State News

WORKERS’ COMPENSATION CASE LAW UPDATE

JANUARY 2012-MARCH 2012

Automobile Accident on Way to Hunt Before Business Meeting Not Compensable

Wilson v. Wilson, No. WD73742 (Mo. App. W.D. 2011)

FACTS: The claimant was the owner and employee of a company which moved mobile homes. On December 13, 2008, the claimant was injured in an accident while he was on his way to a business associate's property to hunt for deer. Thereafter, he was going to meet someone else for business. The Commission found that because the claimant was on his way to go hunting, there was no dual purpose or mutual benefit to his employer to make the accident compensable because the claimant had deviated from his route to and was traveling to property where he planned to hunt. The Commission further found that if the claimant canceled his personal hunting trip, he would have not been where the accident occurred.

HOLDING: The Court found that the Commission was justified in concluding that the claimant's multi-hour personal mission, which involved multiple features which exposed him to risk of injury, did not represent merely a slight deviation from his employer's purpose but a sufficiently substantial deviation that defeated his reliance on the mutual benefit doctrine. Therefore, the claimant did not meet his burden of establishing that his injury arose out of and in the course of his employment.

At Hearing SIF Not Bound By Settlement Made by Claimant and Employer

Dennis Seifner v. Treasurer of the State of Missouri, Custodian of the Second Injury Fund, No. WD74192 (Mo. App. W.D. 2012)

FACTS: The claimant filed an occupational disease claim for injury to his thoracic spine in 2003, which he settled with the employer for 10% PPD. The claimant also alleged pre-existing disabilties. The claimant went to a hearing against the Fund, and the ALJ found that the claimant's doctor, Dr. Stuckmeyer, was significantly impeached on cross-examination during his deposition, and therefore, found that the doctor's opinion was not credible. Therefore, due to the lack of credible medical evidence on the issue of causation, the ALJ found there was no compensable occupational disease and also denied the claimant's claim against the Fund. The Commission affirmed and adopted the decision of the ALJ. The claimant appealed arguing that the Fund could not relitigate the percentage of PPD which was agreed on in the settlement between himself and the employer.

HOLDING: The Court of Appeals found that basically the claimant was arguing that the Fund was bound by the terms of the settlement between himself and the employer. The Court looked to Totten v. Treasurer of the State, wherein the Court found that the claimant failed to prove a work accident occurred and denied his claim against the Fund after the claimant and employer settled their claim for 12.5% of the body. In Totten, the Court noted that no attorney on behalf of the Fund signed the settlement, and the claimant did not assert that the Fund was otherwise a party to the settlement. Therefore, the Court found that the Fund was not bound by the terms of the settlement agreement entered into by the claimant and his employer. Applying the rationale of Totten, the Court of Appeals noted that the facts were the same in this case, and therefore, the Fund was not bound by the terms of the settlement between the claimant and the employer.

The claimant also argued that the Fund was required to introduce medical evidence to challenge the credibility of Dr. Stuckmeyer, and the Commission was not entitled to ignore the doctor's uncontradicted opinion and substitute its own opinion with regard to causation. The Court of Appeals noted that the claimant has the burden of proving all essential elements of this claim, therefore, the Fund does not have to establish by medical evidence or otherwise that the injury was caused by something other than the claimant's job. The Court of Appeals further found that the Commission did not err in finding the doctor's testimony not credible, due to the fact that it identified several reasons as to why it was discrediting the doctor's opinion. Therefore, the Court of Appeals affirmed the Commission's Decision denying the claimant's claim against the Fund.

Employer's Motion Denied Because no Evidence of Physical Change in Condition

Patrick Pavia v. Smitty's Supermarket, No. SD31275 (Mo. App. S.D. 2012)

FACTS: On February 26, 1996 the claimant sustained a closed head injury and cervical spine fracture. The ALJ found the claimant sustained 20% PPD referable to the cervical fracture and 50% PPD referable to the traumatic brain injury. In November 2002, the Commission found that the claimant was permanently and totally disabled as a result of his work injury.

A year after the work injury, the claimant obtained a job, attended school, and continued to work thereafter. He first worked at an automobile dealership for two years then went to school and returned to the dealership for another three years. He was also employed as a bell boy at the Holiday Inn during this time. The claimant then worked at his family's golf center until 2005 or 2006. He then was a cabinet builder and installer but had trouble remembering the measurements and was let go due to economic downturn. After a few months of unemployment, in December 2008 the claimant was hired as a manager trainee at Enterprise Leasing. In September 2010 the claimant was still in the training position even though the training period was only six months. He also had received two warnings of possible termination if his performance did not improve. On April 9, 2010, the employer filed a Motion for Determination of Change in Condition, and a hearing was held in front of an ALJ on September 20, 2010, at which time the claimant was still employed. Dr. Stillings, the employer's expert, opined that the apparent improvement in the claimant's diagnoses and cognitive function evidenced a physical change in the condition of his brain. Dr. Cohen, the claimant's expert, spoke with the claimant, the claimant's wife and his mother, who all reported no change in the claimant's condition. His wife noted that she ran the house and had to leave post-its around the house for him to be able to remember. The claimant's wife and mother noted no improvement in the claimant's condition over the years. Dr. Cohen was of the opinion that there had not been a significant change in the claimant's condition. He further believed the claimant was not employable on the open labor market.

The Commission dismissed the employer's Motion on March 22, 2011, finding that although the employer presented evidence that the claimant had undergone numerous life changes since the original Award in 2002, it did not present any new MRI scans of the brain or any other concrete evidence showing an actual "physical change in condition". Please note that prior to the 2005 Amendments, the Court in Bunker v. Rural Elec. Coop. required the employer to demonstrate a change in the claimant's physical condition before the Commission could institute a change in the claimant's award. Here, the employer argued that the 2005 Amendments applied which require strict construction in interpreting the Statute, which does not contain the word "physical", but only states "change in condition". Therefore, the employer argued that the word"physical" cannot be grafted into the wording of that section.

HOLDING: The Court of Appeals found that the 2005 amendments do not apply because the date of the injury governs the claim under the law, which in this case is a 1996 injury. The Court of Appeals noted that there is nothing in the 2005 amendments noting the legislature intended for these amendments to apply retroactively to injuries occurring before that effective date. Therefore, Bunker still applied which requires the employer to demonstrate a physical change in condition. The Court of Appeals noted that the Commission determined that Dr. Stillings was not credible and that Dr. Cohen, the claimant, his wife and his mother were credible, and therefore, the employer failed to prove a change in the physical condition of the claimant. The Court affirmed the Commission's dismissal of the employer's Motion for Determination of Change in Condition. (This is an old law case.)

Claimant Must Specifically State Why ALJ Erred

Dickens v. Hannah's Enterprises d/b/a Hannah's General Store, No. SD31237 (Mo. App. S.D. 2012)

FACTS: The Commission dismissed the claimant's Application for Review because it failed to specifically state the reason why the claimant believed that the findings and conclusions of the ALJ were not supported.

HOLDING: The Court of Appeals noted that an Application for Review of any final Award, Order or Decision of the ALJ shall state specifically the reason the applicant believes the findings and conclusions of the ALJ are not properly supported. It is not sufficient to merely to state that the decision of the ALJ is not supported by competent and substantial evidence. The Court found that in this case, the Commission made no findings, therefore, there was no Decision for the Court's review. The only decision the Court is authorized to review is the Order to dismiss the Application and, determine if the Commission acted in excess of its powers. The Court noted the claimant did not raise these grounds in her appeal and, therefore, she abandoned it. Therefore, the dismissal was affirmed.

Claimant Found to be Employee Not Owner/Operator and Missouri Had Jurisdiction

Rader v. Werner Enterprises, No. ED95905 (Mo. App. E.D. 2012)

FACTS: The claimant, a truck driver and resident of Texas, was injured on May 29, 2003 in Missouri while unloading a truck. In February 2003 the claimant purchased a truck through a subsidiary of the employer and the employer changed the claimant's job classification to owner-operator. The claimant also signed a contract waiving workers' compensation jurisdiction in any state besides Nebraska (where the employer is headquartered). The ALJ and Commission found that Missouri had jurisdiction and the employer appealed.

HOLDING: The Court of Appeals found that Missouri had jurisdiction over the claim because the claimant was injured in Missouri and the choice of law language in the agreement applied to an independent contractor relationship and not an employer/employee relationship. The Court found the claimant was an employee. The Court further found that the Commission did not err in finding that the driver was an employee because it was unclear if the claimant "owned" the truck because it was unclear if the claimant had title to the truck, the claimant could not convey the truck, and his right to use was conditioned upon continued employment, which was significant to show that he did not own it. Therefore, the claimant was not an owner/operator but was an employee. (This is an old law case.)

Third Party Who Provided Unauthorized Treatment Cannot Intervene in Workers' Compensation Matter

United States Department of Veterans Affairs v. Karla O. Boresi, Chief Administrative Law Judge, No. ED97042 (Mo. App. E.D. 2012)

FACTS: The claimant had a pending workers' compensation claim before the Commission, alleging injuries sustained while working for the employer, United Home Craft. Without authorization from the employer, a medical facility of the US Department of Veterans Affairs, provided care to the claimant. The VA filed a Motion to Intervene in the Workers' Compensation case, and the ALJ denied the Motion. The VA filed a Petition requesting that the Circuit Court direct the ALJ to rescind the denial and allow the VA to intervene as a party in the case. The Circuit Court denied the Petition.

HOLDING: The Court of Appeals noted the employer has a statutory right to select the medical providers to provide treatment to an injured claimant. Also, the claimant has a right to select his own medical treatment, however, if care has not been authorized by the employer, the claimant bears the expense of treatment. The Court of Appeals noted that nowhere in the Statute is the ALJ permitted to allow private providers of such unauthorized medical care to intervene or participate in a workers' compensation case. The VA argued that the United States has a right to intervene to recover charges from a third party to the extent that the Veteran (claimant) would be entitled to receive payment from a third party. However, the Court of Appeals noted that since the claimant received unauthorized medical care at the VA's medical facility, under Missouri law he is not entitled to receive any payment from the employer or insurer. So, even if the VA was allowed to step in the claimant's shoes, the VA would still not be entitled to receive payment. Therefore, the Court of Appeals affirmed the Circuit Court's decision to not allow the VA to intervene in the Workers' Compensation matter.

Commission Trends

Old Law (Pre-August 28, 2005)

Employer Did Not Waive Right to Direct Treatment

In Stacy Dean v. Elder Customs Homes, Injury No. 02-120477, the claimant argued that the employer "waived" its right to direct treatment due to failing to provide prescription medications to her from April through September 2007. The claimant therefore sought an Order from the Commission that would allow him to go to any doctor he chooses and pursue his own future treatment at employer's expense. The ALJ noted that the employer consistently asserted its right to control treatment throughout the claim, and therefore, did not waive the right to direct payment. The Commission agreed with the ALJ and noted that an employer's waiver of the right to direct treatment of past medical does not mean that the claimant can obtain an Order from the Commission granting him the prospective privilege of selecting any doctor or treatment he chooses, with the employer liable to pay for such expenses.

Employer Had Notice Even Though Amended Claim Did Not State Alleged Injuries

In Norman L. Berra v. Berra Construction, LLC, Injury No. 98-179083, the employer argued that the claimant was not entitled to compensation since the claimant, in his third amended Claim, failed to state the specific body parts that were injured by the alleged occupational disease. In the first and second amended Claims, the claimant alleged injuries to his wrist and elbows. The Judge noted that the defense is entitled to know what the claimant alleges to be his injury. However, administrative pleadings do not involve strict fact pleading in most cases. The ALJ opined that the employer had knowledge of the claimant's allegation that he sustained injuries to both of his upper extremities from his work based on the claimant's prior pleadings, to which the employer filed Answers, denying that allegation. In addition, the forensic medical evidence was in evidence without any objection. Therefore, based on the evidence, the defense had notice of the allegation and defended against that allegation and the employer waived any defense that the claim was legally insufficient. The Commission affirmed.

New Law

Housekeeper's Job Duties Caused Carpal and Cubital Tunnel Syndrome

In Ann Shinkle v. The Fountains of West County, Injury No. 08-101748, the ALJ found that the claimant's job duties as a housekeeper at an assisted living retirement facility led to her bilateral carpal and cubital tunnel syndrome. Her job duties included cleaning the kitchen floors, baseboards and appliances and the walls, windows and flooring in the residents' rooms. She also was required to work on her hands and knees cleaning the floors in the bathrooms as well as vacuum, mop, dust, clean carpet stains, sweep decks and do laundry. The Commission affirmed the ALJ.

Job Duties as Bus Driver were Prevailing Factor Despite Congenital Condition

In Monica Chrismer v. First Student, Injury No. 09-100519, even though the claimant had a pre-existing os acromiale which is a congenital condition in the shoulder, the ALJ found that her repetitive job duties as a bus driver were the prevailing factor in causing her right shoulder condition. The ALJ noted that while the claimant might have been predisposed to developing problems in her shoulder due to her congenital condition, the ALJ did not believe that her shoulder condition would have arisen without the repetitive job duties, especially considering the 25 year span in which the claimant had no shoulder problems despite her congenital condition. The Commission affirmed the ALJ's finding.

Walking Down Stairs Found to be In Course and Scope of Employment

In Jason Pope v. Gateway to the West Harley Davidson, Injury No. 10-019309, the claimant was asked by his supervisor to move motorcycles to the upper showroom. He was required to wear a helmet when moving motorcycles. The claimant was on the way back to the service department to ask his supervisor if there was anything else he needed to do before clocking out when he fell down the stairs. The ALJ found the hazard or risk of injury, descending stairs while carrying a helmet, was unrelated to the claimant's employment because his normal job duties did not involve climbing an excessive number of stairs or moving motorcycles, and he was not involved in a work activity when he fell because he had finished moving the motorcycles and planned to clock out. The Commission reversed the ALJ's decision and found that there was competent and substantial evidence showing that the risk to which the claimant was exposed, negotiating stairs while in the process of performing work activities, while wearing work boots and carrying necessary tools of his trade (helmet), created a clear connection or nexus between the hazard or risk of injury and the injury itself.

Threshold for SIF Liability

The Commission issued the same opinion in six different cases with respect to the threshold for SIF liability. The threshold is that if a claimant has a pre-existing permanent partial disability of such seriousness as to constitute a hindrance or obstacle to employment and that pre-existing permanent partial disability equals a minimum of 12.5% PPD of the body as a whole (50 weeks), or 15% PPD of a major extremity, and the claimant sustains a compensable injury resulting in additional PPD in the amount of 12.5% of the body as a whole, or 15% PPD of a major extremity, and the combined disabilities are substantially greater than that which would have resulted from the last injury alone, the employer at the time of the last injury is liable only for the disability resulting from the last injury.

The Commission noted that under the plain language of the statute, once it is determined that the threshold is met, all disabilities that existed at the time of the work injury shall be considered in the calculation of the SIF's liability. For example, in Thomas Richards v. Lagasse Suite, Inc. "Settled" and the Treasurer of Missouri as Custodian of Second Injury Fund, Injury no. 08-121450, the Court noted the claimant had multiple pre-existing permanent partial disabilities including 25% of the right knee, 35% of the left knee, 10% of the right wrist, 15% of the left shoulder and 12.5% of the body as a whole referable to diabetes. Pursuant to the Statute, all of these meet the threshold for SIF liability except for the 10% of the wrist. However, since the claimant met the threshold for at least one pre-existing injury he is entitled to compensation from the SIF. The Commission opined that when calculating the SIF liability even though the 10% of the wrist, or 17.5 weeks alone does not meet the threshold, the claimant is entitled to compensation for all pre-existing injuries. Therefore, the 17.5 weeks is included in calculating the total weeks for which the SIF is liable.

Claimant Traveling to Different Locations for Employment Found Compensable

In Maria White v. Anderssen Mobile X-ray Service, Injury No. 10-022144, the claimant was a staff technologist and her job duties involved taking x-rays at various locations throughout the metropolitan area. The claimant drove the employer's minivan containing the employer's equipment, films and office papers, and gas and vehicle repairs were paid for by the employer. The claimant was to be in the office by 3:00 P.M., and was to call 30 minutes before her shift, or at 2:30 P.M., to see if there were any assignments or she was to go directly to the employer's office. The claimant called the dispatcher and was on her way to the office when she was in a motor vehicle accident which occurred at 3:10 P.M. The ALJ found that this case is not the case of a causal drive to work, in which the claimant was driving from her home to the employer. The ALJ noted that the essence of the claimant's employment was driving to the employer's customers and patients to provide mobile x-ray services and therefore, the claimant's accident arose out of and in the course and scope of her employment. The Commission affirmed.

Reaction to a Voluntary Vaccination Found Compensable

In Karen Doyle v. Lakeland Regional Hospital, Injury No. 05-141082, the claimant sustained transverse myelitis as a result of being given a flu vaccine at work. The claimant had requested a vaccine, which was voluntary. The ALJ found that the transverse myelitis arose out of and in the course of her employment. The Commission further found that the reaction was an unexpected traumatic event, identifiable by time and place of occurrence. Therefore, the reaction was in fact an accident. It was found that there was a greater likelihood in contracting infection while working in a healthcare facility and therefore, the complications resulting from a flu vaccine were a hazard or risk related to the claimant's employment. Therefore, the risk of developing transverse myelitis came from a hazard related to the employment.

When Parties Stipulate to a Fact at Hearing ALJ Cannot Make Ruling

In Sheila McCoun v. OPAA Food Management, Inc., Injury No. 09-108756, the claimant had two claims, both specific accidents involving the low back, one with an injury date of December 17, 2007 and the second with an injury date of October 27, 2009. The employer admitted that both were compensable. The ALJ found that the claimant's accident on October 27, 2009 was simply an aggravation of a pre-existing injury and not the prevailing factor, and therefore, denied that claim. The claimant argued that the parties only asked the ALJ to determine which of the claims caused the claimant's need for the specific medical treatment and TTD benefits that she sought through a hardship hearing. The Commission found that the ALJ went beyond his power because the parties stipulated that the claimant sustained an injury by accident arising out of and in the course and scope of employment on October 27, 2009. Furthermore, the parties did not ask the ALJ to resolve the issue of whether that injury was compensable. Therefore, it was improper for the ALJ to make findings and conclusions purporting to resolve such issue.

Employer's Idiopathic Argument Found to be Speculation

In Lolita Maderazo v. Dillard's Inc., Injury No. 10-076660, the claimant was a housekeeper/dock associate, with very poor English, who had thrown trash into a dumpster in the dock area and was heading back into the store through swinging doors, at which time she fell. At the Hearing, the claimant testified that her foot caught on the swinging doors after a co-worker walked through them. The claimant's co-worker testified that the claimant reported that she fell down but did not know how she did so. The store manager also testified that the claimant told her the same thing. The claimant agreed that she only told the emergency room physician that she fell down. The claimant had a history of arthritis in her knees, and the employer argued that this fall was idiopathic. The ALJ noted that the employer's argument, that the claimant's fall was idiopathic, was based on speculation. The ALJ opined that in light of the claimant's poor English skills, it was understandable that she did not provide a lot of details regarding how she fell. Therefore, the ALJ found that the claimant's fall was caused by the swinging door striking her foot. Also, the claimant had just emptied trash which was part of her job duties, and to enter and exit the dock area she had to go through the swinging doors. Therefore, the fall arose during the course of her employment. The Commission affirmed the Award.

Claimant's Doctor's Opinion Not Credible and Claim Denied by Commission

In David Johnson v. Land Air Express, Inc. and Franklin Trucking Company, Injury No. 08-107387, the claimant was moving a pallet by hand on December 1, 2008, and sustained an injury to his lower back, however, the claimant denied treatment, but then underwent surgery on his own. Prior the work accident, the claimant had a significant history of lower back injuries, including an L4-5 spinal fusion. The ALJ found that the claimant's work injury was the prevailing factor in causing the claimant's need for medical treatment, relying on the opinion of the claimant's treating physician, Dr. Montone. The Commission disagreed with the ALJ's decision, noting that Dr. Montone's opinions were not credible. The Commission gave numerous reasons for finding that the doctor's opinions were not credible. First, the doctor found that the claimant's work injury, along with his repetitive job duties, were the prevailing factors causing his condition, when in fact the claimant only reported a specific accident, not a repetitive motion claim. Second, the doctor did not know about the claimant's work activities or his work injury until after his surgery. The doctor also testified that he based his opinion on the history the claimant provided, and the Commission noted that it appeared that Dr. Montone ignored objective medical evidence. Therefore, the Commission found that the doctor's opinion was not credible and denied the claimant's claim for medical treatment.

Aggravation of Pre-existing Condition Found Not Compensable

In Christopher Sliger v. Peoplelink, Injury No. 10-070253, the claimant had worked at the employer for only two weeks. On his date of injury, he had been at his normal work station for 45 minutes and was injured when he was moving a 10 pound part in each hand, below shoulder level to a table one and a half feet away. The claimant sustained an injury to his right shoulder and underwent an MRI which showed a recurrent full-thickness rotator cuff tear. It was noted the claimant had a prior full rotator cuff tear in 2008 after a motorcycle accident, which he had repaired surgically. After he was released from care after his motorcycle injury he had some intermittent pain but returned to work with no restrictions. The claimant treated with the employer's doctor, Dr. Rogers, who initially opined that the claimant's accident was the prevailing factor in causing his new rotator cuff tear, however, this was after the claimant provided an inaccurate history of his job duties on the day of his injury. After the employer provided correct information, the doctor then opined that the claimant's condition could not be the prevailing factor in causing an acute massive, two tendon rotator cuff tear. The claimant did not provide his own expert testimony but relied on Dr. Rogers' first opinion.

The ALJ found that the weight of the part and how he moved it to the table, did not present any unusual strain, exertion, body contortion or force. Furthermore, the weight of the parts was consistent with objects encountered in the claimant's everyday life. The ALJ noted that after Dr. Rogers was given accurate information he opined the injury could not be the prevailing factor in causing the rotator cuff tear. Therefore, the claimant failed to prove his burden with respect to medical causation. The ALJ further noted that the injury allegedly sustained was of a complex nature requiring the analysis and assessment of an orthopedic surgeon and expert assessment was particularly needed here when there was evidence of similar rotator cuff pathology just two years prior. Furthermore, the ALJ found that the claimant was not a credible witness having filed a false workers' compensation claim in the past, and he deviated from his prior deposition testimony in several regards.

The Commission affirmed noting that the ALJ did not find that an accident occurred. The Commission found that even assuming an accident occurred, this was a case of medical causation and the claimant relied solely on Dr. Rogers' first opinion. However, the Commission found Dr. Rogers' second opinion more credible. Therefore, the claimant failed to meet his burden proving medical causation.

Hearing Loss Found Not Compensable

In Bert Kersey v. Autry Morlan, Inc., Injury No. 07-061758, the claimant was assigned to investigate the cause of an engine noise in a customer's car. On July 11, 2007, he applied a stethoscope to the alternator and something popped causing a very loud noise, at which time the claimant noted he was deafened and immediately reported his injury to the employer. The claimant was prescribed hearing aids and continued to follow-up with doctors until 2010, which was paid for by the employer/insurer. The ALJ found that the claimant failed to meet his burden of proof that his work accident was the prevailing factor in causing his tinnitus. The ALJ noted that Dr. Mikulec, the employer's expert, noted that the claimant's tinnitus may be of industrial cause. She also noted that Dr. Guidos, the claimant's expert, provided a rating of 15% PPD for constant and persistent tinnitus. However, he did not note that the claimant's accident was the prevailing factor in causing his tinnitus. Therefore, the claimant failed to meet his burden on causation. The Commission affirmed the opinion of the ALJ.

July 11, 2012 Kansas Workers Compensation Law Update.

1.  Final Results Of The 2012 Kansas Legislative Session.

The final results of the 2012 Kansas legislative session were no substantive or significant changes to the Kansas Workers Compensation Act.  Our 2011 pro-employer reform laws remain in place and are starting to take hold with great results for employers.

2.  Summary Of A Few Of The Significant 2011 Pro-Employer Kansas WC Law Reforms:

A) To be a compensable work accident, there must be an undesigned, sudden and unexpected traumatic event, identifiable by time, and place of occurrance, and must produce at the time of accident, symptoms of injury and must occur on a single work shift.

B) To be compensable, the work accident must be the prevailing factor cause of: a) the injury; b) the need for treatment; AND c) the resulting impairment or disability. If the accident causation proof fails in any of these three elements, the accident is deemed to "not arise out of employment."

C) The "simple aggravation of a preexisting condition" rule which previouly resulted in Kansas employers paying tens of millions of dollars in benefits and treatment for preexisting conditions, is gone.  In its place is a higher standard of injury and causation claimants must prove to establish a compensable personal injury by accident on the job.

D) "Arising out of and in the course of" employment does NOT include: a) injury by natural aging process or activities of day-to-day living; b) neutral risks; c) personal risks; d) accidents or injuries arising either directly or indirectly from idiopathic causes.

E) All compensation is disallowed in the case where the injury results from the employee's "reckless" (lower standard than "willful") disregard of an employer safety rule or regulation.

F) For the accidental injury to "arise out of" employment, the claimant must prove a causal connection between the "conditions under which the work is required to be performed" AND the work accident.

 3.  More Good News For Employers On Appeals Board Decisions Interpreting And Applying The New 2011 Pro-Employer Workers Compensation Law Reforms.

PREVAILING FACTOR CAUSE DEFENSE

In Shepard v. Big Lakes Development Center, Inc. Docket No. 1,058,184, (April 2012), the Kansas Workers Compensation Appeals Board reversed an administrative law judge preliminary hearing order awarding benefits on the prevailing factor cause defense.

While the Appeals Board acknowledged Shepard proved a work accident occurred on July 22, 2011, and she presented medical causation opinions from two separate doctors, the Board held that claimant failed to meet her burden of proof under the new prevailing factor cause requirement that her work accident resulted in her current need for medical treatment.

The key to the Board's denial of benefits in this case was that Board found that even though claimant procured two favorable expert opinions that the work accident was the prevailing factor cause of the injury and need for treatment, those experts had not been provided the full relevant medical histories of the claimant.  As such, those pro-claimant causation opinions were flawed and unreliable.  If fact, claimant Shepard had a long history of prior low back and knee problems and those facts were not provided to the doctors who provided claimant favorable causation opinions.

The refreshing take away from this favorable "new law" Appeals Board decision is that the intent of the new law reforms is in fact being enforced and carried out by the Appeals Board.  The new law reforms did away with the old law "simple aggravation of a preexisting condition" rule, that cost Kansas employers untold enormous sums of money in compensating workers for preexisting conditions which were not work injury related.

The Appeals Board Member writing the Shepard decision explicitly pointed this out in the following passage:  "The new law, placed into effect on May 15, 2011, requires additional elements of proof from a claimant.  No longer is the simple aggravation, acceleration or exacerbation of a preexisting condition sufficient."

This case points out to claimant attorneys in Kansas that they would be wise to do their due diligence regarding medical history discovery on their client prior to procuring medical expert causation opinions, to get their experts the full and complete medical histories of their clients.  This would allow that any pro-claimant expert opinions generated, can be relied on in court by the Judge.  The obvious question is why wouldn't this be standard operating procedure in the first place?

The flip side of that coin for employers, carriers and TPA's in Kansas is that it is now essential that they spend the money and time in the defense of a workers compensation claim to discover and procure all relevant medical history information concerning a claimant.  This case proves that such efforts can result in a total claim denial thereby saving significant workers compensation costs.

By Kim R. Martens of Hite, Fanning & Honeyman L.L.P.  www.hitefanning.com

Benito Villafana v. Blackhawk Foundry and Travelers, No. 2-441 / 11-1781 (Iowa Court of Appeal)

The Claimant, Benito Villafana, was born in Mexico and immigrated to the United States in 1976 after completing the sixth grade. Until 1988 he had worked as a farm laborer, but following that he went to work with the employer in the present case. The Claimant worked as a grinder for ten years until he suffered from a carpal tunnel injury related to his repetitive work. To accommodate the Clamiant’s permanent restrictions related to this injury, the employer moved the Claimant to the job of scale operator. This job required him to pick up castings, some of which weighed upwards of 100 lbs. When lifting these heavy castings, the employer instructed the Claimant to get the help of his supervisor or forklift operator.

The Claimant then sustained a shoulder injury in 1999. In relation to this injury, the Claimant was awarded a thirty five percent partial disability in 2004. In the present case, the Claimant alleged neck and hand pain beginning in 2006. The Claimant continued his employment until a plant wide lay off in 2009. At hearing, the Claimant admitted to his earlier carpal tunnel injury as well as ongoing neck problems before his alleged injury dates. In 1997, he reported neck pain in conjunction with finger pain. He also received treatment for neck pain in 1998. In 2002, he again complained to a physician that he was experiencing neck pain in conjunction with the pain from his shoulder injury, and in 2003 a neurosurgeon evaluated the Claimant for neck pain and ultimately recommended neck surgery.

The Claimant had alleged a first injury date of April 28, 2006 when he went to Dr. Pardubsky regarding his neck pain. Dr. Pardubsky believed the neck pain was related to Claimant’s prior shoulder injury. In a subsequent visit, Dr. Pardubsky told the Claimant there was nothing further he could offer. The Claimant also alleged a second injury date of January 2, 2007 when he was referred by the employer to Dr. Frederick. The Claimant complained of chronic right trapezium and cervical pain, as well as numbness and tingling in his right fourth and fifth fingers. Dr. Frederick noted the right trapezius pain and cervical pain were well documents since 1999. In a follow up visit, Dr. Frederick noted that the Claimant’s EMG was “positive for moderate to severe right carpal tunnel.” She believed the condition was work-related based on the history provided by the Claimant that he was performing “highly repetitive grasping tasks” in his job. Blackhawk did not offer further treatment for the Claimant’s carpal tunnel or other chronic problems related to the prior work injury, nor did the Claimant seek treatment for his ailments, aside from some chiropractic care.

At the employer’s request, Dr. Frederick revisited her opinion regarding the Claimant and ultimately concluded that she could not relate his recurrent right carpal tunnel to his job with the employer. She also noted that the Claimant did not suffer a new injury of 2006 and any pain was likely caused by an ongoing spondylosis that has never resolved since 1998.

One month before his hearing with the deputy commissioner, the Claimant visited neurosurgeon Robert Milas in June of 2009. Dr. Milas noted the Claimant was a poor historian but stated that the Claimant experienced a significant change in cervical pain as well as loss of strength in his right hand in 2007. He opined the 2007 injury was linked to his recurrent carpal tunnel syndrome and cervical radiculopathy, and that the injuries caused Villafana to be permanently impaired.

After hearing, the deputy concluded that the Claimant failed to show he suffered an injury in the course of his employment and denied his claim. The deputy was more persuaded by the opinions of Dr. Frederick as opposed to Dr. Milas. The deputy noted that:

While Dr. Milas may have superior qualifications as a specialist in neurosurgery than those of Dr. Frederick, the record does not indicate what prior medical records, if any, were reviewed by Dr. Milas before making his opinion. This is a critical flaw in claimant’s case given Benito’s past medical history involving not only cervical and right extremity pain, but facial numbness dating back four years prior to the claimed neck injury. Also, it is not clear if Dr. Milas had any understanding of what claimant’s job at Blackhawk involved.

On appeal, the Commissioner found the deputy’s findings were supported by the preponderance of the evidence. The decision was also affirmed by the district court. The Claimant then appealed to the Court of Appeals.

The Court began its review noting that the factual findings of the agency were reviewed for substantial evidence. The Court found that he arbitration decision detailed why the deputy found Dr. Frederick to be more convincing than Dr. Milas. Dr. Milas did not reveal whether he reviewed any medical records, the Claimant’s actual labor requirements for scale operators, or whether his injury was caused by the repetitive nature of his work. Conversely, the Court found Dr. Frederick documented her decision-making process, and although her ultimate conclusion contradicts her initial stance on the Claimant’s injury, the Court found she explained what subsequent information—an on-site job inspection—persuaded her to change her opinion. The deputy also credited Dr. Frederick’s review of the Claimant’s prior medical records, contrasted with Dr. Milas, who found the case factually confusing because the Claimant was a “poor historian.”

The Court stated that as the finder of fact, the agency determines the weight to give an expert opinion. Therefore the Court found that they would not give greater weight to the Claimant’s medical expert than what was afforded by the agency.

The Court then turned its attention to the finding that the Claimant had not suffered a permanent aggravation of his previous injury to his cervical spine. The Court found that the Claimant had not carried his burden to overturn the agency’s decision. The court state that “evidence is not insubstantial merely because we may draw different conclusions from it; the ultimate question is whether it supports the finding actually made, not whether the evidence would support a different finding.” The Court found that given the gravity of medical evidence on the issue of causation, and the fact-finder’s ability to accept or reject expert evidence in whole or in part, Dr. Frederick’s conclusion she “do[es] not feel there has been any new injury to his neck [and that] he has an ongoing cervical spondylosis from 1998 that has never resolved” supports the commissioner’s finding.

The decision of the district court was affirmed.

Call Mark Bosscher or Lee Hook with any questions @ 515-243-2100.  We’d be happy to help, whether it be a quick or a complex issue!

College Community School District and EMC Insurance Company v. April Orris, No. 2-280 / 11-1848 (Iowa Court of Appeal)

The Claimant, April Orris, was employed as a middle school science teacher who chaperoned a field trip to the local roller skating rink on May 20, 2005. While on the trip, the Claimant fell and landed on her right wrist, arm, shoulder and back. She was treated at Mercy Care South and was placed in a sling and released with restrictions of no use of the right arm. The Claimant continued to treat with Dr. Pape and despite the treatment, she reported her right elbow pain progressively got worse. On April 20, 2006, the Claimant underwent an arthroscopic subacromial decompression with Dr. Pilcher. The Claimant reported the surgery increased her range of motion and decreased her shoulder pain, although her neck symptoms continued.

The Claimant resigned from her position with the College Community School District for reasons unrelated to her work injury. In August of 2006 she began a position with the Marion Independent School District. Four days after she began her employment, she began complaining of problems with her neck, shoulder and elbow. In February of 2007, the Claimant was discharged because she had exhausted her leave and failed to return to work. She then became a tutor.

The Claimant then began to treat with Dr. Bagheri, who noted she had symptoms consistent with fibromyalgia. The Claimant then saw Dr. Buck, an occupational medicine specialist in February of 2008 who placed the Claimant at maximum medical improvement and released her to light duty for six months and then full duty thereafter. He then assigned her an eight percent permanent impairment rating.

The Claimant underwent an independent medical examination in January of 2009 with Dr. Kuhnlein. He assessed the Claimant with an ten percent permanent impairment and stated he did not feel the Claimatn was capable of working full time, but felt she could work full time in the future.

At hearing, the deputy determined that the Claimant had sustained injuries and awarded her permanent partial disability benefits of thirty percent. On appeal, the commissioner affirmed the deputy’s decision. In support her motion for rehearing the Claimant argued that the agency had erroneously relied upon the opinion of Dr. Buck that Claimant’s fibromyalgia would be under control within six months. This motion was subsequently denied by the commissioner. On judicial review, the district court found the commissioner committed legal error in relying upon Dr. Buck’s prediction regarding the Claimant’s future condition when determining her industrial disability. The case was sent back to the commissioner for evaluation of the Claimant’s disability without consideration of her future consideration.

The Court began its analysis by stating that  in determining a scheduled or unscheduled award of workers’ compensation benefits, the workers’ compensation commissioner finds the facts “as they stand at the time of the hearing and should not speculate about the future course of the claimant’s condition.” The Court further stated that functional impairment and disability resulting from a scheduled loss must be determined at the time of the award and not based on any anticipated deterioration of function that may or may not occur in the future. The Court then noted that any future developments, including the worsening of a physical condition or a reduction in earning capacity, are properly addressed in review-reopening proceedings.

The Court then turned its attention to whether the agency improperly relied on the evidence regarding the Claimant’s future employment in its finding that she had suffered a thirty percent partial disability. The Court determined that the agency had not. The Court found that the agency had determined the Claimant was capable of full-time employment “in the sedentary to light categories” and found working as a teacher in a high school setting fit within the sedentary to light categories of labor. In making this determination, the deputy noted “Dr. Buck opined the Claimant was capable of resuming her duties as a teacher after a six month period of light duty to work.”

The Court, in their review of the record, found that the agency had not erronesouly relied on the opinion of Dr. Buck and that the agency had actually cited other evidence supporting the conclusion that the Claimant was capable of teaching full time. The additional evidence cited was the opinion of Dr. Kuhnleing that the Claimant was capable of working in light to sedentary categories, that the Claimant’s personal physician noted the Claimant needed a job where she could change positions and finally that Dr. Bagheri had never restricted the Claimant from working. Due to that evidence, the Court could not conclude that the agency relied on Dr. Buck’s opinion in its finding. The decision of the district court was thus reversed.

Wendy Leavens vs. Second Injury Fund, No 2-376 / 11-1636 (Iowa Court of Appeal)

The Claimant, Wendy Leavens, began working for Maytag in 1994. In October of 2007, the Claimant filed a petition with the Commissioner for a December 20, 2006 injury. The Claimant alleged she had sustained bilateral carpal tunnel syndrome stemming from cumulative and repetitive employment duties. This petition was ultimately resolved through settlement which was approved by the agency in May of 2008. This settlement stated the Claimant suffered a permanent disability of six percent of the body.

In June of 2008, the Claimant filed a Second Injury petition which alleged a first injury to her right hand in 2000 and second injury of bilateral carpal tunnel syndrome on December 20, 2006. After hearing, the deputy found the approved settlement from May of 2008 was valid and due to the issues being of mutuality of interest between the employer and the Fund, that the Fund was without recourse. The deputy found the hand and wrist losses equaled a twenty percent disability of the whole person and awarded Second Injury benefits.

The Claimant applied for rehearing asserting that the deputy did not appropriately consider all her injuries. An amended decision was issued which stated that subsequent to the original arbitration decision, the controlling authority on the preclusive effect of settlement agreements had been expressly reversed. The deputy noted that under the new authority, “the only preclusive effect of an agreement for settlement between worker and employer is upon the parties who entered into that agreement, and the settlement does not establish the compensability of any injury or the extent of entitlement to disability benefits in a subsequent claim against the Second Injury Fund.”

The deputy then found that the Claimant had the burden of proving that the injury was a proximate cause of the disability on which her claim was based. The deputy held that the Claimant failed to meet the burden of proof and was not entitled to an award of benefits from the Fund. On appeal to the commissioner, it was held that the deputy appropriately relied on the new authority. The ruling was subsequently upheld by the District Court. The Claimant then sought review with the Court of Appeals.

The Court first noted that they would only reverse in this case if it was found the agency decision was based on an erroneous interpretation of Iowa law. The Court next stated that the Claimant had entered into a settlement in regards to her December 20, 2006 injury under Section 85.32(2) and stated that under this code section, “The parties may enter into an agreement for settlement that establishes the employer’s liability, fixes the nature and extent of the employee’s current right to accrued benefits, and establishes the employee’s right to statutory benefits that accrue in the future.”

The Court then found in this case that the Claimant sought to use issue preclusions offensively because in the second action with the Second Injury Fund, the Claimant relied upon a former judgment as conclusively establishing in her favor an issue which she must prove as an essential element of her cause of action. The Court then stated that Iowa law was clear that issue preclusion required the issue be actually litigated in the prior proceeding. The Court further found that in this case, the employer and the Claimant stipulated to a compensable injury to the Claimant’s bilateral arms arising out of her employment but that the issue of liability was never actually raised and litigated before the agency. The Court then stated the Claimant would still have to establish that the party sought to be precluded (the Fund) was afforded a full and fair opportunity to litigate the issue in the action. The Court finally found that the Fund was not a party to the settlement and did not have an opportunity to fully and fairly litigate the issue of liability. The Court found the agency’s decision was not based on an erroneous interpretation of the law, and therefore affirmed the decision of the district court.

The Court next turned its attention to the issue raised by the Claimant as to the weight the commissioner gave to certain medical reports. The Court ultimately found that working backward in this case from the commissioner’s appeal decision to the deputy’s amended and substituted arbitration decision, the Court was able to “deduce what must have been the agency’s legal conclusions and findings of fact.” The deputy considered the evidence before him and concluded the opinion provided by Dr. Jones did not outweigh the opinions of Drs. Formanek and Quenzer. Further, he noted that he considered the record as a whole. The court noted that the Claimant asserted the deputy improperly relied on reports wherein Drs. Formanek and Quenzer responded to defense inquiries. The Claimant alleged she was “winning her case until the deputy came to the summary, leading, wish-list reports.” The Court found that while the Claimant is correct that the deputy analyzed Dr. Formanek’s and Dr. Quenzer’s responses to the defense inquiries, there is nothing in the record to indicate these inquiries and responses constituted the entire basis on which the deputy’s decision was founded. Ultimately the Court the denial of the rehearing was not unreasonable, arbitrary, capricious or an abuse of discretion.

The Court finally turned its attention to the finding of that the Claimant did not sustain a permanent disability as a result of her December 20, 2006 injury. The Court agreed with the district court that substantial evidence supports the agency’s denial of Fund liability because the Claimant failed to prove before the agency an impairment to a second qualifying scheduled member. The Court further recognized that the evidence relied on by the agency was “not insubstantial merely because a contrary inference is supported by the record.” Factual findings were vested in the discretion of the agency, and the Court found that because the findings in this case are supported by substantial evidence, they were bound by these findings.

The decision of the district court was then affirmed.

Call Mark Bosscher or Lee Hook with any questions @ 515-243-2100.  We’d be happy to help, whether it be a quick or a complex issue!

For July 2011-September 2011 case law update please click here

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Beginning July 1, 2012, the maximum worker’s compensation payable will be $771 per week and the minimum will be $212 per week. This change is based on the Director of Industrial Relations’ determination that the State’s average weekly wage was $770.80, and the change is effective for any injury occurring on or after July 1, 2012.

Finley Hospital v. Charles Stokes, No. 2-381 / 11-2024 (Iowa Court of Appeals)

The Claimant, Charles Stokes, sought alternate medical care by way petition to the workers’ compensation commissioner. Claimant’s first application was made in February of 2011 and was subsequently denied by the deputy workers’ compensation commissioner. In issuing the denial, the deputy found that the Claimant had expressed dissatisfaction with his current care in October of 2010 by way of a letter from his counsel. However, the employer had extended the offer to return the Claimant to Dr. Pearson and the deputy did not find this unreasonable. The deputy also found that the employer scheduled an appointment with Dr. Pearson for the Claimant on March 17, 2011. Further the employer represented that it would abide by Dr. Pearson’s treatment recommendations.

The Claimant filed another application for alternate medical care on April 14, 2011. At hearing of the matter, the Claimant testified that he attended the March 17, 2011 appointment with Dr. Pearson, who was unaware of the reason for the visit. The Claimant explained he had ongoing symptoms for which he had been seeing Dr. Tebbe for chiropractic relief. He then asked Dr. Pearson for treatment and a referral to Dr. Tebbe. Dr. Pearson suggested an MRI, but noted he would need prior authorization for this. He then stated he would not make a referral for chiropractic care, stating “I don’t treat pain.” Nothing was offered by Dr. Pearson in the way of treatment.

The Claimant then introduced correspondence from his counsel dated April 12, 2011, stating that Claimant’s counsel had written to the employer’s counsel on March 22, 2011 requesting a copy of Dr. Pearson’s notes or report and that to date Claimant’s counsel had heard no reply. The letter continued to express Claimant’s dissatisfaction with Dr. Pearson’s care. On April 21, the employer’s counsel replied providing Dr. Pearson’s medical notes. Another letter was sent by the employer’s counsel on April 25, the day before the alternate medical care hearing, authorizing an MRI with Dr. Pearson.

At hearing, the deputy determined that the employer failed to timely provide medical care to the Claimant. The deputy then granted the Claimant’s request for chiropractic care with Dr. Tebbe. On appeal to the district court, the Court found that there was substantial evidence to support the deputy’s findings that the care the employer offered the Claimant by way of Dr. Pearson was not offered promptly. The court also stated there was substantial evidence that the treatment made available to the Clamiant was not ‘reasonably suited to treat the injury without undue inconvenience to the employee,’ as required by section 85.27(1). The employer then appealed to the Court of Appeals.

The employer first challenged the deputy’s decision on the grounds that Claimant’s counsel’s letter in October of 2010 did not convey dissatisfaction of authorized care. The Court concluded that the deputy was correct in finding the letter substantially complied with Iowa law and communicated the Claimant’s dissatisfaction.

Next the employer challenged the decision of the deputy on the grounds that the designated care provider, Dr. Pearson, remained available to provide care. The Court dismissed this argument, as well, finding that while Dr. Pearson did perform an evaluation of the Claimant, he made no recommendations for ongoing care.

The Court ultimately found that after the Claimant expressed his dissatisfaction with the care provided, nearly six months had expired, and three petitions for alternative care had been filed, although the first petition was dismissed. During that time the only ongoing care ultimately authorized by the employer was an MRI test. However, that authorization came one day before the hearing on the third petition and as noted, Dr. Pearson’s medical notes only state that it “may” be needed.

The Court ultimately found that the deputy’s decision was supported by substantial evidence and affirmed the ruling of the district court upholding the deputy’s granting of alternate medical care.

Call Mark Bosscher or Lee Hook with any questions @ 515-243-2100.  We’d be happy to help, whether it be a quick or a complex issue!