State News

Nancy Turner v. WCAB (City of Pittsburgh), No. 347 C.D. 2013 (Pa. Cmnwlth. Ct., October16, 2013)

By: Jeffrey D. Snyder, Esquire

This Appeal was from the granting of the employer’s Suspension Petition.  The Commonwealth Court vacated and remanded the Workers’ Compensation Judge’s granting of the Suspension Petition. 

The Claimant was injured in a work related motor vehicle accident in 1994, in the course and scope of her employment as a police officer.  A Notice of Compensation Payable was issued, after which the Claimant returned to work in a modified duty capacity.  The Claimant accepted a disability retirement and did not seek work thereafter.

Her Heart and Lung benefits converted to Workers’ Compensation benefits, based on a determination that her injuries were of a lasting and indefinite nature.

Years later, an IME found that the Claimant had some capacity to work, with a Petition to Suspend being filed by the employer, asserting that the Claimant’s Compensation benefits should be suspended based on her voluntary removal from the work force.  The Claimant shoots back that her withdrawal from the work force was involuntary.

The Claimant said she would not have applied for a disability pension if her job had not been removed.  Although she agreed that she was not seeking employment, she had enrolled in a Community College where she was taught how to right a resume and participate in interviews.  The Claimant completed that program and then entered into an office technology program.

The WCJ granted the Petition to Suspend, accepting the Claimant’s testimony as generally credible, but rejecting her allegation that she had not voluntarily withdrawn from the work force “as she clearly has work capabilities and has admittedly not looked for work since retiring.”  The WCJ found that the employer had no obligation relative to providing alternative employment under the circumstances, given the Claimant’s retirement.

The Board remanded for additional evidence on the question of whether the Claimant was forced into retirement as a result of the work injury.  The Claimant testified on remand that she tried to go back to a job but could not continue due to pain.  The WCJ again granted the Petition to Suspend, finding that the Claimant was capable of performing work within restrictions, but that she had voluntarily removed herself from the labor market.  The WCJ concluded that the Claimant failed to establish that she was forced into retirement because of her work injuries or that she looked for work after retirement. 

The Board then affirmed the Workers’ Compensation Judge’s Decision on Remand, finding that after an employer establishes that a Claimant has received a disability pension, and a Notice of Ability to Return to Work has been issued, indicating restored earning power, the burden then shifts to the Claimant to rebut the presumption of voluntary withdrawal from the work force. 

The Board specifically stated that the Claimant had no legal obligation to look for work prior to the issuance of the Notice of Ability.  The Board nevertheless relied on the Claimant’s admission that she had no intention of returning to work at the time she accepted her disability pension, along with the fact that she only enrolled in a skill training program after receiving the Notice of Ability. 

On Appeal to the Commonwealth Court, the Claimant specifically took issue with the concept that the receipt of a Notice of Ability, as well as the receipt of a disability pension, is sufficient to raise the presumption of her intention to withdraw from the work force. 

The Commonwealth Court agreed with the Claimant, as the Court reviewed the relevant case law regarding the burden of proving job availability in the context of a claim of voluntary retirement from the work force. 

The Commonwealth Court noted that an employer was not required to establish job availability where it can demonstrate that the Claimant has voluntarily removed himself from the work force through retirement, citing toSEPTA v. WCAB (Henderson), 669 A.2d 911 (Pa. 1995). The Court relied upon the Supreme Court’s ruling inSEPTA, which held that to avoid a suspension, a Claimant must show that he or she is actively seeking employment after retirement, or has been forced into retirement because of a work related injury. 

The Commonwealth Court held that to avoid a suspension of Workers’ Compensation benefits, after a withdrawal from the workforce, a Claimant must show that he or she is seeking employment, post-actual retirement, or has been forced into retirement because of a work-related injury.

The Commonwealth Court’s Opinion in Turner specifically referenced the Supreme Court’s adoption of the totality of the circumstances test in withdrawal from the work force cases, specifically citing to the Supreme Court’s decision inSEPTA.  The burden of persuasion remains with the employer to persuade the trier of fact that there is substantial competent evidence of record to establish that a Claimant is able to work post-retirement, but nevertheless is not actively seeking employment and has, therefore, removed themselves from the work force.

In Turner, the Commonwealth Court held that the Claimant’s receipt of the disability pension merely reflected her inability to perform the pre-injury job, and was not proof that the Claimant could not perform any work whatsoever.

Ruling in favor of the Claimant, the Commonwealth Court again remanded the matter back to the WCJ to make further findings as to whether the receipt of the Claimant’s disability pension alone raised the presumption that the Claimant had retired from the work force, therefore, requiring a more complete record be made by the Workers’ Compensation Judge in compliance with the totality of the circumstances standard.

In a Concurring Opinion, Judge Simpson indicated that the issuance and receipt of a Notice of Ability should not become a per se rule as to when a Claimant would have the duty to seek employment, but rather the Notice of Ability should be evaluated by the factfinder in the course of considering the weight of evidence.

Again, the proof must be substantial, in order to convince either a Workers’ Compensation Judge, the Appeal Board, or the Commonwealth Court that an employer has satisfied its burden of proving a voluntary withdrawal from the work force, as opposed to the Claimant being able to prove that the withdrawal is voluntary, and has been caused by the work injury.

ConnorsLaw LLP

Trust us, we just get it!  It is trust well spent!

Defending workers’ compensation claims throughout Pennsylvania for employers, self-insureds, insurance carriers, and third party administrators, our 100+ years of cumulative experience defending our clients against compensation-related liabilities, empowers our workers’ compensation practice group attorneys to be more than mere claim denials, entrusting us to create the factual and legal leverage to expeditiously resolve claims, in the course of limiting/reducing/extinguishing our clients’ liabilities under the Pennsylvania’s Workers’ Compensation Act.

With every member of our workers’ compensation practice group being AV-rated, our partnership with the NWCDN magnifies the lens through which our professional expertise imperiously demands that we always be dynamic and exacting advocates for our clients, businesses, corporations, and insurance carriers, seeking our trial and compensation acumen, navigating the frustrating and form-intensive minefield pervasive throughout Pennsylvania workers’ compensation practice and procedure.

PENNSYLVANIA WORKERS’ COMPENSATION CLAIMS

INVOLVING FAMILY MEMBERS AND CASUAL LABOR

By

Kevin L. Connors, Esquire

Recently, the National Workers’ Compensation Defense Network, with ConnorsLawLLP being the Pennsylvania representative thereof, was asked to answer several questions regarding possible scenarios posed by an out-of-state insurer, seeking to access potential liabilities that might exist for Workers’ Compensation Claims involving family members and casual labor.

Our analyses of the scenarios are set forth below:

I.          UNPAID FAMILY MEMBER SCENARIO:

The insured has an employee who is an unpaid family member, and the unpaid family member does not receive any payroll from the business.  No insurance premiums were collected by the insurer for the employee.  The employee is injured, and the insurer is asking if there is any Workers’ Compensation coverage for this employee?

The insurer also asked a second question as to whether the potential coverage issue would be different if insurance premiums were collected by the carrier, utilizing a calculation of hours worked times minimum wages for premium purposes.

In response, we answered that if an unpaid family member is injured during the course and scope of their unpaid employment with the family business, there would be Workers’ Compensation coverage for the injury claim, as the injured employee would be entitled to receive Workers’ Compensation benefits and those Workers’ Compensation benefits would be payable under the insurance policy issued by the insurer to the insured employer.

In this scenario, if Workers’ Compensation benefits are paid to the injured unpaid employee, the insurer would have a right to audit the employer for additional uncollected premiums.  If the injured unpaid employee is, however, only entitled to receive medical compensation benefits as there were no wages paid to the employee, the absence of any pecuniary benefits being paid whatsoever, to include there being no ancillary benefits for payments of health insurance premiums, pension benefits, etc., there would, in this scenario, be no wages upon which to base a calculation of indemnity compensation benefits, the same also being dependent upon the injured family employee not being concurrently employed for wages elsewhere.

The second part of the question is asking whether or not the coverage issue would change if insurance payments had been collected by the carrier utilizing a calculation of hours worked times minimum wages for premium purposes.

The second part of the question does not change how the Pennsylvania Bureau of Workers’ Compensation Act is administered by the Bureau’s Workers’ Compensation Judges, as they would only consider the compensability issue, as the WCJ’s would not look at the coverage issues between insurer and insured, as those issues are contractual and do not neatly tie into compensability issue as to whether or not an injury has occurred within the course and scope of employment, resulting in the unpaid, injured family member being entitled to reasonable, necessary, and related medical treatment for their work-related injury.

II.        UNPAID FAMILY MEMBER IS INJURED WHILE BEING PAID UNDER THE

            TABLE:

Is there Workers’ Compensation coverage in the event of an injury claim, in a scenario where an unpaid family member is injured while being paid under the table?

Under the Pennsylvania Workers’ Compensation Act, the answer must again be, “yes”, as an injury has been sustained by an employee during the course and scope of their employment, and the method of payment, herein “cash under the table”, while, perhaps, intended to be “off the books”, would still be interpreted as wages paid for services rendered. 

In this situation, the insurer’s remedy, after becoming responsible for the payment of the Workers’ Compensation benefits, would be a collection or audit action against the insured for failing to report wages that otherwise should have been used to calculate insurance premiums for workers’ compensation coverage.

The second part of this question was whether the coverage analysis would change if insurance premiums had been collected by the insured, utilizing a calculation of hours worked times minimum wages for premium purposes? 

The answer to that question is that the compensability issue would not change, as compensability is still dependent upon an analysis as to whether an employee has sustained a work-related injury in the course and scope of their employment; the issues of whether the insurer has collected premium for the injury is not relevant before a Workers’ Compensation Judge for the purposes of determining compensability issues; however, it is relevant for the insurer’s claim against the insured for breach of contract, and failure to report paid wages necessary to correctly calculate insurance premiums.

III.       CASUAL LABOR FOR SERVICES:

If an insured hires casual labor, such as a neighbor college student to perform lawn mowing services during the several summer months at the insured’s dental office location, and the insured pays the neighbor college student cash payments, if the neighbor college student is injured at the dental practice, is there Workers’ Compensation coverage for this claim through the dental practice’s Workers’ Compensation insurance coverage.

The answer to this question is that the commercial business, whether a dental practice or otherwise, would not appear to be liable for Workers’ Compensation benefits, as the casual laborer’s services would more probably be characterized as work being performed by an independent contractor, and not under the direction and control of the commercial business, such that any work performed is independent of the business, there being master/servant or employer/employee relationship.

As is well-established under Pennsylvania Workers’ Compensation Law, the existence of a master/servant or employer/employee is a necessary precedent to establish that an injury occurs within the course and scope of employment, a condition precedent to liability for Workers’ Compensation benefits attaching.

Ancillary to this question is whether this answer would change if the dentist had maintained records of payments made by the dental practice to the neighbor college student, with the answer being since there is no change in the nature of the relationship, that of an independent contractor relationship, that there is, again, no master/servant or employer/employee relationship, the same again being necessary conditions precedent to establish that an injury has occurred within the course and scope of employment. 

Obviously, it is always better to have a written agreement between the parties, but that is rarely the case in situations like this.

IV.       CASUAL LABOR FOR ONE DAY:

Here, the insured, again a commercial dental office location, hires casual labor, or a buddy, to help out on a one day job, whether it be to mow the lawn, or just do some office repairs, and the insured pays the laborer or buddy cash under the table, and the casual labor or buddy is injured, begging the question as to whether or not there is workers’ compensation coverage for the injury.

Again, this scenario appears to be an independent contractor scenario rather than an employer/employee relationship, particularly given that the job at hand is limited to one day, and the job itself is not directly controlled by the commercial business, such that it is highly unlikely that workers’ compensation benefits would be payable under this scenario.

The caveat to this is that there are some Workers’ Compensation Judges in Pennsylvania who might award benefits on this type of claim for the very simple reason that there was no formal agreement between the parties, such as a written contract clearly delineating that the work would only be for one day and that it was independent of the employer/employee relationship.

The risk for this type of scenario is that the injured worker claims that they would have been asked to work for more than one day, such that it is not work that is considered “casual”, as the commercial business might have believed, leaving the perception as to how long the job would last, or the work would continue, to be based upon the subjective perceptions of the parties, always a dangerous position to be in.

While there are some Pennsylvania Workers’ Compensation Judges who might find this claim to be compensable, any award of Workers’ Compensation benefits on these skeletal facts would scream for the business found to be the employer to file an appeal, based on the grounds that it was not an employer, that the work could not withstand the course and scope of employment factors as there was no master/servant or employer/employee relationship, and that the person injured was truly an independent contractor.

Generally, it is our impression that more than 90% of the Workers’ Compensation Judges in Pennsylvania would find this type of claim to be not compensable, and they would deny the claim if the casual laborer petitioned for Workers’ Compensation benefits.

Another caveat to this scenario is that there might be third-party negligence liability under this type of claim, and the claim would, therefore, have to be analyzed as to which form of coverage, commercial liability versus commercial workers’ compensation, might be better utilized to control the potential exposure associated with this type of claim.

Obviously, we encourage our clients to contact us with questions regarding Pennsylvania Workers’ Compensation issues.

ConnorsLaw LLP

Trust us, we just get it!  It is trust well spent!

Defending workers’ compensation claims throughout Pennsylvania for employers, self-insureds, insurance carriers, and third party administrators, our 100+ years of cumulative experience defending our clients against compensation-related liabilities, empowers our workers’ compensation practice group attorneys to be more than mere claim denials, entrusting us to create the factual and legal leverage to expeditiously resolve claims, in the course of limiting/reducing/extinguishing our clients’ liabilities under the Pennsylvania’s Workers’ Compensation Act.

With every member of our workers’ compensation practice group being AV-rated, our partnership with the NWCDN magnifies the lens through which our professional expertise imperiously demands that we always be dynamic and exacting advocates for our clients, businesses, corporations, and insurance carriers, seeking our trial and compensation acumen, navigating the frustrating and form-intensive minefield pervasive throughout Pennsylvania workers’ compensation practice and procedure.

Smile Alvarez worked as an International Service Manager for Continental Airlines.  He flew to Quito, Ecuador on October 21, 2001 and went to check his door to make sure it was in the disarm position.  On entering the airplane’s galley, he tripped and did a near somersault, striking his head, shoulders and neck on the airplane’s floor.  He refused to seek medical treatment in Ecuador.  Instead, he soaked in the hotel hot tub because he felt sore.

            When he returned to the United States, he did not treat at Continental’s Whole Health Clinic in Newark.  He had planned an extended leave of absence to care for his ill mother and therefore took his leave.  He noticed sharp pain radiating down his left arm while on leave.  His hand was also numb.

            In April 2002, Alvarez returned to his job in Houston, Texas.  He was unable to check in for a series of day flights because the pain in his arm was intolerable.  He saw a doctor at Continental’s Whole Health Clinic who gave him ibuprofen and sent him home.  He then went on sick leave and did not return to work for almost a year.

            On April 12, 2002, Alvarez saw Dr. Diaz, a neurologist, who ordered an MRI, which showed a herniated disc.  He filed a workers’ compensation claim in Texas on April 19, 2002.  That claim was denied for untimely reporting. 

            On July 6, 2002, Alvarez underwent cervical fusion surgery.  Later in the month he filed a workers’ compensation claim in New Jersey asserting that he was injured on October 21, 2001. 

            Respondent filed a motion to dismiss the claim for lack of timely notice but the Judge of Compensation denied the motion.  Alvarez testified three times:  twice before the initial Judge of Compensation and a third time on December 14, 2012 before a second Judge of Compensation, who took over the case after the retirement of the first judge. 

            On January 25, 2013, the Judge of Compensation dismissed the case for failure to provide timely notice.  Petitioner appealed and argued that his delay in notifying the employer about his accident should be excused because he had been unaware of the causal link between the accident and the injuries he sustained.  The Appellate Division disagreed with petitioner, noting that the New Jersey Workers Compensation Act requires an employee to notify the employer of an injury at the latest within 90 days.  The court further stated:

N.J.S.A. 34:15-17 ‘serves to insulate employers from having to investigate an onslaught of passing accidents that do not result in injury and therefore do not constitute accidents under the statute.’

The Court added:

While the symptomatology emanating from Alvarez’s fall may have worsened over time, Alvarez was aware of the injury he incurred from the moment he struck his head, shoulders, and neck in the airplane galley.  Such injuries are wholly distinct from their latent and insidious progressive counterparts that prey upon their victims without any prior indication that they were even exposed to injury.

The lesson for practitioners is that the notice defense is viable in New Jersey.  It is a very generous defense in that the employee may be sometimes allowed up to 90 days to notify the employers of injury.  The converse is that the employer does not have to prove that the employee knew his diagnosis for the notice defense to be invoked.For the employer to win a notice defense, the employer must show only that a reasonable person would know he or she was injured in the accident and failed to provide notice within the 90-day period.

            The case can be found at Alvarez v. Continental Airlines, A-3039-12T3 (App. Div. October 18, 2013). 

Now that I have your attention, let me elaborate. An Australian federal employee was on a business trip when she met up with a man and had sex with him in her hotel room. While engaged in the act of intercourse, a light fixture above the bed fell onto her face causing injury to her nose and mouth. In addition to her claim for physical injuries, the claimant alleged depression.

The administrative tribunal denied benefits because it determined that sex is not an ordinary incident of an overnight stay such as showering, sleeping, or eating.

A Federal Court Judge overturned the decision analogizing the sex act to playing a game of cards. In his opinion, if she had been injured while playing cards in her room it would be compensable and, therefore, she should also be compensated for her sex injuries. There was no comment on how a light fixture might come loose while playing cards but, then again, there was also no comment on how the light fixture came loose during the sex act.

Fortunately for the employer, the High Court agreed with the rational of the administrative tribunal and ruled that benefits were not owed. The Australian Employment Minister hailed the ruling as a victory for common sense.

_______________________

About the Author

This article was written by Michael I. Fish, Esq. of Fish Nelson LLC, a law firm dedicated to representing employers, self-insured employers and insurance carriers in workers’ compensation matters. Fish Nelson is a member of The National Workers’ Compensation Network (NWCDN). If you have any questions about this article or Alabama workers’ compensation issues in general, please feel free to contact the author atmfish@fishnelson.com or any firm member at 205-332-3430.

New Jersey has a very powerful subrogation provision.  That message was emphasized inGreene v. AIG Casualty Company, A-6287-11T4 (App. Div. October 16, 2013), a published decision rendered by the Appellate Division.  It does not matter that the compensation case is ultimately found non-compensable: the employer still can enforce its lien rights as to prior payments made.

            Kelly Greene worked for AIG and was injured on a wet floor in the lobby of the building where she worked.  AIG did not own the building and leased only a portion of the premises.  AIG initially denied the claim but thereafter paid substantial medical benefits without prejudice under N.J.S.A. 34:15-15.  AIG also put Greene on notice of its subrogation rights underN.J.S.A. 34:15-40.

            After investigating the lease agreement further, AIG eventually denied the claim as not arising out of the employment.  In the interim, Greene recovered $225,000 in a civil action against the landlord.  AIG sought reimbursement from Greene for two thirds of its workers’ compensation payments of $118,804. 

            Greene took the position that AIG was not entitled to reimbursement of its workers’ compensation lien if the case was found not compensable.  Counsel for both petitioner and AIG reached agreement that the case was not compensable given that AIG did not own or control the lobby area where the accident occurred.  The only issue was whether AIG was entitled to $79,203, representing two thirds of its payments. The Judge of Compensation held that since the case was not compensable, AIG was not entitled to its subrogation rights.  The Judge concluded:

Section 40 is a part of the Workers’ Compensation statute.  It is applicable in situations involving workers’ compensation claims and cannot be taken out of context to apply generally.  If the claim is determined not to be compensable, the section is inapplicable.  If it is compensable, the section applies.

            AIG appealed from the order denying lien reimbursement.  In a decision of first impression, the Appellate Division reversed the decision of the Judge of Compensation and held that AIG was entitled to reimbursement for  two thirds of its payments of $118,804, notwithstanding that the claim was non-compensable.  The court wrote:

Contrary to petitioner’s argument, nothing in either Section 15 or Section 40 conditions reimbursement of the claim from a third-party settlement on whether the benefits the employer paid were owed in the first place. Section 15 expressly provides that any payments the employer makes are without prejudice to a defense of non-compensability, and Section 40b allows the employer reimbursement from the third-party recovery if the sum recovered by the employee is ‘equivalent to or greater than the liability of the employer.’”

The Court went on to state that its holding is consistent with the remedial purpose of the Act by “making benefits readily and broadly available to injured workers through a non-complicated process.”Tlumac v. High Bridge Stone, 187 N.J. 567 (2006).  The court said that this policy encourages employers to make prompt voluntary payments because it provides much needed medical and wage loss benefits to claimants while their claim is being investigated.  In addition, the court said that its decision is consistent with the policy in New Jersey against double recoveries.

            In an interesting twist, petitioner argued that she was penalized by AIG’s voluntary payments in this case because she would have been better off, in retrospect, by directing the medical treatment through her health insurance, thereby not having to reimburse the carrier.  The court disagreed with this view, relying on the collateral source rule,N.J.S.A. 2A:15-97.  “Under our collateral source rule, petitioner would have been obliged to disclose to the court any amounts she received from her health insurer and they would have been deducted from any tort judgment.Perreira v. Rediger, 169 N.J. 399 (2001). Accordingly, had petitioner’s health insurer paid her medical expenses instead of AIG, the benefit would have accrued to the third-party tortfeasor, not to petitioner.”

            This case is the only published decision on this rather unusual issue. The undersigned handled the appeal of this case for AIG.

New West Virginia Case Finds an Injury at Work Not a Result of Employment

Morton v. West Virginia Office of Ins. Com’r, 2013 WL 5508553, -- S.E.2d ---- (Oct. 4, 2013) (per curiam). Affirming Workers’ Compensation Board of Review’s denial of compensability.

In Morton, the claimant injured her wrist and shoulder while helping a co-worker lift a box of maternity clothes that the co-worker had left in her office. She sought workers’ compensation benefits, which was denied by the claims administrator on the grounds that the employer had received no “special benefit” from “a voluntary act on the part of the claimant to assist a coworker in a personal errand.”  The administrative law judge affirmed the denial decision, which was also affirmed on appeal by the Board of Review. 

The West Virginia Supreme Court affirmed the Board of Review’s denial of compensability, in what was essentially a three-part holding: (1) helping a co-worker lift a box that does not contain work-related material does not provide a benefit to the employer; (2) helping the co-worker under this fact pattern does not promote generalized teamwork and camaraderie sufficient to rise to the level of “benefitting the employer”; and (3) “an injury which occurs while gratuitously assisting a co-employee with a task of a purely personal nature, involving no instrumentalities of employment and without any alleged involved of or benefit to the employer, not does not ‘result from’ employment.”

In dicta, the Court declined to apply arguably similar case law (WillibyandEmmel) to the issue in Morton. The Court disregarded Williby on the premise thatWilliby is a “coming and going” case, and therefore only relevant where theplace of the injury is particularly important in determining compensability (such as the “special errand” exception to the general compensability rule). Here, because the claimant was at work during her workday,Williby was inapplicable. 

The Court further declined to apply Emmel, on the grounds that, while factually analogous, it did not contain the same issue of law. That is, inEmmel, the claimant’s injury occurred at the workplace, butnot during the workday. Thus, the Court found that there was no causation between the claimant’s injury and his employment; he was not acting “in furtherance of the employer’s business” and that such injury was a “vague incident of employment.” According to the Court, the legal issue inMorton was quite distinguishable, as there, the injury occurred at the claimant’s workplaceandduring regular working hours.  

The Court found this case a close call and reiterated that whether a workplace injury is compensable under the workers’ compensation act is a factually intensive issue and will vary case by case. 

Justice Davis wrote a spirited dissenting opinion that focused on the fact that the box directly impacted the claimant’s workspace, and removal of the box benefitted the employer by allowing the claimant space to efficiently perform her assigned tasks.  Justice Davis wrote that the claimant did not deviate too far from her job duties by helping the co-worker remove the large box from her workspace.  According to Justice Davis, W. Va. Code 23-4-1g(a) required that this “close call” case be resolved in favor of the claimant.  Finally, Justice Davis believes the majority opinion will have a chilling effect on employee relationships and morale if an employee is discouraged from assisting a fellow employee with anything that the employer has not specifically authorized.

The Morton decision was a fact-specific ruling.  Claims administration decisions in “close call” cases can still be made if supported by the facts and are not equal to an application of the former “Rule of Liberality” that was statutorily abrogated by W. Va. Code 23-4-1g.  The majority of the Court refused to reweigh the evidence and decision of the Board.

Dill Battle and Gordon Mowen, October 9, 2013

Spilman Thomas & Battle, PLLC

dbattle@spilmanlaw.com

gmowen@spilmanlaw.com

Once again a plaintiff has failed to get past the exclusivity provision in the New Jersey Workers’ Compensation Act.  InEstate of Samuel Sellino and Phyllis Sellino v. Pinto Brothers Disposal, LLC., A-2064-12T1 (App. Div. September 23, 2013), the Appellate Division considered whether an employer could be sued for allegedly removing or bypassing a neutral relay switch leading to a tragic death.

Samuel Sellino worked for Pinto Brothers Disposal, LLC (Pinto Brothers).  On October 17, 2008, Sellino was working in Long Beach Township with Chris Pinto.  Sellino was driving the truck, and Pinto was getting on and off the truck to throw brush in to the garbage compactor.  Arriving at one house, Sellino exited the truck, and left the vehicle in drive with the parking brake engaged.  The truck started rolling down the street, and Sellino and Pinto pursued it.  Sellino fell under the wheels of the truck and died. 

The company policy was that drivers must remain inside the cab and are not to leave the cab to assist co-workers.  One witness testified that Sellino had been told not to leave the truck before the fatality occurred.

            Plaintiffs filed a suit and alleged that Pinto Brothers removed or bypassed a “neutral relay,”  which was an electrical switch that required the vehicle to be in neutral in order for the compactor to function.  The evidence was unclear whether the company did in fact remove or bypass the neutral relay but for purposes of the motion to dismiss the law suit, the court assumed that the company did bypass the switch.  Plaintiff’s expert testified that the death would not have occurred had the neutral safety switch not been bypassed.

            Pinto Brothers moved to dismiss the law suit and prevailed at trial, arguing that the suit was barred by the exclusivity provision of the New Jersey Workers’ Compensation Act.  The Appellate Division affirmed that ruling.  The court said, “ . . . bypassing the neutral relay created a risk of injury to its employees.  This falls short of showing that Pinto Brothers acted with knowledge that such action was ‘substantially certain to result in injury or death to the employee.’”  The court noted that just knowing that a workplace is dangerous is not the same as engaging in intentional wrong.

            The court also held that the type of accident that happened in this case is a fact of industrial life.  Indeed, Phyllis Sellino, the widow, testified that she was aware of injuries suffered by other garbage truck drivers involving similar factual situations.  Sellino himself was the driver of a truck that ran over an employee in the late 1980s.  “Accordingly, Sellino’s death and the circumstances in which it occurred cannot be considered to be ‘plainly beyond anything the legislature could have contemplated as entitling the employee to recover only under the Compensation Act,’ “ (citations omitted).

            This case underscores a recurring theme that intentional harm suits must meet an extremely high burden of proof  in New Jersey and in fact, it is truly only the most rare case that can meet this standard.

MISSOURI WORKERS'

COMPENSATION CASE LAW

UPDATE

JULY 2013 - SEPTEMBER 2013

Claim Denied Because Claimant Did Not Prove Fall Came From Hazard Related To Employment 

Jackie Porter v. RPCS, Inc., Case No. SD32492 (Mo. App. 2013)

FACTS: The claimant fell at approximately 4:00 P.M. in the restroom, at which time she fractured her hip. At a hearing before an ALJ, she testified that she had no memory of falling or what caused her fall. She recalled washing her hands and then waking up on the floor. No one witnessed her fall, and there was no testimony that anything was on the floor that caused the claimant to fall, or that when witnesses found her that her clothes were wet or had any substance on them. The ALJ denied the claim because the claimant failed to meet her burden of proof to establish why she fell, there were no witnesses and the claimant was an unreliable historian. The Commission affirmed the ALJ’s Award noting that they were unable to determine the specific risk or hazard that caused her to fall.

HOLDING: The Court noted that an injury shall be deemed to arise out of and in the course of the employment only if it does not come from a hazard or risk unrelated to the employment to which workers would have been equally exposed outside and unrelated to the employment, in normal non-employment life. The Court noted that the claimant must show a causal connection between her injury and her work activity in order for the injury to arise out of and in the course of her employment. In order to do so, the claimant must identify the cause of the injury. The Court noted that in this case the claimant was in the bathroom and fell, but there was no evidence that something about her work caused her to fall. Therefore, she failed to prove that she fell due to some condition of her employment or due to an unsafe location due to her employment. The Court found that the only causal connection of the work activity to her injury was the fact that it occurred while she was at work. Therefore, the Court affirmed the denial of benefits. The Court did note that this opinion should not be read to automatically restrict or exclude benefits for injuries of relatively sedentary professional employees such as the claimant based on the risk or hazard of being unrelated to employment.

Claimant Entitled to PPD Benefits not PTD Benefits

Clark v. Second Injury Fund, Case No. SD31644 (Mo. App. 2013)

FACTS: The claimant sustained an injury to his low back, right leg, neck and left shoulder on February 22, 2013, and settled this claim against the employer for 20% of the body. The claimant went to a hearing against the SIF for PTD benefits. Before the claimant’s February 2013 work injury, he had two other documented work-related injuries and had developed diabetes. He had received prior settlements for 30% of the right shoulder, 25% of the left shoulder, 5% of the wrist and 3.25% of the body. After his February 2013 work injury, the claimant returned to work and sustained another injury on May 14, 2013, and again on June 10, 2013, to his neck and low back. The ALJ awarded the claimant PPD benefits, not PTD benefits. The claimant appealed to the Commission who agreed with the decision of the ALJ. The claimant again appealed. 

HOLDING: The Court of Appeals again affirmed, noting that the Commission’s determination that the claimant was not permanently and totally disabled by a combination of his prior injuries and his last injury was not against the overwhelming weight of the evidence. The Court noted that both the claimant’s rating physician and vocational expert opined that he was permanently and totally disabled as a result of a combination of his injuries. However, neither of them addressed the two subsequent injuries. As a result, the Commission found that their testimony was lacking in credibility. The Court further noted that since the claimant returned to work after both of these subsequent injuries, the Commission concluded he could not have been permanently and totally disabled as a result of the earlier May 2013 injury.

Claimant PTD Because No Employer Could Reasonably Be Expected to Hire Him

Larry Underwood v. High Road Industries, LLC, Case No. SD31731 (Mo. App. 2012)

FACTS: On November 28, 2005, while standing on a ladder to install a radiator in a truck, the ladder broke and the claimant fell to a concrete surface, landing on his right side and right hip. He underwent surgery and was initially released in September 2006, but returned to the doctor. Eventually Dr. Olive implanted a permanent spinal cord stimulator. He was again released from care in 2008, and the doctor noted that he did not believe the claimant could work. The claimant testified that he continued to have complaints, noting he could only sit for 30 minutes, stand for 30 minutes, and could only walk about a block and then would need to sit down. He also reported that he was on prescription pain medication and could drive no more than 10 miles at a time. The claimant then underwent an FCE which showed that he could work in the light to medium category. Therefore, Dr. Olive concluded that the claimant could return to the open labor market in some capacity, with restrictions. The ALJ found that the claimant was totally and permanently disabled. The Commission affirmed the decision of the ALJ. The employer appealed.

HOLDING: The Court stated that the test for permanent total disability is whether the worker is able to compete in the open labor market. The critical question is whether, in the ordinary course of business, any employer reasonably would be expected to hire the injured worker, given his present physical condition. The Court found that there was competent and substantial evidence supporting the Commission’s determination that the claimant was unable to compete in the open labor market based on his physical restrictions, his limited transferable job skills, his below average intelligence and his concentration problems, and that no employer would reasonably be expected to hire him. 

Claimant's Job Duties Were A Substantial Factor in Causing His Heart Attack Which Caused His Death

William Riley (Deceased); Vicki Riley and Landon Riley v. City of Liberty, Case No. WD75879 (Mo. App. 2013)

FACTS: On October 6, 2004, the claimant died of a heart attack while at home. The claimant’s widow filed a claim for death and funeral benefits. An ALJ denied the claim. The relevant facts are as follows. The claimant was the Deputy Fire Chief and his duties were primarily administrative, but essentially kept him on call at all times. On October 5, 2004 the claimant had a heated discussion with a Captain while at work regarding a police dispatcher. After the conversation, the claimant appeared angry, was red faced and it took another Captain 45 minutes to calm him down. Later that day he responded to a medical emergency call. He assisted another fireman loading a man onto a stretcher, and removed him from the building and into the ambulance. Witnesses testified that the claimant did not appear well. The claimant then went back to the station and was using the treadmill at which time he looked pale, ashen and sweaty. There was also testimony that the claimant was having bad indigestion. A paramedic for the fire department testified that looking grey and having indigestion are signs of undergoing a heart attack. The claimant arrived home at 7:00 P.M., and at around 4:00 A.M. he went into cardiac arrest and was pronounced dead soon thereafter. The Commission found that the events of October 5, 2004 resulted in an increased demand on the claimant’s heart, which culminated in ischemia, which deteriorated to heart failure in the hours leading up to his death. Therefore, the claimant's widow was entitled to benefits as the claimant did sustain an accident arising out of and in the course of his employment.

HOLDING: The Court noted that in this case the claimant only had to prove that his work was a substantial factor in causing the heart attack. The Court noted that Dr. Schuman testified on behalf of the claimant, and opined that the claimant’s work activities on October 5, 2004 were the prevailing factor in his cardiac arrest. Dr. Thompson, the employer’s medical expert, testified that the claimant’s job duties were not a substantial contributing factor in causing his death. The doctor noted that according to studies, heart attacks are only related to a firefighter’s work activities if they occur within one hour of extreme exertion. The Court noted that the Commission chose to rely on Dr. Schuman’s opinions and the evidence supports the Commission’s conclusion that the claimant suffered an accident in the course of his employment and his employment was the substantial factor in his cardiac arrest. Therefore, the Court affirmed the Commission’s Award of benefits.

[Editor’s Note: Please note that this is an old law case and therefore the claimant only had to prove that his job duties were a substantial factor in causing the heart attack. However, please note Dr. Schuman did testify that the claimant’s job duties were the prevailing factor in causing his heart attack. Therefore, it is possible this case would come out the same way under the 2005 Amendments.]

To Win a Retaliation Suit Claimant Has to Prove that Exercising His Rights Under Workers’ Compensation Was the SOLE Reason for His Termination

Templemire v. W&M Welding, Inc., Case No. WD74681 (Mo. App. 2012)

FACTS: On October 10, 2005 the claimant began working for the employer and on January 9, 2006 he sustained an injury to his foot and received benefits. During his employment the claimant only had one disciplinary write-up which occurred after his injury. On November 26, 2006 Gary McMullin, the owner of the company, received a request from a customer to have a railing painted and ready to pick up by 4:30 that afternoon. Before the railing could be painted it had to be washed. Therefore, the claimant’s supervisor assigned him to make various deliveries and he returned at 1:50 P.M. Before reaching the wash bay he stopped to rest his foot, at which time he was approached by the employer, Mr. McMullin and fired because the rail had not been completed. The claimant asked why he was fired and he was told that he wanted the railing done and he hadn’t washed it. The claimant called the insurance company who then called the employer to discuss the claimant’s termination. Mr. McMullin advised that he told the claimant to wash some parts, he refused and therefore he was fired. They discussed the claimant’s need for breaks and Mr. McMullin advised that the claimant was milking his injury. The claimant then filed a lawsuit against his employer alleging retaliation.

HOLDING: At a trial, Mr. McMullin testified that he fired the claimant for insubordination. The claimant put on evidence showing that Mr. McMullin had previously referred to injured employees as whiners, and there was a witness that had previously been an employee of Mr. McMullin, who filed a work comp claim and was later terminated. He also pointed to an employee who had multiple disciplinary write-ups and a drug problem; however, he had not been terminated. Furthermore, the type of disciplinary write-up the claimant received after his injury was not a type of violation for which other employees had received write-ups. At the trial the jury found in favor of the employer and the claimant appealed. The Court of Appeals confirmed the decision of the trial court, noting that the jury instruction was in line with the law. The jury instruction read that the exclusive cause of the claimant’s discharge was his filing of a workers’ compensation claim. The Court looked to prior cases and confirmed that the claimant has to prove that the sole reason he was fired was because of exercising his rights under the Act.

Employer Not Insurer Has Right to Direct Treatment

Demore v. Demore Enterprises, Inc. and America First Insurance Company, Case Nos. SD32350 and SD32362 consolidated (Mo. App. 2013)

FACTS: Herschel and Doris Demore, and their daughter Delores, worked for the family business, Demore Enterprises. Delores got a call at the employer’s office during business hours reporting vandalism of one of their nearby properties. All three of the Demores left the office and headed to the property, all in Herschel’s personal vehicle. In route they were injured in a car accident. Doris Demore filed for workers’ compensation after the insurer refused benefits and medical treatment, and the ALJ awarded temporary and permanent total disability benefits, past medical expenses and future medical treatment. The ALJ also opined that the “employer/insurer” waived its rights to select the claimant’s medical providers for future medical care. The Commission affirmed the Award in part. The Commission reversed the ALJ’s decision that the “employer/insurer” waived its right to control future treatment. The Commission noted that the general rule still applies and the “employer/insurer” maintains control over the selection of the claimant’s future medical providers.

HOLDING: The Court, in essence, agreed with the Commission’s award noting that the “employer/insurer” did not waive its right to direct treatment. However, it did note that pursuant to Statute it is actually employers alone, not insurers, that have the right to direct medical treatment. Therefore, the result in this case was that the claimant, who was the employer, was able to direct her own treatment.

Claimant Has to Prove Employer Not Prejudiced By Lack of Notice Before Burden Shifts To Employer to Prove Prejudice

Aramark Educational Services, Inc. et. al. v. Leotha Faulkner, Case No. ED99439 (Mo. App. 2013)

FACTS: On January 29, 2010 the claimant slipped and fell on black ice while walking between two buildings on Washington University’s campus, where she was working. She did not immediately report the incident to the employer, as she did not believe she was hurt. Ten days later she noticed swelling and sought treatment on her own. At this time, she again did not report an injury to her employer. She underwent unauthorized surgery on April 8, 2010. Prior to her surgery, she did report her injury to her employer on March 31, 2010, two months after her injury at which time the employer offered medical treatment. However, she denied the offer since she already had scheduled surgery. The claimant then filed a Claim and at a hearing the ALJ denied the claimant benefits on the grounds that she failed to provide proper notice of the injury. On appeal, the Commission reversed the ALJ’s decision, and awarded benefits. The employer appealed, alleging the claimant should be denied all benefits because she failed to give the employer timely notice.

HOLDING: The Court noted that the employer has the burden of establishing any affirmative defense which includes statutory notice. Once the employer establishes a lack of timely written notice, the burden shifts back to the claimant. The claimant must then establish that her failure to give timely written notice did not prejudice the employer. A claimant can prove lack of prejudice in one of two ways. First, if the claimant offers substantial evidence that the employer had “actual knowledge” of the injury, there is no need for written notice. If this is the case, it is assumed that the employer was not prejudiced and the burden then again shifts to the employer, who has to show prejudice. 

The second way a claimant can prove lack of prejudice is presenting actual facts showing that the employer was not prejudiced. The Court noted that in light of the fact that it was undisputed that the claimant failed to provide employer with proper notice, it is her burden to prove lack of prejudice. The Court found that the claimant did not provide any evidence supporting that the employer was not prejudiced. The Court noted that the Commission equated the employer's admission that the claimant’s injury occurred in the scope of her employment with admission that it was not prejudiced. The Court noted that admission of a claimant’s injury did not relieve the claimant of her duty to establish a lack of prejudice. The Court noted that, basically, the Commission shifted and placed the burden on the employer prematurely, as the claimant did not meet her burden. The Court further noted that all cases which have shifted the burden to an employer to prove prejudice, where there was untimely notice, have required the claimant to first provide evidence of no prejudice to both the employer’s investigation and the employer’s need to provide medical treatment to the claimant to minimize disability. The Court found the claimant did not prove any evidence of lack of prejudice. Therefore, the Court reversed and remanded the decision of the Commission.

Widow Entitled to Entire Benefit Amount For Two Years When Remarry

Ash v. Millennium Restoration and Construction, Case. No. SD32381 (Mo. App. 2013)

FACTS: The claimant was fatally injured when he fell down an elevator shaft while working for the employer. He was survived by his spouse and their two young children. On January 21, 2009 the Commission awarded weekly benefits in the amount of $742.72. The Award allocated $495.15 per week to the children and $247.57 per week to the spouse. The spouse remarried on December 9, 2011. On October 3, 2012 the Commission issued a decision modifying its previous Award based on the Statute, which grants a spouse a remarriage benefit equal to the entire death benefit for two years. Therefore, the spouse was awarded $77,242.88, which represented the weekly benefit of $742.72 x 104 weeks. The employer appealed, arguing that the remarriage benefit should have been calculated only using the portion of the weekly benefits that was allocated to her, in this case, $247.57.

HOLDING: The Court noted that the issue in this case was whether a spouse that remarries receives the entire death benefit or only the portion of the death benefit that was initially awarded to the widow as the surviving spouse. The Court noted that strict construction is used to interpret the Statute and that §287.240 does not contain any language which expressly indicates that the remarriage benefits should be calculated based on only the amount of the weekly death benefit initially given to the remarrying spouse. The Court noted that if the legislature intended for the spouse to only receive the part of the benefits that was initially awarded to her, specific language would have been added to the Statute. Therefore, the Court affirmed the Commission’s decision that the widow was entitled to a lump sum of $77,242.88.

Claimant Assaulted and Killed By Boyfriend at Work Found Not Compensable and Parents Could Pursue Wrongful Death Suit against Employer 

Flowers v. City of Campbell, Missouri and William Riley, and Dolgen Corp. d/b/a/ Dollar General Stores, and Billie Gage, Case No. SD31440 (Mo. App. 2012)

FACTS: The parents of the employee shot to death by her boyfriend while she was at work at the employer's store brought a wrongful death action against the employer, store manager, city and police officer. The employer filed for summary judgment arguing that workers’ compensation was the exclusive remedy because the death arose out of and in the course of the employment because the employee was a victim of unprovoked violence or an assault while at work. The trial court granted summary judgment and the employee’s parents appealed.

HOLDING: The Court of Appeals reversed the summary judgment stating that the employee’s assault was not compensable. The Court noted that although the assault on the employee was unprovoked and unjustified, her injuries did not arise out of her employment because the assault was directed at her for purely personal reasons. Therefore, the employee's parents could proceed with the wrongful death suit.

Commission Has Statutory Authority to Approve Settlement 

Nance v. Max & Electric, Inc., Case No. WD74942 (Mo. App. 2012)

FACTS: An ALJ found that the claimant was permanently and totally disabled as a result of an occupational disease he sustained at work and was awarded lifetime benefits. Thereafter, the parties entered into an agreement to commute the claimant’s PTD benefits into a lump sum settlement of $181,434.24. The agreement was executed by the parties and the attorney for the employer sent the agreement to the Commission for approval on October 27, 2011. Later that afternoon the claimant died of causes unrelated to the work injury. When the employer learned of the claimant’s death, it filed a Motion to Withdraw the agreement. However, the claimant’s surviving wife moved to have the agreement approved. The Commission entered an Order denying the request to commute and denying the claimant’s spouse’s request to approve the settlement agreement, finding that it did not have the authority to approve the agreement because the value of the claim, once the claimant had died, was zero.

HOLDING: The Court of Appeals held that the Commission did have the statutory authority to consider the settlement agreement and under the Statute, the Commission was required to approve the settlement unless it was procured by fraud or undue influence, or was against the rights of the parties. The Court reversed and remanded the case to the Commission with instructions to approve the agreement.

Attorney's Fee Lien Has Priority Over Department of Social Services Lien

Lake v. Department of Social Services, Case No. WD74306 (Mo. App. 2013)

FACTS: Attorney Lake represented the claimant in a workers’ compensation claim. The claim was tried before an ALJ on stipulated facts between the claimant and his employer. They agreed to 38% PPD to the body, and that the claimant had incurred medical expenses in the amount of $45,001.73. The Missouri Department of Social Services had filed a lien in that amount to recover funds that Medicaid had paid for the claimant’s treatment for the work injury. The employer stipulated that they would issue payment in that amount directly to the Missouri HealthNet Division to resolve the lien.

HOLDING: The Commission entered an Award which included a 25% attorney’s fee specifically on the medical expenses. The Commission noted that this 25% fee applied to the amount the employer paid to the Department of Social Services (Department). Since the employer paid the entire amount of the lien to the Department, Lake was to recover the portion of his lien directly from the Department. Lake then demanded payment from the Department which rejected his claim. Lake brought a civil suit against the Department for his attorney’s fees, and the Circuit Court entered judgment in favor of the Department. The Court of Appeals reversed, holding that an attorney's fee lien, by Statute, has priority over the Department of Social Services liens for Medicaid reimbursement.         

Employer Not Responsible For Unauthorized Treatment Because Claimant Did Not Ask For Treatment

In Rainbolt v. Audrain Medical Center, Injury No. 09-002662, an ALJ determined that the claimant sustained a compensable injury. The ALJ awarded past medical expenses incurred in the course of her treatment with Dr. Brockman, a physician that she chose to go see on her own. The Commission reversed this aspect of the ALJ’s Award in that it found that the claimant did not ask the employer to furnish her with any psychiatric treatment prior to seeing Dr. Brockman, and there was no evidence that the employer had notice of the claimant’s need to see a psychiatrist and thereafter failed to furnish treatment. The Commission noted that this was not a case wherein the claimant was forced to see her own provider after the employer denied the claim. Therefore, the employer was not liable for the charges incurred for treatment with Dr. Brockman because the claimant sought treatment on her own and it was at her own expense.

Fall on Stairs Found To Be Compensable Because Had to Use Stairs to Access Tower 

In Morris v. Curators of the University of Missouri, Injury No. 11-021524, the claimant had retrieved a patient’s cell phone from the ground floor of the hospital and was taking it to the 5^th floor of the ICU tower, when she was walking up the stairs at which time she fell forward on the stairs and injured her low back. It was noted that in order to get to the ICU tower she had to use the stairs. In its Answer, the employer admitted the claimant sustained an accidental injury. There was no request to file an amended Answer denying the accident until approximately one hour into the hearing. Therefore, the ALJ found at the hearing that the employer had admitted that the claimant sustained a compensable accident and injury.

The ALJ went on to note that assuming that the issue had been properly and timely raised, it was clear that the claimant did indeed sustain a compensable accident and injury arising out of and in the course of her employment with the employer. The ALJ noted there was an unexpected traumatic event, as the claimant fell on the staircase. The event was identifiable by a specific time and place on the date listed, and in the location noted. The claimant had immediate symptoms of the injury, and the hazard or risk of falling on the stairs was a risk or hazard related to the employment as claimant could not access the 5^th floor of the ICU tower without using the stairs. This was a temporary ward, and therefore the Judge found that the matter was in fact compensable, and the employer/insurer was to provide medical treatment.

Rotator Cuff Tear Related to Prior Injury Not Work Injuries 

In McAndrew v. Metro Materials Inc., Injury No. 09-073619, the claimant, a teamster driving a cement truck, exited his truck and while walking into the plant he fell and hit his right arm and shoulder on a concrete slab on September 15, 2009. He felt massive pain throughout his right side. Three months prior to his injury, on June 1, 2009, he fell off a bicycle in his yard at home and landed on his right side. Thereafter, he began treating with a chiropractor and was diagnosed with a rotator cuff strain. He continued to treat for his shoulder, and on September 8, 2009, a week prior to his injury, he was seen by his family physician at which time he reported continued shoulder pain and weakness, along with difficulty lifting anything. It was noted in the records that the claimant believed that his rotator cuff was torn because he was having so much trouble when he lifted his arm. The claimant denied telling his doctor this. In any event, prior to his injury an MRI was ordered and scheduled for a day after the claimant’s work injury. The MRI showed a complete rotator cuff tear involving the entire supraspinatus tendon and superior fibers of the subscapularis tendon, with significant retraction.

On September 22, 2009, a week after the first work injury, the claimant had another work accident when he stepped out of the cab of his truck, he lost strength in his right arm and fell hitting his right shoulder on the ground. After this injury he was unable to move his arm. He underwent surgery with Dr. Fagan who opined that the cause of the rotator cuff tear was most likely the claimant’s September 22, 2009 injury. Dr. Wayne, the employer's expert, opined that the claimant’s shoulder pathology and symptoms were due to the June 2009 fall which was prior to both of the work accidents. The ALJ found that the claimant failed to meet his burden of proving that the work accidents were the prevailing factors in causing his rotator cuff tear. The ALJ found Dr. Wayne more credible. The ALJ also did not find the claimant credible in that he testified that he only had one visit to the chiropractor and his shoulder was fine, and the medical records did not corroborate his testimony. The Commission affirmed the ALJ's decision.

Carpal Tunnel Compensable Because No Evidence that Condition Was Caused By Anything Other Than Job Duties

In Lane v. City of Independence, Injury No. 11-014662, the claimant was a records clerk at the Independence Police Department and alleged carpal tunnel syndrome as a result of her job duties. The claimant was referred out for evaluation, prescribed splints and provided an ergonomic layout of her work station. Her symptoms continued and she was referred to Dr. Rosenthal, who believed that she had carpal tunnel but it was not work-related. Dr. Stuckmeyer, the claimant’s expert, opined that the carpal tunnel was a result of her job duties. The ALJ noted that claimants seeking benefits for an occupational disease must present “substantial and competent evidence that he/she has contracted an occupationally induced disease rather than an ordinary disease of life.” An occupational disease is compensable only if the occupational exposure was the prevailing factor in causing both the resulting medical condition and disability. The ALJ further noted the claimant must also establish the probability that the occupational disease was caused by work place conditions. The ALJ noted that there was no evidence introduced that anything but repetitive typing all day long for 5 years at the police department caused the claimant’s carpal tunnel syndrome. The ALJ determined that the competent evidence supported a determination that the claimant’s work for the police department was the prevailing factor that caused her carpal tunnel syndrome, and the employer shall provide medical treatment to cure and relieve the effects of the injury. The Commission affirmed the ALJ’s Award.

Horseplay Found Compensable and Claimant Awarded Medical Treatment and Disfigurement Equal To Cost of Medical Treatment

In Johnson v. City of Carthage, Injury No. 11-054387, the claimant, a lifeguard, was injured while engaging in an incident in which another employee was shooting him with a squirt gun filled with soda. The claimant was keeping the other employee at bay by holding a chair with its legs in the air facing the other employee. The other employee grabbed the chair and pushed it towards the claimant, at which time his teeth were chipped. The employer alleged horseplay, which would not be compensable. The claimant testified that earlier he had used a squirt gun filled with water to shoot the other employee, and that this type of activity was a regular occurrence for the 7 weeks of his employment with the City of Carthage. The manager of the pool and supervisor of the lifeguards would tell the participants who were using the squirt guns to knock it off. However, the activity continued. No one was disciplined for using squirt guns.

The ALJ looked to Wisely v. Sysco Foods, 972 S.W.2d 313, wherein the Court held that if an injury was sustained during horseplay, which had become an incident or risk of employment, then that accidental injury was compensable even if the party was the aggressor or voluntary participant in the activity. Here, the ALJ found that the activities which resulted in the ultimate accidental injury to claimant in this case were prevalent at the City of Carthage pool, where the claimant worked as a lifeguard and were an incident or risk of his employment. Therefore, the ALJ concluded that the claimant was injured through activities which arose out of and in the course of his employment, and were the prevailing factor in causing both his condition and his disability.

The ALJ awarded both past and future medical treatment for his tooth, as well as the loss of one tooth or 1.25 weeks of disability, which was agreed on by the parties. The claimant also sought disfigurement for loss of a tooth. The ALJ noted that Missouri Regulations provide that disfigurement shall be allowed for the loss of a front tooth, which was the injury in this case, in an amount sufficient to cover the reasonable costs of the artificial teeth. The ALJ found that the claimant was entitled to disfigurement in the amount of $770.00, the cost of the treatment and artificial tooth. The claimant did argue that he would be entitled to additional disfigurement in the event that replacement dental devices were required as future medical benefits. However, the claimant provided no basis for that assertion, and the ALJ only ordered disfigurement to the extent of the past medical provided. The Commission affirmed the decision of the ALJ.

Commission Reversed Decision of ALJ Denying Benefits for Carpal Tunnel Syndrome 

In Harris v. Bi-State Development Agency, Injury No. 10-021927, the claimant was 63 years old at the time of the hearing. She had worked for the employer for ten years as a van driver and alleged carpal tunnel syndrome as the result of her job duties. Prior to working for the employer she was diagnosed with diabetes, and was initially able to control the diabetes by diet, but eventually began taking oral medication. About the same time she started working for the employer she was also diagnosed with hypertension. She also struggled with obesity. The claimant drove up to 100 miles a day throughout the St. Louis metropolitan area. She noted that there was power steering in the van, but it was more difficult to steer than her car. She also had to assist passengers in wheelchairs, which required her to strap wheelchairs into the van. The claimant was sent to BarnesCare and the doctor concluded that the claimant’s condition was not work-related. She sought treatment on her own with a hand surgeon and underwent bilateral carpal tunnel releases. Dr. Schlafly and Dr. Margolis testified on behalf of the claimant, noting that the claimant’s work was the prevailing factor in causing her condition. Dr. Kaoo and Dr. Crandall testified on behalf of the employer, finding that the claimant’s job duties did not cause her carpal tunnel syndrome. An ALJ found Drs. Kaoo and Crandall’s opinions more credible than the opinions of Dr. Schlafly and Dr. Margolis, and that the claimant did not meet her burden to show that the carpal tunnel syndrome arose out of the repetitive work activities. The claimant appealed alleging that the ALJ erred in crediting the employers’ experts over her experts.

The Commission reversed the decision of the ALJ, noting that the claimant’s job duties did require firm repetitive grasping and repetitive stress to the flexor tendons and muscles of the claimant’s forearms. The Commission adopted the opinions of Dr. Schlafly and Dr. Margolis, and found that the claimant’s work was the prevailing factor in causing her bilateral carpal tunnel syndrome, as it appeared that the claimant’s occupational disease had its origin in a risk connected with the employment, and appeared to have flowed from that source as a rational consequence. Therefore, the Commission found that the claimant sustained an occupational disease arising out of and in the course of her employment and the employer was liable for past medical expenses, TTD and PPD.

Commission Reversed ALJ's Award Denying That Rotator Cuff Was Due To Occupational Disease

In Bowyer v. Mineral Area Community College/MACC, Injury No. 10-034774, the claimant testified that he had worked for the employer for approximately thirty years, mostly as a maintenance supervisor, half supervising and half performing general maintenance tasks. The employer's witness disagreed and estimated that the claimant spent 75% of his time on supervisory or administrative duties. The claimant first noticed pain in his shoulder in early 2010 when plowing snow. He testified that in May 2010 he was very busy performing maintenance as they were getting the campus ready for graduation. On May 6, 2010 the claimant reported to his supervisor that he felt he hurt his shoulder. Dr. Milne opined that the claimant’s job duties likely aggravated his condition, but were not the primary or prevailing factor in causing his condition, and therefore, the employer denied treatment. The claimant treated on his own with Dr. Ralph, who opined the claimant’s job duties were the prevailing factor in causing a right rotator cuff tear for which the claimant underwent surgery. The ALJ denied the claim, concluding that the claimant failed to offer credible evidence that he sustained an occupational disease arising out of and in the course of his employment.

The Commission reversed the decision of the ALJ finding that Dr. Ralph’s opinion was the most persuasive. The Commission noted that Dr. Ralph’s credible findings demonstrate that the claimant sustained an occupational disease that appears to have had its origin in a risk connected with the employment and appears to have flowed from that source as a rational consequence. Therefore, the claimant sustained an occupational disease to his shoulder arising out of and in the course of his employment.

Personal Assault on Employer's Parking Lot Not Compensable

In Brown v. George’s Processing, Inc., Injury No.: 09-063503, the claimant was going on a break to smoke when he was attacked by two aggressors. He was hit by a baseball bat swung by one of the aggressors, was placed in a choke hold and knocked out. The claimant admitted at a hearing that there was a personal disagreement between the aggressor and the claimant regarding his former girlfriend. There had been an earlier fight between the two which resulted in charges being filed against the claimant. The claimant admitted that the assault had nothing to do with his work at the employer. (Editor's note: It is not noted whether the aggressor was also an employee of the employer).

The ALJ looked to former case law, noting that an injury sustained by an injured worker is not compensable if an assault arose out of a personal matter unconnected with the claimant’s work duties, and that private personal quarrels are not compensable. The ALJ noted that the changes to the Statute in 2005 did not in any way change the application of the assault doctrine. The ALJ noted that the claimant appeared to assert that there was some special hazard from the claimant’s work location through testimony elicited that there were no cameras, nor was there any security, a fence or windows from which other workers could observe the parking lot where the claimant was assaulted. However, the ALJ noted that testimony also showed that there were numerous workers at the location who would transport materials at the mill using trucks and trains at various times. The ALJ noted that there was nothing inherent in the testimony that showed the claimant was exposed to a greater risk than that which he would have been exposed to outside of his work. The ALJ finally noted that the record as a whole proved only that the work place provided a locale for the personal assault, rather than exposing the claimant to any greater hazard at that location. Therefore, the claimant had not met his burden of proof and the claim was denied. The Commission affirmed the decision of the ALJ.

Claimant PTD Because Surveillance Was Not Persuasive Since Only Showed Limited Activity

In Mark Dannenmueller v. Noranda Aluminum, Inc., Injury No. 03-001980, the claimant injured himself while lifting a 90 pound block in 2003, sustaining a herniated disc at L5-S1, for which he underwent surgery. In 2004, the authorized physicians believed that the claimant was permanently and totally disabled.  However, years later, the employer’s experts, Dr. Cantrell and Dr. Coyle, viewed surveillance footage from 2006 and 2007 as well as 2009 and determined that the claimant was not permanently and totally disabled. The claimant’s experts, Mr. England and Dr. Volarich, never reviewed the surveillance but on cross admitted that if the surveillance showed that the claimant was capable of repetitive activity their opinions could change. The ALJ viewed the surveillance and found that there was no evidence that the claimant needed to avoid any repetitive bending or operation of heavy equipment or needed limitations regarding squatting, walking, carrying, kneeling, lifting, or climbing. The ALJ determined that the claimant was not permanently and totally disabled.

The Commission disagreed, noting that the surveillance covered August 2006 - March 2007, and July 2009 - October 2009. From approximately 310 hours of surveillance the investigators only gathered 48 hours of video footage. The Commission viewed the surveillance footage which showed the claimant engaged in about 15 or 16 individual incidences of activities such as bending to pick up a garden hose, pulling weeds, riding an ATV, operating equipment such as lawn mowers and leaf blowers, and running to catch a dog. The Commission noted that during the entire period that the investigators followed the claimant, only about 5 days demonstrated him engaging in any activities spanning a time period over an hour. The longest period of activity was approximately two hours on October 1, 2006, when the claimant was mowing the lawn. The Commission further noted that the investigators did not capture any significant activity by the claimant 9 days after that date, which supported the claimant’s testimony that he was “laid up” with back pain after engaging in activities such as those depicted on the videos. Therefore, the Commission found that the videos depicted only isolated moments over a lengthy period of time rather than anything approaching the demands of full-time employment. Despite the surveillance, the Commission found that the claimant was permanently and totally disabled.

Claimant's Live Testimony More Credible Than Employer's Affidavit

In Ricky Blanchard v. Staples, Inc., Injury No. 10-051990, the claimant alleged carpal tunnel syndrome as a result of his job duties. The claimant worked for the employer for 23 years and last worked as a shipping supervisor for 5 - 7 years. The claimant testified that his job duties as shipping supervisor involved both supervisory tasks and manual labor. The claimant testified at length with respect to his job duties at the hearing. The employer prepared an Affidavit describing his job duties and submitted it at the hearing. The ALJ found that the claimant failed to establish that his work was the prevailing factor in causing his carpal tunnel syndrome, and denied the claim.

The Commission reversed the decision of the ALJ, noting that the claimant testified that the list of the job duties prepared by the employer were incomplete, because they did not include all of the physical tasks that he performed on a daily basis. The Commission further noted that the employer did not present any live witnesses to rebut the claimant’s testimony as to his job duties or to show that the employer’s written description of his duties were more accurate than the claimant’s testimony. The Commission found that the claimant’s testimony was more persuasive than the Affidavit from the employer describing the claimant’s job duties. The Commission also believed that the claimant's expert, Dr. Beatty, was more credible because he took into account all of the claimant's job duties and the employer's expert, Dr. Goldfarb relied on the employer's description of the claimant's job duties which was incomplete.

Claimant's Date of Injury Determines Whether Dependents Are Entitled to Benefits 

In Donald Busick v. Wilson Plumbing Company, Injury No. 06-110636, a living claimant went to a hearing before an ALJ arguing thatSchoemehl will apply to his claim and therefore his wife is entitled to permanent total disability benefits if he dies of a cause unrelated to the work injury.

[Editor's note: Schoemehl v. Treasurer of State, 217 S.W. 3d 900 (Mo. App. 2007), found that if a claimant dies from causes unrelated to the work injury, the claimant's dependants are entitled to continuing PTD benefits.Schoemehlwas abrogated by an Amendment on June 26, 2008. The Courts have held that forSchoemehl to apply the Claim had to be pending between January 9, 2007 whenSchoemehl was decided and when the Amendment abrogatingSchoemehl took effect, June 26, 2008.]

The ALJ found that Schoemehl applied because his date of injury was September 26, 2006 and therefore his claim was pending in between January 9, 2007 and June 26, 2008. Therefore, the claimant’s wife was entitled to PTD benefits in the event he dies of causes unrelated to the work injury. The employer appealed arguing that because the claimant did not file his claim until January 19, 2009, which was afterSchoemehl was abrogated, the claimant did not have a claim for PTD benefits that was pending during the Schoemehl window. The claimant again argued that because his date of injury was November 26, 2006Schoemehl applied. The Commission agreed with the claimant noting that the Court previously focused on the date of injury to determine whether the claimant’s dependents may recover under Schoemehl. Therefore, the Commission affirmed the decision of the ALJ noting that Schoemehl did apply. However, in light of the fact that the claimant was still living, the claimant’s wife’s right to receive benefits pursuant toSchoemehl remained contingent and could not be adjudicated at this time.

Plantar Fasciitis After 13 Hour Shift Found To Be Compensable Accident

In Ricky Bisch v. St. Louis Area Insurance Trust, Injury No. 09-065775, the claimant was a janitor and on June 27, 2009 he had to work an overnight shift stripping and refinishing floors in preparation for an important event on the employer’s premises. No one was available to help the claimant perform this task, and he worked 13 hours on his feet. After he finished his job duties, he sat down for about 5 minutes and when he stood back up, he felt excruciating pain in the center of his right foot towards the heel. He hadn’t noticed any pain in his foot over the course of his shift, and testified that he had been focused on completing the job and wasn’t thinking about anything else. He reported his injury on Monday, since none of the supervisors were available over the weekend. The claimant requested treatment; however, he was advised that there was no response from workers’ compensation. He began treating on his own and was diagnosed with plantar fasciitis. The claimant was eventually sent to Dr. Byler by the employer, who opined that the plantar fasciitis was not work-related. He underwent an unauthorized endoscopic surgery to correct the plantar fasciitis. Dr. Berkin testified on behalf of the claimant opining that the plantar fasciitis was work-related. The ALJ found that the claimant failed to meet his burden to demonstrate that an injury by accident occurred. The claimant appealed.

The Commission found that the facts satisfied the criteria in the Statute regarding an accident. The claimant suffered an unexpected traumatic event or unusual strain (working on his feet for 13 hours). The accident was identifiable by time and place (June 27, 2009, at the employer’s premises). The claimant had objective symptoms (pain in the right foot) of any injury (plantar fasciitis) which was caused by a specific event (working on one’s feet for 13 hours) during a single work shift. Therefore, the claim was compensable.

The employer also argued that the claimant did not prove that his injuries arose out of and in the course of his employment because the hazard or risk that resulted in the claimant’s injuries was standing up after sitting down for 5 minutes, which was not a risk related to his employment. The Commission noted that it cannot view work place injuries in a vacuum so microscopically focused to ignore the reality of what actually happened to the claimant. The Commission found that the claimant’s injuries resulted from the risk of working a 13 hour shift on his feet. Furthermore, the Commission found no evidence that would support a finding that workers would have been equally exposed to that hazard or risk outside the employment in normal unemployment life. Therefore, the claimant’s injuries arose out of and in the course of his employment.

Claimant’s Job Duties as EMT Caused Injury to His Back and Shoulder By Occupational Disease

In Richard Yarbrough v. Rural Metro Ambulance, Injury No. 10-060138, the claimant worked as an EMT from 1992 until 2011. His job duties included responding to the scene of a medical emergency, assessing the patient, providing emergency assistance and transporting patients. The claimant averaged 3 - 4 emergency calls per day, and he and his partner would have to pull a stretcher weighing 81 - 87 pounds out of the ambulance and carry or roll the stretcher to the patient, and get the patient on the stretcher which involved significant physical strain. In 2002 the claimant underwent a lumbar laminectomy at L4-5 and L5-S1. He was released from care and returned to his normal job duties without restriction. In July 2010 he began to experience more severe pain in his right shoulder, right leg, right hip and low back. The claimant underwent authorized treatment for his right shoulder involving surgery and physical therapy for his low back. He was then sent to Dr. Colle for his back complaints. The doctor concluded the claimant’s back problems were not work-related.

The claimant had a report from Dr. Woiteshek, who diagnosed traumatic internal derangement of the right shoulder and traumatic right sciatica with an L4-5 herniation, which was related to the claimant’s job duties. The employer then obtained a report from Dr. Randolph, who opined that the claimant’s pre-existing degenerative conditions were the prevailing factor in his condition, not his job duties. The Commission found the opinion of Dr. Woiteshek more pervasive and concluded that the claimant’s conditions were work related and he was in need of additional treatment. However, the Commission did not agree with Dr. Woiteshek’s testimony that the claimant was unable to work after July 1, 2010. The Commission noted that even on cross-examination the doctor admitted that the evidence showed that the claimant continued to work for the employer up through March 2011. Therefore, the claimant was not entitled to TTD back to July 1, 2010.

Claimant's Deposition Testimony Could Not Be Used In Lieu of His Live Testimony

In Ruben Walker v. Bon Appetit Management, Injury No. 02-144836, the claimant’s case was set for numerous pre-hearings and mediations between 2005 and 2013. Notices were sent to the claimant but returned to the Division as “unable to forward.” The claimant’s case was set on the show cause docket on December 6, 2011, and the notice was again returned as “unable to forward.” The claimant’s attorney and the employer’s attorney appeared and since the claimant did not appear, the Judge dismissed the case with prejudice for failure to prosecute. The claimant’s attorney filed an Application for Review alleging the case was dismissed in error. The Commission set aside the Order of Dismissal and reinstated the claim finding no record was made at the show cause hearing, and the Commission did not have any evidence to review.

The case was set for a hearing on February 6, 2013, and the claimant did not appear. The claimant was deposed in 2007 and his deposition testimony was admitted into evidence without objection. The claimant’s attorney contended that his deposition testimony in lieu of his live testimony was sufficient to establish the elements of his case. The ALJ looked to Chapter 492 which allows a deposition to be admitted into evidence instead of live testimony if: the deponent is dead, if he is unable to give testimony by reason of mental incapacity, he was rendered incompetent, or if he was removed from the hearing. The ALJ noted that in the claimant’s case none of these instances were present; therefore the deposition could not be used instead of the claimant’s live testimony. Furthermore, the ALJ noted that the claimant’s deposition was taken in August 2007; therefore it was outdated and could not be relied on to establish the claimant’s current condition. Therefore, the deposition was not sufficient to establish any elements of his case and the case was dismissed for failure to prosecute.

Fall Down Step Not Compensable Because Not Hazard or Risk Related to Employment, Claimant Simply Missed Step

In Cathy Werner v. Madison Warehouse Corp., Injury No. 08-122998, the claimant fell down stairs at a restaurant while out of town. She testified that she was meeting co-workers at a restaurant to discuss the work to be done the next day because she and her co-workers were busy during the day. The dinner meeting was the only time available to discuss what needed to be done the next day. She explained dinner meetings were a frequent and regular aspect of her duties when she was working out of town for the employer. The ALJ denied the claim finding that the claimant did not sustain an accident during a single work shift.

The Commission agreed that the claim should be denied. However, it found that the claimant did in fact sustain an accident pursuant to Statute, but the claimant’s fall did not come from a hazard or risk unrelated to the employment. The Commission noted that the Courts have stated that a claimant must prove a causal connection to the work activity in order to prove that the injury arose out of and in the course of her employment. Here the claimant’s injuries resulted from the risk of descending a single step at a restaurant, while the claimant was out of town traveling for work. The claimant testified that she simply didn’t see the step and she fell. She did not identify any abnormally hazardous aspect of the step as contributing to her fall. The Commission noted she was certainly engaged in activities related to her work in that she was exiting a restaurant where she had gone for a business dinner. However, it is not enough that a claimant’s injury occurs while doing something related to or incidental to the claimant’s work. The Commission noted that absent any evidence suggesting that the step at the restaurant was an abnormal hazard or posed some particular danger to the claimant, there was no basis for a conclusion that the claimant’s work exposed her to a greater risk or hazard than she would otherwise face while descending a step in her normal non-employment life. Therefore the claimant’s injuries did not arise out of and in the course of her employment and the claim was denied.