NWCDN Members regularly post articles and summary judgements in workers’ compensations law in your state.
Select a state from the dropdown menu below to scroll through the state specific archives for updates and opinions on various workers’ compensation laws in your state.
Contact information for NWCDN members is also located on the state specific links in the event you have additional questions or your company is seeking a workers’ compensation lawyer in your state.
Proposed Senate Bill 2380 sponsored by New Jersey Senate President Stephen Sweeney seeks to create a new legal presumption of compensability for “essential employees,” including public safety workers and virtually all health care workers who file COVID-19 workers’ compensation claims. This proposed presumption would require the Judge of Compensation to presume that any COVID-19 claim for public safety and health care workers must be found to be work related unless the employer could rebut the claim by “clear and convincing evidence.” There exists no presumption in the New Jersey Workers’ Compensation Act that requires an employer in any circumstance to rebut a claim by clear and convincing evidence. There is a very good reason for that: the standard would be impossible to meet for employers, and it would in effect make employers strictly liable for all COVID-19 cases, whether the claims are causally related or not.
There are both legal and practical reasons that enhanced legal presumptions do not make sense in the context of this pandemic. Consider the legal issue first. For an occupational disease to be compensable it must be proven to arise out of the employment and be produced by causes which are characteristic of or peculiar to work under N.J.S.A. 34:15-31. But the COVID-19 virus is ubiquitous. It spreads wherever people congregate: including churches, grocery stores, post offices, and crowded beaches. Millions of people have the virus and don’t know it. COVID-19 claims are not like traditional occupational disease claims such as black lung among coal miners or Legionnaire’s Disease among workers in an infected building who breathe in the bacteria. These kinds of occupational disease claims clearly meet the test of being peculiar to a particular work environment.
COVID-19 illnesses arise when the virus spreads in any close human contact, whether it is through work or outside work. We all understand how easily the virus can be spread in any life circumstance. A New Jersey family had a gathering in late February that led to the tragic death of four family members from the coronavirus. Other family members also got sick. Sixty choir members in the State of Washington met to practice on March 6, 2020. They sanitized and kept their distance from one another. Within days 45 of 60 choir members became ill because the virus was spread through the air when they sang.
Hospitals, health care providers and public sector employers, their carriers and excess carriers, are now inundated with COVID-19 claims. This is putting enormous financial strain on public sector and hospital budgets at a time when Americans have expressed profound concern about rising health care costs, high taxes, and unfunded pension plans. These claims are now beginning to work their way into the workers’ compensation systems of each state. The good news is that there are already adequate laws In New Jersey to deal with COVID-19 claims without creating an ultra-high legal presumption for a virus that is in every state and every country.
Judges understand that health care workers and public safety workers often work in close proximity to people who may be infected. They may also have non-work exposures as well. In assessing whether any COVID-19 virus arises from work, workers’ compensation judges draw on their expertise in sorting out complex causation issues, factoring in work and non-work exposures. For example, they evaluate claims for alleged cancer from second-hand smoke, Lyme disease, lead exposure, and other environmental claims. In doing so, workers’ compensation judges use a more probable than not legal standard. In fact, there already is a presumption in the 2019 Thomas Canzanella Twenty First Century First Responders Act that shifts the burden to employers to disprove certain claims involving public safety workers by the more probable than not standard. The proposed coronavirus presumption not only shifts the burden of proof to employers but it imposes an extremely high legal presumption on employers that directly conflicts with the 2019 legal presumption created under the Thomas Canzanella law.
Public policy is important, and the wrong policy is to vastly increase the financial burden on health care, government and their carriers by making virtually all COVID-19 claims compensable through an unrealistic new legal presumption. Carriers did not collect pandemic premiums from their insureds. Requiring government, health care employers and their carriers to pay all COVID-19 claims regardless of causation will add create enormous financial pressure on governments, taxpayers, health care providers and the insurance industry. These are the unintended consequences that can be foreseen by proposed S. 2380. Instead of creating an unrealistic legal presumption that makes a bad situation worse, elected leaders should focus on creating the equivalent of the current federal Paycheck Protection Program to help injured workers and to alleviate the insurance burden on health care, government and carriers.
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John H. Geaney, Esq., is an Executive Committee Member and a Shareholder 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.
On April 15th, 2020, the Department of Workers’ Claims (“DWC”) published guidance regarding Governor Beshear’s Executive Order (“Order”), dated April 9, 2020, on TTD benefits for employees removed from work due to COVID-19 exposure.[1] We offer the following analysis of the DWC’s position:
1) The scope of the Order is limited to the payment of TTD benefits for employees removed from work, by a physician, due to occupational exposure to COVID-19 and has no application to the resolution of other issues. The Order applies prospectively beginning on April 9, 2020.
2) Two classes of employees are created by the Order and a “good faith” denial is all that is required to deny TTD benefits in either class. Whether the denial is in “good faith” will depend on the specific facts involved and may require a medical opinion. The first class of employees (“Regular”) encompasses all workers. The second class of employees (“Presumptive”) encompasses certain enumerated workers as listed in the Order.
a. To qualify for TTD benefits, a Regular employee must show removal from work by a physician due to “occupational exposure” to COVID-19, causally related to work.[2] A note/report from a physician simply stating the employee is being removed from work due to exposure to COVID-19, without stating exposure was “occupational” and addressing causation, is a basis for a “good faith” denial of benefits.
b. For a Presumptive employee the presumption of “occupational exposure” is rebuttable.
3) TTD benefits are subject to offset by concurrent: unemployment benefits; FMLA benefits paid pursuant to the Families First Coronavirus Response Act; exclusively employer-funded disability/sickness/accident plan payments; and salary continuation.[3] For salary continuation benefits, the offset would be equal to the employee’s net income after taxes.[4]
Note: The DWC’s "Guidance" on TTD is not binding on an Administrative Law Judge in the resolution of any COVID-19 claim.
Jones Howard Law, PLLC will continue to provide COVID-19 updates regarding any significant developments associated with workers' compensation benefits and exposure. Should you have any questions or wish to discuss any of these matters personally, please contact one of our attorneys at your convenience.
H. Douglas Jones, Esq.
djones@joneshowardlaw.com
Mark W. Howard, Esq
mhoward@joneshowardlaw.com
Troy W. Skeens, Esq.
tskeens@joneshowardlaw.com
Margo J. Menefee, Esq.
mmenefee@joneshowardlaw.com
[1] DWC Guidance dated 4/15/2020,https://labor.ky.gov/Documents/COVID-19%20Executive%20Order%202020-277.pdf.
[2] Gov.’s Executive Order 2020-277 dated 4/9/2020,https://governor.ky.gov/attachments/20200409_Executive-Order_2020-277_Workers-Compensation.pdf.
[3]KRS 342.730(5) – (6). This offset applies to STD plans if fully funded by the employer.
[4] SeeKRS 342.730(7).
N.J.S.A. 34:15-79(a) is the source of considerable litigation in workers’ compensation. It provides that “Any contractor placing work with a subcontractor shall, in the event of the subcontractor’s failing to carry workers’ compensation insurance as required by this article, become liable for any compensation which may be due an employee or the dependents of a deceased employee of a subcontractor.” There are many cases on the back end where an employee of a subcontractor is injured and brings a claim against the general contractor after the employee’s subcontractor is found to have no workers’ compensation coverage. But the case of Fournier Trucking v. New Jersey Manufacturers Insurance Co., No. A-1353-18T2 (App. Div. April 9, 2020), deals with the situation on the front end – after the policy of insurance is written and before any accident should occur. The focus in this case was on inaccurate information provided by the policy holder to NJM about the risks inherent in its business in order to reduce workers’ compensation premiums.
To appreciate the ruling in this case requires some understanding of the details of the trucking business at issue. Shippers would hire Fournier Trucking to deliver goods primarily to west coast states when the shippers had to deliver less than a full truckload of product or when they had to make deliveries to multiple locations. Fournier Trucking (hereinafter “FT”) would use its own employees to collect loads from its shipping company clients in the tri-state area and then gather them in its New Jersey warehouse. FT would hire independent motor carriers to then haul freight to west coast states. FT would coordinate communication between its customers and the independent carriers, but the carriers provided their own equipment. FT would send the customers an invoice and then pay the carriers for transport services.
The relationship between FT and NJM began in 2003 through an assigned risk policy. At that time FT indicated that it had no owner operators. In its initial audit NJM was of the understanding that FT used no subcontractors or owner operators. For the 2014-2015 policy year, NJM estimated an annual premium of $43,193 with a total annual premium of $45,579. However, an NJM auditor years later happened to notice a discrepancy in the number of drivers reported by FT and the number of drivers which FT listed in a federal licensing database. A site inspection ensued and NJM learned for the first time that FT used between 15 and 20 independent motor carriers for shipping. Naturally, NJM was concerned that it was exposed to much more risk than it had ever appreciated since injured employees of carriers without workers’ compensation coverage could be covered under the above provision in Section 79(a). Therefore NJM unsuccessfully sought information from FT about these carriers and their insurance certifications.
By July 2015 NJM still had not received any Form 1099s or certificates of insurance for the carriers that FT worked with to ship to the west coast. FT refused to provide any such information. NJM was left with no alternative but to estimate the remuneration paid by FT to the uninsured carriers at an amount of $100,000. That raised the total standard premium to $57,043 with the total cost of $70,980. FT protested. While FT insisted that it had agreements requiring the many carriers to maintain insurance, FT would not provide any proof.
On December 23, 2015, FT’s lawyer acknowledged for the first time that their motor carriers “in certain cases employ their own employees.” FT denied that it issued any Form 1099s to the carriers. Two months later, the FT Vice President of Operations denied to NJM that the carriers had any employees, contrary to the admission of their own counsel. She also said that $100,000 would easily cover all payments that FT made to its carriers. Later at trial the Vice President of Operations had to recant her representations and admit as well that the company was in possession of Form 1099s for some motor carriers it worked with in 2015. She also admitted that she never knew whether or not the motor carriers had employees.
Since NJM could not receive information on coverage for FT’s carriers, it did a second audit in 2016 and adjusted the premium for 2014-2015 to $344,001 with a total audited cost of $426,359. NJM indicated that it would not charge FT for any additional risk if the company would just demonstrate proof that the many carriers it worked with maintained workers’ compensation coverage for their employees. FT then sued NJM seeking injunctive relief. NJM counter sued for breach of contract and fraud under N.J.S.A. 34:15-57.4.
During discovery FT listed a total of 81 carriers that it utilized, 15 of which had multiple drivers. The trial judge granted summary judgment in favor of NJM on breach of contract counts and ordered FT to provide copies of information relating to its carriers, including 1099s, certificates of insurances, and names and addresses of the 15 carriers. The trial judge held that NJM was entitled to charge a premium for amounts paid to the uninsured subcontractors pursuant to N.J.S.A. 34:15-79(a).
On June 15, 2018, FT provided documents showing amounts paid to 15 carriers in 2014 totalling $2.59 million dollars, more than 25 times higher than the VP of Operations admitted. Only one of the carriers had workers’ compensation for its employees. Fourteen of the carriers FT was using had no workers’ compensation coverage for their own employees. NJM revised the new premium at this point to $145,321. On the remaining fraud count, the trial judge found that FT was well aware all along that its carriers had employees and had been well aware that it paid far more than $100,000 to its motor carriers. The judge found that FT purposefully and knowingly made misleading and false statements to NJM to avoid payment of additional premiums and withheld material information from NJM in violation of N.J.S.A. 34:15-57.4, the New Jersey Fraud Act.
The trial judge awarded NJM $254,329.17 for unpaid premiums of $145,231, simple interest of $7,603.44, costs of $6,802.73 and attorneys’ fees of $94.692. The judge further found that NJM’s witnesses were entirely credible while finding that FT’s VP of Operations was less than credible.
FT appealed to the Appellate Division which affirmed the trial judge on each issue. FT tried to argue that its motor carriers were independent contractors but not subcontractors under Section 79(a). The Court disagreed: “Because the shipping companies that hire FT for individual shipments exercise little control over FT’s transportation services, FT is clearly a ‘contractor’ for those shipping companies within the meaning of N.J.S.A. 34:15-79(a).” The Court added, “… subcontracting is merely ‘farming out’ to others all or part of work contracted to be performed by the original contractor.” The Court said:
Shippers hire FT to consolidate and transport goods. FT consolidates the goods itself and then subcontracts with the carriers to perform the transportation. Therefore, FT is a contractor, and the carriers it uses to fulfill part of its contracts with shippers are subcontractors.
Next, FT argued that carriers are not employees of FT but are independent contractors. For its part, NJM had already conceded this argument and had never argued that the carriers were employees of FT. Rather, NJM argued that the issue pertained to the employees of the motor carriers who might be injured. The Court said:
By operation of N.J.S.A. 34:15-79(a), to the extent these carriers fail to satisfy their statutory obligation, Fournier Trucking, as the general contractor, is obliged to provide benefits to any carrier employee who suffers an injury while providing services under Fournier Trucking’s general contract.
This opinion provides excellent clarity on the relationship between the terms “independent contractor” and “subcontractor” for purposes of Section 79. In effect, the Appellate Division was saying that for the purposes of Section 79, an independent contractor can be a subcontractor. The case also provides the best discussion of any modern New Jersey case on the duty of the policy holder to provide accurate and complete information to its workers’ compensation carrier and the ramifications of failing to do so. This case is unreported but merits reconsideration by the Committee on Publications.
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John H. Geaney, Esq., is an Executive Committee Member and a Shareholder 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.
Claimant was involved in a rear-end motor vehicle accident with acknowledged injuries to his neck and low back. For a brief time after the work accident, claimant was noted to have weakness in his lower extremities; however, those findings quickly resolved and did not return. Dr. Eskander proposed a two-level lumbar surgical procedure, designed to “free up the nerves.” Dr. Eskander maintained that the lack of neurological compromise was proof of spinal stenosis; however, Dr. Schwartz testified on behalf of the Employer that this is not the case and that this surgery should not occur on a normal neurological examination.
The Industrial Accident Board found claimant did not meet his burden of proving the surgery was reasonable and necessary treatment for his condition. The Board accepted Dr. Schwartz’s testimony and emphasized the importance of claimant’s lack of neurological findings across multiple examinations, particularly with respect to claimant’s normal gait and the lack of a positive EMG. While the Board accepted there was a period of neurological compromise, it cautioned that “one does not operate because, once upon a time, one had symptoms.” Further, without the presence of current neurological problems, the risk of a complicated two-level surgery was significant and not justified. The Petition was denied outright, and the surgery deemed unreasonable and unnecessary.
Should you have any questions regarding this Decision, please contact Nick Bittner, or any other Attorney in our Workers’ Compensation Department.
Raymond Thompkins v. Reynolds Transportation, IAB No. 1482461, March 13, 2020.
Jones Howard Law, PLLC (“JHL”) has received inquiries regarding what effect employee layoffs associated with the novel coronavirus pandemic (“pandemic”), nonessential business closures and restrictions, safety-in-place orders and quarantines have on employer workers' compensation exposure. We offer the following analysis.
Prior Injury - RTW - TTD Terminated - Subsequent Layoff
Hypothetical: At the time of the layoff or business closure due to the pandemic, a previously injured employee was back to work at your place of business. The employee was not at Maximum Medical Improvement (MMI) from the prior injury at the time of the layoff or business closure. Is the employee eligible for TTD benefits?
Answer: Yes, in most instances.
To be eligible for TTD benefits, the injured employee must: a) not be at MMI, AND b) not have returned to employment.[1] The injured employee's TTD benefits would probably have been terminated upon return to employment. If, however, in the event of a layoff or business closure due to the pandemic, the employee would arguably be eligible for re-initiation of TTD benefits, since upon layoff or business closure the employee was: a) not at MMI, AND b) no longer working -- thus meeting the statutory criteria for TTD eligibility.
Note 1: These issues and potential exposure require a detailed factual analysis. Each and every claim needs to be evaluated on its own facts and merits. This hypothetical is merely offered as an example of potential TTD exposure in the event of a layoff or business closure.
Note 2: TTD benefits may be terminated if and when a treating physician or IME physician places the claimant at MMI.
Governor Beshear's Executive Order - Mandatory TTD Benefits
If an employee is restricted from working by a physician due to COVID-19 exposure and quarantined an employer has potential day one TTD exposure. As previously summarized in the JHL Kentucky Covid-19 Update, dated April 10, 2020, the Kentucky Governor's Executive Order, dated April 9, 2020, mandates day one payment of TTD benefits for an employee exposed to COVID-19 and quarantined if and when certain criteria are met, including causation.[2] We recommend a thorough review of the Executive Order.
Note 3: The employer is entitled a TTD credit or offset for any concurrent unemployment benefits.
JHL will continue to provide COVID-19 updates regarding any significant developments associated with workers' compensation benefits and exposure. Should you have any questions or wish to discuss any of these matters personally, please contact one of our attorneys at your convenience.
H. Douglas Jones, Esq.
djones@joneshowardlaw.com
Mark W. Howard, Esq
mhoward@joneshowardlaw.com
Troy W. Skeens, Esq.
tskeens@joneshowardlaw.com
Margo J. Menefee, Esq.
mmenefee@joneshowardlaw.com
[1] See342.0011(11)(a); see also,Trane v. Tipton, 481 S.W.3d 800 (Ky. 2016).
[2] Executive Order 2020-277 (April 9th, 2020)https://governor.ky.gov/attachments/20200409_Executive-Order_2020-277_Workers-Compensation.pdf
Please see below a link to Kentucky Governor Beshear's Executive Order, dated April 9, 2020 ("Order"). This Order states:
1. "An employee removed from work by a physician due to occupational exposure to COVID-19 shall be entitled to temporary total disability payments...during the period of removal even if the employer ultimately denies liability for the claim. In order for the exposure to be "occupational," there must be a causal connection between the conditions under which the work is performed and COVID-19, and which can be seen to have followed as a natural incident to the work as a result of the exposure occasioned by the nature of the employment;"
[Note 1: This would necessitate a note/report from a physician stating the employee was removed from work due to occupational exposure, and addressing the above referenced causal connection between the work activity and COVID-19.]
[Note 2: The Order mandates that upon receipt of the above referenced physician note/report, TTD benefits are then owed, even "if the employer ultimately denies liability." Numerical paragraph 1. of the Order does not address how or when an employer shall deny liability. Developments as to a subsequent denial will have to be monitored going forward.]
2. KRS 324.040(1), which provides no TTD benefits are owed for the first seven (7) days, unless the worker is off for more than two (2) weeks is suspended and TTD shall be paid from the first day the employee is removed from work.
3. It shall be presumed that removal of certain workers from work by a physician is due to occupational exposure to COVID-19. The Order enumerates employees that shall have a presumption of causation. (See numerical paragraph 3.).
[Note 3: This section of the Order does not make any reference to an employer that "ultimately denies liability," but that appears to be addressed in numerical paragraph 5, discussed below.]
[Note 4: This section of the Order that presumes causation includes military, National Guard and postal service workers. To the extent that servicemen, servicewomen and postal workers are Federal employees, he or she should not be eligible for Kentucky workers' compensation benefits.]
4. This Order applies to all carriers and self-insureds.
5. "Payment by the employer or its payment obligor pursuant to this Order does not waive the employer's right to contest its liability for the claim or other benefits to be provided."
[Note 5: This section of the Order does not specify how or when an employer shall contest liability. This necessitates monitoring of future developments.]
Jones Howard Law, PLLC will continue to monitor all COVID-19 developments as relate to workers' compensation matters -- and keep our clients well informed.
Should you have any questions or wish to discuss any of these matters personally, please contact one of our attorneys at your convenience. We appreciate the opportunity to be of service in this regard.
https://governor.ky.gov/attachments/20200409_Executive-Order_2020-277_Workers-Compensation.pdf
H. Douglas Jones, Esq.
djones@joneshowardlaw.com
Mark W. Howard, Esq
mhoward@joneshowardlaw.com
Troy W. Skeens, Esq.
tskeens@joneshowardlaw.com
Margo J. Menefee, Esq.
mmenefee@joneshowardlaw.com
On Monday, April 27, 2020 at 10:00 am (CST) a panel of experienced workers’ compensation defense attorneys representing different regions of the United States will present a timely and comprehensive webinar entitled"The COVID-19 Ripple Effect: Economic and Medical Impact on the Payment of Temporary Disability Benefits" at the Center for Education Excellence. This is the second of a series of free webinars sponsored by WorkersCompensation.com in collaboration with the National Workers' Compensation Defense Network.
The webinars are free. All you have to do is register.
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.
Simon Law Group, P.C.
720 Olive Street, Suite 1720, St. Louis, MO 63101
314-621-2828
MISSOURI WORKERS’ COMPENSATION CASE LAW UPDATE
January 2020 – March 2020
COVID – 19 & Missouri Workers’ Compensation
Compensability –
It would be very difficult for a claimant to prove that he or she contracted COVID-19 under the theory of accident as an accident is defined as an unexpected traumatic event or unusual strain identifiable by time and place of occurrence and producing at the time objective symptoms of an injury caused by a specific event during a single work shift. §287.020.2.
However, COVID-19 could fall under the theory of an occupational disease which is defined as an identifiable disease arising with or without human fault, out of and in the course of employment. Ordinary diseases of life to which the general public is exposed outside of employment shall not be compensable except where the diseases follow as an incident of an occupational disease. The disease need not to have been foreseen or expected but after its contraction it must appear to have had its origin in a risk connected with the employment and to have flowed from that source as a rational consequence. §287.067.1
Also, for an injury to be deemed compensable it cannot come from a hazard or risk unrelated to the employment to which workers would have been equally exposed outside of and unrelated to the employment in normal nonemployment life. §287.020.3(2)(b)
Therefore, in order for COVID-19 to be compensable it is likely that a claimant will have to work in the healthcare field, as they have a greater risk of coming into contact with the virus. In other words, a healthcare employee may be able to argue that they have a greater risk of exposure at work than in their normal nonemployment life.
The Effect on Current Claims –
COVID-19 will likely affect how claims are handled, as claimants that are treating may have a delay in that treatment due to doctor’s offices closing or taking less patients in a day in order to limit possible contact. Also surgeries could be delayed/postponed. Furthermore, a claimant may become symptomatic and unable to present to a doctor’s office. Of course, if a claimant is off work or on restrictions that cannot be accommodated by the employer this could increase TTD exposure.
Furthermore, some employers are closing their doors due to temporary laws or by choice and therefore some employees that were offered light-duty restrictions no longer have that option. Therefore, this would open the employer up to TTD exposure when there was none.
Claimant’s Fall Not Compensable Because Claimant’s Testimony Regarding Condition of Floor Not Credible
Annayeva vs. SAB of the TSD of the City of St. Louis and Treasurer of Missouri as Custodian of the Second Injury Fund, Case No. SC98122 (Mo. S.Ct. 2020)
FACTS: On January 8, 2013, the claimant, a teacher, sustained an injury when she slipped and fell. She had just entered the school building using a general entrance and was carrying student papers and lesson plans, although she was not “clocked in” at the time. She did not see any defects in the linoleum tile floor, and when filling out an investigation report, she did not mention any ice, salt, or dirt on the floor that caused her to slip and stated that she “could not determine the cause of the accident.” The claimant alleged injuries to numerous body parts as well as a psychological injury.
At a Hearing, the ALJ found the claimant’s testimony was not credible and denied her claim due to lack of causation. On appeal, the Commission affirmed the ALJ’s Award, but based on the grounds that the claimant was not injured in the course and scope of her employment. The Commission found that nothing about the claimant’s work caused her to fall, and the hallway was “normal” where she fell. When specifically asked by her attorney, the claimant testified that the floor was dirty and moist, but the Commission did not find her testimony credible and noted that none of the medical records noted any hazardous conditions on the hallway floor. Therefore, the Commission found that the only risk source was that of walking on an even flat surface, to which the claimant was equally exposed in her normal non-employment life, and she failed to show that her injury arose out of and in the course and scope of employment.
On appeal, the Court of Appeals reversed the Commission’s decision. The Court held that when the Commission rejected the claimant’s testimony regarding the condition of the floor and found it was not credible, its opinion was based on conjecture and unsupported by sufficient competent evidence in the record, and the Commission’s Award did not provide a reasonable or substantial basis for refusing to believe the uncontradicted testimony of claimant. With respect to the medical records, the Court also held that medical records were meant to provide proof of medical history and diagnosis, not proof of a hazard or risk present on the floor where the claimant fell. Therefore, the fact that they did not mention dirt or ice on the floor was not persuasive. The Court held that the claimant was injured in the course and scope of her employment because the risk of her injury was not simply walking on an even surface, it was walking in the employer’s hallway which was dirty with dirt and ice, where she walked every workday as a function of her employment. The Court also found that it did not matter that the claimant had not yet clocked in at the time of her injury because the employer owned and controlled the hallway where she fell. Therefore, the Court reversed the Commission’s decision and transfer was granted to the Supreme Court.
HOLDING: The Missouri Supreme Court noted that the Commission determined that the claimant’s testimony was not credible. Because the Court is bound by the Commission’s credibility determinations when they are expressed in the award or denial of benefits and the weight the Commission gives to conflicting evidence, it must treat the claimant’s testimony regarding the condition of the floor as not persuasive. Since the claimant failed to produce any credible evidence regarding the soiled condition of the floor, her walk into school was no different from any other walk taken in her normal, nonemployment life. Therefore, her claim is not compensable, and the Court affirmed the Commission’s denial of benefits.
Claimant’s Fall Not Compensable Because Claimant Just Walking
Gray v. Hy Vee Food Stores and Treasurer of the State of Missouri Custodian of the Second Injury Fund, Injury No. 14-074997
The claimant, an 82-year-old employee, had walked approximately 15 to 20 steps into the store and fell sustaining an injury to her left shoulder. She did undergo a shoulder replacement on her own. At a hearing she testified that although her Claim for Compensation stated that she slipped due to water on the floor she was not aware of any water on the floor when she fell. She did note that the parking lot was wet with dew and it was likely that she had water on her shoes. She had her normal tennis shoes on which she wore to work everyday and did not believe they had any defect. She testified that she fell suddenly and had no idea why she fell. She was not aware of any condition which would have caused her to fall. There was no water or substance on her clothes when she got up from the floor.
A co-employee testified that she saw no water or food on the floor that could have contributed to the claimant’s fall. Also the claimant’s supervisor testified at the hearing. She testified that the area where the claimant fell was not an area of normal foot traffic. She found no wet area or water in the area where the claimant fell. She also testified that the claimant told her that her shoes had been sticking and that her son had planned on taking her to get new shoes. Also the kitchen manager testified that he was there shortly after the claimant’s fall and there was nothing which could have caused the claimant’s fall. He also testified that the claimant said “those darn shoes got me” and said that it was her second fall in her shoes.
Also when she presented to the emergency room it was noted that she “was walking when she tripped over her own feet and landed on her left arm.”
The ALJ found that the claimant failed to sustain her burden of proof that she sustained an accident that arose out of and in the course of her employment. There was no evidence that the claimant did anything other than walk into the store and fall after taking 15 to 20 steps. She was not able to identify anything related to Hy Vee or her work for Hy Vee that caused her to fall. There was no evidence that work was the prevailing factor in causing her to slip and fall, and moreover there was no evidence that walking on the grocery store flooring was a hazard or risk to which she was not equally exposed in her nonemployment life. The Commission affirmed the decision of the ALJ.
Claim Denied as Claimant’s Condition Due to Degenerative Conditions and Not Unexpected Traumatic Work Accident
Williams v. Lutheran Senior Services and Safety National Casualty, Injury No. 18-001826
On January 15, 2018, the claimant slipped and fell on ice and landed with her left arm extended out from her body trying to brace herself. The employer sent the claimant to BarnesCare and she was referred for an MRI which showed arthritic changes and tendinopathy with tears of the infraspinatus and supraspinatus tendons. The employer then sent the claimant to Dr. Young who opined that the work incident was not the primary and prevailing cause of her shoulder symptoms. He noted the claimant had a severely arthritic shoulder and the work accident exacerbated the underlying symptoms of the severe arthrosis. The direct fall onto the shoulder caused a flare-up of the underlying symptoms related to her chronic underlying condition that relate to her chronic severe arthritis. Dr. Young recommended further treatment including steroid injections and ultimately a shoulder replacement. However, he noted the injury was not directly related to the work incident.
The claimant went on her own to Dr. Wright who opined that she had left shoulder glenohumeral arthritis and a left shoulder full thickness rotator cuff tear. He injected her shoulder and referred her to Dr. Aleem who reviewed the MRI and stated he did not see a full thickness rotator cuff tear but did opine that she would be a good candidate for a total shoulder replacement.
The ALJ found that there was an unexpected traumatic event. However, the evidence shows that a work-related injury did not occur as defined by §287.010.2 which states that an injury is not compensable because work was a triggering or precipitating factor. Additionally, the ALJ found that while the fall exacerbated or triggered the claimant’s arthritic left shoulder symptoms and complaints, there was no evidence presented indicating that the claimant’s injury was the prevailing factor in causing the injury or need for treatment, and therefore denied the claim.
The claimant then appealed to the Commission. The Commission found that while there was an unexpected traumatic event when the claimant fell, the injury was not caused by this specific event. Additionally, the Commission found that an injury by accident is compensable only if the accident was the prevailing factor in causing both the resulting medical condition and disability and since Dr. Young credibly opined that the shoulder condition was not directly related to the work incident, the injury was not compensable. Therefore, the Commission affirmed the ALJ’s Award denying compensation.
Tinnitus Found Not Work Related
Schlereth v. Aramark Uniform Services Inc., Treasurer of the State of Missouri Second Injury Fund, Case No. ED107806 (Mo. App. 2019)
FACTS: On October 8, 2014, the claimant, a production supervisor, verbally reprimanded two subordinates for leaving wet linen on the production line without spinning it dry and called their actions “stupid.” In response, one of the subordinates spit in the claimant’s face and punched him repeatedly which caused him to fall and hit his head against a washing machine. After the incident, the claimant was driven to the emergency room and diagnosed with a facial contusion. Nine days after the incident, he saw his treating physician, but did not complain of any ear issues then or on subsequent visits. In October 2017, he filed a Claim alleging tinnitus as a result of the work injury.
Dr. Cohen, the claimant’s expert, diagnosed a mild traumatic brain injury and resulting tinnitus. He did admit that tinnitus could be caused by a multitude of other external factors including the medication meloxicam, which the claimant had been taking before the work accident. Dr. Peeples testified on behalf of the employer and it was his opinion that generally people with posttraumatic tinnitus also have symptoms of a traumatic brain injury and the claimant had no such symptoms. The ALJ concluded that the work accident was not the cause of the claimant’s tinnitus because he offered “no evidence” of the cause of the same. The ALJ also believed that Dr. Peeples’ testimony regarding causation was more persuasive than Dr. Cohen’s. The claimant appealed.
The Commission found the ALJ’s award was supported by sufficient and competent evidence and affirmed the Award. The claimant again appealed.
HOLDING: The Court affirmed the Commission’s decision noting that the Commission reviewed the claimant’s emergency room records, which indicated that he had no fractures, mild pain severity, mild ringing in the right ear only, and was released the same day without medication. The Court also noted that the Commission did not error in finding the testimony from Dr. Peeples more persuasive than Dr. Cohen as it is the Commission’s function to accept or reject medical evidence. Although the record did not support the Commission’s finding that the claimant offered “no evidence” regarding the causation of his tinnitus since he did present testimony from Dr. Cohen, the Court found the Commission properly concluded based on the evidence provided that the work accident did not cause the claimant’s tinnitus.
Claimant Entitled to Future Medical Treatment as the Need for Future Medical Care Flowed Directly from the Work-Related Injuries
Hooper v. Missouri Department of Corrections, Injury No. 14-027947
On April 23, 2014, the claimant sustained a twisting type injury to his right knee. Dr. King performed a right knee arthroscopic partial medial meniscectomy on June 3, 2014. He was subsequently released at MMI with no restrictions. On January 27, 2015 the claimant sustained a second injury at work and on March 20, 2015, after failed conservative treatment, Dr. King performed a right knee partial medial meniscectomy and chondroplasty. Thereafter, he was again placed at MMI with no restrictions.
Dr. Volarich assessed 40% disability as a result of the first injury and 30% disability as a result of the second injury. Dr. Thomas also examined the claimant at the claimant’s attorney’s request and opined the claimant’s work injuries and resulting surgeries had aggravated his pre-existing degenerative arthritis to the point where he would require additional treatment. He further stated that the injury lead to the tear in the meniscus which lead to the surgery which lead to the disruption of the mechanics of the knee joint that lead to the degenerative changes necessitating a knee replacement.
Dr. King, the treating surgeon, reviewed the reports and testimony of Drs. Thomas and Volarich and strongly disagreed that his right knee symptomatic arthritis flowed from either work injury. He opined the claimant suffers from a progressive degenerative condition.
The ALJ assessed disability and concluded that the need for future medical care flowed from the work-related injuries.
The employer appealed to the Commission who affirmed the Award of the ALJ as it noted that the claimant was entitled to future medical treatment as may be reasonably required to cure and relieve the effects of the injury.
Part-time Claimant Entitled to Rate Based on Forty Hour Work Week, Not 30 Hour Rule
Graham v. Rosewood Health & Rehabilitation Center LLC and HealthCare Facilities of Missouri, Injury No. 14-073249
On July 15, 2014, the claimant was employed as a part-time CNA and was squatting down in front of an obese patient, moving her catheter so she could help the patient transfer when the patient’s leg dropped on the claimant’s neck, shoulder and back causing her to fall to her knees.
She was seen by Dr. Patel for neck and chest pain and diagnosed with symptoms consistent with a neck strain, myofascial pain, chest wall pain and thoracic stenosis. He conducted electrodiagnostic studies which did not suggest acute cervical radiculopathy, plexopathy or peripheral nerve injuring the upper lungs. Dr. Patel released the claimant at MMI without any restrictions.
The claimant then requested additional medical treatment. However, it was denied. She went on her own and underwent a second electrodiagnostic study which revealed mild right ulnar nerve compression but no evidence of radiculopathy. She also underwent MRIs of her cervical spine and brain which were normal.
The employer obtained a report from Dr. Fevurly who concluded that the claimant reached MMI when she was placed at MMI by Dr. Patel. He did not recommend any additional treatment and assessed 1% disability to the body.
The claimant’s attorney obtained a report from Dr. Stuckmeyer who diagnosed chronic cervical, thoracic and lumbar pain. He recommended an MRI of her thoracic and lumbar spine and assessed 20% disability to the body.
The ALJ determined that the employer was not liable for past medical expenses after she was released at MMI or for future medical care as many of the medical examinations and treatment were repetitive to the treatment she had previously received and none of the medical providers recommended any additional medical treatment. The Judge also determined that the claimant sustained 10% disability and used the 30 hour rule to calculate the rate. The claimant appealed.
The Commission modified the Award of the ALJ with respect to the claimant’s rate. The Commission did not believe that the 30 hour rule was appropriate. The claimant testified that she worked between 20 and 40 hours per week and that a full-time CNA worked 40 hours a week. The commission looked to a 1989 Court of Appeals case and stated that public policy encourages equitable compensation rates for part and full-time employees, and therefore, the Commission believed that the rate should be calculated based on a 40 hour workweek, not the 30 hour rule.
Commission Affirmed ALJ’s Award of Permanency That Did Not Take Reduction At Elbow For Compensation Placed on Wrist
White v. The Doe Run Company, American Zurich Insurance Company and Treasurer of Missouri as Custodian of Second Injury Fund, Injury No. 16-011501
The claimant began working for the employer in 2007 and performed repetitive work. He developed bilateral carpal tunnel and bilateral cubital tunnel and underwent surgery for the same. The claimant’s attorney obtained a report from Dr. Schlafly who recommended an additional surgery for treatment of the claimant’s bilateral cubital tunnel syndrome. The employer obtained a report of Dr. Brown who did not recommend any additional treatment. The doctor further opined that although it is possible performing an anterior transposition of his ulnar nerve might improve his symptoms, there was a risk that surgery might make the claimant worse and therefore he released the claimant from care. At the time of the hearing the claimant testified he wanted the additional medical care but not by Dr. Brown.
The ALJ found that the claimant sustained 17.5% disability of right wrist, 28.75% disability of the right elbow, 17% disability of the left wrist and 26.45% disability of the left elbow. He also awarded 20 weeks of disfigurement and future medical treatment. The employer appealed.
The employer argued that the ALJ’s findings on the issue of nature and extent of disability were excessively high and unsupported by competent evidence because his Award exceeded the disability rating of the employer’s authorized treating physician, Dr. Brown.
The employer also argued that the ALJ erred when he failed to reduce the amount of PPD awarded to the claimant to account for injuries that involved individual component parts of the same extremity. The employer pointed to a 1992 Commission Decision where it was found that a reduction was appropriate. The Commission noted that the case was never appealed but it does not represent judicial precedent. The Commission also noted that based on strict construction there is no provision for discounting an Award based on an assessment of disability to individual component parts of the same extremity.
The Commission affirmed the ALJ’s assessment of PPD and disfigurement. With respect to the ALJ’s Award of future medical relating to the claimant’s bilateral carpal tunnel and bilateral cubital tunnel, the Commission found that because the claimant had demonstrated a reasonable probability that future treatment was needed, the Commission affirmed the ALJ’s Award of future medical.
Claimant Found to Have Minimal Pre-existing Disability in Hand Despite Prior Settlement of 15% of Hand
Fenwick v. The Doe Run Company, American Zurich Insurance Company and Treasurer of Missouri as Custodian of Second Injury Fund, Injury No. 14-036462
The claimant began working for the employer in 2007, performed repetitive work and developed bilateral carpal tunnel and underwent releases. Thereafter he had various continuing complaints. The ALJ found that the claimant suffered 20% disability of each wrist and assessed four weeks for disfigurement.
The employer appealed arguing that the ALJ erred in failing to factor in PPD attributable to a 2002 injury involving the claimant’s right finger and a right extensor tendon repair. Dr. Rotman assessed 5% disability to the hand as a result of that injury. The claimant settled that claim for 15% of the hand.
The Commission noted that at the claimant’s evaluation with Dr. Volarich he found there may be a small amount of disability from the minor extensor lag but that is considered too small to quantify since he was asymptomatic in the right hand leading up to his current work injuries. The Commission also noted that Dr. Cantrell evaluated the claimant in 2015 and there was no rating of pre-existing disability attributable to the claimant’s 2002 right hand injury. Therefore, based on these two physicians’ opinions the Commission found that the claimant sustained minimal PPD attributable to his 2002 right finger injury and concluded that the ALJ’s Award of PPD gave appropriate credit for pre-existing disabilities as his Award specifically stated. Therefore, the Commission affirmed the Award of the ALJ.
Fund Not Liable for Compensation as Claimant did not Prove Work Injury Aggravated or Accelerated Pre-Existing Conditions
Dubuc v. Treasurer of the State of Missouri-Custodian of the Second Injury Fund, Case No. WD82809 (Mo. App. 2020)
FACTS: On October 30, 2015, the claimant fell off a ladder and sustained a laceration of his left kidney with perinephric hematoma and a fracture of his left wrist. The claimant filed a Claim on November 20, 2015. He settled his claim with the employer on for 30% PPD of the left wrist and 13.5% of the body. He went to a hearing against the Fund for PTD benefits.
At the hearing he testified that he had continuing complaints in his hand. He also testified about four pre-existing disabilities: 1) In April of 2010, he sustained fractures to his L2 and L3 vertebrae after falling off a wall while fishing; 2) In August of 2011, he was diagnosed with DVT and Factor V Leiden, a genetic mutation that causes excess blood clotting; and 4) In 2012, he was diagnosed with and treated for depression.
The claimant’s attorney obtained reports of Dr. Mullins and Dr. Strauser, a vocational expert, who both opined that the claimant was PTD as a result of a combination of the work injury and his pre-existing conditions. The ALJ concluded that the claimant failed prove that he was PTD as a result of a combination of his work injury and his pre-existing condition as it appears he believed that the claimant was PTD as a result of the work injury alone.
The claimant appealed to the Commission, who reversed the ALJ’s Award and found the claimant was PTD. The Fund appealed.
HOLDING: The Fund argued that because the claimant’s work injury occurred after January 1, 2014,§287.220.3 applied, and therefore, the claimant was not entitled to compensation from the Fund because his pre-existing conditions did not fall into one of the categories required for Fund liability. The Court agreed and found that the Commission’s Award did not address which, if any, of the claimant’s pre-existing disabilities were medically documented pre-existing disabilities or whether the claimant’s qualifying pre-existing disabilities directly and significantly aggravated and accelerated the subsequent work-related injury. Therefore, the Commission’s Award was reversed and remanded.
SIF Not Liable for PTD benefits Because Claimant Filed Claim After January 1, 2014 and Claimant Did Not Prove Pre-existing Conditions Fell into 1 of 4 Categories
Coffer v. Health Management Associates Inc. and Treasurer of Missouri as Custodian of Second Injury Fund, Injury No. 13-104240
The claimant worked at Twin Rivers Regional Medical Center as a PBX operator for 23 years and she developed pain, tingling, numbness and cramping in her hands. She filed her claim on November 24, 2014 and the date of the occupational disease listed was December 13, 2013. She settled her claim against the employer for 18.75% of the body referable to carpal tunnel syndrome in both wrists. She proceeded to a hearing against the Fund for perm total benefits.
The claimant’s attorney obtained a report of Dr. Poetz who opined the claimant had pre-existing disabilities in the amount of 15% disability due to anxiety, 35% disability of the cervical spine due to a fusion, 25% disability of the body due to colon cancer, 25% disability of the lumbar spine due to a decompression and 25% disability of the right elbow due to epicondylitis which required surgery. Due to the work injury, Dr. Poetz opined that the claimant sustained 30% disability of the right and 25% of the left hand. Ms. Shea opined the claimant was not employable.
The claimant was also evaluated by Dr. Hinton who opined that the claimant was PTD due to a combination of the work-related injuries and pre-existing conditions and disabilities.
The ALJ found the opinions of Dr. Poetz and Dr. Hinton persuasive and found that the claimant was PTD as a result of the combination of her pre-existing injuries and the work injury, and therefore, the Fund was liable for benefits. The Fund appealed.
The Commission reversed the Award of the ALJ. Since the claimant filed her claim after January 1, 2014, §287.220.3 applies and since the claimant did not prove that her pre-existing conditions fell into one of the categories that would place liability on the Fund, the Fund was not liable for benefits.
Court Confirms It Will Defer to ALJ’s Credibility Determinations
Parvin vs. Camcorp Environmental, LLC, Missouri Employers Mutual Ins. Co. and Treasurer of the State of Missouri as Custodian of the Second Injury Fund, Case No. SD36281 (Mo. App. 2020)
FACTS: The claimant began working for the employer in 2012. He operated heavy equipment doing environmental cleanup caused by the Joplin tornado. The claimant filed an occupational disease claim alleging injury to his arms, shoulders and back. He did have a history of rotator cuff surgeries and two lower back surgeries. At a hearing, the ALJ expressly found that the claimant had not proved his claim because he was not a credible witness and his medical expert was not as persuasive as the employer’s. The claimant appealed and the Commission affirmed. The claimant again appealed.
HOLDING: The Court noted that they reviewed the ALJ’s decision because it was adopted by the Commission and they defer to the ALJ’s credibility determination, weighing of evidence, and decision between competing medical theories. It was the claimant’s burden to prove all elements of the claim and the Court noted that the statute only allows the Court to grant a claimant relief if “there was not sufficient competent evidence in the record to warrant the making of the Award.”
The claimant’s three arguments alleged that the ALJ’s determinations lacked competent and substantial evidence. The Court noted that the standard of review for this kind of challenge requires that the claimant engage in a specific analytical process which he did not do, and therefore, the Court found that his arguments were stripped of any analytical or persuasive value. In any event, the Court did go on to address the claimant’s three arguments and were not persuaded.
The Court concluded it is well settled that weighing of conflicting medical testimony lies within the Commission’s sole discretion and cannot be reviewed by this Court. Therefore, they are bound by the ALJ’s decision as to which of the various medical experts to believe. Therefore, the Commission’s Award was affirmed.
Commission Does Not Have Statutory Authority to Increase Amount of PPD Claimant Received After ALJ Approved Settlement Stipulation Despite Claim that Claimant’s Condition Worsened
Ritch vs. Professional Transportation, Inc., and Treasurer of the State of Missouri, Custodian of the Second Injury Fund, Case No. SD36435 (Mo. App. 2020)
FACTS: On June 11, 2014 the claimant suffered a back injury at work. He filed a Claim on November 30, 2015 and on April 17, 2017 an ALJ approved a settlement for 31% of the body referable to the spine. Future medical was left open. On August 7, 2019, the claimant’s attorney filed a petition to the Commission alleging that the claimant’s condition had worsened since the settlement was approved, and therefore the settlement was no longer reasonable and should be increased. The Commission dismissed the claimant’s petition for lack of statutory authority to consider it.
HOLDING: The claimant appealed and argued that since his settlement left future medical open, the Commission had statutory authority under §287.470 to change or review the Award. The Court was not persuaded. The Court noted that §287.470 applies to Awards, not settlements. Also, the Court noted that the claimant was not asking the Commission to decide an issue of future medical care rather he was asking the Commission to set aside the compromise settlement and increase the PPD, and the Commission had no statutory authority to do so. Therefore, the Court affirmed the Commission’s decision.
Claimant Entitled to TTD Despite Employer’s Allegation That Claimant Not Entitled to TTD Due to Post-Injury Misconduct Because His Absence Was Due to Injury
Hicks vs. State of Missouri, Department of Corrections and Treasurer of Missouri as Custodian of the Second Injury Fund, Case No. ED108023 (Mo. App. 2020)
FACTS: The claimant began working on a probationary status for the Correctional Center as a Corrections Officer in late 2013. He was required to complete both nine months of full-duty employment and a formal training program in the classroom and on the job. On January 2, 2014 during defensive tactics training, he suffered an injury to his left shoulder. Dr. Emanuel performed a shoulder surgery and he was released from care. He requested additional treatment which was denied. The claimant was then terminated on November 25, 2014 specifically citing unauthorized absences, exhaustion of paid leave, failure to request or be approved for leave without pay, failure to return to work and failure to report for a mandatory pre-disciplinary hearing.
The claimant’s attorney obtained a report of Dr. Snyder who recommended additional treatment and opined that he was unemployable and unable to compete in the open labor marked since his January 2014 injury. The employer then authorized additional treatment with Dr. Emanuel who performed a second shoulder surgery. Dr. Emanuel released the claimant at MMI, however, the claimant still did not believe his shoulder had improved enough to return to work, and therefore Dr. Emaunel recommended a second opinion. He then saw Dr. Lenarz who performed a third shoulder surgery. He was later released at MMI on February 10, 2016.
The claimant then filed his claim seeking to recover unpaid TTD until he reached MMI on the stipulated date of February 10, 2016. The employer argued TTD was not owed because the claimant was terminated for post injury misconduct. The ALJ concluded the claimant’s testimony was credible that he was unable to return to any employment before he reached MMI on February 10, 2016, and therefore he was entitled to TTD. The employer appealed and the Commission disagreed that the claimant was entitled to TTD benefits since he was terminated for post injury misconduct. The Commission found that the claimant was not terminated “merely” because of his absences but rather because he failed to follow the proper procedure to report the absences which constituted misconduct. The claimant then appealed.
HOLDING: The Court noted that the statue expressly and unambiguously states misconduct “shall not include absence from the workplace due to an injury unless the employee is capable of working with restrictions certified by a physician.” The Court found that the employer was not merely left to ponder why the claimant failed to appear for his scheduled shifts but instead was certainly on notice that he refused to return to work without further medical treatment. While the Court agreed with the Commission that the employer could terminate the claimant for misconduct by failing to follow the proper procedure regarding reporting his absences, the denial of TTD benefits was not warranted since the absences related to an injury. Therefore, the Court reversed and remanded the Commission’s decision with instructions to reinstate the ALJ’s award of TTD benefits.
Claimant Not Entitled to Enhanced Benefits as Employer Could Not Elect to Accept Liability for Enhanced Benefits
Hegger, Deceased v. Valley Farm Dairy Company, et. al., Case No. SC7993 (Mo. S.Ct. 2020)
FACTS: The claimant was last exposed to asbestos at the employer in 1994. The employer went out of business in 1998. The claimant died in 2015 from mesothelioma which was caused by his exposure to asbestos while working for the employer.
At a hearing, the ALJ addressed the sole issue of whether the claimant was entitled to enhanced benefits under §287.200.4(3). The ALJ found that neither of the insurers who insured the employer during the claimant’s dates of employment were liable for any enhanced benefits because the enhanced benefit provision did not go into effect until January 1, 2014. The ALJ reason that the employer could not have possibly elected to be liable for enhanced benefits because it went out of business in 1998. Therefore, the claimant was not entitled to enhanced benefits.
On appeal, the Commission affirmed noting that the employer ceased operation 16 years before the statute took effect, and therefore could not have elected to accept enhanced liability under that section. The claimant again appealed to the Court of Appeals and the case was transferred to the Supreme Court.
HOLDING: The claimant argued that because the employer maintained an insurance policy that ensured its entire workers’ compensation liability during the time it employed the claimant, the employer elected to accept mesothelioma liability under the plain language of the statute. The Court did not agree and found that the Commission did not err in finding that electing to accept enhanced mesothelioma liability requires an affirmative act by the employer. The term “elect” is the operative verb that is not defined in workers’ compensation law. The Court noted that when a term is not defined by statute the Court will give the term its “plain and ordinary meaning as derived from the dictionary.” The Court noted that “elect” per the dictionary is to make the selection or to choose, both of which are an affirmative act. Because the employer ceased operations in 1998 and the enhanced benefit did not exist until 2014 it could not have affirmatively elected to accept liability for the enhanced benefits.
The claimant also argued that defunct employers should be deemed to have elected to accept liability for the enhanced benefit so long as the employer insured its entire workers’ compensation liability at the time of the claimant’s last exposure. The Court was not persuaded. Therefore, the claimant was not entitled to enhanced benefits under the workers’ compensation statute.
Legal Update by Attorneys Alison Stewart & Steve Durick
1. Is a positive COVID-19 diagnosis a compensable work injury?
In Iowa there is not a black and white answer about compensability relating to the coronavirus. These claims must be evaluated on a case by case basis.
Iowa is a combination between positional risk (were they at work when it happened?) and increased risk (did work increase the odds of the injury?). Thus, it would be possible for the worker to establish a causal relationship if the worker could prove they were exposed to COVID-19 at work. In parts of the state where there is community spread, however, it would be more difficult for a worker to establish the work caused the infection when the worker could have caught it elsewhere in the community. Healthcare workers would be an exception to this analysis, most likely. It would likely be easier for a healthcare worker to establish a causal link, depending on their field. In many ways this virus, because of its ubiquitous nature, is not unlike the common cold or flu in the context of compensability. As the virus continues to spread, it will become more and more difficult to determine its source. Again, these cases should be analyzed on a case by case basis. Peddicord Wharton attorneys are happy to discuss these cases with you at any time.
More simply, the employee will have to provide a positive test result and a clear link between work and their exposure.
2. What is the interplay between COVID-19 and the Occupational Disease Statute?
Chapter 85A, the occupational disease chapter, is applied infrequently in Iowa. Claimants typically bring actions under Chapter 85 whenever possible.
We typically see these claims generate from a long-standing exposure to something over time. Historically, there was a list of qualifying diseases, but that list no longer exists. To qualify as an occupational disease, according to Iowa Code section 85A.8, the following requirements must be present:
· Arise out of and in the course of employment.
· Direct causal connection with the employment.
· Followed as a natural incident from an injurious exposure occasioned by the nature of the work.
· Incidental to the character of the business, occupation or process in which the employee was employed and not independent of the employment.
· Appear to have its origin in a risk connected with the employment and to have resulted from that source as an incident and rational consequence.
Note, a disease which follows from a hazard to which an employee has or would have been equally exposed outside of said occupation isnot compensable as an occupational disease. The compensability analysis for an alleged occupational disease is really no different than the traditional compensability analysis described above in the COVID-19 context.
According to the Iowa Practice Series on Workers’ Compensation, the use of the term “date of injury” is not appropriate in the context of occupational disease because there is no “injury” suffered. 15 Lawyer & Lawyer,Iowa Practice Series: Workers Compensation, 18:4 (2019-2020). Disablement is the term used.Id. Iowa Code section 85A.4, explains that the “event or condition where an employee becomes actually incapacitated from performing the employee’s work or from earning equal wages in other suitable employment because of an occupational disease.”
In short, we do not expect Claimants to pursue work related COVID-19 claims as an occupational disease. More likely the claim would be brought under chapter 85 with Claimant needing to prove causation as they would with any work injury in Iowa regardless of whether the claim is brought under Chapter 85 or 85A.
3. What about a claim for psychiatric injury where the worker has either contracted COVID-19 as a result of a work exposure, or is merely fearful of contracting the virus?
In Iowa, if an injured employee sustains a compensable physical injury and subsequently develops a psychological injury (i.e. anxiety, depression, etc.), such a psychological injury is deemed a compensable injury as well as long as it is causally related to the physical injury. These types of injuries in Iowa are classified as “physical-mental” injuries. The psychological injury can be a new injury (no prior psychological history) or be an aggravation of a pre-existing/underlying mental condition/injury. In the current situation involving COVID-19, if an injured worker is determined to have contracted COVID-19 at the work place and subsequently develops a psychological injury as a result (or experiences an aggravation of an underlying mental condition), the psychological injury will be deemed to be a compensable injury.
Iowa also recognizes “non-traumatic” mental injuries as being compensable – although the burden of proof is quite difficult. See Dunlavey v. Economy Fire & Casualty Co., 526 N.W.2d 845 (Iowa 1995). These injuries in Iowa are classified as “mental-mental” injuries. In “mental-mental” injuries, the mental injury is not preceded by a “physical” injury. To prove a “mental-mental” injury, the injured employee must establish both medical and legal causation. Legal causation requires the injured employee prove that the mental injury was proximately caused by workplace stress of greater magnitude than day-to-day mental stress experienced by other workers employed in the same or similar jobs, regardless of their employer. In other words, the injured employee must establish that his or her stress is not common to other employees in similar work (from an objective standpoint). This is a very difficult burden of proof to carry for the injured worker. Additionally, the injured worker must also establish medical causation which will require expert medical testimony. In the current situation involving COVID-19 – and specifically where an injured worker has developed a psychological injury due to fear of contracting COVID-19 – the injured worker will be required to prove that his or her mental injury was “caused by workplace stress of greater magnitude than day-to-day mental stress experienced by other workers employed in the same or similar jobs. . .” The injured worker will be required to prove that his or her stress in that regard is not common to other employees in similar work – which will be very difficult, if not impossible to do, under this current COVID-19 situation.
4. What is the appropriate benefit commencement date for compensable COVID-19 claims?
If the employee is taken off work by a medical professional for a presumed case of COVID-19 before having a positive test result, the appropriate commencement date would be the fourth date of disability (after the waiting period). If lost time continues beyond the 14th day, the compensation during the third week must be increased to include the three-day waiting period. Iowa Code § 85.32 (2019). It is appropriate to wait to commence benefits until a positive test result is ascertained, but the worker should then be brought current on benefit entitlement at that time.
5. How do COVID-19 related shutdowns or layoffs impact temporary benefit entitlement for non-COVID-19 related claims?
If an injured worker is off work or on restrictions and a suitable offer of employment cannot be made (which is the case if the employer is closed or shut down), then temporary benefits are owed.
Support for this can be found here:
Iowa Code section 85.33(3) states that the employer shall pay to an employee for an injury producing TTD, weekly compensation benefits until:
· the employee has returned to work or
· is medically capable of returning to employment substantially similar to the employment in which the employee was engaged at the time of injury, whichever occurs first.
Likewise, Iowa Code section 85.34 states that healing period is owed until:
· the employee has returned to work,
· is put at MMI,
· or it’s medically indicated that the employee can return to substantially similar employment.
Relating to TPD benefits, Iowa Code 85.33(2) says TPD are owed when an employee is not capable of returning to substantially similar employment but is able to perform other work consistent with the employee’s disability.
The only exception to these entitlements is where suitable work is offered and refused. Iowa Code section 85.33(3)(a) instructs that if an employer offers an employee suitable work and that worker refuses, then temporary benefits are not owed.
6. Do we expect to see longer periods of temporary benefit entitlement for non-COVID-19 claims because of the impact of COVID-19?
It’s possible because some providers have been suspended non-essential medical treatment. In addition, other companies have either had to shut down because of a positive case or have been subjected to a government shutdown. As discussed above, if an injured worker is off work or on restrictions and a suitable offer of employment cannot be made (which is the case if the employer is closed or shut down), then temporary benefits are owed.
7. Will there be any permanent benefit entitlement as a result of a compensable COVID-19 claim?
We do not know the answer to this question yet, but similar to other injuries in Iowa, Claimant would have to have sustained permanent damage as a result of the illness.
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Let me begin with a correction to a prior blog. A few weeks ago I wrote in a blog about a hypothetical scenario where an employer requires an employee to be quarantined because the employee was exposed to a fellow employee who tested positive for COVID-19. Several readers wrote to disagree that the period of lost time should be paid in workers’ compensation, even if the quarantined employee ultimately tested negative and no other workers’ compensation benefits were due. These comments led me to rethink the issue. Having reviewed case law in different states on preventive actions and workers’ compensation, I believe the readers are right that temporary disability benefits should not be paid in this situation.
The argument that the employee would make to the judge is that he or she was required to go out of work for a health condition occurring at work. The employer would counter that if the quarantined employee tested negative, then there is no workers’ compensation issue. This is the better argument: the employer’s action was simply preventive and therefore no temporary disability benefits should be paid. Any decision on payment of workers’ compensation temporary disability benefits and other workers’ compensation benefits should await the outcome of testing, appropriate investigation and the individual proofs in each case.
Many employers are paying full salary to quarantined employees, eliminating the issue completely. As of April 1, 2020 there is also a new law that addresses this situation. It is known as the Paid Emergency Sick Leave Act. This law helps employees get paid in precisely the situation addressed in the hypothetical scenario. The law only applies to companies with 500 or less employees. Attorneys Ralph Smith and Lara Ruggerio of Capehart Scatchard’s Labor Department have written on this subject. The following is an excerpt from their recent HR Blog. The purpose of the Act is to provide sick time to employees who are unable to work due to the following situations:
* Quarantine or isolation relating to COVID-19
* Self-quarantine ordered by a health care provider
* Employee experiencing symptoms of COVID-19 and seeking medical diagnosis
* Employee who is caring for an individual who is quarantined or is self-quarantined
* Employee is caring for a son or daughter due to school of child care closure due to COVID-19 precautions
* Employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of Treasury and the Secretary of Labor
The Act applies to all public and private sector employees with less than 500 employees. Full-time employees are entitled to 80 hours of paid sick time. A part-time employee is to receive required compensation for two-thirds of the amount of their usual pay. However, in no case shall the paid sick time exceed the amounts below:
1. $511.00 per day (and $5,110.00 in the aggregate) if the employee is out due to:
1. Quarantine or isolation relating to COVID-19
2. Self-quarantine ordered by a health care provider
3. Employee is experiencing symptoms of COVID-19 and seeking medical diagnosis
2. $200.00 per day (and $2,000.00 in the aggregate) if the employee is out due to:
1. Employee is caring for individual who is quarantined or is in self-quarantine
2. Employee is caring for a son or daughter due to school or child care closure due to COVID-19 precautions
3. Employee is experiencing any other substantially similar conditions specified by the Secretary of Health and Human Services in consultation with the Secretary of Treasury and the Secretary of Labor
Employers are to receive a tax credit for payments made to employees under this law. Moreover, employees may opt to use other forms of paid leave instead of this leave but the employer cannot require that use. A business with 50 or fewer employees may ask the DOL to exempt it from following this law if compliance will jeopardize the viability of the business as an on-going concern. The United States Department of Labor recently issued a guidance on what an employer must show to meet these requirements to obtain a potential exemption. The Department of Labor also has the discretion to exclude health care providers and emergency responders from eligibility.
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John H. Geaney, Esq., is an Executive Committee Member and a Shareholder 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.