State News

By:  Kevin L. Connors

Some lessons in life can never be learned hard enough.

Like, you can make lemonade out of lemons, but try making lemons out of lemonade.

Recently successful in defending a workers’ compensation claim brought by a corpulent Convenience Store Assistant General Manager, who injured herself while she was stocking a walk-in cooler, as she dropped but still managed to catch, a 10 lb. box of coffee milk creamers, the same being absolutely necessary in the universe of convenience stores, in order to keep the in-and-out clientele casually caffeinated, with the Claimant alleging that the coffee creamers, in their very brief flight from shelf to her hands, allegedly caused her to experience immediate mid-back back pain, eventually diagnosed as a thoracic sprain/strain.

Reporting what some might not seem to have been an injury, the Claimant told her convenience store management that she immediately developed severe pain in her mid-back, later referred to in her medical records as being an injury to her thoracic spine, although the creamers were apparently never damaged, however short-lived their convenience experience might have been.

No, the Claimant did not report an injury to her low back.

No, she did not report injuries to any other part of her body.

Yes, she was immediately directed by her very claims-intuitive employer to seek treatment with the employer’s designated panel physicians, as required under the Pennsylvania Workers’ Compensation Act.

Two days later, the treatment phase began, with the working diagnosis being a thoracic sprain/strain, a seemingly minor injury in the grand scheme of the trillions of dollars expended in workers’ compensation circles administering to the travails of spine-related injuries.

True enough, whenever we think of spine-related injuries, we think of either the neck or the low back, with mid-back injuries being, well, conveniently rare.

So, what happens next?

Briefly, the Claimant was off of work, and she was paid workers’ compensation benefits pursuant to the statute.  She was then released to return to work by the employer-designated physicians, and she actually returns to work, with her compensation benefits being suspended, as she is working in a full-time capacity, although working with restrictions, designed to limit her standing, sitting, carrying, lifting, and you guessed it, her reaching.

Now how does reaching come into play as a convenience store assistant general manager.

Well, the 300 lb. plus size convenience store assistant general manager then testified in front of the quixotic workers’ compensation judge, that her light-duty job required her to work the convenience store cash register in the front of the store, which position was akin to a torture chamber of pain, as she was bombarded by store customers asking to buy Powerball tickets, cigarettes, and other items behind the counter, that did not require the customers to walk around the store to pick up, but required the counterperson to reach for behind-the-counter merchandise, as politely requested by store customers.

That reaching caused the Claimant to have so much mid-back pain that after enduring this working torture for about 4 months, she went to the emergency room, although they really could not find anything wrong with her, and she then went to see her grizzled orthopedic surgeon, who some 15 years before had performed a several level fusion on the Claimant’s low back, fusing her spine as the Claimant had severe spondylolisthesis (say that 3 times, if you can).

On the advice of her Methuselahian orthopedic surgeon, who eventually testified in support of her claim for benefits that he never physically examined her, as orthopedic examinations are overrated, the Claimant stopped working in order to undergo diagnostic testing, revealing that the 15 year old fusion was now unstable.

Okay, sounds pretty straightforward so far, so why is this case of any importance to anyone?

Well, this case is about the lemonade that the Claimant tried to squeeze back into the lemons.

So, to prove her case, Ms. Jabba Da Hutt, when testifying before the workers’ compensation judge, told the judge that the two activities that caused her the most pain were standing and reaching, you know, for cigarettes, lottery tickets, and lighter fluid, as the Claimant sat in the courtroom for over an hour, with low back pain, forgetting her thoracic spine injury, as the pain had lowered itself into the end zone of her spine, her low back, and she described her pain as being 24/7, and being 8 out of 10 on a “point to where it hurts” pain scale, with 0 being the absence of any discomfort and 10 being death-like pain, although in millions of years of recorded human history, no one has returned to actually describe that claim-ending experience.

So, during the first act of her hysterically histrionic play, is she academy award material, or perhaps relegated to being, well, the entire backdrop for “One Life To Live”?

Secure in her own pain-generating universe, she made the always claim-fatal mistake of not just downplaying her pre-injury medical history, but she inflated it to a height of physical perfection and fitness, that seems strangely odd coming from someone who 15 years before had several levels in her lumbar spine fused together because of congenital abnormalities.

Repeatedly asked as to whether she had had problems with her back in between the fusion surgery when she was 15 and the sprain/strain that she developed from dropping the coffee creamers 15 years later, she unblinkingly admitted nothing other than pristine spinal health, with the few claims that seemed to have been sprinkled in between the fusion and the present, all involving body parts unrelated to her spinal column.

Flashing forward to her physician’s testimony, he who needs no exam testified that he believed all of her problems were directly related to the box of milk creamers because, well because she had left his office and operating room 15 years before as good as she could be, and she told him that she had no problems until the Greg Louganis-like coffee milk creamers attempted their inward-twisting reverse somersault dive off the walk-in cooler shelf, into her Steve Largent-like hands, and so it must have been the demonic creamers, and yes, she needed surgery, because the fusion that he had stitched together 15 years before was now no longer stable.

By now, everyone who has not left to get their popcorn out of the microwave is wondering, we care why?

We know, there might be a point.

And the point is that she ended up losing her case for several reasons, not the least of which is that she probably had no case to begin with, aside from clearly overreaching, believing herself due for a compensation vacation!

Not really, and, true enough, this stuff squeezes better than it tastes.

But, yes, she lost her case, because she really liked to make a lot of stuff up, and because she forgot a lot of stuff that was too important to forget, because, yes, that kind of stuff had been  splattered over about 2,000 pages of medical and claims records subpoenaed from prior cases, both comp and otherwise, where she had bizarrely, and with seemingly complete historical abandon, sought, petitioned for, complained, of, treated for, been diagnosed with, and otherwise made a really big deal about, having, you got it, lots of issues with her low back, effectively undermining her testimony, “no, Your Honor, I really never had these kinds of problems before, and I do not know why they will not pay my workers’ compensation claim”.

Neither the prior medical records nor prior transcripts lied, and her own courtroom testimony in her prior cases, came back in haunting assassination of her benefit-seeking intentions in this case, as her testimony in prior cases became the crosshairs through which the workers’ compensation judge fired his denial of her claim.

Thirsty for a Guinness?

Brilliant, just brilliant!

Now she had already had some prior problems juxtaposing her testimony in her earlier claims, against her denial of that testimony in this case, but she then painted a surveillance bull’s-eye on her face, when she testified, days before the judge closed the record, that she never helped her mother work at a weekend flea market, with, you guessed it, her driving straight from her record-closing deposition to the flea market, where she was filmed working the flea market, making transactions for her mother, spending all day at the flea market stand, and then, “Alas, poor Yorick”, we witnessed the “I need back surgery”, even though I smoke and weigh over 300 lbs., Rubenesque-Claimant bending in flagrante delicto at the waist, without apparent hesitation or limitation, effectively impaling the nail in the coffin of her claim.

Well, what did she do wrong, beyond almost everything, which is one way of looking at this claim, the converse being what actions were taken to limit/defend the claim?

First, a word of advice.

If you have a back injury, it is not recommended that you testify while sitting motionless for an hour, with 8 out of 10 pain.

It just does not feel right.

Next, make sure that you have a pretty good idea as to what you have claimed in prior claims, as well as what you have testified to before in Court, as where there is a record, there will be cross-examination.

If it was reported before, expect that it will be discovered and made evident.

So what credit is due the employer/administrator in defending the claim, and securing its denial?

First, this claim was meticulously documented, from claim inception, as a claim involving a thoracic spine, with it being limited to a sprain/strain injury, and not involving any spinal abnormalities.

Next, the employer and administrator carefully monitored the Claimant’s medical treatment, to insure the earliest possible return-to-work, securing, a benefits-suspending agreement, on the Claimant’s return.

The relevance of that benefits-suspending agreement, is that the Claimant then had to prove that her alleged disability was, in fact, causally related to the original injury, with the Claimant, of course, claiming that she was suffering from a low back injury, and not the thoracic spine injury, that had been accepted by the employer/administrator.

Next, the employer/administrator secured a very favorable independent medical examination, shortly after the Claimant stopped working, on the questionable advice of the Methuselahian orthopedic surgeon, who never physically examined the Claimant, and simply took the Claimant’s word at face value, that she had not had any problems in between the fusion surgery 15 years earlier, and the suicidal creamers who threw themselves at her in the convenience store walk-in cooler.

And, well, there was also the not so little issue of the Claimant being placed on surveillance, in proximity, in fact, on the same day, as she testified that she could not do certain things, with her Scorsesian video documenting her Oscar-winning performance, as she flounced about the flea market, all too obviously without manifestation of any injury or limitation.

The ballerina-like waist bending, reminiscent of the dancing Hippopotamuses in Disney’s Fantasia, was, no less, a thing of exquisite and wondrous injury-defying beauty.

So, the point being, yes, lemons do make lemonade, but you cannot put the Genie back in the bottle, especially when the bottleneck is so narrow.

ConnorsLaw LLP

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

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

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

 Thomas P. Kieselbach
1550 Utica Ave. South, Ste. 600
Minneapolis, MN 55416
Phone: 952.525.6955
E-mail: tpk@cousineaulaw.com

2011 Minnesota Legislative Update

On May 22, 2011, the Minnesota Legislature passed Senate Bill 1159 by a vote of 126 – 4. It will enact various Workers’ Compensation Advisory Council recommendations.

Case Law Updates

Roraff Fees

Parales-Rodriguez v. ERMC, WCCA, 4/1/11 ~ Reviewed by Nicole Kampa

The WCCA affirmed in part and vacated in part the findings of the Compensation Judge on Roraff Fees. The Compensation Judge awarded Roraff fees and determined it was not premature despite continued payment of wage loss benefits from which contingent attorney fees were being withheld.  The WCCA agreed with the employer and insurer that Roraff fees were premature as it was impossible to determine at the time of hearing either the amount of benefits ultimately to be recovered for the employee or the exact amount of any contingent fee since the employee continued to receive wage loss benefits from which contingent fees were being withheld. The Court reminded the parties that an Irwin analysis requires parties to know of the amount involved, results obtained and amount of the contingent fee at the time of hearing.

Chronic Pain Program

Griffin v. Kindred Hospitals, WCCA, 4/4/11 ~ Reviewed by Nicole Kampa

The WCCA held that the Compensation Judge erred in finding treatment received at a pain center was closed out under a prior stipulation for settlement. In the present case a prior stipulation for settlement closed out medical expenses in the nature of “multi-dimensional in-patient and out-patient chronic pain treatment programs.” The WCCA held that the treatment received in the present case did not meet all mandatory requirements of Minnesota Rules 5221.6600, subpart 2.E. defining multidisciplinary chronic pain management programs. Careful attention to language in a stipulation for settlement may help ensure a complete close-out of all desired medical expenses.

Joinder

Johnson v. McDowall Companies,WCCA, 4/12/11 ~ Reviewed by Nicole Kampa

The WCCA affirmed the Compensation Judge’s denial of a motion for joinder on grounds it would delay an expedited hearing and was not necessary for resolution of the claims. The WCCA held a motion to join a subsequent employer and insurer that was filed the week before an expedited hearing would have delayed the hearing. The employer was not prejudiced since the Court found it could assert a contribution claim in a subsequent proceeding. The WCCA also held the Compensation Judge’s factual conclusions concerning competing medical opinions was not clearly erroneous as a matter of law.

July 7, 2011: Kansas Workers’ Compensation Law Update.

1.      Results Of The 2011 Kansas Legislative Session.

Significant new pro-employer workers’ compensation law reforms passed the Kansas Legislature in 2011 and were signed into law by Governor Sam Brownback.  Sweeping new pro-employer workers’ compensation laws went into effect in Kansas for dates of accident or repetitive trauma occurring after May 15, 2011.

In essence, the new law reforms sweeten the pot at the finish line for claimants by modestly increasing our maximum benefit caps (for example lifetime permanent total cap went from $125,000 to $155,000 – relatively speaking, still a very low perm total exposure).  However, the new law reforms contain many new defenses which will likely act as hurdles preventing many more claimants from getting to that finish line. 

In short, fewer claimants will successfully establish compensable claims, but those that do, could see slightly more money in the end.  For employers and carriers, while there will be increased litigation costs on the short term effectuating all the new defenses, over the long term, these new law reforms will likely reduce the overall number of claims and costs for employers.

These new statutory reforms legislatively reverse the holdings of four prior appellate court decisions discussed in previous Kansas Law Updates found below:  Casco, discussed below in the May 17, 2007 update was reversed by these new law reforms (this change is one of the few that is pro-employee); Bergstrom, discussed below in the September 25, 2009 update, was reversed by the new law reforms (this reform law reversal is really good for employers); and both the Redd and Mitchell cases discussed in the October 5, 2010 update, were also reversed by the new law reforms (again these new law reform reversals are pro-employer changes).

It is strong suggested that any employers, adjusters, claims professionals consult with legal counsel regarding assessing compensability and exposure of all Kansas claims with dates of accident or repetitive trauma occurring after May 15, 2011.  It is a whole new ballgame in Kansas after May 15, 2011 and the changes are so sweeping and comprehensive that professional assistance is required to benefit from all the new changes.

A very brief list of some of the most significant changes includes:

• Multiple new compensability defenses including but not limited to:  new definitions for accident, injury and repetitive trauma which will provide new proof requirements for injured workers; sweeping new causation defenses (prevailing factor test) which heighten the worker’s proof requirements to establish compensability; new defense where worker’s injury results from reckless violation of employer’s work place safety rules and regulations; new beefed up horseplay/fighting on the job defense; new lack of timely notice rules; new easier to establish drug/alcohol impairment defense affording more chance of success for a complete denial of benefits.
• New private insurer and self-insured employer obligation to issue written notice to all workers receiving TEMPORARY disability compensation benefits concerning fraud.
• Multiple new defenses related to preexisting conditions, impairments and prior work restrictions which allow employers/carriers more opportunity for compensation denials, subtractions and offsets.
• Multiple new defenses for employers against TTD liability where the worker has voluntarily terminated or been terminated for cause or refused accommodated work.
• Increased importance and legal support of authorized treating physician opinions over worker’s hired gun doctor opinions in TTD entitlement context.
• New average weekly wage calculation method and rules.
• New limits on, and increased proof hurdles for, workers try to establish permanent total disability compensation.
• New permanent partial disability compensation rule for calculating value of bilateral carpal tunnel syndrome and other bilateral injuries – reversing Casco decision.
• Multiple new defenses to work disability compensation claims including higher hurdles (new minimum impairment threshold) for worker to claim work disability entitlement, and elimination of work disability compensation for undocumented workers.
• Enhanced methods for employers to get slow moving or dormant cases dismissed.
• Significant new defenses to future medical benefits exposure and new ways to get future medical liability cut off.
• Several pro-worker new law changes including modestly increased benefit caps, elimination of the timely written claim statute of limitation and conversion of bilateral carpal tunnel type cases back to a general body disability allowing for work disability compensation potential.

2.         New Director of Workers Compensation appointed:  Larry Karns, one of the drafters of the pro-employer new law reforms, was appointed Kansas Director of Workers Compensation.  This     really concludes the “pro-employer” sweep of a new pro-employer set of laws, and a new pro-employer administrator to see that the new law reforms are properly and fairly administered and implemented.

October 5, 2010:        Kansas Workers’ Compensation Law Update.

1.         Results Of The 2010 Kansas Legislative Session.

In summary, there were no substantial changes to the law by the Kansas Legislature in 2010.  The 2010 Kansas Legislative Session ended much like 2007, 2008 and 2009 with no significant legislative change or amendments to the Kansas Workers’ Compensation Act.  Labor groups and the claimants’ bar continue to push to increase Kansas’ low benefit caps.  Business and industry sought to decrease the cost of workers’ compensation.  There were competing bills introduced, but nothing significant was passed.  The end result was no legislative change favoring either side.  The pro-business Republican 2010 Legislature did not aggressively move to try to change laws in favor of employers because the current Governor is a Democrat, and would likely have vetoed any sweeping reforms.  That scenario is likely to change in the 2011 legislative session.  Kansans will likely elect U.S. Senator Sam Brownback as the new Governor in the upcoming November 2010 election.  If this occurs as is expected, both the House and Senate will be controlled by Republicans and the Governor will be Republican.  Many in Kansas are projecting that this is the optimum political environment and opportunity for employers to pass pro-business legislation which would most certainly be signed into law by the next Governor.  Stay tuned for updates after the 2011 legislative session ends as there most likely will be good news for employers in Kansas.

2.         Significant New Legal Changes In 2010 Continue To Come        From The Kansas Supreme Court.

Two recently released Kansas Supreme Court opinions will likely continue to push employer workers compensation costs up.  Last year’s update regarding the Bergstrom case predicted increased employer settlement and award disability compensation costs.  While there are no official statistics published yet, most employers, observers and practitioners would agree that the effect of the Bergstrom decision discussed in 2009’s update increased employer settlement and disability compensation award payments.

Two new decisions issued by the Kansas Supreme Court in September, 2010 will likely continue to push up employer workers compensation costs.  These new decisions are very lengthy and space allows for only a very brief summary.

In the most pro-claimant outcome, the Kansas Supreme Court in Redd v. Kansas Truck Center, No. 101,137 (September 10, 2010), ruled that for multiple injuries to a single scheduled member (such as a wrist and elbow surgery on the same arm) the workers compensation judge must now make separate awards for each injury to that scheduled member.  The practical result of this decision is that before a wrist and elbow injury would be computed based on a combined impairment to the full arm.  Now, instead of one award for both injuries to the full arm, there will be two separate awards issued from the one accident.  It is possible that in some fact situations, this new “multiple award” decision will actually compute to a lower actual cost to the employer.  Employers and adjuster are cautioned to seek advice of counsel to update exposure estimates on currently pending and new scheduled injury claim.

Redd also set forth a new rule regarding $50,000 “functional impairment cap.”   The new rule says that the cap does not apply where the worker has been paid even the slightest amount of TTD benefits.  Thus, in certain circumstances, an employer will want to carefully evaluate potential challenges to TTD benefit entitlement where the claimant is a high wage earner and potentially subject to future application of the cap.

Finally, Redd clarified that the new “appellate standard of review” for the appellate courts which allows for more scrutiny of the fact findings of the Workers Compensation Appeals Board applies to Board decisions issued after July 1, 2009.  For any appeals to the Court of Appeals or Supreme Court from Board decisions issued prior to July 1, 2009, the more limiting “substantial competent evidence” standard from the old statute is still applicable.

Turning then to the other new Kansas Supreme Court decision in Mitchell v. Petsmart, Inc., No. 99,528 (September 10, 2010), we find a “mixed benefit” opinion from the Court with elements that are both favorable and unfavorable to employers. The pro-employer ruling in Mitchell is the smack down by the Supreme Court of the often championed argument by claimants that the administrative regulation (K.A.R. 51-7-8) which allowed for, in the computation of permanent disability compensation benefits, a subtraction of the number of weeks of TTD benefit already paid to the claimant.  The claimant’s bar has for several years tried to argue for a statutory interpretation that would effectively allow for double-dipping – taking TTD benefit weeks and then also taking PPD compensation for those same weeks.  The Kansas Supreme Court affirmed the position long held by employers and carriers that the regulation preventing double dipping is clearly within the authority granted by the statutory language.

The remaining two Mitchell rules are characterized here as negative to employers and carriers because they fly in the face of the plain language of the workers compensation act and will likely increase employer and carrier defense litigation costs because they will increase workers compensation litigation costs.  The first of these two rulings is the re-establishment of the “bright-line rule” for determining date of accidental injury in repetitive use micro-trauma injury claims such as carpal tunnel syndrome cases.  The re-established “bright-line rule” for determining date of accidental injury is “the last date worked.”  At first glance this would appear to be a helpful clarification of the very confusing and cumbersome statutory legal test.  The problem is that this new “bright-line rule” for determining date of accidental injury is not found in, and is contrary to, the plain language of the statutory test.  So, the administrative law judges are now faced with the decision, in every repetitive use injury case, of deciding which rule to follow – the “bright-line rule” of last date worked as provided by the Mitchell decision, or the plain language of K.S.A. 44-508(d) which does not contain as one of the choices, the last date worked, as a date of accidental injury.  Clearly this will cause less certainty and more litigation.

The other carrier unfriendly language in Mitchell which is likely to increase defense litigation costs is the language purporting to create a new barrier for carriers to litigate their disputes as to liability for payment of benefits in the workers compensation litigation.  The purported new rule is that where there are two or more carriers with separate coverage periods spanning the claimed repetitive use injury claim, those carriers will now be forced to take their “carrier verses carrier” dispute to the local district court for determination.  Workers compensation judges are purportedly allowed to issue “joint and several liability” orders against multiple carriers in a claim.  The result is that both carriers are jointly and severally liable for all the benefits ordered paid to the claimant.  This can, and likely will, create significant confusion and problems for carriers in assessing their exposure and reserves.  There are also multiple potential pitfalls to good companies who are assessed joint and several liability with not-so-good companies who are chronically late or tardy in paying benefits.  It is totally conceivable that Insurance Company A which diligently pays its compensation claims will be assessed penalty awards for the late payments of Insurance Company B.  Furthermore, to try to get out from this situation, Insurance Company A must purportedly file a separate action in a state district court to adjudicate its liability to pay benefits to claimant.  The obvious first question is where did this new rule come from and what statutory authority exists for a compensation judge to order “joint and several liability?”  The answer is that there is no statutory authority in the plain language of the Kansas Workers Compensation Act and, in fact, the Kansas Supreme Court technically dodged this question in the Mitchell decision saying that the precise issue of statutory authority for joint and several liability was not properly raised and preserved by the parties in Mitchell.  In summary, this joint and several liability exposure combined with the directive to take your carrier verses carrier disputes to district court is bound to create new and additional confusion and litigation in currently pending and new workers compensation repetitive use injury claims.

3.         Update On Kansas’ Move To Mandate ODG Guidelines. 

The 2009 update below, asked the question of whether Kansas was on the verge of mandating the ODG (Official Disability Guidelines).  The answer in 2010 was no, Kansas did not mandate use of the ODG in workers compensation.

As reported below, it appeared in late 2009 that a push was being made to mandate the use of the ODG through the Kansas Medical Fee Schedule update.  However, it turned out that the push to “mandate” use of the ODG did not go forward and was not included in the January 1, 2010 Kansas Medical Fee Schedule update.  Any move to “mandate” use of the ODG in Kansas will likely occur via legislative changes in 2011.  Stay tuned for updates after the 2011 legislative session.

4.         New Interim Kansas Director Of Workers Compensation.

In September, 2010, Kansas Division of Workers Compensation Director, Paula Greathouse, resigned and Assistant Director Seth Valerius was appointed as Interim Director to replace her.

September 25, 2009:  Kansas Workers’ Compensation Law Update.

1.         Results Of The 2009 Kansas Legislative Session.

In summary, there were no substantial changes to the law by the Kansas Legislature in 2009.  The 2009 Kansas Legislative Session ended much like 2008, with no significant legislative change or amendment to the Kansas Workers Compensation Act.  Labor groups and the claimants’ bar attempted to increase Kansas’ low benefit caps.  Business and industry attempted to hold the line and avoid any legislative roll back of the Kansas Supreme Court’s sweeping 2007 employer friendly strict constructionist decision in the Casco case, discussed below in the 2007 summary.  The end result was no legislative changes favoring either side.  The predominantly pro-business Republican 2009 House and Senate resisted any attempts to amend the workers compensation laws so as to avoid any change in the law which would have the effect of increasing workers compensation costs to Kansas businesses, as they are already struggling in tough economic times.

2.         SIZZLING HOT NEW TOPIC IN KANSAS – New judicially created increase in permanent disability compensation exposure for employers and carriers under Kansas law.

On September 4, 2009 the Kansas Supreme Court issued a sweeping decision in Bergstrom v. Spears Manufacturing Company et. al. (http://www.kscourts.org/Cases-and-Opinions/opinions/supct/2009/20090904/99369.htm)  which will have an immediate impact on current exposure estimates in many pending, and future, general body disability injury cases.  The Kansas Supreme Court’s split decision in Bergstrom continues the same analytical movement departing from prior judicial precedent via a re-examination of previous statutory construction efforts, similar to what was seen in the 2007 Casco decision (discussed below).  However, the practical outcome of this version of the judicial statutory construction tsunami is the opposite of the outcome of Casco – Casco created an immediate reduction in work disability compensation exposure for employers, whereas Bergstrom will likely create an immediate increase in the work disability compensation exposure for employers.

Highly summarized, Bergstrom was a production janitor for a manufacturer of plastic plumbing parts.  She sustained a back injury (general body disability claim) after picking up a heavy garbage can.  Her employer tried to provide her with accommodated work within her restrictions after her injury.

Unfortunately, claimant continued to experience pain during the several attempts to return to work and on the last attempt was only able to work three hours and then had to quit, according to her, due to the pain caused by the accommodated work activities.  She left work and was subsequently terminated by the employer.

The ALJ initially awarded a permanent total disability award ($125,000).  The Appeals Board ultimately reduced this permanent total award to a much smaller dollar award limited to claimant’s 10% functional impairment, on the rationale that Bergstom did not make a “good faith effort” to continue working in the accommodated position provided by the employer.  The Bergstrom majority threw out the “functional impairment” only award of the Board, and remanded the case back to the Board for what is likely to be a significant increase in the permanent disability compensation award owed by the employer.

The rationale of the Bergstrom majority was that the functional only award by the Board relied on the same inaccurate assumption made by previous judicial interpretations, that the work disability statute contained an implicit “good faith job search effort” requirement on the injured worker.  The majority opinion stated that it could not find anywhere in the plain language of the work disability statute, a “good faith” requirement imposed upon claimants by the legislature.  The majority opinion noted that the plain language of the statute contains no explicit requirement from the legislature that claimants are required to attempt to work or look for work.

This of course raises the question, to even the most casual observer, of to what degree the Kansas Supreme Court now expects the Kansas legislature, when writing or amending statutes, to set forth explicitly in the plain language of the statute, basic societal norms and applicable common law principles.  Here the obvious societal norm is a mitigation of damages requirement – that workers are expected to be able to show a good faith effort in returning to work before asking for an award of benefits because they are not working.

Common sense would appear to dictate that at some base level, the Kansas Supreme Court should allow certain commonly agreed to societal norms and legal principles to be “read into” statutes, including the societal norm that able bodied individuals are expected to work and if they voluntarily choose to avoid work, even the “plain language” of our laws should not be read to allow or require the disability compensation system to reward behavior amounting to sloth.  The Bergstrom majority’s analysis and “strict constructionist” fervor appear to divorce the application of common sense from the act of construing statutory language.

According to the Bergstrom majority decision, the Court will not read into the statute something not readily expressed therein.  The dissenting opinion written by Chief Justice McFarland expressed the view that the result of the judicial exercise of statutory construction analysis must always occur in the context of respect for the established judicial principle of stare decisis (adherence to judicial precedent so as to promote stability and predictability in the law).  Chief Justice McFarland asserted that the majority opinion “cavalierly” overruled a 15-year-old statutory construction that the law implicitly requires of a claimant “a good faith job search effort” for no other reason than it (the current Court majority) would have interpreted the statute differently had if been faced with the issue in the first instance.

The immediate effect of this decision is to require all employers and carriers to reevaluate their current and future exposures to pending work disability compensation awards.  For those employers and carriers in the midst of defending a case on the basis that the claimant did not make a good faith effort to seek employment or accept a light duty accommodated job offer within the restrictions, those defenses may now be useless, and the exposure to benefits much higher.

It is anticipated by most observers that the 2010 Kansas Legislature will now be asked by business and industry interests to look into possible statutory revisions which will re-impose a good faith requirement on claimants.  It is also anticipated that labor interests will counter this with resistance at re-imposing the good faith requirement, and at the same time ask the legislature for a long overdue increase in overall benefit compensation caps.  The clear conclusion is the next legislative session is likely to include multiple opposing and competing demands from polar opposite interest groups, all in the context of a continued strained economic environment.  Stay tuned for more updates on this topic!

3.         H1N1 Flu Virus – Employers Get Ready To Respond To Possible Workers Compensation Claims Arising From Claimed Employer Exposure To The H1N1 Flu Virus.

QUESTION: Are employees who contract H1N1 flu virus entitled to workers compensation benefits under Kansas law?

ANSWER:  Probably not, depending upon the facts.   The defense would argue the claim would fall under the Occupational Disease (OD) Act.  In Kansas, prerequisites to a compensable OD claim include: 1) The condition is not an ordinary disease of life to which the general public is or may be exposed outside of the particular employment and which only generally exposes the employee in the work environment; 2) Exposure from a work environment where there is attached a particular and peculiar risk of such disease which distinguishes that employment from other occupations and employments, and where the risk of getting the disease is greater than the otherwise general risk of getting the disease, and 3) That the disease was actually contracted while engaging in work activity.

THEORIES OF COMPENSABILITY TO WATCH FOR: (1) Accidental injury theory that there is a distinct single traumatic exposure and there is some neutral or increased risk associated with the employment that makes the exposure to H1N1 work related.  (2) Occupational Disease theory which focuses on the “means of transmission” in making the exposure to the H1N1 virus occupational.

4.         Is Kansas On The Verge Of “Mandating” Use Of The “ODG” (Official Disability Guidelines)?

Is Kansas on the verge of “mandating” the use of the Official Disability Guidelines? The “Official Disability Guidelines” as announced by the Work Loss Data Institute, are the prevailing evidence-based authority on expected disability and appropriate medical treatment in workers’ compensation and non-occupational disability cases.

A December 19, 2007 Work Loss Data Institute public relations release proclaimed:  “The Kansas workers’ comp regulatory agency, the Department of Labor, Division of Workers’ Compensation (DWC), has adopted Work Loss Data Institute’s “Official Disability Guidelines – Treatment in Workers’ Comp (ODG) as the standard of reference for evidence-based medicine used in caring for injured workers.” (Emphasis supplied).

The Kansas Division of Workers’ Compensation web site has posted, as of this date, the following statement concerning the ODG:  “The Official Disability Guidelines – Treatment in Workers Compensation (ODG), published by the Work Loss Data Institute (WLDI), is to be recognized as the primary standard of reference, at the time of treatment, in determining the frequency and extent of services presumed to be medically necessary and appropriate for compensable injuries under the Kansas Workers’ Compensation Act, or in resolving such matters in the event a dispute arises.” (Emphasis supplied).

The above rather “mandatory” sounding description on the Division’s web page of what Kansas “recognizes” concerning the ODG, does not entirely square with what the Kansas Statutes, Administrative Regulations and published Fee Schedule currently have to say on the subject.

First, there is no reference or mention anywhere in Kansas Workers Compensation Act or Kansas Administrative Regulations relating to workers’ compensation, to Kansas adopting or recognizing the ODG.  Second, if one goes to the current 2008 Kansas Medical Fee Schedule (next to be revised January 1, 2010), one finds on page two, itemized paragraph number “10” the following statement regarding the ODG:  “The Official Disability Guidelines-Treatment in Workers Compensation (ODG) that is published by the Work Loss Data Institute (WLDI) has been adopted as the primary standard of reference for evidence-based medicine used in caring for injured workers. Medical treatment guidelines are not requirements, nor are they mandates; they are to provide advice to help those who make health care decisions regarding the care of injured workers.” (Emphasis supplied).

Clearly the Fee Schedule paragraph quoted above has a specific statement indicating that the ODG is not a requirement or a mandate; instead it is merely advisory.  This language means anyone in Kansas can chose to use the ODG, or ignore the ODG.  As a practical matter in workers compensation litigation before administrative law judges across the State of Kansas, the ODG has not been a source or reference typically used or consulted to assist in the adjudication of medical disputes between employers and claimants before Kansas workers’ compensation administrative law judges.  However, this may be about to change.

At the September 2009 Annual Division of Workers’ Compensation Seminar, there was significant buzz among attendees concerning whether there will be some attempt in the final version of the soon to be revised Kansas Medical Fee Schedule which will go into effect January 1, 2010, to change the current “ODG is only advisory” language, to language making the ODG “mandatory” and “required.”  Another avenue to watch for change is whether proposals will be submitted in the upcoming legislative session to add statutory changes to the Workers Compensation Act explicitly mandating and requiring the use of the ODG in Kansas Workers Compensation.  Stay tuned for more updates on this topic!

May 17, 2007:            Kansas Workers’ Compensation Law Update – Significant 2007 Pro-Employer Change To Kansas Workers’ Compensation Law From The Kansas Supreme Court, But Not From The Kansas Legislature.

1.         Results of the 2007 and 2008 Kansas legislative session.

The 2007 and 2008 Kansas Legislative Sessions ended with no significant legislative change or amendment to the Kansas Workers’ Compensation Act.  Controversial provisions put forward in past legislative sessions by both management and labor went nowhere in 2007 or 2008.

2.         The 2007 Kansas Supreme Court dramatically reverses its 1931 decision of Honn v. Elliott, 132 Kan. 454, 295 Pac. 719 that was the foundation for the “parallel injury rule” that for 76 years served as the basis for bilateral upper-extremity and lower extremity disabilities to be compensated as a general body disability, instead of separate scheduled disabilities.

In  Casco v. Armour Swift-Eckrich, 283 Kan. 508, 154 P.3d. 494 (2007 Kan. LEXIS 235), the Kansas Supreme Court issued a dramatic reversal of its own precedent, abandoning the 76 year old “parallel injury rule” that originated from its 1931 decision in Honn v. Elliott.  In summary, the practical significance of Casco is it will likely result in an immediate and significant reduction in the disability compensation cost for employers of many pending and future bilateral upper-extremity and lower-extremity claims.

In place of a detailed technical legal analysis of the sweeping Casco decision, this limited discussion will focus on the likely practical effect this new change in the law will have on your existing and future bilateral upper-extremity and lower-extremity disability claims.

But first, in an effort to quell the shrill “sky is falling” cries from the claimant’s bar, that the Casco decision has tilted the earth off its axis, and eviscerated the essential “grand compromise” forming the basis for the entire Kansas Workers Compensation Act, remember what Casco does not change.  Casco does not change the unlimited lifetime right to payment of all causally related, reasonable and necessary, medical expenses, for all bilateral upper and lower extremity injuries, free of any co-payments or deductibles for injured workers.  Casco does nothing to ease the burden on employers of the cost of lifetime medical expenses for these injuries.  What the Kansas Supreme Court has said Casco will accomplish is bringing everyone back to a point that was originally intended by the legislature when it established the “schedule” of disabilities as the general rule, and “non-scheduled disabilities” (general body disabilities) as the exception for permanent partial disability compensation.

As a practical matter, the real issue involved here is whether “work disability” compensation benefits are available to injured workers with bilateral upper and lower extremity injuries.  Prior to Casco, the routine bilateral carpal tunnel syndrome injury to a high wage earner in Kansas, such as a highly paid aircraft industry worker who does not return to work after the injury, would typically expose the employer to a maximum $100,000.00 permanent partial general body “work disability compensation” award.  Under Kansas law, a general body disability award qualifies at minimum for an award based on the functional impairment, but that functional impairment percentage is but the compensation floor, for the potential ultimate compensation award.  Work disability compensation far in excess of the amount generated by the functional award would become available to the injured worker if he/she was not working at the time of the regular hearing, and that loss of employment was due to their bilateral carpal tunnel injury and disability.

A common pre – Casco 2007 work disability compensation award for a high wage aircraft or other industrial worker with bilateral carpal tunnel syndrome, which generates a 10% whole body impairment rating from the doctor, where the worker could not return to work after being issued permanent work restrictions, would be something similar to the following benefit computation: 415 maximum weeks of compensation x 50% work disability = 207.5 compensable weeks x $483 maximum compensation rate = $100,222,50.  This amount would automatically be reduced down to the $100,000.00 cap for any permanent partial general body disability.

While upper-extremity injuries generate “scheduled disabilities” under the Kansas statute, following the 76 year old pre – Casco “Honn precedent,” workers compensation administrative law judges would never have given the time of day to an argument by an employer that permanent disability compensation for bilateral carpal tunnel syndrome should be limited to that available to two separate scheduled disabilities.  The pre – Casco bilateral carpal tunnel syndrome awards would have almost always been calculated based on the much more economically generous general body work disability compensation entitlement formula.

After Casco, that same aircraft worker with a bilateral carpal tunnel syndrome injury with a functional impairment rating of 10% to each upper-extremity would likely receive something similar to the following permanent disability compensation benefit computation: Right Upper-Extremity: 190 maximum weeks x 10% impairment = 19 compensable weeks x $483 maximum weekly compensation rate = $9,177.00; Left Upper-Extremity: 190 maximum weeks x 10% impairment = 19 compensable weeks x $483 maximum weekly compensation rate = $9,177.00.  Adding together the right and left awards would result in a total permanent scheduled disability compensation award of $18,354.00.

In summary, this hypothetical illustrates that the pre – Casco bilateral carpal tunnel syndrome disability compensation award would likely cost the high wage paying employer $100,000.00 in permanent disability compensation benefits; whereas, under the Casco separate schedule disability compensation award, the same set of injuries would cost the employer $18,354.00.

One post Casco caveat regarding single injury (as opposed to repetitive micro-trauma injury) bilateral carpal tunnel and other similar combination extremity disability claims – under the plain language of the Kansas permanent total disability compensation statute, such combination disability claims could potentially, under certain fact situations, be presumed to constitute a $125,000.00 permanent total disability compensation award.  It can be expected that in certain currently pending, and future, bilateral upper and lower-extremity cases, claimants will utilize the plain language of the permanent total statute, and attempt to procure a $125,000.00 disability compensation award by invoking the permanent total disability presumption by putting on evidence that the worker is essentially and realistically unemployable from any type of substantial gainful employment because of the injury.  It is critical in such currently pending cases, and future cases, for the employer to put on evidence to rebut the presumption by putting on evidence that the claimant is capable of engaging in some type of substantial and gainful employment.

Employers should also be on the alert for separate body part conditions to be “combined” into a “single injury” via the “secondary injury” theory.  The “secondary injury” theory allows a subsequent, but separate, body part problem to be combined with the original injured body part via the “natural and probable consequence” rule to turn an otherwise inexpensive scheduled disability into a $125,000.00 permanent total disability compensation award.  An example of this would be a left knee injury that later causes an aggravation of a preexisting right knee condition.  Here the claimant would be favoring the original injury to the left knee, resulting in the “secondary” injury to the right knee by overcompensation.  Under the “secondary injury” rule, the right knee problem becomes a compensable injury and the date of this right knee injury relates back to the date of the original left knee injury via the natural and probably consequence doctrine.  The key for employers to avoid this often hidden but dangerous exposure is to always present lay and/or expert testimony that claimant is capable of engaging in some type of substantial and gainful employment.

In short, employers must now pay close attention to any bilateral or combination injury claims to see that they are properly compensated as separate scheduled disabilities, and if they are alleged as a single injury either directly, or indirectly through the “secondary injury” rule, that there is evidence to rebut the permanent total presumption that the claimant is incapable of engaging in any type of substantial and gainful employment.

On July 16, 2006, Donald Price, Jr. was working for Piggy Palace, d/b/a Hannah’s BBQ as a cook when a co-worker slipped and fell, spilling over three gallons of hot grease onto Price, who was 18 years old at the time.  Price was admitted to the trauma unit at North Carolina Baptist Hospital, where he underwent surgery to attach skin grafts to his right foot.  The skin graft was noted to be a “100% graft take” and the burned skin initially re-epithelized without evidence of hypertrophic scarring. 

However, Price subsequently developed neuropathic pain in the lower extremity, as well as hypertrophic scarring and pigmentation abnormalities.  Price’s doctors recommended that he undergo pulse dye laser treatment to relieve the pain, itching and appearance of the scars, and opined that Price would not be at maximum medical improvement until this treatment was completed.  When defendants refused to authorize the laser treatment, Price requested a hearing. 

Following hearing, Deputy Commissioner Gillen ordered Defendants to pay for the laser surgery and to reimburse Price’s parents for travel expenses.   Defendants were also ordered to pay $10,000 for serious bodily disfigurement pursuant to N.C.G.S. § 97-31(22).   Defendants appealed to the Full Commission, which also ordered Defendants to pay for the surgery and the parents’ travel expenses, but reversed the disfigurement on the theory that it should be held in abeyance pending the results of the laser surgery.   The Full Commission also ordered Defendants to pay $5,000 in attorney’s fees pursuant to N.C.G.S. § 97-88.1 because it found that Defendants had pursued the appeal on the issue of the laser surgery without reasonable ground. 

Defendants appealed to the Court of Appeals, which on July 20, 2010 in the case of Price v. Piggy Palace, d/b/a Hannah’s BBQ affirmed the Commission’s award of travel expenses to Plaintiff’s parents, but remanded the case to the Commission for further findings of fact on the issue of attorney’s fees.  On the issue of travel expenses, the Court rejected Defendants’ argument that the Commission’s findings regarding the services Plaintiff’s mother performed for Plaintiff in the hospital were not supported by competent evidence.  The Commission had found that the medical staff at the hospital taught Plaintiff’s mother how to change his dressings and stretch the scars, which meant that following Plaintiff’s release from the hospital, Defendants did not have to pay for a home health nurse because Plaintiff’s mother was able to perform these tasks.  The Commission also found that Plaintiff’s mother was at the hospital every day during Plaintiff’s admission, helping with bathing, walking, and physical therapy.  Plaintiff’s father drove back and forth to the hospital, bringing Plaintiff’s mother clothes and food, so that Plaintiff’s mother could stay with him 24/7.   Plaintiff’s doctor testified to the importance of having family support following such a painful and deforming injury. 

In affirming the Commission’s award of travel expenses to Plaintiff’s parents, the Court also rejected Defendants’ argument that the presence of Plaintiff’s parents was not medically necessary.  In so holding, the Court stated that the “evidence establishes that Plaintiff’s mother provided critical physical and psychological care to Plaintiff during his treatment and rehabilitation in the hospital, in addition to emotional support.”  The Court went on to state that “Defendants fail to persuade us that Plaintiff’s treatment and rehabilitation would be considered medically necessary had it been provided by a doctor, nurse, or physical therapist, but not when it was provided by Plaintiff’s mother.”

The Court also rejected Defendants’ argument that the treatment in question must be medical, as opposed to emotional or spiritual, and must effect a cure or lessen the period of disability.  Citing Little v. Penn Ventilator, the Court stated that “awards for medical expenses for treatment are appropriate ‘even if those treatments will not lessen the period of disability as long as they are required to effect a cure or give relief.’” 

Defendants finally argued that Rule 407(6) of the Rules of the Industrial Commission only authorizes reimbursement to the employee traveling to receive medical treatment.  The Court likewise rejected this argument, holding that “while the rule limits the individual entitled to receive the reimbursement . . . , [it] does not limit the party incurring the travel expenses and, instead, requires reimbursement for travel when it is ‘medically necessary.’” 

On appeal Defendants also argued that the Full Commission erred in awarding attorney’s fees under N.C.G.S. § 97-88.1, which authorizes an award of attorney’s fees when the Commission determines “that any hearing has been brought, prosecuted, or defended without reasonable ground . . . .”   In awarding attorney’s fees, the Full Commission found that Defendants had pursued the appeal without reasonable ground.  Citing to Troutman v. White & Simpson, Inc., and Beam v. Floyd’s Creek Baptist Church, the Court held that N.C.G.S. § 97-88.1 applies only to the “original hearing,” whereas N.C.G.S. § 97-88 authorizes an award of attorney’s fees to plaintiff’s counsel even in the absence of a finding of unreasonable defense, when defendants appeal to the Full Commission or the Court of Appeals and the appeal results in an award to the plaintiff. 

Risk Handling Hint:   In upholding the Commission’s award of travel reimbursement to Plaintiff’s parents, the Court in Price stated that “under the specific circumstances presented here, the psychological and emotional benefits to Plaintiff that flowed from having the support of his parents while he was recovering in the hospital from devastating burns likewise constitutes ‘relief’ as that terms is used in the statute.”   It remains to be seen whether the decision in Price will open the floodgates to claims from family members for medical travel from family members of the injured employee, and whether the Commission will limit the applicability of the decision to cases involving the extraordinary circumstances presented in Price.

Teacher’s Injury While Climbing Stairs Ruled Not an Accident

For fifteen years, teacher Maureen Shay used the elevator in Salisbury High School to reach her second-floor classroom because she found it difficult to walk up the stairs. However, on November 3, 2006, the elevator became inoperable and Shay had to start using the stairs on a daily basis.  Approximately one month later, as she was going up the stairs at the school, her left knee popped and gave out.  She was subsequently diagnosed with pre-existing, non-disabling degenerative arthritis and medial meniscus tear in the left knee. 

Defendant denied Shay’s claim on the ground that she had not suffered an injury by accident.  Following a hearing, Deputy Commissioner Griffin denied Shay’s claim, finding that “climbing the stairwell had become part of plaintiff’s normal work routine” and therefore her injury was not the result of an accident.  The Full Commission reversed, however, concluding that “the act of climbing the stairs as opposed to using the elevator was an interruption of plaintiff’s normal work routine and introduced new conditions to plaintiff’s employment” and that “the period of time during which plaintiff had to break from her normal routine of using the elevator was insufficient for the act of climbing the stairs to become part of her normal work routine.” Commissioner Ballance filed a dissenting opinion stating that “at the time of her injury the elevator had been ‘out of service’ for four weeks and climbing stairs had become part of her normal work routine.”

Defendant appealed to the Court of Appeals, which in a 2-1 decision filed on July 20, 2010 reversed the Commission in the case of Shay v. Rowan Salisbury Schools.  In so holding, the Court cited to Bowles v. CTS of Asheville for the proposition that “once an activity, even a strenuous or otherwise unusual activity, becomes a part of the employee’s normal work routine, an injury caused by such activity is not the result of an interruption of the work routine or otherwise an ‘injury by accident’ under the Workers’ Compensation Act.” 

In its analysis, the Court first noted that since plaintiff did not stumble, fall, trip, slip, or twist her knee, she had not suffered an accident “in the routine sense of workers’ compensation analysis.”  The Court then looked to whether climbing the stairs constituted an interruption of plaintiff’s work routine.  In this regard, the majority looked to the decision in Trudell v. Heating & Air Conditioning Co., where the Court held that an injury which occurred after the employee had worked in an unusually low crawl space for two weeks was not an interruption of the work routine because by that time, “the low crawl space had become part of plaintiff’s normal work routine.”   Similarly, in Shay, the Court held that “climbing the stairs for a period of more than one month became a part of plaintiff’s ‘normal work routine’ and that she did not suffer an injury that was compensable under the Workers’ Compensation Act.”

In reversing the Full Commission, the Court also noted that “the use of the stairs was not a ‘new condition of employment’ giving rise to a workers’ compensation claim” and that it was “reasonable to infer that the stairs were not newly added to the building when the elevator broke down, and had been there from the initial construction of the building.”  The Court noted that “plaintiff chose to use the elevator” and was not compelled by defendant to use either the elevator or the stairs prior to the elevator becoming inoperable.

Judge Wynn dissented, arguing that “climbing the stairs constituted a departure from [plaintiff’s] . . . normal method of reporting to her classroom,” and that “plaintiff . . . was required, as a result of the elevator malfunction, to engage in physical activity different than that to which she had become accustomed.”  Judge Wynn also noted that “witness testimony established that it was uncommon for the elevator to be broken for prolonged periods of time.”

Risk Handling Hint:  The decision in Shay is further evidence that there is no bright-line rule as to how long an employee must be performing a new job duty before it becomes a part of her normal work routine.  Judge Wynn’s dissent gives plaintiff an appeal as of right to the North Carolina Supreme Court, and it will be interesting to see how that Court resolves this issue.

Effective January 1, 2010, the following are the benefit rates for District of Columbia:

Maximum Weekly Compensation Rate: $1,355.00

Minimum Weekly Compensation Rate: $ 338.75

Supplemental Allowance for Permanent Total and Death Benefits: 5.21% increase

 These same rates have been retained from 2009.

  If you would like benefit rate cards prepared by Franklin & Prokopik detailing the District of Columbia benefit rates from 2001-2010, please contact F&P principal, John P. Rufe, on (301) 745-3900, or by email at jrufe@fandpnet.com. 

 COMPENSABILITY

• To show that an injury is compensable, the employee must “establish that the work event or condition at issue was the cause of the claimed injury,” that is, that the injury is in fact work-related. An accidental injury is compensable under the Workers’ Compensation Act if it “aris[es] out of and in the course of employment.” D.C. Code §32-1501 (12).

            Because the statute is remedial in nature, it affords the claimant a presumption that the injury constitutes a compensable workplace injury. To raise the statutory presumption of compensability, a claimant must make an “initial demonstration” of “both an injury and a relationship between that injury and the employment.”

“The presumption then operates to establish a causal connection between the disability and the work-related event, activity, or requirement.” In other words, the statute creates a two-pronged presumption that (I) the event causing (or contributing to) the disability arose out of and in the course of employment, and (ii) that a medical causal relationship exists between the claimed disability and a work related event.

If the employer proffers substantial evidence to rebut the presumption, then the presumption drops out of the case entirely, and the burden reverts to the claimant to prove his entitlement to benefits by the preponderance of the evidence.

In cases where an employee’s injury arises neither out of a risk directly associated with employment nor out of a risk personal to the employee, this court has employed the positional risk doctrine, explaining that an employee’s injury arises out of his employment “so long as it would not have happened but for the fact that conditions and obligations of the employment placed claimant in a position where he was injured.”

The unexplained fall rule of compensability, even if deemed a corollary to the positional risk doctrine, is not applicable when there is evidence of a possible idiopathic origin to the fall.

UTILIZATION REVIEW

   The Compensation Order Review Board has affirmed the statutory requirement that, when an issue arises as to the reasonableness and necessity of medical    treatment, the issue must first be referred to utilization review, prior to requesting a formal administrative hearing thereon. This provision had not been enforced for many years. 

             In April 2010, the DC Court of Appeals ruled that, if reconsideration of the Utilization Review opinion is not timely sought by the medical provider, nevertheless, either party to the Claim may seek a Formal Hearing on the medical reasonableness and necessity issue.

    Standard of Compensability for Psychological Injury

McCamey v. DOES

 The DC Court of Appeals sitting en banc has overruled several of its prior cases dealing with the standard for compensability of psychological injury.  There are now currently two different standards depending on whether there is a physical injury involved. In the context of physical-mental disabilities, the physical accident is the unexpected occurrence supplying the necessary (and objective) workplace connection. Thus, in cases of physical injury, so long as the claimant proffers competent medical evidence connecting the mental disability to the physical accident (legal causation), the claimant has either established a prima facie case of aggravation or a new injury. The court did not have before it the issue of mental-mental disabilities, where traditionally the question is whether the stresses of the job were so great that they could have caused harm to an average worker. Job stresses are to be measured against the usual stressors or mental stimuli of employment in general. Thus, a claimant must show that his current job conditions are unusually stressful as compared to employment conditions in general, not as compared to his work history. The court appears to question the application of this standard even to mental-mental claims, its primary concern being that the concept seems to conflict with cases of aggravation of a pre-existing condition. The court suggested that the objective standard may not be appropriate in such an instance. No doubt this issue will be addressed in the near future. 

For further inquiries regarding District of Columbia law contact Mr. Rufe on (301) 745-3900, or by email at jrufe@fandpnet.com.

BY Keith J. Kasper, Esq.

DEPARTMENT OF LABOR

Leo Moulton v. J.P. Carrera, Inc., Opinion No. 30-11WC (Oct. 11, 2011).

Claimant succeeds in claim for both medical benefits and PTD benefits. Claimant’ medical and vocational experts found more persuasive. “I conclude that Mr. LeRoy’s analysis of Claimant’s employability more accurately reflects the fundamental nature of off lot permanent total disability than Mr. Prinson’s does. Mr. LeRoy focused on the probability that Claimant would be able to compete successfully for jobs within his physical capabilities, and concluded that for him to do so would be highly unlikely. In contrast, Mr. Prinson focused on a few specific jobs for which Claimant conceivably might apply, and disregarded how improbable it would be, given his age, education, limited transferable skills, chronic pain and physical restrictions, for him actually to be hired.”

McNally v. State of Vermont Dep’t for Children and Families, Opinion No. 31-11WC (Oct. 12, 2011).

Based upon treating physician’s opinion, Claimant’s claim for temporary total disability benefits for work related enthesopathy found compensable. Attorney fees awarded for work performed prior to Claimant’s counsel entering an appearance on behalf of Claimant before the Department.

Bacon v. Gerald Morrissey, Inc., Opinion No. 32-11WC (Oct. 14, 2011).

1981 work-related injury and 1985 formal hearing results in compensable claim for medical and indemnity benefits related to post concussive work injury. In December of 2002, Claimant made claim for disability for his self-employment as a carpenter related to the 1981 work injury and liver damage related to medication usage to control seizures related to work injury. Claimant fails to cooperate appropriately and thus 2006 formal hearing canceled. In 2010 Claimant resurrects claim but Department grants Defendant’s motion to dismiss with prejudice. “Given the passage of time, even were Claimant to produce evidence to support his position at this point, Defendant’s ability to investigate and develop its own evidence would be severely compromised.”

Gadwah v. Ethan Allen, Opinion No. 33-11WC (Oct. 24, 2011).

Despite finding of MER, intervening employment found not to have necessitated 2009 fusion surgery, thus recurrence of 199 work injury due to failed fusion. Defendant’s IME’s doctor’s “opinion as to the medical reasoning behind Claimant’s January 2009 surgery is not credible. I simply can find no support in the record for his assumption that Dr. Brummett’s surgical motivation was any more to address Claimant’s L2-3 disc herniation that it was to correct his failed fusion at L4-5. In fact, I conclude that the opposite is more likely true. Claimant consistently had complained of symptoms at the L4-5 and L5-S1 levels both before and after his 2001 fusion, and certainly well before his tree farm employment even began.”

Mariani v. Kindred Nursing Home, Opinion No. 34-11WC (Nov. 3, 2011)

Defendant entitled to future credit against future WC benefits to extent of third party recovery at the rate of 39.87 percent reimbursement for every dollar of benefits paid by Claimant to the full extent of Claimant’s WC holiday.

Martin v Burlington Public School District, Opinion No. 35-11WC (Nov. 3, 2011).

Claimant is not entitled to receive PPD benefits to a body part for which he has achieved MER when he is not at MER for all body parts injured in the course of the compensable work injury giving rise to both injuries.

Dunn v. Windham Northeast Supervisory Union, Opinion No. 36-11WC (Nov. 15, 2011).

Claimant had a work-related injury and later dies as a complication of surgery for the work-related condition. Defendant claimed an offset for life insurance proceeds paid to Claimant’s estate. Summary judgment granted to Claimant. ” Defendant equates the benefits payable under Claimant’s life insurance policy with the term ‘damages’ as used in §624. the two concepts are not equivalent, however. The term ‘damages’ denotes ‘the money payable by a tortfeasor who is liable for injuries caused by his tortious act.’ In contrast, a benefit paid under the terms of an insurance policy is ‘a payment made in performance of a contractual obligation,’ and not a payment of ‘damages.’” (citations omitted).

McNally v. State of Vermont Dep’t of Path, Opinion No. 37-11WC (Nov. 15, 2011).

On remand from Vt Supreme Court Appeal, Commissioner makes additional findings, but still concludes that Claimant’s injury did not arise out of and in the course of her employment as opposed to her non-work-related snow shoveling activities.

Zahirivic v. Super Thin Saws, Inc., Opinion No. 38-11WC (Nov. 18, 2011).

Prior employer denied compensability of current disability based upon aggravation theory. Prior employer originally ordered to pay benefits but then subsequent medical evidence develops finding that subsequent employer was responsible for claim. Claimant files request for attorney fees more than 30 days after either interim order against prior employer or subsequent employer’s acceptance of the claim. “Claimant has offered no extenuating circumstances to justify the delay, nor can I discern any reason to overlook it. That being the case, Claimant’s petition for attorney fees deserves to be rejected on those grounds alone.”

Hathaway v. C& S Wholesale Grocers, Inc., Opinion No. 39-11WC (Nov. 18, 2011).

Physical-mental claim found compensable based upon Claimant’s treating psychologist’s testimony. “The fact that personal stressors may play some part in causing the psychological portion of a “physical-mental” claim to develop is not dispositive unless the medical evidence clearly establishes them to be the superseding cause of the resulting injury.”

Birchmore v. The McKernon Group, Opinion No. 40-11WC (Nov. 29, 2011).

In multi-period TTD claim, Claimant not entitled to COLA if he was employed and receiving wages on July 1, 2010. “The plain language of Rule 16.2000 thus mandates that only those claimants who are receiving disability benefits on July 1st are entitled to a cost of living adjustment for that year.” (emphasis in original)(citations omitted).

Goodwin-Abare v. SOV Agency of Human Resources, Opinion No. 41-11WC (Dec. 14, 2011).

Claimant’s claim for carpal tunnel syndrome and cubital tunnel syndrome denied based upon Defendant’s IME opinions. “The fact that a claimant is equally likely to suffer from disease regardless of his or her work activities deos not necessarily preclude a finding that work has either caused or aggravated the condition in a particular case. Where occupational risk factors are lacking at the same time that non-occupational risk factors abound, however, occupational causation becomes more speculative. It is the claimant’s burden of proof in such cases to produce sufficient addititonal evidence so as to cross the threshold from speculation to probability.”