There are two maxims in workers’ compensation that appear on their face to be contradictory.  The first is that the employer takes employees as the employer finds them.  The second is that employers are not responsible for idiopathic or purely personal conditions.  Both maxims generally pertain to workers who have preexisting conditions, and both maxims are valid.

An example of the first maxim might be a carpenter with long-standing diabetes who is at a construction site.  The carpenter jams her foot against a machine and feels pain in her great toe.  She mentions it to her supervisor at the time but continues to work.  Three days later she goes to the ER as her toe has become gangrenous.  She ends up having an amputation and files a workers’ compensation claim.  This claim would be considered compensable in New Jersey.  While 99% of workers would not have developed the severe symptoms of this carpenter by jamming one’s toe, the employer takes the employee with all his or her preexisting health risks.

An example of the second maxim might be the same carpenter with long-standing diabetes.  She has worn shoe inserts for many years due to flat feet and notices that her current inserts are uncomfortable and in need of replacement.   In walking around the office at work, reviewing plans, she feels pain from the deteriorating insert rubbing against her great toe.  She mentions it to her supervisor but continues to work.  Three days later she goes to the ER as her great toe has become gangrenous.  Again, the toe must be amputated.  But her employer successfully denies this case because all the carpenter was doing was walking at work, and the inciting cause of her toe injury was really an old shoe insert that needed to be replaced.

What both examples have in common is that the employee has a preexisting non-work-related condition.  But not everything that happens at work is work related.  For example, if a manager with a prior heart condition is in a meeting and suddenly has a heart attack while sitting at a conference table, the employer will deny this claim and will almost certainly prevail.  Similarly, if a firefighter is walking upstairs to meet with the Chief at work, and his knee locks up while ascending the stairs due to prior osteoarthritis in the knee, the employer will successfully deny this claim under the case of Meuse v. Egg Harbor Township Police Department, No. A-4553-90T5 (App. Div. May 6, 1992).  If the firefighter did not fall or strike the steps, this would be considered idiopathic and not causally related.

So the basic point to remember in navigating between these two competing maxims is that there must be some work-related event to make the claim compensable.  Just being at work or walking around at work is not enough.  It is safe to say that at a certain age, most workers have preexisting conditions that could impact work, although those conditions are generally unknown to the employer.

The key for employers for success in workers’ compensation is to take a detailed past medical history and to investigate the specific details of the alleged work accident.  Occupational physicians and treating physicians must inquire into prior health history, prior car accidents, second jobs, prior chiropractor treatment, recreational activities, and prior pain management.  Determining causation requires knowledge of the worker’s past health condition as well as an understanding of the precise mechanism of injury.

-----------------

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. 

Written by: Melissa Woodard

With prescription drug and opioid addiction on the rise in America and an estimated 20 million Americans in need of treatment for drug or alcohol addiction, the prevalence of drug and alcohol use in the workplace is a serious concern for employers.

As you might imagine, working under the influence of an intoxicating substance can increase the risk of work-related injuries, especially for laborers, drivers, and heavy-machinery operators.  The North Carolina Workers’ Compensation Act provides an absolute defense under N.C.G.S. § 97-12 against workers’ compensation claims when the employee’s injury or death was proximately caused by intoxication where the employer did not supply the intoxicant.  There is also a complete defense when the employee was under the influence of a controlled substance except when the substance was prescribed by a practitioner.  The statute defines “intoxication” and “under the influence” as consuming a sufficient quantity of the intoxicating beverage or controlled substance to cause the employee to lose normal control of his bodily or mental faculties such that he was appreciably impaired at the time of the injury.  This is similar to the standard for impairment in driving while impaired (DWI) criminal offenses.

Appreciable impairment is difficult enough to prove for law enforcement even with standardized field sobriety tests and breathalyzer results.  In workers’ compensation claims, we often have far less scientific and circumstantial evidence of impairment.  Blood and breath may not be tested after a work-related injury and co-workers cannot always provide specific eye-witness testimony about the signs of impairment.  Even if a blood or urine drug screen is done, the evidence may be inconclusive as to impairment.  Importantly, unlike alcohol, many illicit and prescription drugs remain in the blood or urine long after the intoxicating effects have subsided.

The Court of Appeals held in Moore v. Sullbark Builders, Inc. that the mere presence of cannabinoids, or the chemical compound in marijuana, without a specific concentration in an employee’s urine is insufficient to prove impairment.  198 N.C. App. 621, 680 S.E. 2d 732 (2009).  A toxicologist testified that even if the employee had used marijuana before work that day, the intoxicating effects would have subsided by the time the accident occurred, to say nothing of the fact that it is well-recognized in the scientific community that positive urine drug screen results for cannabinoids cannot establish impairment.Id.  The same is true for many illicit and prescription controlled substances.  So, even if a urine drug screen is performed and the results show illicit or prescription drug use, this alone is not enough to provide a defense to the claim under N.C.G.S. § 97-12.  Expert medical testimony will often be required to establish intoxication in addition to a drug screen.

Alcohol impairment presents different challenges.  The presence of alcohol in the blood or urine is directly correlated with its intoxicating effects.  While this can be a helpful fact, it is also a problem.  If a person has a blood alcohol concentration that is at or above the recognized limit indicating appreciable impairment while driving, which is 0.08 mg/dL, the Court has held the person is “intoxicated” under § 97-12. Gratz v. Hill, 189 N.C. App. 489, 658 S.E.2d 523 (2008).  However, alcohol metabolizes, or is processed, very quickly in the body, at a rate of 0.015 mg/dL per hour for most people.  This means that if an employee has a blood alcohol concentration of 0.10 mg/dL at the time of the accident, which is well above the legal limit, his or her blood or breath may test below the legal limit just 90 minutes later.  Expert testimony is required to extrapolate the impairment level when a significant period of time has passed between the accident and the test for alcohol concentration.

Also, co-workers and employers are not usually specifically trained to recognize the telltale signs of impairment.  They may not consider their fellow employee is intoxicated before an injury, and even if they do, workers’ compensation hearings are often months if not years after the accident.  Testifying under oath about specific details such as this can prove challenging without proper notetaking or witness statements taken at or near the time of the accident.  Therefore, prompt investigation of the claim is essential, including interviewing witnesses, gathering their statements and obtaining the injured worker’s recorded statement.

Even if an employer can prove the worker was intoxicated or appreciably impaired at the time of the accident, they must also prove that the impairment was “more probably than not a proximate cause of the accident and resulting injury.” Gaddy v. Anson Wood Products, 92 N.C. App. 483, 374 S.E.2d 477 (1988).    Again, expert medical evidence will likely be required to demonstrate that the actual injury complained of was proximately caused by the employee’s intoxication.  For example, if an intoxicated employee is injured in a motor vehicle accident while riding as a passenger, it is unlikely that employee’s injury was proximately caused by the intoxication.  Simply put, the intoxication and the injury must be closely connected.

There are some practical steps employers can take to maximize workplace safety and minimize liability for injuries resulting from employee intoxication.  First, it is important to institute a workplace policy that no alcohol or drugs other than those prescribed by a physician are to be consumed on the job or before work begins for the day.  Second, encourage employees to report suspicious behavior that may indicate intoxication to a supervisor.  Signs include red glassy eyes, slurred speech, unsteady gait, slow reaction time, and inability to divide one’s attention between two simultaneous tasks.  Third, in some instances, employers can require testing for drugs and alcohol upon the report of a workplace injury.  It is important to keep in mind, however, that the process for drug and alcohol testing is heavily regulated in North Carolina, so the advice of an employment law attorney is imperative before implementing any policies on drug testing.  Workplace policies are not failsafe, but can be extremely helpful evidence in defending against workers’ compensation claims for intoxicated claimants.  Employers seeking to enhance their drug free workplace and safety policies are encouraged to contact their employment law and workers compensation counsel for further advice.

In May of 2017, we reported that an Alabama Circuit Court Judge issued an Order declaring the entire Alabama Workers’ Compensation Act unconstitutional.  In June of 2017, we reported onwhat needed to happen to fix the Alabama Workers’ Compensation Act.  In November of 2017, we reported that theAlabama State Bar Association had appointed a task force to review the Act and make recommendations on how to fix it.  In April of this year, we reported onthe types of changes the task force was looking at making.  On October 17, 2018, the task force unanimously approved a proposed bill that would make substantial changes to the Act.  The proposed bill is 58 pages in length so I am not going to attempt to summarize it all in a blog article.  I am happy to send a complete copy to anyone who sends me a request (mfish@fishnelson.com).  Here are some of the highlights:

• If an employee is represented by an attorney licensed to practice in Alabama, then there would be a presumption that any proposed settlement is in the best interests of the employee.

• If a judge declines to approve a settlement, then the matter would be reassigned to another judge for trial.

• The first 3 weeks of TTD would not be deducted from the 300 weeks of PPD.

• PTD benefits would terminate when the employee either reaches the age of 2 years beyond the full retirement age for purposes of Social Security or the employee reaches the age of 70 or 500 weeks from the date of accident (or date of last exposure if non-accidental).

• The $220 per week max for PPD would be changed to 50% of the state’s AWW as of the date of the accident.

• The employer would have the right to choose the provider of prescriptions and durable medical equipment.

• Generic medications would be required if available.

• Doctors would no longer be able to fill prescriptions from pharmacies in which they have an ownership interest.

• With the exception of previously implanted medical or prosthetic devices, there would be a 300 week max for medical treatment unless (1) the employee petitions the court within 300 weeks to extend the date, and (2) the employee proves by clear and convincing evidence that such an extension is reasonable, necessary, and related to the injury or disease.

• The above right to petition could be closed pursuant to the terms of a settlement.

• If the employee receives no medical treatment for 3 years and fails to petition for an extension, then there will be a rebuttable presumption that any subsequent treatment is not related to the accident or occupational disease.

• If the employee receives no medical treatment for 5 years and fails to petition for an extension, then the employee would not be entitled to further medical benefits with the exception of previously implanted medical or prosthetic devices.

• Employees would be required to sign pain management contracts that outline their responsibilities.  If the employee violates any of the provisions of the contract, then there would be a rebuttable presumption that the employee is no longer eligible for pain management prescriptions.  In the event of a second violation, then the employee’s right to any pain management prescriptions would be terminated unless the employee can prove by clear and convincing evidence that the violation did not occur.

• There would be no requirement that the allegations in a Complaint be verified by the employee.

• Judges would be required to enter judgment within 90 days of trial or within 90 days of the submission of post-trial briefs.

• All settlements and judgments would have to address time limitations to medical treatment.

• The contingency fee for plaintiff attorneys would be increased from 15% to 20%.

• Third party vendors would not be allowed to audit attorney bills.

The proposed bill will now be submitted to the Alabama State Bar for consideration.  If the Bar adopts the recommendations of the committee, it will throw its support behind the bill once it is introduced during the next legislative session.  We will continue to monitor the progress of the proposed changes in order to keep our readers apprised of all developments.

-------------------------------------------

About the Author

This blog submission was prepared by Mike Fish, an attorney with Fish Nelson & Holden, LLC, a law firm dedicated to representing self-insured employers, insurance carriers, and third party administrators in all matters related to workers’ compensation. Fish Nelson & Holden is a member of the National Workers’ Compensation Defense Network. If you have any questions about this submission or Alabama workers’ compensation in general, please contact Fish by e-mailing him at mfish@fishnelson.com or by calling him directly at 205-332-1448.

In every workers’ compensation trial both parties believe passionately in their position, but in the end, one party will prevail and one will lose.  Inevitably, the losing party will have to consider whether to file an appeal.  It is important to understand the appellate process, particularly the types of cases that stand a good chance of reversal and those that do not.

Some workers’ compensation trials focus on purely legal issues where the facts are really not in dispute; other trials focus primarily on facts in dispute, and still others focus on medical causation issues.  There are even cases with all three of these issues involved in the same trial.

Appeals in New Jersey from workers’ compensation go to the Appellate Division.  The judges in the appellate division do not take testimony on their own.  They do not hear witnesses, and they do not do independent research on medical causation issues.  Their focus is on the trial record below, which consists of testimony at trial, evidence submitted at trial, legal briefs submitted at trial, and the formal decision of the Judge of Compensation.  Appellate judges will defer often to the findings of the Judge of Compensation but not on questions of law.

So for starters one can say that when the issue on appeal is purely one of law, the parties know that the appellate judges are not going to defer to the Judge of Compensation.  The appellate judges will review the facts in the record and apply their own understanding of the relevant law.  They will read the statute and will read the relevant case law.  Most successful appeals happen when the issue is a legal one involving interpretation of the law.

For example, imagine a case where an UBER driver is injured and files a workers’ compensation claim against UBER.  The company denies that the driver is an employee and asserts that she is an independent contractor.  The facts are not in dispute.  The Judge of Compensation reviews the testimony and finds that the driver is an employee and not an independent contractor.  The Appellate Division will not defer to the Judge of Compensation on that finding because this case involves interpretation of the law on employee status and independent contractor status.  The appellate division will respect the findings of the Judge of Compensation on the facts of the case, but it will do its own assessment of the relevant law as applied to the facts.

In contrast, when a Judge of Compensation hears testimony from witnesses and finds that the witnesses for the petitioner were far more credible than the witnesses for the respondent, the appellate judges will defer to the findings of the Judge of Compensation.  The Judge of Compensation is in the best position to assess credibility because he or she hears the actual witnesses, can see their reactions to questions, and can evaluate the way they responded to cross examination.  Judges often ask their own questions of witnesses, and that level of engagement puts them in a very strong position to assess credibility.   So if the sole argument in the appeal is that respondent believes its witnesses were more credible, one can say at the outset that the chances of reversal are extremely low.  This type of appeal will seldom find any success.

Another category of appeal common in workers’ compensation involves the battle of the experts.  There are many occupational disease claims, cancer trials for example, where the facts are not in dispute but the medical experts dominate the trial.  Sometimes one expert is highly qualified and practices in the field at issue, and the other expert has far less qualifications.  The less qualified expert may simply provide a generalized opinion that the cancer condition is work related without citing to valid studies or medical literature.  These cases can be successfully appealed either on the theory that one expert was more credible based on qualifications or that the less qualified expert simply provided a “net opinion,” which is an opinion without any real scientific support for it.

When the issue pertains to the level of permanent partial disability, appellate judges will always defer to the expertise of the Judge of Compensation.  For example, consider a case where a construction employee lifts a heavy beam and herniates two discs, requiring fusion surgery.  The Judge of Compensation considers the impact of the injury on work and non-work aspects of the petitioner’s life, and the judge finds a disability of 45% permanent partial disability.  The respondent’s IME physician had a relatively low estimate and respondent expected an award of 35% permanent partial disability.  The difference between 35% and 45% is around $60,000, so the respondent appeals.  This sort of appeal almost always has a very low percentage of reversal because the appellate division judges defer to the skill and expertise of the Judge of Compensation in assessing permanency.

As a rule appeals based solely on the level of disability are ill-advised.  It is a rare case where such a reversal will occur.  For example, an appeal might be successful if the judge in the above example in finding 45% permanent partial disability said: “I found 45% permanent partial disability because that is what I normally find for two disc fusion surgery.”  Respondent could argue that the judge used a pre-set percentage in his or her mind and applied it to this case, as opposed to studying the individualized facts of the case and the impact of the accident on this claimant’s work and non-work life.  New Jersey Judges of Compensation understand that they need to consider each case on its own merits, so this type of appeal seldom gets filed.

Perhaps the most common argument on appeal is that there is insufficient credible evidence to support the findings of the Judge of Compensation.  This sort of an appeal can be successful in the circumstance where the Judge of Compensation makes a finding that is truly unsupported by the evidence.  But it is a tough argument because the appellate judges must be convinced that there is really no sufficient credible evidence to support the finding below.

Here is a simple example of where this argument could be made.  Consider a case where the employer has store security footage showing that the alleged injured employee did not fall at 2 p.m. in aisle six of the grocery store as is alleged in testimony.  The footage is unchallenged as to authenticity and it shows that the employee was never in that aisle at that time.  The employee maintains that he or she fell definitely in aisle six by the Kelloggs’ cereal boxes at 2 p.m.  The petitioner produces a witness who says that she believes that the petitioner may have gone in that aisle that day, but the witness did not see the actual fall.

The Judge of Compensation finds petitioner’s witness more credible and also finds that petitioner may have been mistaken about the aisle and probably fell in aisle five because there were some Kelloggs’ products also in aisle five.  But petitioner never claimed to be in aisle five.  Respondent will likely win on appeal by arguing there is insufficient credible evidence to support the determination of the Judge of Compensation because the best evidence would be the security footage showing that the injury could not have happened as alleged in aisle six at 2 p.m.

Estimating chances on appeal is a difficult thing to do, and there are many factors to consider.  The record has to be solid, meaning that all the evidence that the appealing party wanted to get in to evidence actually did get in, and the appellate brief and argument must be strong.  It is also very important to remember that the appellate judges do not hear arguments on appeal that were never raised in the trial before the Judge of Compensation.  If there is a valid argument on the independent contractor defense, that argument must be made at trial, not for the first time on appeal.

For this reason, both parties should submit detailed legal briefs explaining their position in the trial below, or at least make closing arguments to the Judge of Compensation detailing each point at issue.  This is the only way that the Judge of Compensation can know the arguments.  Judges in our system do not have law clerks and are extremely busy handling large lists every day, so it is incumbent on counsel to raise all the issues either in legal briefs or closing arguments – or both.  Counsel should then be able to provide to their clients solid guidance on the potential for success on appeal.

-----------------

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. 

Simon Law Group, P.C. 

720 Olive Street, Suite 1720, St. Louis, MO 63101

314-621-2828

MISSOURI WORKERS’ COMPENSATION CASE LAW UPDATE

July 2018 – September 2018

Claimant Failed to Prove Exposure To Cracked Truck Battery at Work Was Prevailing Factor in Causing Any of His Alleged Symptoms and Health Conditions

Davenport vs. LTI Trucking Services, Inc., Injury No. 15-075326

The claimant, a 51-year-old truck driver, alleged that he suffered multiple injuries as a result of inhaling sulfuric acid from a leak in a cracked truck battery.  He drove the truck for five months, during which time multiple mechanics inspected it but found no problems.  On October 5, 2015, the vehicle was inspected again, and one of its batteries was cracked.  The claim was denied, and the claimant proceeded to treat on his own.  His doctors diagnosed COPD but also noted that he smoked a half pack of cigarettes per day.  Dr. Sifers opined there was no evidence to show that a car battery leak could cause significant sulfuric acid toxicity to drivers, and he also opined that the claimant’s gastritis complaints were better explained by H. Pylori, which was non-work-related, than toxic exposure.

At a Hearing, the claimant testified that although he continued to smoke a half a pack of cigarettes per day, he did not believe his smoking was “heavy enough” to cause COPD, which he related back to sulfuric acid exposure.  The claimant submitted select pages of a handful of medical reports, but the only one that clearly addressed causation was Dr. Sifers’ report.  The ALJ ultimately found the claimant’s injury was not compensable, because he failed to prove that exposure to a cracked truck battery at work was the prevailing factor in causing any of his symptoms or health conditions.  The claimant appealed to the Commission, which affirmed the ALJ’s decision and Award.

Employee’s Death from Pulmonary Embolus Causally Related Back to Work-Related Ankle Fracture Due to Confinement to Wheelchair

Joan Knutter, Karl Knutter and Michael Knutter vs. American National Insurance, Injury No. 13-020414

On March 25, 2013, the employee sustained a non-displaced right ankle malleolus fracture, which was treated conservatively, including use of a wheelchair.  Less than two months later, she died as the result of a pulmonary embolism.  Due to the employee’s cremation, there was not an autopsy.  The claimant filed a Claim for Compensation for death benefits on behalf of the employee.

Doctors disagreed as to whether the claimant’s ankle injury was the prevailing factor in causing the PE and death.  Dr. Wright opined that the claimant had underlying risk factors, but the claimant’s immobility following her ankle injury was the tipping point that caused the PE.  Dr. R. Mullins opined there was a lack of evidence directly tying the ankle fracture to a DVT or blood clot, and he noted that the claimant had other contributing factors such as obesity, a sedentary lifestyle, obstructive sleep apnea, and chronic kidney disease, all of which raised her risk of DVT.  Dr. Cross reviewed the medical records and opined that without an autopsy, it was impossible to conclude that the claimant had a DVT in the lower extremity that may have caused a PE to the lungs. 

After a Hearing, the ALJ denied death benefits.  The ALJ opined there was no evidence in the medical records directly tying a blood clot or DVT to the claimant’s injury or the use of a wheelchair, and the ALJ concluded it would be pure speculation to causally relate the PE back to the work injury because there was no autopsy.  On appeal, the Commission reversed the ALJ’s decision and Award.  The Commission found the expert opinion of Dr. Wright credible and persuasive and concluded that it was not coincidental that the claimant developed a PE just 45 days after being confined to a wheelchair due to her injury.

Co-Employee Liable for Negligence Because He Purposefully Removed Safety Guard and Instructed Claimant to Clean Machine While in Operation

Brock vs. Peter Dunne, in his capacity as DAL for Mark Edwards, Deceased,Case No. ED105739 (Mo. App. 2018)

FACTS:  On his date of injury, the claimant worked for JMC Manufacturing, and Edwards was his supervisor.  The claimant worked on a lamination machine that had two sets of rollers and a safety guard, that was attached by hinges that could be lifted to provide access to the bottom of the rollers if they needed to be cleaned.  The safety guard prevented objects from becoming stuck between the rollers while the machine was in operation.  On April 30, 2013, Edwards spotted glue on one of the bottom rollers and removed the safety guard while the machine was still operating.  The claimant testified that Edwards told him to use a wet rag to squeeze water onto the roller while simultaneously using a brush underneath the roller to scrape the glue off of it.  He testified that Edwards did not give him any specific instructions to accomplish the task and was standing immediately next to him while he completed this task with the machine running.  While squeezing water onto the roller, the rag became caught in the pinch point between the bottom rollers and pulled the rag into the rollers along with the claimant’s thumb.  This injury occurred after the 2012 amendment to workers’ compensation statute regarding co-employee liability.  The claimant filed a suit for negligence in Circuit Court against Edwards, and a jury returned a verdict finding that Edwards was partially at fault for the injury and awarding damages.

On appeal, the Court noted the 2012 amendment to workers’ compensation statute, which states that any employee shall not be liable for any injury for which compensation is recoverable under workers’ compensation law, unless the employee engaged in an affirmative negligent act that purposefully and dangerously caused or increased the risk of injury.  The Court also noted prior decisions that held that employers have a nondelegable duty to provide a safe workplace, which is limited to injuries that are reasonably foreseeable, and a co-employee is only personally liable if the co-employee breached a duty that was separate and distinct from the employer’s duty.  Therefore, the claimant had to show that Edwards owed a duty of care that was separate and distinct from the employer’s nondelegable duty and that Edwards engaged in an affirmative negligent act that purposefully and dangerously caused or increased the risk of injury.

HOLDING:  The Court held that Edwards breached a duty of care that was separate and distinct from the employer’s nondelegable duties because his actions were not reasonably foreseeable by the employer, because he violated many safety rules, instructions, and warnings against removing the safety guard.  Edwards also created a hazardous condition by removing the guard and instructing the claimant to clean the machine while it was still running, and that affirmative negligent act created an additional danger that would not otherwise have been present in the workplace.  Edwards did not have to intend to injure the claimant for his actions to be purposeful and affirmative under the statute.  It was enough that he intentionally removed the guard and directed the claimant to clean the machine while it was in operation.  Therefore, the Court affirmed the Circuit Court’s judgement.

Injury Sustained While Playing Volleyball on Unpaid Lunch Break Not Compensable

Wilkerson vs. CMMG, Inc., Injury No. 13-104108

The claimant worked for the employer and had an unpaid lunch break during which he was allowed to leave the premises.  There was a volleyball court on the employer’s premises, and employees often played volleyball and may have been encouraged by the employer to play volleyball during the lunch hour.  On May 23, 2013, the claimant was playing volleyball during his unpaid lunch break and sustained an injury to his right hand when he attempted to block a spike.

At a Hearing, the ALJ found the claimant’s injury was not compensable because he sustained the injury while participating in a recreational activity that was also the prevailing cause of his injury. The ALJ noted that the claimant’s lunch break was unpaid, no employees were ever directly ordered to participate in the volleyball games, and there was no showing that the injury occurred due to an unsafe condition on the employer’s premises.  Therefore, the claimant forfeited any benefits under workers’ compensation for injuries sustained as a result of his participation in the volleyball game.  On appeal, the Commission affirmed the ALJ’s decision and Award.

Claimant Not Injured in Course and Scope Because She Was Equally Exposed to Hazzard or Risk of Walking on an Even Paved Surface Outside of Work and Had History of Falls Due to Weakness in Left Lower Extremity

Wall vs. Bass Pro Outdoor World LLC, Injury No. 15-046929

On July 1, 2015, the claimant, a 66-year-old employee of Bass Pro, was walking down the main aisle of the fishing department on an even, paved surface while pushing a shopping cart when she stepped to the right of the cart, shifted her weight onto her left foot, fell, and injured her right shoulder.  The claimant had a history of polio to her left foot and leg in 1955 and a left ankle fusion in 1993.  She also fell twice on a camping trip, one month prior to her alleged work injury, after which she had pain in her shoulder.  Following her alleged work injury, the claimant gave three separate statements, wherein she advised there was nothing about the floor that caused her to fall, and she “just fell.”  There was also a co-worker who was walking directly behind her at the time of her injury who testified there was nothing the claimant could have tripped over.

At a hearing, the ALJ found that the claimant had not sustained an injury in the course and scope of her employment, because the hazard or risk of her injury was walking on a dry, flat concrete floor, which was an activity that she performed regularly in her non-employment life, and there was nothing particular about the location of the fall that was unique to her work that created a unique exposure to that risk.  The ALJ noted that the claimant testified she regularly walked on identical flooring while shopping outside of work.  The ALJ also noted that the claimant had a history of frequent falls due to weakness in her left lower extremity due to her childhood polio and prior left ankle fusion.  Therefore, the injury was not compensable, and no benefits were awarded. On appeal, the Commission affirmed the ALJ’s decision and Award.

Claimant Injured in Course and Scope When Two-Wheel Cart Carrying Personal Items to Work Became Stuck and Caused Claimant to Fall Because Not Equally Exposed to Risk of Cart Becoming Stuck in Busy Entryway Outside of Employment

McDowell vs. St. Luke’s Hospital of Kanas City, Injury No. 16-051794

On July 13, 2016, the claimant was pulling a two-wheeled cart behind her, which contained her purse, lunch, medicine, and paperwork related to work.  The claimant began using this cart in 2013 following a personal hip replacement, when the cart was suggested by her supervisor to help her carry items to and from work while using a cane.  She denied using the cart for anything besides travelling to and from work.  On her date of injury, the claimant was exiting the parking garage that was owned and controlled by the employer.  Due to some congestion, she moved to the right of the path to allow other people to pass, at which time the wheel of her cart became stuck in the doorframe and caused her to fall to the ground.  She sustained a left wrist distal radius fracture, and Dr. Langford performed an ORIF on July 18, 2016.  Medical experts for both parties agreed that the claimant’s fall was the prevailing factor in causing her fracture.  However, the employer argued that the claimant was not injured in the course and scope of her employment because the risk source of her injury was the cart that she used to transport personal items to and from work. 

At a Hearing, the ALJ found that the risk of injury caused by the cart was work-related because the claimant only used it to haul materials to and from work, and the personal items she transported, such as her lunch and medications, were necessary for her to successfully complete her work.  The ALJ also noted that another risk of injury was congestion in the walkway at the exit to the parking garage, which the claimant commonly encountered due to shift changes around the time that she began work, which would also be a work-related risk.  Therefore, the employer was ordered to pay PPD, past medical expenses, future medical referable to hardware removal, and TTD.  On appeal, the Commission affirmed the ALJ’s decision and Award.

Claim Not Compensable Because Claimant Failed to Establish That He Was Working For An “Employer” Subject to Missouri Workers’ Compensation Law

Mealer vs. Russ Jackson Transportation and Treasurer of Missouri as Custodian of Second Injury Fund, Injury No. 13-085074

The claimant worked as a driver for the employer and sustained an injury on October 25, 2013, when three front teeth were broken at the gumline.  The claimant was prescribed partial dentures, and he was subsequently referred for an implant consultation.  During the course of his treatment, the claimant requested that treatment be provided by the employer, but the employer refused because it did not carry workers’ compensation insurance because it had less than five employees.  The claimant filed a Claim, which was not answered, and at a Hearing before an ALJ, the claimant appeared, but no one appeared on behalf of the employer.  

At the Hearing, the ALJ did not award any benefits.  The ALJ found that the claimant did sustain an injury by accident, but he failed to present any evidence regarding how many employees worked for the company on his date of injury.  The ALJ also found that the claimant failed to identify the medical bills as being related to treatment for his teeth that was related back to the date of injury or that he was at MMI, and therefore, an Award could not be made for PPD, past medical, or future medical.

The claimant appealed, and the Commission affirmed the ALJ’s decision and Award.  The Commission concluded the claimant was not working for an “employer” subject to Missouri Workers’ Compensation Law.  The claimant failed to present any evidence at the Hearing that would support a factual finding that the employer had five or more employees on the date of injury, that the employer made an election to become subject to the provisions of Missouri Workers’ Compensation Law, or that the employer was engaged in the construction industry as of the claimant’s date of injury.  Therefore, the Commission found that an employment relationship subject to Missouri Workers’ Compensation Law was not established, and although the employer failed to file an Answer to the Claim, lack of subject matter jurisdiction cannot be waived by default.

Claimant was Independent Contractor on Date of Injury Because Used His Tools and Work Was of Limited Duration and Outside Scope of Employer’s Regular Course of Business

Densmore vs. Barnes Industrial Group, Inc., Injury No. 11-076364

The claimant was discussing an employment relationship with the employer, wherein he was to help start a new division of the employer’s company involving a new service area.  The employer would supply all of the necessary tools for the projects and secure the work he was to do, and the claimant was to be an employee as opposed to an independent contractor.  The claimant signed an employment contract on July 6, 2011.  However, he made additional demands on that date, and the employer advised it would consider his demands and get back with him.  The employer did not sign the contract, and it subsequently decided not to hire the claimant or open the new division.  However, prior to coming to this decision, on July 16, 2011, the claimant was working a job for the employer where the claimant used his own tools because the employer had not yet purchased the necessary equipment to do this type of work.  While installing a bin, the claimant’s left middle finger was smashed between two pieces of steel and was partially amputated.  The claimant filed a Claim for Compensation against the employer, and the employer argued that it was not the claimant’s employer under workers’ compensation.

At a hearing, the claimant argued that he was already an employee on his date of injury because he had discussed the employment relationship with the employer and had signed the contract.  The employer argued he was not an employee because it had not agreed to the additional demands he made, and in any event, the claimant was working as an independent contractor on his date of injury because he provided the service truck and the tools to perform the work on that job.  Both parties admitted this type of project was not performed as part of the employer’s regular course of business.  The claimant did receive payment for four hours of work, but no taxes were withheld.

The ALJ found that the claimant was operating as an independent contractor on his date of injury because the job was of limited duration, the employer did not control the claimant’s work because it had no experience performing that type of work, the employer did not furnish any of the equipment needed for the job because it did not yet own any, and the employer paid the claimant a premium for use of his equipment.  Therefore, the employer was not liable for benefits.  On appeal, the Commission affirmed the ALJ’s decision and Award, and it noted that even if the claimant and employer had entered into an employment agreement, the work the claimant was performing on his date of injury was not a part of that agreement.

Appellate Court Lacked Authority to Review Temporary Award from Commission Awarding TTD Benefits

AB Electrical, Inc. vs. Franklin, Case No. WD81156 (Mo. App. 2018)

FACTS:  The claimant was injured on December 7, 2015 when he fell off of scaffolding.  After a Hearing on the issue of TTD, the ALJ declined to award any benefits and found that the claimant had forfeited his right to the same because his use of marijuana was the proximate cause of his injury.  The Commission subsequently reversed the ALJ’s decision and Award and issued a temporary Award of TTD benefits and past medical expenses.  However, the Award was deemed “temporary or partial”, and the Commission left the matter open until a final Award was issued.  The employer appealed the Commission’s decision to the Court of Appeals.

HOLDING:  The Court noted that it must have express statutory authorization to review workers’ compensation cases, and under Workers’ Compensation Law, it is only allowed to review final Awards.  The Court noted a previously recognized exception to that general rule, wherein Courts have previously found that they had authority to review temporary Awards where the employer/insurer denied any liability for the injuries.  This exception was based on the fact that Appellate Courts have authority to review temporary or partial Awards of PTD benefits and a Missouri regulation finding that the Commission has authority to review Awards where benefits were granted but the employer/insurer disputed that they had liability for the injury.  The Court noted that this exception was created under liberal construction of the Workers’ Compensation Law, and after the 2005 amendments, all workers’ compensation statutes must be strictly construed.  The Court held that strict construction eliminated the prior exception.  Therefore, Appellate Courts do not have authority to review temporary or partial Awards that are not for PTD,even if the employer/insurer denied any liability for the injury.  Notably, the Court did not address the merits of the case, and this matter could still be appealed after the Commission renders a final Award in this matter.

No Award of Prejudgment Interest Permitted Under Strict Construction of Missouri Statute Governing Medical Fee Disputes

Goss vs. St. Luke’s Hospital, Injury No. 14-01645

The claimant underwent a brain MRI at St. Luke’s Hospital on March 20, 2015 in the context of a workers’ compensation injury.  The provider filed an Application for Payment of Additional Reimbursement with the Division on May 25, 2017.  On June 30, 2017, the Division mailed a Notice of Evidentiary Hearing on the Application to the provider and employer/insurer.  The employer/insurer did not file an Answer to the Application or attend the hearing.  The ALJ issued a default judgment against the employer/insurer finding them responsible for unpaid medical fees as well as prejudgment interest on those fees in the amount of $480.60, and the ALJ also awarded attorney’s costs and fees, finding that the employer/insurer defended this matter without reasonable grounds by failing to respond to or Answer the Application or appear for the hearing.  

The employer/insurer appealed the ALJ’s decision and Award arguing that the insurer was not provided notice of the hearing pursuant to statue, and award of prejudgment interest was against strict construction of Missouri statute.  The Commission modified the ALJ’s decision and Award with respect to prejudgment interest and found that under strict construction, statute did not provide for the award of prejudgment interest in favor of the medical provider in the context of an Application for Payment of Additional Reimbursement of Medical Fees.  It specifically found that a prior Court decision that authorized prejudgment interest in favor of employees with respect to unpaid medical fees, did not apply to medical fee disputes and the question of prejudgment interest on unpaid medical fees to be made to a medical provider.

Employer Not Prejudiced By Lack of Timely Written Notice Because It Had Actual Notice of Accident and Associated Injury, and Claimant Did Not Have to Identify All Specific Body Parts Injured When Providing Actual Notice

Harley Davidson Motor Company, Inc. vs. Jones and Treasurer of the State of Missouri Custodian of Second Injury Fund, Case No. WD81155 (Mo. App. 2018)

FACTS:  The claimant sustained an injury while working for the employer on July 13, 2011 while using a torque gun that jerked his body.  On his date of injury, he reported an injury to his right elbow and was directed for medical care by the employer.  He subsequently developed back pain that worsened over time.  He mentioned his back symptoms to the treating doctor in September 2011 and was referred to Dr. Drisko, who related his back complaints back to the work accident.  The claimant then contacted the employer to notify them of Dr. Drisko’s causation opinion.  The employer accepted the right elbow injury but denied the back injury, and the claimant proceeded to treat on his own.

The claimant filed a claim for the back injury, and after a Hearing, the ALJ found both the right elbow and low back injury compensable.  The employer/insurer appealed, and the Commission affirmed the ALJ’s decision and Award with a supplement opinion.  The employer/insurer appealed the Commission’s decision and argued that the Commission erred because the claimant failed to provide timely written notice of the specific injury to his lower back.

HOLDING:  The Court affirmed the Commission’s decision and Award.  It reasoned that the claimant initially had the burden to prove the employer/insurer were not prejudiced by lack of timely written notice of the back injury.  When he showed that the employer had actual notice of the accident and the elbow injury on the date of injury, the burden shifted to the employer/insurer to show that it was prejudiced.  However, the employer/insurer did not present any evidence showing that it was unable to timely investigate the accident or that lack of written notice cause an exacerbation of the injury.  The Court held that the employer/insurer was not prejudiced because it had actual notice of the elbow injury, and the claimant did not need to identify all of the specific body parts that were injured in the accident.

Employer Responsible for PTD after Psychological Injury.  Employer Not Prejudiced by Lack of Written Notice, Because Employer had Actual Notice of Accident and Injury

Fronek vs. Production Delivery Services, Inc. and Treasurer of Missouri as Custodian of Second Injury Fund, Injury No. 11-106035

The claimant, a 63-year-old truck driver, was injured on April 10, 2011 when he was struck by a vehicle in a parking lot.  The accident was captured on security camera footage, and there was also a witness present, who notified the claimant’s supervisor.  The claimant was seen once at the hospital but did not request any additional treatment.  An HR officer spoke with the claimant a few days after the accident and filed a report.  The claimant developed headaches as well as behavioral changes including a fear of cars and driving, irritability, and forgetfulness.  He continued to work without additional medical care from April to October 2011.  In October, he was referred to a neurologist, who diagnosed post-concussion syndrome and PTSD and recommended psychiatric care.  The claimant then reported a work injury and submitted bills for his medical treatment.  The employer/insurer admitted it had actual notice of the claimant’s accident and injury, but it argued that it did not have written notice of awork injury because the claimant never said he was “on duty” at the time of the accident, and it also argued it did not have written notice of a head injury within 30 days of the date of injury.  The claimant continued to work, but he had anger and disciplinary problems, and he was ultimately terminated.  He has not worked since then.

The employer/insurer did provide medical treatment after the claimant’s termination.  The authorized providers diagnosed post-concussion syndrome and headaches, PTSD, major depression, and balance, memory, and sleep problems.  One of those providers, Dr. Ferguson, opined the claimant could not return to working as a driver due to his PTSD, and he would need ongoing counseling.  Mr. Weimholt evaluated the claimant at his attorney’s request and opined he was unemployable due to his sleep and memory problems and behavioral issues that were related back to his work injury as well as his limited education.

Following a Hearing, the ALJ found there was no prejudice for lack of written notice because the employer had actual notice of the accident and injury, and the claimant notified them of his psychological injury within days of his diagnosis in October.  The ALJ also held that the claimant was PTD as a result of his psychological injuries alone and found the employer/insurer responsible for the same.

On appeal, the Commission affirmed the ALJ’s decision and Award.  The Commission held that the employer had actual notice of the claimant’s accident and injury and was not prejudiced by lack of written notice.  The Commission reasoned that statute requires the employer be notified regarding the time, place, and nature of an injury, but a claimant is not required to provide his employer with a medical diagnosis or keep the employer apprised of symptoms and/or opinions regarding the etiology of said symptoms.

Employer Responsible for PTD After Claimant Developed CRPS Following Surgery for Right Biceps Tendon Tear

Odom vs. Customer Engineering Services, LLC, Injury No. 12-046620

The claimant, a 56-year-old with an Associate’s Degree in Photo Production Technology and a history of working as a field support technician for photo labs, sustained an injury on June 21, 2012 while working for the employer.  He was working with two other people to move a large ink jet photo printer when his right elbow popped.  He treated with Dr. Roeder, who diagnosed tendinopathy and a partial right distal biceps tendon tear and performed right elbow surgery.  The doctor subsequently diagnosed CRPS of the right upper extremity and referred the claimant for ganglion blocks.  The claimant also treated with Dr. Lennard, who placed him at MMI on August 26, 2013.  He proceeded to treat on his own and underwent pain management.  The claimant did also have pre-existing disabilities, including a left knee injury for which he underwent surgery in 2010.  

Dr. Paul evaluated the claimant at his attorney’s request and found him PTD as a result of the work injury alone due to CRPS and recommended permanent restrictions of lifting no more than five pounds with the right hand on occasion.  Dr. Lennard recommended permanent restrictions of no repetitive use or lifting over five pounds with the right arm due to the work injury alone, and the doctor noted that the claimant was taking Fentanyl for CRPS, which would cause drowsiness and lethargy.  Mr. Eldred, a vocational rehabilitation consultant, found the claimant unemployable as a result of the work injury alone due to his constant pain and narcotic pain medications.  Ms. Brokover evaluated the claimant on behalf of the employer/insurer and opined that based on the work restrictions of Dr. Paul, the claimant was unemployable in the open labor market.  The claimant testified that he had continued chronic pain and instability in his knee and unpredictable pain that give him good days and bad days, and when taking his narcotic pain medication, he was unable to drive and had difficulty maintaining a train of thought.

After a Hearing, the ALJ found the employer/insurer responsible for ongoing pain management for CRPS due to the work accident.  The ALJ found the claimant was PTD as a result of the work injury alone and noted he had unpredictable chronic pain that required opioid medication that caused cognitive deficits and had permanent restrictions from Dr. Lennard and Dr. Roeder.  On appeal, the Commission affirmed the ALJ’s decision and Award.

David Rollins worked for Amtrak for 23 years until August 2015 as a supervisor in North Brunswick, N.J. overseeing 20 employees performing track maintenance.  His normal supervisor went on vacation, and Rollins experienced tension and stress with his temporary supervisor, Josh Newbold.  Rollins reported to another supervisor, Semliatschenko, his concerns about safety due to what he perceived as insufficient coordination with Newbold.  A meeting among all three was arranged on March 12, 2015 in which there was a heated argument.  Semliatschenko left the room for a few minutes during which Newbold later  claimed that Rollins threatened him with bodily harm.  Newbold did not report the alleged threat for six weeks.

On April 23, 2015, Rollins placed a call to ‘Operation RedBlock,” an employee assistance program helpline.  He said he was dealing with work and family stress issues.  At his duty station that night, Rollins was approached by Amtrak Police and paramedics from the local hospital asking him whether he was contemplating suicide.  Rollins denied suicidal thoughts and admitted simply work and family stress.  He noted his son was dealing with cancer treatment. He was taken to a local hospital and later released.  The hospital determined Rollins did not have suicidal thoughts and was not a danger to the railroad.  He was placed on medical leave pending clearance to return to work.

When he came to work the next day, Newbold found out about the incident the night before involving Rollins, and Newbold became concerned about Rollins’ emotional stability.  Newbold said that he was fearful about the threat that Rollins allegedly made on March 12, 2015, and he then reported the alleged threat for the first time.  He said that Rollins threatened to “come down to Levittown and slide one in me.”

Rollins was cleared to return to work in July 2015.  However, an investigation with a neutral hearing officer ensued at this point over the alleged threat against Newbold.  That led to a hearing on August 10, 2015.  In the hearing Newbold explained that he did not report the threat for the first six weeks because he did not think Rollins had been serious about harming him initially.  He said he became concerned about Rollins’ emotional stability when he came to work on April 24, 2015 and found out about the hospital visit.   The hearing officer recommended termination of Rollins’ employment in part for a violation of the Amtrak Workplace Anti-Violence Policy.  Rollins made multiple appeals without success and then filed a civil suit alleging violations of the New Jersey Law Against Discrimination.

In his suit Rollins argued that Amtrak discriminated against him on the basis of a perceived disability.  He contended that Amtrak perceived him as having a mental disability on account of his call to operation RedBlock and his discussion with a counsellor who alerted Amtrak Police.  He further argued that his firing was based on a pretext that he had engaged in an act of violence at his workplace.

Amtrak moved to dismiss the case.  Its management denied having any discriminatory animus against Rollins and conceded only that one co-employee, Newbold, could have had any discriminatory animus against him.

The federal court rejected the motion for summary judgment filed by Amtrak:  “Based on the facts provided by the parties, one can plausibly argue that Newbold and Amtrak management were motivated by discriminatory animus.  Defendant received Newbold’s complaint for an alleged threat that occurred weeks prior thereto, the morning after Plaintiff’s call to Operation RedBlock.  A jury may determine that the request for psychological services was the motivation to seek Rollins’ dismissal.”

Timing was the problem Amtrak faced in winning its motion for summary judgment.  The alleged threat by Rollins against Newbold occurred on March 12, 2015 but was not reported until the day after Rollins was taken to a hospital and found to have no suicidal thoughts, some six weeks later.  The report of the alleged threat then led directly to the termination of Rollins.  In the end the Court believed Rollins had made out a sufficient case to allow a jury trial on whether Amtrak wrongfully perceived him as having a mental disability and discriminated against him on that basis.  The case can be found at Rollins v. National Railroad Passenger Corp., 2018 A.D. Cases 336982 (D.N.J. September 18, 2018).

-----------------

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 COMMONWEALTH COURT ISSUES ITS

                                                                        SECOND DECISION POST-PROTZ

                                                                                 By Lisa A. Miller, Esquire

On June 6, 2018, the Commonwealth Court circulated a Decision in Whitfield v. WCAB (Tenet Health System Hahnemann LLC), Pa. Cmwlth., June 6, 2018.

The Commonwealth Court has published its second Decision addressing the Supreme Court’s holding inProtz regarding the retroactivity of the Impairment Rating Evaluations.

The facts of the case were not in dispute.  On March 25, 2002, the Claimant suffered a work-injury that required her to undergo lower back surgery.  From March 25, 2002, until September 28, 2002, the Claimant received partial disability benefits for the time period in which she performed alternative work.

The Claimant’s temporary total disability benefits began on September 29, 2002, the day before her lower back surgery.

On June 13, 2006, Dr. Brody performed an IRE under the Fifth Edition of the AMA Guides to permanent impairment.  Dr. Brody concluded that the Claimant had an impairment rating of forty-four percent (44%).

Based upon the IRE, the WCJ modified Claimant’s disability status from total to partial disability as of the date of the IRE.

The Appeal Board affirmed the modification of the Claimant’s benefits by Order on June 1, 2009.

The parties stipulated that the Claimant did not raise the constitutionality of the IRE before the original WCJ, or the Board.

Although the Claimant’s disability status was modified from total to partial, because she was not able to return to work following her surgery, the Claimant received workers’ compensation benefits at the temporary total disability rate from September 29, 2002, until mid-July 2015.  She testified that she continued to receive medical benefits.

On November 13, 2015, about one month after the Commonwealth Court’s Decision inProtz I, the Claimant filed a Petition for Reinstatement to total disability based upon the Commonwealth Court’s Decision inProtz I, holding that the Fifth and Sixth Editions were unconstitutional.

At the Hearings on the Reinstatement Petition, the Claimant testified that she did not feel as though she had fully recovered from her injuries, and that she had been unable to work from the time of her surgery through July 15, 2015.  There was some contradictory evidence that the Claimant was involved in a motor vehicle accident in May 2012, in which she injured her head, neck, and upper back, but not her lower back.

The Judge issued an Order denying the Claimant’s Reinstatement Petition.  The Judge found that Claimant was not entitled to a reinstatement of her benefits based uponProtz I for a number of reasons:

        (a)       In Protz (I), the Commonwealth Court did not expressly void all prior [IREs] or state that its Decision applied                     retroactively; 

        (b)       In Pennsylvania, generally only those matters that are pending in any phase of litigation, including Appeal or future                     matters, are entitled to a benefit in the change of the law, and the litigation in the instant matter ended on June 1,                     2009; [and]

        (c)       The constitutionality of Section 306(a)(2) was not raised or preserved in the underlying litigation.

The WCJ cited Winchilla v. WCAB (Nextar Broadcasting), 126 A.3d (Pa. Cmwlth. 2016), for the proposition that the Claimant waived the constitutionality argument by not raising it previously.  Because of the Judge’s Decision, the WCJ did not make a finding regarding the Claimant’s credibility.

The Claimant filed an Appeal of the WCJ Decision, and the Board affirmed in a 4 to 3 Decision.

The majority of the Board found that Claimant waived the right to challenge the constitutionality of the IRE citingRiley v. WCAB (Commonwealth of Pennsylvania), 154 A.3d 396 (Pa. Cmwlth. 2016).  The Board found that the Claimant did not challenge the constitutionality of the IRE before the WCJ or the Board when her change in status Petition was first being litigated.

Additionally, the Board noted that the Claimant did not Appeal the Board’s June 1, 2009 Order, in which the Board affirmed the original WCJ Decision modifying her status to partial disability.

The Board also noted that a Claimant may appeal a change in status at any time during the 500-week period of partial disability, so long as the Claimant presents evidence of a revised impairment rating of at least fifty percent (50%).  However, the Board held that Claimant was not entitled to a Modification of her disability status, because she failed to present such evidence.

The Board’s dissent disagreed with the Board’s majority that Claimant’s change in disability status was final.  The dissent distinguishedRiley, noting that in Riley, the Claimant attempted to challenge the IRE more than 500 weeks after the change in disability status, whereas Claimant here filed her Petition with the 500-week period following her change in disability status.

In a footnote, the Board noted that the Claimant filed her Petition within 500 weeks of the change in status on June 13, 2006, the dissent went onto cite Section 306(a.2)(4), which provides, in relevant part, that “An employee may Appeal the change to partial disability at any time during the 500 week period of partial disability.”

The footnote goes on to state that Claimant received twenty (20) weeks and six (6) days of partial disability benefits in 2002, leaving her with 479 weeks, one day before her 500 weeks of partial disability benefits were exhausted.  Although she did not actually receive payment of four (4) weeks of partial disability until April 2016, those benefits were for the period of July 13, 2015 through August 19, 2015.  Therefore, the Claimant exhausted her benefits in the summer of 2015, but did not file her Petition until November 2015.  Thus, Claimant did not file her Petition “during the 500 week period of partial disability”.

The dissent further found that Protz I should be applied retroactively, because it satisfied the criteria for retroactive application inBlackwell v. State Ethics Commission, 589 A.2d 1094 (Pa. 1991).

The first criterion is the purpose to be served by the new rule.  The dissent concluded that “applyingProtz I retroactively to the instant case serves the important purpose of mandating conformity with the Constitution.

Otherwise “allowing Claimants to have their disability status, and ultimately have their benefits completely cut off, based upon an IRE that was based upon an unconstitutional section of the Act, greatly prejudices those Claimants and blocks the main purpose of the Protz I Decision.

With regard to the second criterion, the extent of the reliance on the old rule, the dissent noted that “The IRE process is inherently not a final process, and remains an open case for 500 weeks past the time that a Claimant’s disability status has changed.”  Because the Guides could change, and Claimants retain a right to challenge their status during this 500 week period, the dissent found “Employers have never had full reliance that a change in Claimant’s disability status to partial would be final as that change only becomes final once the 500-week period has expired.”

The dissent believed “There would be a more adverse effect on the administration of justice ifProtz I was not retroactively applied to [cases in which the 500-week period had not expired], as those are not final cases.”

If Protz I was not given retroactive effect, the dissent stated “It would lead to the absurdity that Claimants would have the right to Appeal IREs, but have no actual remedy to carry through on that Appeal, as the right to Appeal would be based upon a now unconstitutional section of the Act.”

On Appeal to the Commonwealth Court, the Claimant argued that the Protz Decisions apply, and that she is entitled to have her disability status restored from partial to total disability, because the IRE upon which the change was based was unconstitutional and invalid.  The Claimant contends that the case is “strikingly similar” to the Commonwealth Court’s Decision inThompson v. WCAB (Exelon Corporation), 168 A.3d 408 (Pa. Cmwlth. 2017), in which the Commonwealth Court reversed the Board’s affirmance of a WCJ’s Decision modifying a Claimant’s disability status from total to partial.

Claimant also argues that Reinstatement Petitions made be filed within three years of the date of last payment, which is satisfied here.

In addition, the Claimant also argues that public policy and justice require the retroactive application ofProtz II.  Because Protz II struck the entirety of the IRE provision from the Act, the Claimant asserted that injured employees no longer have a statutory remedy to seek a change in status, and “by eliminating the statutory process for an employee to challenge his or her IRE – based partial disability status, the Supreme Court could not have intended to bind forever Claimants to a partial disability status that was unconstitutionally inacted.  In addition, the Claimant emphasizes that the remedial nature of the Act stresses that it should be liberally construed in favor of injured workers.

Employer argued that the reinstatement was not warranted, because at the time thatProtz II was decided, the Claimant had “already conclusively litigated the change in her benefit status, collected 104 weeks of temporary total disability benefits, and collected the entirety of her 500 weeks of temporary partial disability benefits.”

Employer also notes that Employers have relied on the now-invalid IREs, which largely went unchallenged until theProtz Decisions.  Employer explained:

“While the statutory scheme set forth in Section 306(a.2) of the Act allowed a Claimant to prove an entitlement to temporary total disability benefits at some point within thefuture of that 500 week period, presuming he/she was able to demonstrate a total person impairment of fifty [%] or greater, the statute did not provide a Claimant with 500 weeks within which to look back and invalidate apast IRE, and the corresponding change in benefit status.”

The Employer argued that Claimant fully litigated her change in benefit status a decade ago, but never challenged the constitutionality of the IRE provisions during that litigation.  The Employer argued that if the Court were to give retroactive effect toProtz II, the parties expectation of finality would be upset.

The Court goes on to summarize the holdings in Protz I and II, and the subsequent Commonwealth Court holdings in betweenProtz I and II, namely Winchilla, Rileyand Thompson.

In Thompson, the Claimant’s disability status was changed on August 30, 2005 from total to partial disability following an IRE performed utilizing the Fifth Edition of the AMAGuides.

The parties were in the midst of litigating the merits of the earlier change in status, based upon the Claimant’s 2011 Petition for Review, challenging the 2005 IRE whenProtz I was decided.  Although the Claimant had not challenged the constitutionality of the IRE before the WCJ or the Board, the Claimant in her Petition for Review to the Commonwealth Court raised the constitutionality issue.

The Employer argued that the Claimant failed to timely raise the issue, and should be barred from doing so on Appeal.

The Commonwealth Court rejected the Employer’s argument noting that “This matter began beforeProtz I and Protz II were decided.  It implicated the validity of the statute, and the [Claimant] raised this issue at the first opportunity to do so.” Thompson.

The Commonwealth Court noted that post-Protz II, the statutory time requirements were no longer valid, and the Commonwealth Court allowed a Claimant to raise the constitutionality of the IRE for the first time outside of those time periods, but while the litigation involving the change in status was still pending.  Thompson.

With regard to the case at bar, the Claimant argued that she was entitled to a reinstatement of her disability status from partial to total, because she filed her Reinstatement Petition within three years after the date of her most recent payment of compensation, and the IRE upon which the modification of her disability status was based is invalid.  She argues that her case is most analogous toThompson, because she filed her Reinstatement Petition at the first available opportunity, just one month after the Decision inProtz I.

The Claimant also argues that Protz should be applied retroactively.

Employer argues against retroactive application, stressing that Claimant did not raise the constitutionality of the IRE at any time during the underlying litigation related to the IRE itself, and she cannot do so now, because it would upset Employer’s reasonable expectation of finality.

It is undisputed that the Claimant filed her Reinstatement Petition within three years after the date of the most recent payment of compensation.  Her last payment was received in mid-July 2015, just four months before she filed her Petition.  Therefore, under Section 413(a), the Court examined the disability of [Claimant] has increased, decreased, recurred, or has temporarily or finally ceased.  77 P.S. §772.

The Court notes that “disability” is synonymous with a loss of earning power resulting from a work-related injury.  “Disability” may also refer to astatus, which is linked to the rate or amount of compensation to which a Claimant is entitled.  Traditionally, this status was linked to Claimant’s earning power under the traditional vocational efforts and earning power assessments.

Section 306(a.2) to the Act provided another method of changing Claimant’s disability status from total to partial disability, butwithout regard to any change in Claimant’s earning power.  The practical effect of the change in status for an impairment rating under fifty percent (50%) was to change the Claimant’s status from total to partial disability, and to limit a Claimant to 500 weeks of partial disability.  See Diehl v. WCAB (I.A. Construction), 972 A.2d 100, (Pa. Cmwlth. 2009).

Diehl discussed the distinction between a change in disability status based upon an IRE, and a change in earning power based upon a vocational evaluation.

In Diehl, the Court explained that “IRE remedies are separate from remedies involving actual ability to work.”  TheDiehl Court explained that “requiring proof of a Claimant’s level of impairment, and a Claimant’s earning power, would render the IRE provisions meaningless” and that “there would be no reason for the Employer to ever obtain an IRE.”

The Court noted that until the IRE provisions were struck down as unconstitutional, a Claimant’s disability status could be modified from total to partial disability in one of two ways:  (1) evidence of earning power under Section 306(b)(2), or (2) based upon a Claimant’s impairment rating without regard to his or her earning power under Section 306(a)(2).

Because earning power did not play any role in Claimant’s change from total to partial disability in this case, we discern no reason why the term “disability” in Section 413(a) governing reinstatement from partial to total disability status in this case should be restricted to its traditional definition of earning power.

The Court next considered whether Claimant’s disability status “increased, decreased, recurred, or has temporarily or finally ceased”. 77 P.S. §772.

Under the facts of this case, Claimant may establish entitlement to reinstatement of her disability status “recurred”.  The Court defined “recur” as “to return to a place or status”, or “to happen, take, place, or appear again.”  Webster’s Third New International Dictionary.

The Court noted that the legal effect of Protz I and subsequentlyProtz II was to render Claimant once again eligible for total disability benefits.  The impediment that rendered her partially disabled under the Act, the Impairment Rating Evaluation, is no longer a valid means of challenging a Claimant’s status.  There was no longer a legal basis for Claimant’s disability status to remain partial, because the IRE upon which the change in status was predicated was found, as a matter of law, unconstitutional and invalid.  This change in the law was a basis upon which Claimant could seek reinstatement.

This scenario is more akin to a Claimant seeking reinstatement of benefits currently under a suspension than one seeking a reinstatement of benefits following termination, because there is no allegation that Claimant’s disability had ceased.

The Supreme Court explained that suspension status “actually acknowledges” a continuing medical injury.” Latta v. WCAB (Latrobe Die Casting Co.), 642 A.2d 1083, 1085 (Pa. 1994).

In situations where Claimant’s benefits are suspended, the Claimant is only required to demonstrate that the reasons for the suspension no longer exist. Pieper v. Ametek-Thermox Instruments Division, 584 A.2d 301, 304 (Pa. 1990).

A Claimant is not required to demonstrate with medical evidence that the work-related injury giving rise to benefits continues; a Claimant’s testimony to that effect satisfies the Claimant’s burden of proof. Latta.

The Supreme Court held that “once a Claimant testifies that his prior work-related injury continues, the burden shifts to his Employer to prove the contrary.  Where an Employer fails to present evidence to the contrary, the Claimant’s testimony, if believed by the Judge, is sufficient to support to reinstatement.”

The Supreme Court explained that because the Claimant already established a work-related injury, it would be improper to require a Claimant to establish it again.  “In such suspension stituations, the causal connection between the original work-related injury and the disability which gave rise to the compensation is presumed.”  Pieper.

The Court goes on to distinguish Stanek v. WCAB (Greenwich Collieries), 756 A.2d 661, 668 (Pa. 2000).

The Court distinguishes Stanek because the Claimant there did not have his status changed based upon an impairment rating, rather he received partial disability benefits based upon a change in earning power.  InStanek, the Claimant exhausted 500 weeks of partial disability, and sought a reinstatement on the basis that his physical condition had worsened, rendering him totally disabled.  The Commonwealth Court noted that the standard enunciated by the Supreme Court, requiring evidence of a loss of earning power and a worsening of the Claimant’s physical condition, under these circumstances makes sense.

However, in cases where the Claimant’s change in disability status was never based on either a change in earning power, or a change in physical condition, but solely on an impairment rating, it does not make sense for a Claimant seeking reinstatement based upon an unconstitutional IRE to show a change in earning power when the Employer was not required to share the same when it had the Claimant’s disability status modified from total to partial.

Furthermore, in some cases, a Claimant will not be able to show a change in earning power, because he or her earning capacity remains at zero.  Moreover, because the change in disability status was not linked to any change in physical condition, but only to an impairment rating, it does not make sense to require Claimants to show their physical condition worsened.

Claimant testified that she was not able to work at all, since her surgery in 2002.  Employer did not present any evidence to the contrary.  Therefore, if Claimant’s testimony is credited, this satisfies her burden underLatta.

However, the Commonwealth Court remanded the matter to the WCJ, noting that the WCJ did not find it necessary to make any findings as to Claimant’s credibility, because of the Judge’s determination thatProtz I was inapplicable.

Therefore, the Commonwealth Court vacated the Board’s Order, and remanded the case to the WCJ to make factual findings related to whether Claimant credibly testified that she is totally disabled.  If her testimony is credited, and because Employer presented no evidence to the contrary, the Claimant is entitled to a reinstatement as of the date that she filed her Petition underLatta.

The Court cites the humanitarian purposes of the Act for rendering their decision.

Interestingly, the Court appeared to “punt” on the retroactivity issue.  The Court notes “Our Decision today does not impose any new legal consequences upon a past transaction.  Simply becauseProtz II is being applied to a case that arose from a work injury and a change in disability status that pre-dates it does not mean it operates retroactively.” Warren v. Folk, 886 A.2d 305, 308 (Pa. Super. 2005).

It would be retroactive if it related back and gave a prior transaction a legal effect different from which it had under the law in effect at the time.  This Decision does not alter Claimant’spast status.  Rather, it gives effect to the Claimant’s status as it existed at the time she filed a Reinstatement Petition, which was within the statutory time frame for filing of such Petitions.

                                                                        ConnorsO’Dell LLC

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

We defend Employers, Self-Insureds, Insurance Carriers, and Third Party Administrators in Workers’ Compensation matters throughout Pennsylvania.  We have over 100 years of cumulative experience defending our clients against compensation-related liabilities, with no attorney in our firm having less than ten (10) years of specialized experience, empowering our Workers’ Compensation practice group attorneys to be more than mere claim denials, enabling 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 Workers’ Compensation Act.

Every member of our Workers’ Compensation practice group is AV rated.  Our partnership with the NWCDN magnifies the lens for which our professional expertise imperiously demands that we always be dynamic and exacting advocates for our clients, navigating the frustrating and form-intensive minefield pervasive throughout Pennsylvania Workers’ Compensation practice and procedure.

New Jersey workers’ compensation has two kinds of settlements: those under Section 20, a full and final settlement, and those under Section 22, an accepted percentage of disability settlement with reopener rights retained by the petitioner.  Section 20 settlements are popular with employers and carriers because they do not involve an admission of liability, and the case is closed for good.  The two most frequent legal bases for obtaining a Section 20 settlement are liability and causation.  They comprise perhaps 95% of the Section 20 settlements in the Division, with the remaining small portion involving jurisdiction and dependency.  But what do liability and causation really mean?

An issue of liability refers mostly to legal considerations:

* The petitioner was not in the course of employment when injured

*  The petitioner was injured on premises not controlled by the employer

*  The petitioner was an independent contractor, for instance, not an employee

*  The petitioner cannot meet the definition of having a permanent impairment under Section 36

In contrast, causation refers mostly to medical-legal considerations:

*  The herniated disc is preexisting and was not caused by the injury

*  The petitioner’s present complaints reflect a subsequent non-work incident

*  The mechanism of injury is not consistent with petitioner’s pathology

The foregoing are just some examples of how causation and liability issues manifest in workers’ compensation cases.  As a practical matter, it is much easier to reach a Section 20 settlement if the workers’ compensation claim has been denied from the outset.   Accepted cases with objective evidence of permanent partial disability are not candidates for a Section 20.  Such cases are settled under Section 22, allowing the injured worker to retain the right to reopen the case in the future for additional medical, temporary or permanency benefits within two years from the last payment of compensation.

One exception to the above rule disqualifying admitted cases from a Section 20 concerns those matters where the defense doctor disputes that there exists any permanent disability at all.  If the defense IME finds zero permanent partial disability, even in an admitted case, the case may be a candidate for a Section 20 settlement.  Both parties must agree, and the Judge of Compensation must approve the Section 20.

Practitioners should realize that not all estimates of zero disability are the same.  If an IME doctor finds zero disability in a sprain and strain case with limited treatment and minimal lost time, the Judge of Compensation will be more likely to approve a Section 20 than a case where the defense IME has a zero estimate in the face of MRI findings of a bulging disc with radicular pain.  Just because the defense IME finds zero disability does not mean that the case will be approved for a Section 20.  Each case is different, and judges focus on the specific medical findings as well as the impact of the injury on the injured employee in his or her work and non-work life.  Minor sprains are excluded from compensation by statute under N.J.S.A. 34:15-36.  As such, admitted minor sprain cases are often settled under Section 20.

Perhaps the largest category of Section 20 settlements emerges from cases where the treating doctors have inquired about and identified preexisting or subsequent conditions that may explain the petitioner’s pathology and complaints. Often that questioning reveals prior car accidents or injuries that led to significant treatment and diagnostic testing, and that analysis often leads to a Section 20 resolution.  The skill of taking a detailed past medical history, inquiring about current sports, recreational activities and second jobs, varies immensely from doctor to doctor.  It takes time and effort to do this well.

Workers’ compensation is contingent health care, meaning that the physician must focus on whether the condition arises from work or perhaps from other non-work causes.  Most employers and carriers err in choosing doctors from enormous lists and large networks where the focus is primarily on provider pricing.  The reality is that the best results and greatest savings in workers’ compensation are directly traceable to the ability of physicians to analyze causation thoroughly and spend time taking a detailed past medical history.  Occupational physicians and surgeons should be selected primarily for their medical expertise and for their skill in analyzing causation, including taking a complete past medical history and considering non-work hobbies and sports in relation to the work activity that is alleged to be the cause of the injury.

-----------------

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. 

Does telemedicine have a place in workers’ compensation?  This practitioner was undecided on this question until a week ago when participating in a conference devoted to the benefits of using telemedicine in workers’ compensation. The presentation was offered by Concentra, and it made a strong case for telemedicine as a useful adjunct to workers’ compensation treatment.

The way it works is simple: an injured worker connects on a computer or a mobile device to a clinician by video.  Clearly telemedicine makes good sense for minor medical issues such as sprains or contusions.  Concentra estimates that 30 percent of initial injuries and 60% of injury rechecks can be treated via telemedicine.

What are the savings?  Among them is that there is no need to transport the injured worker to a medical facility and no need to provide coverage for that injured worker while out of the work site.  There are fewer hours of lost time.  Perhaps the biggest financial savings is not incurring ER charges or urgent care bills.

One type of New Jersey worker who clearly benefits from telemedicine is the over-the-road trucker who may be injured a thousand miles from home.  The telemedicine patient can be seen on the road, at work or even in the home.  The worker can request text notification regarding when the clinician is available to treat, thereby avoiding waiting times in medical offices.

The follow-up treatment involves sending paperwork by secure email to the employee as well as reports to the employer by email or other communication.

Will telemedicine replace occupational health centers?  Clearly not, because serious injury case are not appropriate for telemedicine.  It does seem to this practitioner that telemedicine will grow rapidly around the state for many types of injuries.  Clinicians will need to be careful in limiting the use of telemedicine to minor cases and recognizing when an in-person visit to a physician must be made. Many workers will no doubt prefer telemedicine in many situations.  Care may be improved by prompt telemedicine, eliminating the problem of workers who delay their own treatment because they do not want to take the time off from work to travel to an occupational clinic.

-----------------

JohDoes telemedicine have a place in workers’ compensation?  This practitioner was undecided on this question until a week ago when participating in a conference devoted to the benefits of using telemedicine in workers’ compensation. The presentation was offered by Concentra, and it made a strong case for telemedicine as a useful adjunct to workers’ compensation treatment.

The way it works is simple: an injured worker connects on a computer or a mobile device to a clinician by video.  Clearly telemedicine makes good sense for minor medical issues such as sprains or contusions.  Concentra estimates that 30 percent of initial injuries and 60% of injury rechecks can be treated via telemedicine.

What are the savings?  Among them is that there is no need to transport the injured worker to a medical facility and no need to provide coverage for that injured worker while out of the work site.  There are fewer hours of lost time.  Perhaps the biggest financial savings is not incurring ER charges or urgent care bills.

One type of New Jersey worker who clearly benefits from telemedicine is the over-the-road trucker who may be injured a thousand miles from home.  The telemedicine patient can be seen on the road, at work or even in the home.  The worker can request text notification regarding when the clinician is available to treat, thereby avoiding waiting times in medical offices.

The follow-up treatment involves sending paperwork by secure email to the employee as well as reports to the employer by email or other communication.

Will telemedicine replace occupational health centers?  Clearly not, because serious injury case are not appropriate for telemedicine.  It does seem to this practitioner that telemedicine will grow rapidly around the state for many types of injuries.  Clinicians will need to be careful in limiting the use of telemedicine to minor cases and recognizing when an in-person visit to a physician must be made. Many workers will no doubt prefer telemedicine in many situations.  Care may be improved by prompt telemedicine, eliminating the problem of workers who delay their own treatment because they do not want to take the time off from work to travel to an occupational clinic.

-----------------

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.n 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.