State News

In Denham v. Texas Mutual Ins. Co., the deceased employee tested positive for marijuana. 2015 WL
4389286 (Tex. App.–Amarillo, July 15, 2015). The carrier denied the claim based on intoxication.
The Appeals Panel upheld the denial and the employee’s beneficiary filed suit for judicial review.
In the trial court, the carrier filed a no-evidence motion for summary judgment contending that the
beneficiary had failed to present any evidence that the employee was not intoxicated. The
beneficiary responded with an affidavit from a doctor challenging the validity of the positive test
results. The court held that such evidence does not rebut the presumption of intoxication.
According to the court, the rebuttable presumption of intoxication was raised by the positive drug
test results regardless of whether the results were founded on medically and toxicologically sound
theory. Once the presumption of intoxication was raised, evidence was required that the deceased
employee was not intoxicated, such as an affidavit from his passenger that he had the normal use
of his mental and physical faculties. No such evidence was provided. Therefore, the court of
appeals upheld the trial court’s judgment in favor of the carrier.

Beginning October 1, 2015, the Texas workers’ compensation system will transition from the use
of ICD-9 codes to the ICD-10 codes. Physicians must begin using ICD-10 codes to record diagnoses
and inpatient procedures for services provided on or after that date.
The Division has created a new training video on the transition to ICD-10 codes. The video is
available on the TDI website at http://www.tdi.texas.gov/wc/hcprovider/icd10.html. The video
reminds system participants to prepare in advance for the transition.
One still unanswered question for carriers is how they should process bills submitted with ICD-9
codes for dates of service after October 1, 2015. On the one hand, if they return the bills, that could
be a potential violation. On the other hand, if they process the bill and electronically report the ICD-
9 codes, that could also be a potential violation. Another question is what carriers should do with
bills submitted with ICD-10 codes for dates of service before October 1, 2015. ICT has asked the
Division for clarification. Hopefully, the Division will provide guidance soon so that system
participants can prepare in advance for the transition.

The Division recently issued a memo “reminding” insurance carriers and treating doctors that
medical records must be provided to designated doctors no later than three business days prior to
the exam. The memo also includes a “reminder” that the failure to do so is an administrative
violation. The Division has established a new email address DD’s can use to ask for help from the
Division in obtaining records, presumably when the records are not timely received:
DDRecords@tdi.texas.gov. Therefore, carriers and treating doctors who do not get the records to
the DD timely should not be surprised if they receive a violation notice.

On June 26, 2015, the U.S. Supreme Court held that the Fourteenth Amendment requires a State to
license a marriage between two people of the same sex and to recognize a marriage between two
people of the same sex when their marriage was lawfully licensed and performed out-of-State.
Obergefell v. Hodges, __ U.S. __ (No. 14-556, June 26, 2015).
The surviving spouse is entitled to receive death benefits under the Workers’ Compensation Act.
The surviving spouse must provide a marriage license or satisfactory evidence of common-law
marriage. Section 2.401 of the Texas Family Code limits the definition of a common law marriage
to a relationship between a man and a woman.
However, Texas courts will likely hold that this statute was modified by the Due Process and Equal
Protection Clauses of the Fourteenth Amendment to the Constitution of the United States as
interpreted by the Supreme Court in Obergefell. Therefore, expect to see same-sex surviving
spouses seeking death benefits in the not too distant future.

For further inquiries, please contact F&P Principal, Bert Randall, at (410) 230-3622 or by email at arandall@fandpnet.com.

I.                    New Maryland Benefit Rates

 Effective January 1, 2015, the following are the maximum benefit rates for Maryland disability benefits:

 State Average Weekly Wage – $1,005.00 (which represents the cap on temporary total disability, permanent total disability, and vocational rehabilitation benefits)

 Permanent Disability Under 75 Weeks – $168/week

 Permanent Disability Between 75-249 Weeks – $335/week

 Permanent Disability for 250 or More Weeks – $754/week

II.                  Regulatory Changes Effective July 20, 2015

Beginning July 20, 2015, two COMAR amendments impacting Maryland Workers’ Compensation Commission procedures became effective, one regarding judicial review and the other regarding legal representation and fees in dependency cases.

1. Judicial Review Procedures

The first of the amendments will alter COMAR 14.09.11.01-.05, which address judicial review procedures. The stated purpose of the action is to comply with new Md. Rule 7-206 and 7-206.1,^[1] and to update the language to accord with Labor and Employment Article, § 9-742, Md. Code Ann. The most substantial changes to the regulation concern documents required upon appeal of Commission and court decisions. The amendment requires that parties appealing a circuit court or appellate court disposition shall notify the Commission using a Cover Sheet for Action on Claims on Appeal, accompanied by a copy of the notice of appeal or petition for writ of certiorari. For circuit court proceedings, parties submitting a Cover Sheet for Action on Claims on Appeal to notify the Commission of a circuit court disposition no longer need to provide a copy of docket entries.

Additionally, COMAR 14.09.11.05 states that if the Commission exercises its continuing jurisdiction under Labor and Employment Article, §9-742, Md. Code Ann., to pass a supplemental order deciding an issue, the first petitioner/appellant shall file within 5 days of entry of the supplemental order: (1) a copy of the supplemental order with the court in which appeal is pending, and (2) a written certification with the Commission that the first petitioner/appellant has filed the copy of the supplemental order with the circuit or appellate court. The regulation now mandates that the written certification contain a description of the supplemental order filed and the date and manner of the filing. Lastly, petitioner/appellant must file the written request for any transcript required for inclusion in the record when the written certification is filed with the Commission.

The text of the amended judicial review procedures regulation can be found at: http://www.dsd.state.md.us/MDR/4209/Assembled.htm#_Toc417898860

1. Legal Representation and Fees

The second of the amendments modifies COMAR 14.09.04.03. The purpose of this amendment is to address an ambiguity in the Schedule regarding fees for the representation of the dependents of deceased workers.

In cases involving claims of dependency where compensability is not contested, but theextent of dependency (partial or total, or the identity of a dependent, or both) is contested, the new rule clarifies that the Commission may approve a total attorney’s fee for attorneys representing all dependents:

(i)                  In an amount not exceeding five times the State average weekly wage in a case of partial dependency under Lab. & Empl. Art. §9-682, Md. Code Ann.; or

(ii)                In an amount not exceeding 12 times the State average weekly wage in a case of total dependency under Lab. & Empl. Art., §9-681 or 9-683.3, Md. Code Ann.

In cases involving a claim of dependency where neither compensability nor dependency is contested and a record is being made solely to determine to whom payments of compensation shall be made, the Commission may approve an attorney’s fee in an amount not exceeding two times the State average weekly wage.

Lastly, in a case involving a claim of dependency where compensability and dependency are contested, the Commission may approve an attorney’s fee (1) in an amount calculated under 14.09.04.03 §B(3)(a) in a case involving a claim of partial dependency under Lab. & Empl. Art. §9-682 or 9-683.3,^[2] or (2) in an amount calculated under 14.09.04.03 §B(4)(a), in a case of total dependency under Lab. & Empl. Art. §9-681.^[3]

No substantive provisions of COMAR 14.09.04.03 were deleted upon amendment; the new regulation simply serves as clarification as to proper attorney’s fees in cases involving claims of dependency.

The text of the legal representation and fees amendment can be found at:

http://www.dsd.state.md.us/MDR/4207/Assembled.htm

III.                Recent Cases in Workers’ Compensation

a.       The requirement of cross-appeal for Circuit Court to revisit issues decided by Commission against non-appealing party depends on whether re-visiting the issue would require the Court to reverse or affirm the Commission’s decision.

                                                              i.      Uninsured Employers’ Fund, et. al. v. Ronald White, 219 Md. App. 410, 100 A.3d 1275 (2014)

1.       In the case of Uninsured Employers’ Fund, et al. v. White, the Court of Special Appeals discussed the necessity of a cross-petition in certain instances involving appeals of administrative decisions to a circuit court.

2.       The case emphasizes the caution claimant’s attorneys must exhibit in deciding whether or not to file cross-petitions. Where claimants fail to file a timely cross-petition where a circuit court is revisiting an issue previously decided by the Commission against the non-appealing party, and if the reconsideration of the issue might lead to a reversed or vacated decision, a party will lose their opportunity to challenge the Commission’s decisions.

b.      Claimant attorneys are only entitled to a fee on a “final award” by the Commission after all appeals have been exhausted.

                                                              i.      Brunson v. Univ. of Md. Med. Sys. Corp., 221 Md. App. 583, 110 A.3d 713 (2015)

1.       The Court of Special Appeals discussed the right to attorney’s fees when (1) an initial award of temporary total disability (“TTD”) benefits is rescinded; and (2) a subsequent permanency award results in no compensation payable given the credit created by payment of TTD benefits, later rescinded.

2.       This case shows that a claimant’s attorney who loses his case on appeal may be unable to recover attorney’s fees because attorney’s fees, generally provided within the claimant’s award of compensation and/or benefits, will be unavailable where no award is given. The Code of Maryland Regulations 14.09.04.03(C)(1) provides: “Absent exceptional circumstances, the Commission may not approve an attorney’s fee in a case in which it is determined that the claimant is not entitled to any compensation or benefits.”

c.       Workers’ Compensation Commission does not have the authority to order the UEF to reimburse IWIF for benefits paid when there is another source of compensation.

                                                              i.      Injured Workers' Ins. Fund v. Uninsured Employers' Fund, 221 Md. App. 322, 108 A.3d 609 (2015)

1.       The Court of Special Appeals of Maryland considered whether the Workers’ Compensation Commission has the authority to order the Uninsured Employers’ Fund (“Fund”) to reimburse the Injured Workers’ Insurance Fund for benefits paid to a Claimant. In the instant case, because Chen was found to be an insured employer, the Fund was not required to pay benefits. The statute does not require the Fund to reimburse an insurer where its insured is a jointly and severally liable employer. Therefore, the Court held the Commission exceeded its authority when it ordered the Fund to reimburse IWIF for benefits paid.

2.       This case shows the importance of defining who is and is not an “employer” and its impact on the Fund’s need to reimburse insurers. The Fund is available for the sole purpose of funding compensation where there is no other source of compensation for claimants. Thus, where multiple employers and the Fund are jointly and severally liable, the Fund is not responsible for paying a claimant’s award.

d.      The SIF assessment on permanency awards is based on the total amount of a permanent disability awardbefore offsets are applied.

                                                              i.      Employer/Insurers should be aware that the 6.5% assessment payable to the SIF is based on the total amount of the permanent disability award prior to offsets.

                                                             ii.      NOTE: The Employer/Insurers in this case may petition the Court of Appeals for Certiorari and thus the issue should be closely monitored.

e.      Court of Appeals affirms the Commission’s right to combine awards for scheduled and unscheduled members for compensation tier purposes.

                                                               i.      Montgomery County v. Robinson No. 67, September Term 2010; and Board of Ed. ofMontgomery County v. Anderson No. 68, September Term 2010

1.       The court ultimately decided that the Workers’ Compensation Act’s remedial nature must be construed liberally in favor of an injured worker, and that combining awards for scheduled and unscheduled members serves such purpose. The court stated that nothing in LE § 9-628 and LE § 9-629 prohibits combining awards for scheduled members with awards for “other cases,” and a failure to allow such combination would lead to “strange, unfair and… illogical results.” Further, the court reasoned that the language within the second-tier benefits provision is broad and does not use the terms, “scheduled” and “unscheduled.” Thus, the court held the Commission may combine compensation awards to determine which of the three compensation tiers is appropriate.

f.        Entitlement to Temporary Total Disability benefits is still a medical question.

                                                               i.      Phuonglan Ngo v. CVS, Inc., et al., Court of Special Appeals, September 25, 2013

1.       In Phuonglan Ngo, the issue was whether a Claimant who has reached maximum medical improvement can receive temporary total disability benefits under the Maryland Workers’ Compensation Act.

2.       The Court found that temporary disability refers to a physical state and that employment potential does not fall into this category. The Court further opined that a Claimant does not need to be placed into suitable employment, but rather must be so limited in quality, dependability, or quantity, that a reasonably stable market for a Claimant does not exist.

g.       Clarifying reimbursement of the workers’ compensation lien/offset in a third party case.

                                                              i.      David Ross v. John Agurs and Progressive Casualty Insurance Company, No. 978, September Term 2012 (decided September 9, 2013)

1.       This case clarifies what amounts are included in a workers’ compensation offset by an uninsured/underinsured (“UM/UIM”) motorist carrier. It reaffirms that court costs and attorney’s fees should not be included in the amount the claimant “received” under a workers’ compensation case.

For further inquiries regarding Maryland law contact Mr. Randall at (410) 230-3622 or at arandall@fandpnet.com.

Imperial Aluminum-Scottsboro, LLC v. Taylor

Released July 24, 2015

The employee filed suit against the employer asserting a workers’ compensation claim, retaliatory discharge and the tort of outrage. Upon the case being filed the employer filed a Rule 21 Motion to Sever the workers’ compensation claim from the retaliatory discharge claim and outrage claim. This included a request that a new case number be assigned to the discharge and outrage claims. However, the trial court entered an order under Rule 42(b) bifurcating the issues and calling for separate trials only. A new case number was ever issued. The discharge and outrage claims were tried before a jury prior to the workers’ compensation case being heard. The outrage case was dismissed but the jury awarded compensatory and punitive damages to the employee based on the discharge claim.

The employer appealed the jury verdict awarding the employee compensatory and punitive damages as a result of his retaliatory discharge claim. The Alabama Court of Civil Appeals ruled that the retaliatory discharge verdict was not a final order and could not be appealed because the Court had not ruled on the workers’ compensation claim that was still pending under the same case number.

My Two Cents

Based on this ruling, we must assume that the opposite would apply and a ruling in a workers’ compensation case would not be final and appealable while related tort claims are still pending. This creates an issue for employers and employees in cases where the employer or employee wants to appeal an adverse verdict in a workers’ compensation case that also had a related tort claim still pending under the same case number. In cases were the employer is ordered to pay benefits, would the employer have to go ahead and pay the worker’s compensation benefits ordered despite it’s desire to appeal the decision or would the pending tort claim stay the workers’ compensation order and prevent the employee from recovering until the tort claim was decided and the deadline to appeal had run. In cases where the employee wanted to appeal and adverse verdict they would not be able to have their appeal on the workers’ compensation case heard until the tort claims were decided. In cases where this may present an issue, it may be advisable for the parties to request a Rule 21 Severance with a new case number instead of Rule 42(b) Separate Trial order where the tort and workers’ compensation claims remain under the same case number.

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ABOUT THE AUTHOR

The article was written by Joshua G. Holden, Esq. a Member of Fish, Nelson & Holden, LLC, a law firm dedicated to representing employers, self-insured employers and insurance carriers in workers’ compensation and related liability matters. Mr. Holden is AV rated by Martindale-Hubbell, which is the highest rating an attorney can receive. Holden and his firm are members of The National Workers’ Compensation Defense Network (NWCDN). The NWCDN is a national and Canadian network of reputable law firms organized to provide employers and insurers access to the highest quality representation in workers’ compensation and related employer liability fields.

The Alabama Court of Civil Appeals recently reversed an order based on a trial court’s decision which only found the employee suffered a physical impairment to her shoulder and did not explicitly address loss of earning ability. InBillingsley v. City of Gadsden, the employee made a claim for workers’ compensation benefits for an injury to her shoulder, and other parts of her body, following an on-the-job automobile accident. Notably, the employee stopped working for the employer a few months after her accident, but prior to reaching maximum medical improvement. As a result, upon reaching MMI, she was not earning the same or greater wages than that which she was earning prior to the accident.

The court determined that the employee’s shoulder injury was compensable, but found that the other conditions had either resolved or were preexisting. In its order, the trial court determined the employee had sustained a 25% physical impairment to her shoulder, and awarded permanent partial disability benefits based on this finding of physical impairment. The decision was appealed.

The Appeals Court agreed that the body parts other than the shoulder were not compensable, but it disagreed with the trial court’s award of benefits based on a finding of physical disability, alone. The Appeals Court noted that an injury to an employee’s shoulder is not included in the Act’s schedule, and therefore, an award for a shoulder injury can only be upheld when the court makes an express finding regarding an employee’s loss of ability to earn. Although physical disability may be a preliminary foundation for finding loss of earning ability, the court must also explicitly address loss of earning ability when the employee has not returned to work earning the same or greater wages. By failing to address the employee’s loss of earning ability, the trial court’s decision provided no basis for an award. The case was therefore remanded with instructions for the trial court to determine the extent, if any, to which the employee’s injury affected her ability to earn income, and to award the employee benefits accordingly.

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About the Author

This post was written by Trey Cotney, Esq., of Fish Nelson & Holden 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 at tcotney@fishnelson.com or any firm member at 205-332-3430.

Patrick Vasnaik worked for Providence Health & Services - Oregon as a security officer from 2006 to 2012.  His performance evaluations over the years fluctuated between requiring improvement to exceeding expectations.  However, he required several coachings over the years for not arriving on time to work.  In May 2010 he received a “documented coaching” after getting two tardies and three absences in a rolling 12-month period. 

He also was coached for violating lost and found procedures:  once in 2010 he mistakenly took home a lost wallet which he put in his own pocket and forgot to log, and again in 2011 when he erroneously informed a woman that her lost necklace had been found. 

One part of Vasnaik’s job was to park patients’ vehicles if the patient had to be taken into the hospital immediately.  In February 2011 he parked a patient’s vehicle in a designated disabled space without a permit, causing the patient to receive a $300 ticket. He was also coached about radio communications and emergency room standby procedures.

A recurring criticism of Vasnaik by his superiors was that he did not prioritize security calls or respond to them with urgency.  Once he did not answer an officer’s call because Vasnaik was eating lunch. His 2010 review noted that he only had one speed in which he performed every task and needed to augment his pace.  This criticism was noted again in 2011. 

In May 2011 Vasnaik received a written warning when he lost track of a stand by patient he was guarding because he was using a computer and got distracted.  Some time thereafter he was written up for walking away from a marked patrol vehicle with the keys in the ignition and the engine running.

The final violation of Providence’s policy occurred on September 3, 2012 when he parked his personal vehicle in the West Parking Structure, which was reserved for patients and visitors only.  Wasnaik noted that he was running late that day, and that the lot was almost empty because it was Labor Day weekend. He later claimed that he parked there because of his work-related knee condition.  His employment was terminated on September 17, 2012.

During the last three years of his employment, Vasnaik had four workers’ compensation injuries.  The first was on July 16, 2009 when he injured his knee while working with a patient.  The second was June 2010 when he severely injured his right knee restraining a psychiatric patient. That injury led to knee surgery and a seven-month absence from work.  The third was on August 30, 2011 again involving the left knee, and the final injury occurred on September 2, 2012 when a psychiatric patient bit him on the left forearm.  This occurred two weeks before he was fired.Providence argued that it did not know about the last incident until after the company fired Wasnaik. 

Vasnaik sued under the ADA and also theOregon state law prohibiting retaliation for filing workers’ compensation injuries.  The Court noted that Vasnaik claimed that his knee injuries substantially limited his major life activities, specifically his mobility and quickness on his feet.  However, his only proof of this was an independent medical examination dated June 20, 2010 which occurred before his corrective surgery.  “Taking that evidence as true, it still does not establish the knee injuries substantially limited any of Vasnaik’s major life activity after his surgery and recovery,” the Court stated. His doctor’s note post-surgery gave him a full release with no restrictions. The Court also noted that “quickness on one’s feet” is nowhere listed as a major life activity under theADA. 

The Court took a different view, however, of his workers’ compensation retaliation claim.  Vasnaik’s argument was thatProvidence demonstrated increased scrutiny of him following his 2010 workers’ compensation claim.  He also argued that his firing followed closely on the heels of his fourth workers’ compensation claim when he was bitten by a patient. 

The Court was not impressed with the increased scrutiny logic because there was ample evidence in the record thatProvidence was unsatisfied with Vasnaik’s work pace well before his workers’ compensation injuries.  However, the Court was concerned about the temporal proximity between the injury on September 2, 2012 and the termination on September 17, 2012.  Vasnaik said that he notified his employer around September 13, 2012 that he needed treatment for the biting incident.  That was one day beforeProvidence made the decision to terminate his employment.  The Court consideredProvidence’s stated non-discriminatory reasons for firing Vasnaik and also considered Vasnaik’s assertion that the timing of his termination was extremely suspicious:

Although there is no dispute that Vasnaik had received a written warning, and that he admits the underlying incidents were true, the Court finds a reasonable juror could interpret the evidence Vasnaik has produced as indicative of a discriminatory intent.  Vasnaik testified that he felt ‘singled-out on this particular incident. . . and the supervisors are very . . . aware that a lot of people do park there.’” 

The Court also commented that most of Vasnaik’s annual reviews were fairly positive. The review from 2012, two months before his termination suggested Vasnaik was performing satisfactorily and was meeting expectations.  The Court concluded, “The close temporal proximity between Mullen’s positive review, Vasnaik’s injury, and his termination could lead a reasonable juror to conclude that Providence’s proffered reason for terminating him -- that he parked in an essentially empty patient parking lot during the Labor Day weekend -- was pretextual.”

For this reason the Court denied summary judgment toProvidence on the workers’ compensation retaliation claim but granted summary judgment on theADA claim to the employer.  The case shows the perils of terminating an employee within days of a reported workers’ compensation claim, particularly when written job evaluations are at best equivocal, if not essentially positive. The case can be found at Vasnaik v. Providence Health & Services - Oregon, 2015U.S. Dist. LEXIS 61068 (D. Oregon, May 9, 2015).

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

 The SD Supreme Court recently issued a decision in Patricia Wheeler v. Cinna Bakers LLC d/b/a Cinnabon and Hartford Casualty Insurance Company 2015 S.D. 25.  　

On May 6, 2015, the Supreme Court issued a decision in the above-referenced matter. The following issue was addressed: When calculating average weekly wage, do you consider wages from other jobs?

In this result-oriented decision, the Court held that a claimant is allowed to include earnings from other jobs when calculating AWW. The Court interpreted the definition of "earnings" used to calculate AWW in Claimant’s favor, finding that "earnings" were the sum of all wages from all of claimant’s employments no matter the type. As you can imagine, the effect of this will likely require an employer to pay higher rates to cover an employee’s other job or lost income-earning ability. The Court acknowledged this fact, but found that it is more appropriate for the employer/insurer to bear this burden rather than the claimant.

The Court did not address two prior cases expressly holding wages could not be combined.  In doing so, the Court called his an issue of first impression instead of overruling the older cases.  This likely means the case will be applied retroactively to all open files. 

 If you questions regarding this case, please contact Charlie Larson at 605-336-2424 orcalarson@boycelaw.com

Robert L. Miller v. McLaughlin Electric and Travelers Insurance

Robert Miller/Thomas J. Von Wald

Issue: (1) Whether the Claimant’s choice to move to assisted living over his treating physician’s approval of a "stair-glide" subjected the employer to pay for the assisted living arrangement?

Robert L. Miller ("Claimant") suffered a work related injury in 1982 at age 52. He continued treatment with a chiropractor and had a regular exercise program at the YMCA. In 2006, Claimant aggravated his injury. In 2013, he went to Orthopedic Surgery Specialists and reported that his back had worsened when he used stairs. He wished to go to assisted living and asked his treating physician at Orthopedic Surgery Specialists to write him a medical recommendation. The physician did so, but the Insurer subsequently inquired about whether a "stair-glide" would be an acceptable option. The physician stated in another letter that it would be an acceptable option so long as the Claimant did not use stairs. Claimant moved into an assisted living center in Oak Grove, Minnesota just prior to that letter from the physician to the Insurer. Insurer denied benefits and assisted living care, as a stair-glide in Claimant’s home would have been a more appropriate option. Claimant was also denied his requests for physical therapy to treat knee pain.

Ultimately, summary judgment was granted in favor of Insurer regarding Claimant’s request for payment of assisted living. Additionally, Judge Catherine Duenwald ruled that if Claimant wanted a change in choice of medical practitioner in order to attend physical therapy in Minnesota, it should have first been approved by the employer under SDCL § 62-4-43. Although ultimately prevailing, Insurer was ordered to pay Claimant’s gym membership in Minnesota as it was instructed by his treating physician and medical providers to continue exercising and swimming on a regular basis.

Charles Dockter v. Ron’s Equipment Painting, Inc. and Farmer’s Mutual Insurance Group

Lonald L. Gellhaus/J.G. Shultz

Issue: (1) Whether an injury sustained by Claimant arose out of and in the course of his employment with Employer?

Charles Dockter ("Claimant") was employed in July 2013 by Ron’s Equipment Painting, Inc. ("Employer"). His job duties primarily included power washing trucks, waxing, and cleaning. Prior to this employment, Claimant was fired and re-hired numerous times by Employer. Claimant’s alleged injury occurred on July 17, 2013, while he was washing a truck, but he did not report it to anyone. Claimant went to the Emergency Room in Ortonville, Minnesota on July 20, 2013, and afterwards he called his supervisor to notify him that he hurt his neck while working on July 17, 2013.

Multiple employees of Employer testified that Claimant had not told them anything about his alleged injury. Additionally, Claimant had requested July 18, 2013, off from work so that he could see his attorney. At hearing, Claimant provided inconsistent testimony regarding the pain and the circumstances surrounding the injury. Furthermore, in an unrelated event, the Department noted that Claimant had a co-worker who was injured when he closed his finger in the door of his house. Claimant advised the co-worker that he should tell the supervisor so that he could collect workers’ compensation for that injury.

Judge Hageman determined that the only evidence produced by Claimant was his testimony, which he did not find credible. Further, Claimant had a reputation for dishonesty which was further diminished by his suggestion to his co-worker to file a false workers’ compensation claim. Judge Hageman ultimately determined that Claimant fell "far short of carrying his burden of proof."

Catherine Guadagnino Wang v. Mileage Plus, Inc.

Dennis Finch and Jeffrey Maks/Kristi Geisler Holm

Issue: (1) Whether Claimant proved by a preponderance of the evidence that her work-related incident was a major contributing cause of her past and current condition and need for treatment?

Catherine Guadagnino Wang ("Claimant") started working for Mileage Plus, Inc. ("Employer") in 1998. She worked as a customer service representative, which was a sedentary job involving sitting for long periods of time at a desk with a computer station and a phone. In March 2000, she was referred to The Spine Center where she saw Dr. Larry Teuber for neck, shoulder, and face pain as well as pain in her mid and low back. Claimant underwent a lumbar microdisectomy and returned to work on light duty with lifting restrictions. She was discharged without restrictions in March 2002.

In March 2005, a doctor with The Spine Center had a "frank talk" with Claimant, as he felt she was "blowing her symptoms out of proportion" and that she should return to work in the near future. Her primary care physician also noted that her pain symptoms were of "questionable etiology and significance." In June 2005, Dr. Wayne Anderson conducted a review of the Claimant’s records at the request of the Employer and Insurer, concluding that the slip at work was just another incident that aggravated a low back condition

Ultimately, there were records noting that the Claimant had a complex pain disorder, but causation was an issue because multiple doctors questioned the etiology of the Claimant’s back pain. Claimant’s lower back pain was present and actively being treated just prior to her slip at work. She was not able to show by a preponderance of the evidence that her slip was a major contributing cause of her treatment and need for surgery. Despite the opinion that Claimant was permanently and totally disabled, there was no indication that it was due to any work-related injury or condition.

Todd Barber v. MWP Construction, Inc., and Acuity Mutual Insurance Company

Brad J. Lee/Rebecca L. Mann

Issue: (1) Whether Employer/Insurer is required to prove a change of condition after a settlement agreement was signed which provided an obligation of Employer/Insurer to pay future medical benefits, except when the Employer/Insurer approves a Medicare Set-Aside?

The Department of Labor had previously approved a settlement agreement between Claimant and Employer, which encompassed all medical benefits relating to the Claimant’s back injury for past, present, and future. Indemnity benefits were not included in the settlement, and were essentially waived by the Claimant. The settlement agreement provided that there was an obligation on the part of the Employer to pay future medical benefits, with the exception that future benefits would not be covered if the Claimant obtained an approved Medicare Set-Aside at the Employer’s expense.

Both parties agreed that neither party was permitted to reopen the matter upon a change of condition, which Judge Catherine Duenwald found to be unambiguous. Relying on the Department’s decision inStanton v. United Parcel Service and Liberty Mutual Insurance Group, Judge Duenwald concluded that after an award is final, the Employer is required to establish a change in condition before they can deny medical benefits, fail to pay medical bills, or not authorize treatments, and until such time, the settlement agreement is considered to be an Order of the Department.

Catherine Tobin v. Care Concepts, LLC, and First Dakota Indemnity Company

Margo Tschetter Julius/Charles Larson

Issue: (1) Whether Claimant’s injury arose out of her employment with Employer?

Catherine Tobin ("Claimant") was a 68 year old woman at the time of her hearing. She worked with Care Concepts, LLC ("Employer"), where she worked as a medication aide. On May 30, 2014, Claimant fell while she was at work, stating that she "fell over my own two feet." Employer denied worker’s compensation benefits on the grounds that the injury did not arise out of her employment, as the injury did not arise out of a risk that could be associated with her employment.

In the Department’s decision, Judge Hageman first reviewed the "Positional Risk Doctrine." Under that doctrine, a person who is injured when he or she is required to be in a particular place at a particular time during his or her employment is able to collect workers’ compensation, even if the employment-related activities were not a major cause of the injury. Judge Hageman determined that Claimant’s employment placed her in the room in which she fell, and therefore the Positional Risk doctrine did apply.

Further, the Department addressed the "Unexplained Fall Doctrine." This doctrine makes an injury compensable when the employee proves that an injury occurred by accident in the course of employment from a neutral risk that is neither attributable to the claimant personally nor the employer. Judge Hageman found that the Unexplained Fall Doctrine applied, holding that it was apparent that Claimant did not know what caused her to fall, therefore that the fall was "unexplained." Accordingly, it was determined that Claimant’s injury arose out of and in the course of her employment with Employer.

Tammy Lagler v. Menard’s, Inc., and Zurich American Insurance Company

Ronald Parsons/J. G. Shultz

Issue: (1) Whether Claimant is entitled to attorney’s fees pursuant to SDCL § 58-12-3? (2) Whether Claimant is entitled to a lump sum payment of benefits? (3) Whether Claimant is entitled to costs?

Tammy Lagler ("Claimant") was injured during the course of her employment with Menards, Inc. ("Employer") in April 2007. In February 2008, Dr. Watts of Core Orthopedics performed surgery on Claimant’s ankle. Zurich American Insurance Company ("Insurer") assumed responsibility of the injury and initially paid all medical expenses including the surgery. Claimant continued treatment with Dr. Watts. In August 2008, Dr. Watts recommended surgery Claimant’s ankle as a result of her work injury.

While the surgery request was pending, the Insurer scheduled an independent medical exam for September 2008. In late August 2008, Claimant filed a Petition for Hearing alleging that Insurer has "veraciously and unreasonably refused payment." The IME was subsequently cancelled and not rescheduled for unknown reasons. The Insurer reached Claimant’s attorney in early September 2008, stating that additional information was needed from Dr. Watts before surgery could be approved, but that Insurer had not yet denied Claimant’s requested treatment. Claimant’s attorney stated that he would not withdraw the Petition for Hearing until it was confirmed that surgery was being paid for.

Surgery was denied after the Insurer found out from Dr. Watts’ nurse that Claimant’s condition can be caused by wearing heels. Insurer concluded that the injury was not due to the original work injury. Each of Dr. Watts’ assistants denied having any conversations with Insurer in which they indicated that Claimant’s injury was not related to the workplace. An adjuster from Insurer stated that the assistant that gave her this information was named "Angie Roberts" but nobody by that name had ever worked for Dr. Watts. There is a record of a five minute telephone call between Dr. Watts’ office and Insurer on that day.

In October 2008, Dr. Eric Watson conducted an examination of Claimant’s ankle and concluded that surgery would be beneficial, but did not say whether it was related to the work injury. Again in November 2008, Dr. Watts stated that she had changed her gait pattern since the injury, which he believed was the biggest contributing factor to her need for surgery. Surgery was performed in February 2009, and Claimant was able to return to work part time in April 2009. In February 2010, a Dr. Richard Farnham opined that Claimant’s work injury did not require surgery.

For the issue of whether Claimant could collect attorney’s fees pursuant to SDCL § 58-12-3, Judge Hageman concluded that Insurer had diligently investigated the claim and sought an answer from the treating doctor. The phone records indicating that someone from Insurer’s office did have a conversation with someone at Core Orthopedics and that Insurer had the right to ascertain why the surgery was needed. The Department found that Claimant could not collect attorney’s fees because she was unable to prove that Insurer’s denial of the second surgery was vexatious or without reasonable cause.

On the issue of whether Claimant could receive a lump sum payment of her benefits, Judge Hageman determined that would be appropriate because of Claimant’s "exceptional financial need that arose as a result of reduced income due to the injury," as required by SDCL § 62-7-3. Additionally, on the third issue, the Department concluded that Claimant was not entitled to costs.

Sharleen Grimlie v. Larson Manufacturing Company, Inc., and Zurich North America

David J. King and Bram Weidenaar/Justin G. Smith

Issue: (1) Whether the incident that Claimant experienced while working for Employer is and remains a major contributing cause of Claimant’s current condition and need for treatment? (2) Whether Claimant’s medical treatment was medically necessary and reasonable? (3) What is the extent of Claimant’s current condition and is Claimant entitled to Permanent Partial Disability Benefits? (4) Whether Claimant is permanently and totally disabled due to a work-related injury or condition and falls under the Odd-Lot Doctrine? (5) Whether Employer/Insurer is required to reimburse Claimant and Claimant’s medical insurer for medical bills paid, and if so, in what amount?

Sharleen Grimlie ("Claimant") was hired in 1993 as a door assembler at Larson Manufacturing Company, Inc. ("Employer"). Claimant injured her back in January 2011 while working, which she initially attributed to overwork. She reported the injury that day and filled out an injury report the next day when her back did not feel any better. The day after the injury occurred, she also went to a chiropractor who advised her not to return to work. Claimant had treated with this chiropractor in the past but had not previous history of back problems.

An MRI was taken in April 2011, which showed degenerative spondylotlisthesis, spinal stenosis, a bulging disc and protruding disc, as well as other levels of degenerative disc change. Dr. Mitchell Johnson of Orthopedic Institute recommended a back brace and physical therapy and allowed her to return to work with restrictions for a short period of time. In June 2011, however, Dr. Paul Cederberg performed an IME of Claimant. Dr. Cederberg stated that Claimant had chronic, long term, and degenerative preexisting conditions. Accordingly, he opined that her injury was not related to the employment. As a result, Employer issued a denial.

Dr. Johnson performed fusion surgery in August 2011, and Claimant returned to physical therapy until December 2011 when she began a home-based program. The surgery was paid for by Employer’s health insurance coverage, not workers’ compensation.

In March 2012, Dr. Johnson ordered Claimant completely off work. She was subsequently terminated by Employer and lost insurance coverage. In June 2013, Dr. Johnson wrote to Claimant, in a response to her attorney, saying that there may be some other work she could perform with restrictions, and that his previous recommendation was only relating to her current job duties. In July 2014, Dr. Cederberg performed a follow-up IME and came to the same conclusion as he had previously.

In reviewing the causation of the injury, Judge Duenwald determined that Dr. Cederberg’s conclusion was flawed in a number of ways, and ultimately did not find him credible. As to the extent of Claimant’s condition, Judge Duenwald found that under SDCL § 62-4-53, the employee has the burden of proof to make a prima facie showing of permanent total disability. Because Claimant had not attended a Functional Capacities Examination or been evaluated recently by a treating physician to establish the extent of her disability, Judge Duenwald looked to Dr. Cederberg’s opinion from August 2012 in which he said that she could perform sedentary work, thereby finding that she was not permanently and totally disabled. As to the issue of whether Employer was required to reimburse Claimant for medical bills, Judge Duenwald determined that because the medical claim was deemed to be compensable, any medical bills that have been incurred by Claimant and have been paid out by any other party are to be reimbursed by Employer.

Anthony J. Shulte v. Rural Manufacturing Co., Inc., and First Dakota Indemnity Company

Michael E. Unke/Michael McKnight

Issue: (1) Was Claimant’s work for Employer a major contributing cause of Claimant’s injury or condition and need for treatment?

Anthony Shulte ("Claimant") worked for Rural Manufacturing Co., Inc. ("Employer") for over 20 years as a shop foreman doing fabrication, installation work, service work, repair work, and some design work. On May 1, 2012, Claimant injured his shoulder while building a steel scale pan for some equipment they were building. He felt a pop and a sharp pain in his shoulder, which he claimed he did not realize he injured at the time.

Claimant treated regularly with a local chiropractor since 1989 for a variety of injuries and symptoms including neck, back, ankle, wrist, knew, and toe pains. In April 2012, just prior to the injury, Claimant saw the chiropractor for his cervical spine and left shoulder. Claimant did not return to the chiropractor until June 2, 2012, reporting a left shoulder pain at 8 out of 10. On June 11, 2012, Claimant returned again with the same complaints, and further testing revealed a possible rotator cuff tear.

Dr. Hurd provided an opinion that the MRI showed AC joint arthrosis, a possible superior labral tear, as well as a low grade rotator cuff tear. The degree of muscular atrophy and retraction of the muscle indicated to Dr. Hurd that the rotator cuff was injured in an acute manner. Eventually, symptoms became worse, and Dr. Hurd recommended rotator cuff surgery.

In October 2012, an IME was performed by Dr. Gary Wyard, who was of the opinion that Claimant had not suffered a rotator cuff tear, as it would have shown up on an MRI. He believed Claimant was magnifying his symptoms, and continued to have that belief even after the rotator cuff surgery by Dr. Hurd, which Dr. Wyard deemed unnecessary.

Judge Duenwald ultimately found in favor of Claimant as to causation, Although Dr. Wyard’s reasoning regarding age and tearing of muscles appeared to be "textbook," Judge Duenwald concluded that not every injury is textbook and that Dr. Hurd was the doctor who actually had the opportunity to see the muscle and the tear during the surgery. Accordingly, Judge Duenwald found the treating physician’s opinion more credible than the IME, thereby awarding benefits.

 If you have any questions regarding these decisions, please contact Charlie Larson at 605-336-2424 orcalarson@boycelaw.com.