and the choice of a lawyer are extremely important decisions and should not be based solely upon advertisements or self-proclaimed expertise. This disclosure is required by rule of the Supreme Court of Iowa.

Peddicord Wharton Legal Updates are intended to provide information on current developments in legislation impacting our clients. Readers should not rely solely upon this information as legal advice. Peddicord Wharton attorneys would be pleased to answer any questions you may have about this update. ©2020 Peddicord Wharton. All Rights Reserved.

Claimant filed a Petition alleging a 9/10/19 injury to the right wrist, elbow, and shoulder, ongoing total disability following approximately 4 weeks of modified duty work, and seeking payment for all associated medical treatment expenses, including pre-authorization of surgeries that had been recommended for all three body parts. The Board found that claimant failed to prove that any injury was causally related to his work activities. The testimony and evidence were inconsistent, and that detracted from claimant’s credibility and the strength of his case in general.

The Board was critical of claimant’s attempts to downplay his right arm symptoms associated with an earlier workers’ compensation injury. He first testified that all his problems resolved quickly, but then changed his story and admitted that following the accident he treated for years with high dose narcotic medications. He denied previously requiring any right shoulder treatment for the earlier accident, a statement contradicted by many of his own records. The Board also commented that the claimant’s story, as told to the defense medical expert in 2020, Dr. Crain, that the earlier records must have been for treatment for another claimant with the same name, detracted from his credibility, especially since the records contained the identical name, birth date, and many other facts indicating that the treatment was clearly rendered to the same individual. Claimant also omitted facts about his pre-existing condition from his pre-employment physical. On cross examination, he claimed he could not even recall appearing before the Board for two prior merit Hearings associated with his earlier claim.

The Board also discussed an alleged “journal” of the events that claimant had submitted to the Board at Hearing. The primary purpose of the journal was to rebut allegations by the Employer of a gap in treatment for the shoulder, as the journal contained numerous entries allegedly contemporaneous to the work event stating that claimant had reported shoulder pain. The Board questioned the veracity of the journal overall as many of the events in the journal were directly contradicted by his own records from multiple different care providers, as well as the employer’s records and witnesses’ testimony.

The Board even discussed claimant’s testimony that multiple providers treated him unprofessionally, including a physician affiliated with the employer. The Board found it highly unlikely that numerous providers would treat claimant unprofessionally or cause him to report his history inaccurately.

Should you have any questions regarding this Decision, please contact Greg Skolnik, or any other attorney in our Workers’ Compensation Department.  

In a year that have given us a global pandemic, violent demonstrations and protests, wildfires, locust swarms, murder hornets, and devastating hurricanes, it is appropriate that the Alabama Workers’ Compensation Blawg reaches its 13^th year.  Never, in the 100 years since it went into effect, has the language of the Alabama Workers’ Compensation Act been so analyzed and dissected.  Never before has our system of workers’ compensation been so affected by both executive orders from the Governor and special orders from the Alabama Supreme Court.  We have endeavored to keep our readers apprised of all developments as they occur and will continue to do so.  We would like to take this opportunity to thank you all for making this Blawg your go to resource for Alabama workers’ compensation news.  Wishing everyone a safe and healthy remainder of 2020!  Hopefully, there will be more positive things to report on our Blawg’s 14^th birthday.

About the Author

This blog submission was prepared by Mike Fish, an attorney with Fish Nelson & Holden, LLC, a law firm dedicated to representing self-insured employers, insurance carriers, and third party administrators in all matters related to workers’ compensation. Fish Nelson & Holden is a member of the National Workers’ Compensation Defense Network. If you have any questions about this submission or Alabama workers’ compensation in general, please contact Fish by e-mailing him at mfish@fishnelson.com or by calling him directly at 205-332-1448.

Legal Update by Attorneys Nicholas Cooling & Alison Stewart and Law Clerk Jordan Gehlhaar

On July 30, 2020, Workers’ Compensation Commissioner Joseph Cortese II issued an appeal decision in Martinez v. Palvich, Inc. & National Interstate Insurance.

Joseph Martinez was injured on April 16, 2018 while hauling freight when his semi-truck was turned over and collided with another vehicle. He alleged that he sustained injuries to his bilateral lower extremities, right wrist, head and back. He returned to work with Pavlich approximately three months after the injury. Claimant performed light-duty work for one month before returning to his full-duty position. In September of 2018, he voluntarily left Defendant Pavlich to enroll in an apprenticeship program in the construction industry.

The deputy commissioner determined at the arbitration level that Claimant did not sustain a permanent injury to the head or back. The IME provider, Dr. Stoken’s, ratings were found most persuasive as they utilized the preferred AMA guides, Fifth Edition. Dr. Stoken’s rating was chosen as opposed to the rating assigned by Defendants authorized treater, who used the AMA Guides to Permanent Impairment, Sixth Edition, which is not applicable in Iowa. As such, Claimant was entitled to receive 100 weeks of permanency benefits for combined scheduled member disability pursuant to Iowa Code § 85.34(2)(s) (2016).

It was to be determined on appeal whether the deputy commissioner correctly calculated Claimant’s entitlement to permanent partial disability benefits under section 85.34(2). Commissioner Cortese determined that since the accident occurred in 2018, reliance on the 2016 version of the Iowa Code was in error. The language from former section 85.34(2)(s) was not modified, but it was renumbered to section 85.34(2)(t). It provides:

The loss of both arms, or both hands, or both feet, or both legs, or both eyes, or any two thereof, caused by a single accident, shall equal five hundred weeks and be compensated as such.
Iowa Code § 85.34(2)(t) (2019).

The main issue in dispute was whether claimant’s permanent injuries to three (3) scheduled members removed him from the provisions of section 85.34(2)(t) and placed him instead under the provisions of section 85.34(2)(v) “catch all” provision, calling for compensation based on reduction in earning capacity.

Claimant asserted the determination would not affect the outcome as he had returned to work with the same or greater salary which entitled him to compensation based upon his functional capacity only, and not his industrial disability.See Iowa Code § 85.34(2)(v) (2019). The Defendants argued that since Claimant voluntarily resigned to work for a different employer, his benefits should be calculated by his reduction in earning capacity under the industrial disability method. Defendants appear to have made this argument because they believed that Claimant’s industrial disability was less than his functional disability rating at the time. This issue of termination whether voluntary or involuntary had not been considered by the agency since the 2017 amendments.

The commissioner called the statutory change to these code sections “ambiguous.” He further determined that when read together, it appears the legislature only intended to address a scenario in which a claimant returned to work for the defendant-employer or was offered work by the defendant-employer for the same or greater earnings, but was later terminated. The commissioner recognized that the plain language of the statutes support claimant’s interpretation, but reasoned that such interpretation would result in “unreasonable outcomes.” He reasoned that in effect, it would be almost impossible for defendants to know when to volunteer benefits using the industrial disability method. Additionally, a claimant entitled to benefits under section 85.34(2)(v) may be better off not seeking employment after being terminated by a defendant-employer, which could not have been the legislature’s intention according to Commissioner Cortese.

It was determined that despite the fact that he was earning greater wages at the time of the Arbitration hearing than at the time of the injury, Claimant’s voluntary separation from Pavlich removed him from functional impairment analysis and triggered his entitlement to benefits using the industrial disability analysis.

Ultimately, even though his loss of earnings and ability to engage in suitable employment were minimal, the commissioner found Martinez sustained a 20% industrial disability based on permanent injuries to three different body parts. His entitlement to receive 100 weeks of permanent partial disability benefits was affirmed.

This opinion is a novel interpretation of the “catch all” provision § 85.34(2)(v) (2019) which calls for compensation based on a Claimant’s industrial disability, or reduction in earning capacity. This applies where a claimant has suffered an injury to more than two scheduled members, or has sustained a body as a whole injury. If a claimant returns to work or is offered work with the same or greater earnings, their compensation will be based on functional impairment. If later terminated, there may be reopening proceedings for determination of a reduction in earning capacity. However, if the claimant voluntarily resigns with the defendant-employer, the interpretation would not “reset.”

Peddicord Wharton will continue to monitor the case law on this interpretation.

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NOTICE TO THE PUBLIC

The determination of the need for legal services and the choice of a lawyer are extremely important decisions and should not be based solely upon advertisements or self-proclaimed expertise. This disclosure is required by rule of the Supreme Court of Iowa.

Peddicord Wharton Legal Updates are intended to provide information on current developments in legislation impacting our clients. Readers should not rely solely upon this information as legal advice. Peddicord Wharton attorneys would be pleased to answer any questions you may have about this update. ©2020 Peddicord Wharton. All Rights Reserved.

On Monday, September 14, 2020, New Jersey Governor Phil Murphy signed S2380 dealing with COVID-19 and essential workers in respect to workers’ compensation benefits.  The bill was signed on the very last day before the bill would have automatically become law. 

It is important to consider what this bill does and what it does not do.  The essence of the bill is that it creates a rebuttable presumption for essential employees that their contraction of the coronavirus is employment related for workers’ compensation purposes.   The employer can rebut the presumption by a preponderance of the evidence (more than 50%) by showing that the worker was not exposed to the disease while working in the place of employment.  Essential workers are defined as:

1.      Public safety workers or first responders;

2.      Those involved in providing medical and other healthcare services, emergency transportation, social services, and other care services, including services provided in health care facilities, residential facilities or homes;

3.      Those who perform functions which involve physical proximity to members of the public and are essential to the public’s health, safety, and welfare, including transportation services, hotel and other residential services, financial services, and the production, preparation, storage, sale and distribution of essential goods such as food, beverages, medicine, fuel, and supplies for conducting essential business and work at home, or;

4.      Anyone deemed an essential employee by the public authority declaring the state of emergency

The effect of a legal presumption is to shift the burden of proof to the employer to disprove the case. Normally the injured worker has the burden of proving his or her case by a preponderance of the evidence.  If a worker contracts COVID-19 and meets one of the categories above, then the workers’ compensation claim will be found to have arisen from work, unless the employer can rebut the claim by showing the worker contracted the disease in a non-work scenario.  Disproving the case may involve proof that the worker more likely contracted the disease from a family member, from an outside gathering, from travel out of state, or perhaps proof that there was no exposure to the coronavirus at work.

Readers need to reflect on what the bill does not do. A presumption of compensability is not a presumption of impairment.  There is no presumption of impairment under the law.  To receive an award of permanent partial disability in New Jersey, one must prove a work-related impairment which restricts the function of the body and causes either a lessening to a material degree of working ability or a substantial impairment of non-work functions.  If one has fully recovered from the illness, proof of impairment will often be very difficult.  Many of the claim petitions that have been filed in New Jersey do not indicate any particular impairment at all, just referring to “residuals of COVID-19.”  Some claim petitions refer to “respiratory illness” without any treatment having occurred by a pulmonologist.

The first issue is therefore whether the illness arose from work.  The presumption helps the injured worker in close cases on the issue of connection to work.  However, the second proof issue will be difficult for many of those who have recovered from the coronavirus, namely proof by objective evidence that the illness has caused a permanent partial or total impairment. That will require good science and good medicine.   The impairment must be a present one, not merely a potential for injury in the future. 

The effective date of the bill is March 9, 2020.  Clients have inquired whether this means that they should reevaluate all the COVID-19 cases that they made decisions on during the past six months.  The bill does not require this, and there is really little to be gained by doing this.  If there is a dispute over workers’ compensation benefits, the injured worker will likely address the issue with the employer or file a claim petition to obtain medical, temporary or permanent partial disability benefits.  Many recovered COVID-19 cases simply do not involve a dispute over workers’ compensation benefits.  Notably, numerous dependency claims have already been filed long before the passage of S2380.  Employers can expect the filing of more COVID-19 cases as a result of the passage of S2380, but the bill does not make it any easier for claimants to prove objective evidence of an impairment that meets the Supreme Court standard set forth in Perez v. Pantasote, 95 N.J. 105 (1984).

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John H. Geaney, Esq., is a Shareholder and Co-Chair in Capehart Scatchard's Workers’ Compensation Group.  Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at jgeaney@capehart.com. 

Many readers have asked about the status of two very significant bills affecting New Jersey workers’ compensation practice.  They are S2380 and A4134.

S2380 – The Essential Employees Bill

We are down to the wire on S2380.  The Governor has until September 13, 2020 either to sign this bill or veto it; otherwise, S2380 will become law automatically.  This bill creates a rebuttable presumption for essential employees that their contraction of the coronavirus is work related.  The employer can rebut the presumption by a preponderance of the evidence (more than 50%) by showing that the worker was not exposed to the disease while working in the place of employment.  Essential workers are defined as:

1.      Public safety workers or first responders;

2.      Those involved in providing medical and other healthcare services, emergency transportation, social services, and other care services, including services provided in health care facilities, residential facilities or homes;

3.      Those who perform functions which involve physical proximity to members of the public and are essential to the public’s health, safety, and welfare, including transportation services, hotel and other residential services, financial services, and the production, preparation, storage, sale and distribution of essential goods such as food, beverages, medicine, fuel, and supplies for conducting essential business and work at home, or;

4.      Anyone deemed an essential employee by the public authority declaring the state of emergency.

A4134 – Clarification of Hand And Foot Bill On Retroactivity

This Assembly bill has attracted less attention than S2380, but it is important.  It clarifies whether the legislation that became law on January 21, 2020 had secondary retroactive effect.  The bill created enhanced compensation for hand, foot and finger injuries. However, the bill contained no clear language on which cases it applied to.  Questions arose immediately among judges, claimants, practitioners, employers, carriers, and third party administrators regarding the application of the law to claim petitions pending in the Division of Workers’ Compensation as of January 21, 2020 but filed before the effective date of the law.

This bill clearly states that the enhanced compensation for hand, foot and finger injuries applies to all cases pending but not yet settled or filed on or after the date of enactment  –  January 21, 2020.  However, the bill states that the law will not be applicable to cases which have been reopened.  The law obviously would not apply to cases that were settled before January 21, 2020.

This bill is limited to the issue of secondary retroactivity and was passed by the Assembly on August 27, 2020.  It will be scheduled next for a hearing before the Senate.  Readers should be aware that another aspect of this bill raises the cost of burial expenses in cases of compensable accident or occupational disease from $3,500 to $5,000, and that provision too would be applicable to claim petitions pending in the Division of Workers’ Compensation as of January 21, 2020.

Readers who are interested in the method used to compute the enhanced compensation for hand, foot and finger injuries can view the January 23, 2020 blog addressing this subject.

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John H. Geaney, Esq., is a Shareholder and Co-Chair in Capehart Scatchard's Workers’ Compensation Group.  Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at jgeaney@capehart.com. 

NWCDN Case Summaries 

Claimant injured his back picking up work equipment and was admitted to the hospital due to a gastrointestinal bleed. A few weeks later, he was re-admitted with severe back pain. Diagnosed with lower extremity edema, compression fracture in thoracic spine and severs destruction in the T9-T10 vertebra with possible discitis versus neoplastic process. Blood cultures confirmed presence of staphylococcus lugdunensis. Due to the infection, claimant became wheelchair bound. An ALJ found claimant’s back injury created the conditions for the infection and was compensable. On appeal, respondents argued the infection and its consequences were only compensable if they were the natural result of claimant’s work-related injury. The Court of Appeals (COA) disagreed and viewed the case under the “chain of causation analysis,” which is reserved for cases in which the industrial injury leaves the body in a weakened condition and the weakened condition plays a causative role in the subsequent injury.Jarosinski v. Indus. Claim Appeals Office, 62 P.3d 1082, 2086 (Colo. App. 2002). COA found it was not necessary for the work conditions to have directly caused claimant’s infection. Instead, it was sufficient if claimant’s weakened back condition played a “causative role” resulting in his disability. COA found a connection existed because of weakened back was a perfect breeding ground for infection.

City of Colorado Springs, Colorado v. Industrial Claim Appeals Office of the State of Colorado and Theodore E. Martinez, 19CA1795

Claimant installed drywall for employer and fell 14-feet and suffered a broken pelvis and two fractured vertebrae. Employer denied request for workers’ compensation benefits, because they asserted he was an independent contractor. After a hearing, the ALJ found claimant was an independent contractor when he weight factors set out in § 8-40-202(2). The ALJ listed a number of factual findings; claimant had executed a sub-contractor agreement, no training provided, employer did not oversee work, claimant obtained own insurance, claimant had taxpayer identification number, employer gave 1099 with “Noe Lopez Construction” identification, and claimant identified himself as self-employed. Claimant appealed. The ICAO Panel set aside the ALJ’s order by balancing factors set forth in Industrial Claim Appeals Office v. Softrock Geological Services, Inc., 2014 CO 30. The Panel found the claim compensable and respondent liable for consequential medical expenses. Respondent appealed. The Court of Appeals (COA) set aside the Panel’s order because neither the Panel nor the ALJ had the benefit of Pella Windows & Doors, Inc. v. Industrial Claim Appeals Office, 2020 COA 9.Pella held the factors articulated in Softrock applied in a workers’ compensation case along with factors in C.R.S. 8-70-115(1)(c). However, COA found the Panel exceeded its authority by improperly re-weighing evidence and applyingSoftrock to the facts. Under §8-43-301(8), a panel may only “correct, set aside, or remand” a judge’s order if the findings of fact are not supported by evidence, or do not support an order or law. The COA cited howPella found whether a worker is an independent contractor is a factual determination for an ALJ. So the Panel erred by looking at additional evidence and overlooking the facts the ALJ found. The Panel should have remanded the case with instructions for the judge to consider Softrock.

Holsinger Drywall Inc. and Pinnacol Assurance v. Industrial Claim Appeals Office and Neo Lopez, 19CA1013, May 28, 2020.

Summaries completed by Craig Campos, Esq. from the Fort Collins, CO. office of Ritsema & Lyon, P.C.