State News

NWCDN is a network of law firms dedicated to protecting employers in workers’ compensation claims.


NWCDN Members regularly post articles and summary judgements in workers’ compensations law in your state.  


Select a state from the dropdown menu below to scroll through the state specific archives for updates and opinions on various workers’ compensation laws in your state.


Contact information for NWCDN members is also located on the state specific links in the event you have additional questions or your company is seeking a workers’ compensation lawyer in your state.


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Employers and carriers were delighted by the Appellate Division’s 2018 decision in Genduso v. New York City Department of Education. That case held that a claimant’s schedule loss of use award would be subject to an automatic deduction for any prior schedule loss of use awards to the same body member. Genduso prevented a claimant from receiving separate schedule loss of use award for separate joints of the same limb. For example, if a claimant received an earlier 15% schedule loss of use of the arm due to an elbow injury two years ago, but later was assessed a 30% SLU of the arm following a shoulder injury, the new 30% SLU would be reduced by the prior 15% arm SLU assigned to the elbow, yielding a net 15% SLU to the arm. The claimant’s bar has challenged this decision in numerous cases over the years and we were concerned that Genduso would be overturned when the Court of Appeals granted certiorari in Johnson v. City of New York and Liuni v. Gander Mountain.

On 4/21/22, the Court of Appeals issued its decision in Johnson v. City of New York and Liuni v. Gander Mountain. This decision does not explicitly overturn Genduso, but it does hold that a claimant may receive separate SLU awards for “different injuries to the same statutory member,” so long as the claimant proves that the second injury, considered by itself, has caused an increase in the claimant’s loss of use. We do not believe that this will be a difficult burden for a claimant who has separate injuries to different joints or parts of the same body member/limb, such as in our elbow/arm example above. The Court asserted in its decision that WCL §15(7) provides that a claimant may receive more than one SLU award in connection with successive injuries to the same body member but that any such award must be limited by “any diminished wage earning capacity due to the previous disability.”

In Johnson, the claimant had bilateral knee injuries in 2006 and then later injured both hips in a 2009 accident. He received schedule awards in the 2009 injury of a 50% SLU of the left leg and a 52.50% SLU of the right leg. After Johnson was awarded these schedules, he reached maximum medical improvement in the 2006 knee injuries. The Law Judge in Johnson found that the claimant had an overall 80% loss of use of the left leg and a 40% loss of use of the right leg. But, given the Genduso decision, the Law Judge reduced the schedule loss of use award by the 50% prior loss of use to the left leg and 40% loss of use to the right leg for the bilateral hip injuries in the 2009 case, leaving the claimant with an “additional” SLU award of 30% for the left left and 0% for the right leg. Both the Board and the Appellate Division affirmed. The Court of Appeals affirmed, citing the absence of evidence in Johnson that would have allowed the Board to determine the loss of use of his legs solely related to his bilateral knee injuries.

The Court also cited support for its decision from Zimmerman v. Akron Falls Park - Erie County, 29 N.Y.2d 815 (1971). Zimmerman involved a claimant who received separate schedule loss of use awards: one for his hand in 1924 for a forearm amputation and a later 1967 injury to his arm for a shoulder injury. The Zimmerman court did not reduce the 1967 schedule award by the 1924 award, noting that the 1924 injury did not affect the 1967 shoulder injury. Accordingly, the court asserted that Zimmerman establishes that offset is not required when the claimant demonstrates that the later injury increases the schedule loss of use of the affected body member beyond the schedule awarded in the earlier injury. In a sharply worded dissent, Judge Wilson argued that the majority’s discussion of Zimmerman was incorrect and wholly unnecessary to their holding. Rather, Judge Wilson felt that Genduso was wrongly decided and that both Johnson and Liuni should have been reversed.

In Liuni, the claimant injured his left elbow in 2007 and received a 22.5% SLU of the left arm for that injury. He later injured his shoulder in 2014. The Workers’ Compensation Law Judge ruled that Liuni had an overall SLU of 50% to the left arm, an increase of 27.5% over schedule loss of use from the 2007 left elbow injury. Liuni’s physician said that the two injuries were separate and not in any way related. The Board and the Appellate Division credited this opinion but noted that under Genduso that the later schedule loss of use award would have to be reduced by the prior schedule loss of use award. The Court of Appeals reversed because there was evidence from Liuni’s expert that the two injuries were separate and distinct pathologies.

In Johnson, the Court of Appeals did not feel that there was sufficient evidence that the two injuries were sufficiently separate from one another because Johnson’s expert testified that his hip and knee injuries were not isolated from one another, leaving open the question of how much loss of use of his legs were related to the knee injuries.

Claims adjusters reviewing cases involving a new injury to a body member for which the claimant received a prior schedule loss of use award will want to consider obtaining an independent medical examination on the question of whether the claimant has experienced any increase in the loss of use above and beyond the previous schedule loss of use award for that same body member. The independent medical examiner will need to state whether any increase in the loss of use is due solely to the new injury or if the increase results from a combination of the new injury and the previous injury (or injuries) to that body member. Similarly, in defending schedule loss of use claims, employers and carriers will want to be sure that attending physicians apply the same standard in addressing schedule loss of use.

 

Colleen Willis Retires from Partnership

 

Colleen Willis has retired from her H&W partnership but will maintain "Special Counsel" status with the firm and intends to handle cases from time-to-time after some much needed travel and time with her family.

Law was a second career for Colleen, who graduated from the State University of Buffalo Law School following an 18 year career as a Registered Nurse, working in both hospital and community based settings.

Resident in our Rochester office, Colleen was known as the firm "mom" - making sure not only that our briefs were filed on time but that we remembered to wear a hat before going outside in the winter weather.

She wanted our wonderful clients to know that she enjoyed working with them over the years and that they are "a pretty amazing, smart, and hard working group with challenging jobs." Amen, Colleen - you will be missed by all of us here at Hamberger & Weiss.

 

Board Enforces Requirement for Certification of RFA-2s

 

We have learned that the Board will no longer consider RFA-2s that do not have the certification section completed at the bottom of the form. Our clients will recall that the certification section asks whether the person signing the RFA-2 has discussed the issues cited on the RFA-2 with the opposing party or whether that person attempted to contact the opposing party to discuss the issues raised. It appears now that failure to complete this section will result in the Board taking no action on the RFA-2 so please remember to work this requirement into your RFA-2 filing processes.

 

Appellate Division Extends Taher Rule in New Decision

 

On 4/14/22, the Appellate Division, Third Department decided Gambardella v. New York City Transit Authority. This decision holds that the Court's previous decisions in Taher v. Yiota Taxi and Arias v. City of New York apply to cases where a claimant is not working and is not receiving indemnity benefits because they have withdrawn from the labor market. As a reminder, Taher and Arias held that claimants may receive both a permanent partial disability classification and schedule loss of use award(s) in the same claim at the same time. For claimants who are working and not receiving lost wage payments at the time of permanency, Taher and Arias allow the claimant to receive a lump-sum schedule loss of use award payment. That award then becomes a credit against any future lost wage benefits flowing from the permanent partial disability classification should they later occur. The Court’s holding in Gambardella shows a willingness to extend the Taher and Arias holdings beyond the original fact patterns in those cases. Gambardella raises the question of whether the Taher / Arias rule will also apply to other fact patterns in which a claimant is not working but also not receiving lost wage payments at the time of permanency.

 

Reminder - Don't Blindly Split the Difference on SLUs

 

In recent months we have seen quite a few stipulations, prepared by claimant's counsel and signed by our clients that "split the difference" on SLU opinions, even when both the attending physician and IME have misapplied the guidelines. Our readers may recall that we discussed this in March 2020 when we reminded our readers that the Appellate Division's decision in Parody v. Old Dominion Freight held that the Board is not bound by the medical opinions of schedule loss of use (SLU) in the record and may fashion its own SLU assessment based on the medical evidence and the impairment guidelines if the ultimate result is supported by the record, even if the percentage loss of use awarded has not been given by any medical expert in the record. Thus, a physician's failure to follow the procedure described in the Impairment Guidelines for determining SLU can be used to obtain significant savings on the SLU award in some cases.

 

Board Announces Changes to C-8.1/C-8.4 Forms

 

The Board has announced some important updates to the C-8.1 and C-8.4 forms. First, the Board reminded payers completing these forms that only the last four digits of the claimant's Social Security number should be put on the form. The Board determined as of 6/16/21 that it would no longer require the claimant's full nine digit Social Security number on the form.

The Board is also eliminating Part A of the C-8.1 form and publishing a new C-8.1 form on 7/1/22. Payers will be required to use the new form as of 8/15/22. The new C-8.1 form eliminates the objection "Requested treatment is not for an established site or condition," and moves it to a new RFA-2 form that will be published on May 2, 2022. The Board does not comment on the other objection reasons noted on the C-8.1 such as:

  • Withdrawal of authorization based on a conflicting medical report

  • Termination of further medical treatment based on a conflicting medical report

  • Objection to further treatment based on non-appearance at a scheduled IME

  • Denial of authorization based on a medical appliance or program not being covered under the WCL

  • Medical necessity of a requested special service

Presumably, employers and carriers will still be able to raise these objections via the Board's RFA-2 but we are concerned that the Board did not address these objections directly in their announcement.
As of 8/15/22, payers will be required to use the new forms and should the old forms be submitted after that date, the Board will take no action.

 

Wojcik Wins Extreme Hardship Determination Case

 

Our partner, Melanie Wojcik, successfully defended an extreme hardship determination claim under WCB §35(3), receiving a favorable decision from a Board Panel on in Toys R Us. WCB Case No. 80801667 (4/22/22). In this case, the claimant was previously classified with an 80% loss of wage earning capacity and when he reached the durational limit of his permanent partial disability benefit, he applied for further benefits under the extreme hardship determination provision of WCB 35(3). During litigation, Melanie cross-examined the claimant, and established that the claimant's expenses were typical for someone on a fixed income, that some of the claimant's costs were discretionary and that the claimant made no effort to reduce his expenses. Nonetheless, the Law Judge found that the claimant met the criteria for extreme hardship and awarded ongoing benefits.

Melanie appealed the Law Judge's decision to the Board Panel. In an unanimous decision, the Board Panel overruled the Law Judge, finding that the mere fact that a claimant's expenses exceed his income does not, by itself, entitle that claimant to further benefits under an extreme hardship redetermination.

Our clients should remember to scrutinize claims for ongoing benefits under the extreme hardship determination provision. Please contact our office for advice and recommendations for any assistance.

 

Contact Us

 

Hamberger & Weiss LLP - Buffalo Office
700 Main Place Tower
350 Main Street
Buffalo, NY 14202
716-852-5200
buffalo@hwcomp.com

Hamberger & Weiss LLP - Rochester Office
1 South Washington Street
Suite 500
Rochester, NY 14614
585-262-6390
rochester@hwcomp.com

Written by: Julie Hooten, Tracey Jones, and Shivani Shah

In a recent decision issued by the North Carolina Court of Appeals, Judge Chris Dillion remanded Blackwell v. N.C. Dep’t of Pub. Instruction back to the Full Commission where a claimant’s appeal to convert her weekly benefits to a single, lump-sum award was denied.

Background of the Case

The claimant was a former high school teacher who was injured on the job breaking up a fight.  She was diagnosed with multiple physical and mental injuries and the Full Commission found her to be permanently and totally disabled and awarded weekly benefits. The claimant later requested her award to be converted into a single, lump-sum payment, as per by N.C. Gen. Stat. §97-44 (2018).  Both the Deputy Commissioner and the Full Commission denied her request and she appealed. The sole issue on appeal was whether the Commission erred in concluding that a lump-sum award under Section 97-44 is never allowed where the sum of future installments is uncertain. The Commission relied on the “Uncommuted Value Clause” of N.C. Gen. Stat. §97-44 and reasoned that it prohibits any lump-sum award which would exceed the sum of the future installments that are being replaced. The Commission denied the claimant’s request on the basis that a lump sum award was not allowed in any situation where the number of future payments was uncertain.  Under the original Opinion and Award, the claimant was eligible to receive weekly benefits for the rest of her life.  As a result, the number of future installments the claimant was entitled to receive was unknowable because her weekly compensation could be terminated upon her death or a showing that she is capable of returning to suitable employment.  The Commission thus concluded that a lump-sum award could exceed the amount she would have otherwise received had she continued to receive her benefits in weekly installments.

In its decision, the Court of Appeals noted that it has held that awards for permanent disability may be paid in weekly installments or in one lump sum.  The Court acknowledged that the Commission has the authority, in unusual cases, to award a lump-sum even where the sum of future benefits is not certain, if there is competent evidence tending to show how long the claimant was reasonably likely to receive future benefits.  Competent evidence would include a mortality table to determine life expectancy.  The Court also indicated that the Commission should discount the sum of expected future benefits when there is competent evidence to set an appropriate discount rate.

The Court’s decision was, essentially, a roadmap for the Commission.  First, the Commission should determine whether the claimant has shown her situation to be an “unusual case.”  Second, the Commission should consider any competent evidence, such as the mortality table in N.C. Gen. Stat. §8-46, to determine the number of installments that the claimant is expected to receive under her current award. Lastly, in calculating the award, the Commission may discount the expected future installments to a present value.

Implications for Defendants

The Court of Appeals established steps for the Commission to determine whether a lump-sum award is appropriate.  The conclusion by the Court of Appeals that a lump sum payment for ongoing weekly installments may be an option is concerning for defendants in workers’ compensation cases.  In permanent and total cases, it would behoove the Plaintiff’s Bar to request a lump sum payment in every case in order to collect a fee and ensure their client receives the most benefits he or she can get.  However, the Court of Appeals did note that the lump sum award should be ”in the best interest of the employee” and that phrase should be “construed narrowly.”  The Court specifically said that trying to reduce credit card debt would not be a reason to grant such an award.

It will be interesting to see how the Commission defines “unusual” in this case.  If it is read narrowly, defendants may not have as much to worry about and the implications of this case may be minimal, but if the Commission defines “unusual” broadly, defendants will surely see the ramifications of this case for years to come. We will continue to monitor this case to determine its full impact.

If you have questions about the recent court decision, or other aspects of a workers’ compensation claim in North Carolina, reach out to a member of our Workers’ Compensation team.

Written by: Matthew Flammia

In North Carolina, an injured employee may recover damages from both the workers’ compensation carrier as well as a third-party tortfeasor. In accepted claims, where a third-party causes the compensable injury, the workers’ compensation carrier is provided an automatic lien against any third-party recovery that the injured employee receives arising out of the compensable incident. North Carolina General Statute § 97-10.2 even creates a right for the workers’ compensation carrier to seek subrogation against the third party independently.

According to the statute, the injured employee has the exclusive right to file a suit against the third-party for twelve (12) months. Thereafter, the workers’ compensation carrier has the right to file a subrogation claim until sixty (60) days before the expiration of the statute of limitations. Finally, the injured employee and workers’ compensation carrier can always work together and jointly pursue the third-party claim.

Practice Tip for Insurers

If there has been an accepted workers’ compensation claim caused by a third-party tortfeasor, insurance carriers may have subrogation rights, and there is a chance that an insurer could recover some of the money paid towards the claim. If the injury is caused by third-party negligence, immediately place all parties on notice of the insurer’s subrogation rights and begin to investigate the claim on the best way to recover money paid towards the claim.

If you have questions about subrogation rights or other aspects of a workers’ compensation claim in North Carolina, reach out to Matthew Flammia or a member of our Workers’ Compensation team.

By:  Jeannette Herrera (Partner - Sacramento Office)

The California Supreme Court declined to review the appellate court decision holding that the derivative injury doctrine does not preclude a lawsuit alleging an employer business negligently exposed a worker to COVID-19 that is alleged to have resulted in a subsequent death of a family member. As such, Plaintiffs may proceed to litigate the issues in civil court. 

Earlier, the Court of Appeals reasoned that the workers' compensation exclusive remedy provisions did not apply because the derivative injury doctrine does not apply to the subject claim. They discussed that the spouse may have had a claim regardless of the employee being injured. 

This case represents a blow to employers seeking protection under the workers compensation exclusive remedy rule.  However,  the event Kuciemba decision in another district found the opposite. There's is no final decision on the merits of the underlying claim here yet,  but we will be sure to keep you updated. 

Learn more here:  https://highlights.hannabrophy.com/post/102hn3n/ca-supreme-court-declines-to-hear-sees-candies-case

Legal Update by Attorneys Alison Stewart and Tyler Smith, and Law Clerk Jordan Gehlhaar

Significant debate has stemmed from the legislature’s addition of the “shoulder” to Iowa Code Section 85.34(2). The Iowa Supreme Court settled this debate, in part, in their recent decisions, Chavez v. M.S. Technology and Deng v. Farmland Foods.

Prior to the 2017 amendment, shoulder injuries were considered a “whole person” or “body as a whole” injury, which result in industrial disability analysis. In contrast, for scheduled injuries, claimants receive a rating of their functional impairment to the body part; this is multiplied by the number of weeks provided by the legislature (400 weeks for the shoulder) to ascertain the number of weeks in which compensation is due. However, since the amendments, claimants have consistently argued industrial disability analysis is still appropriate for shoulder injuries despite the legislative change—focusing on the anatomy of the shoulder. This created an issue of statutory interpretation for the Agency and courts because the legislature did not define what constituted the “shoulder.”

Originally, the Agency determined “shoulder” was limited to the ball and socket joint, and did not include other connected anatomical parts. See Smidt v. JKB Restaurant, LC, File No. 5067766 (May 6, 2020, Arb. Dec.). Slowly, through various opinions, the definition of “shoulder” has expanded to include anatomical parts that are essential to the functioning of the shoulder joint, such as the rotator cuff muscles, labrum, and acromion.

Claimants Chavez and Deng both sustained tears of their rotator cuff muscles. The lower courts determined these were scheduled shoulder injuries, and both claimants appealed. Each claimant argued that the shoulder was limited to the ball and socket joint, whereas the employers and insurers argued a broader interpretation including “the tendons, ligaments, muscles, and articular surfaces connected to the glenohumeral joint.”

The Iowa Supreme Court first determined that “shoulder” is ambiguous, and that statutes should be interpreted reasonably in accordance with the legislature’s intent. Accordingly, the Court held:

These rules of statutory construction guide our conclusion that “shoulder” under section 85.34(2)(n) must be defined in the functional sense to include the glenohumeral joint as well as all of the muscles, tendons, and ligaments that are essential for the shoulder to function. . . Viewing section 85.34(2) in its entirety, it is apparent that the legislature did not intend to limit the definition of “shoulder” solely to the glenohumeral joint.

Under this functional analysis, the Court determined rotator cuff injuries are injuries to the shoulder because those muscles are essential for the shoulder to remain stable and work properly. The Court also looked to the language contained in medical records, the AMA Guides, and the treating physicians’ interpretation of the injury.

The Court recognized that more litigation “may be needed in the short term to develop the exact parameters of a scheduled shoulder injury.” Although these opinions provide some clarity, we can expect some additional litigation regarding specific parts in the shoulder area. Ultimately, absent legislative change, this determination will likely be based upon medical opinions regarding what is essential to the functioning of the shoulder.

Peddicord Wharton will continue to monitor this issue and provide updates.


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H&W Webinar: Wednesday 4/20/22 - 

 MTGs for PTSD and Acute Stress

 

On 4/20/22, Victoria Hahn will present "Medical Treatment Guidelines for PTSD and Acute Stress Disorder". The New York Workers’ Compensation Board has adopted new Medical Treatment Guidelines for post-traumatic stress disorder (PTSD) and acute stress disorder. This webinar will review those new guidelines, including an overview of diagnosis, assessment, and treatment recommendations. We will also review how the Board has ruled in previous PTSD claims and how these prior rulings may carry over into the new Guidelines.

**NY Attorney CLE credit is pending for this program

It will be held at 11:00 AM EST on Wednesday, April 20th 2022. Please click here to register. 

You may also copy the link below and paste into your browser to register: https://www.compevent.com/webinars/index.php?event_web_access_code=c231169546bac82fdf92c3ae6fd83e75

 

Contact Us

 

Hamberger & Weiss LLP - Buffalo Office
700 Main Place Tower
350 Main Street
Buffalo, NY 14202
716-852-5200
buffalo@hwcomp.com

Hamberger & Weiss LLP - Rochester Office
1 South Washington Street
Suite 500
Rochester, NY 14614
585-262-6390
rochester@hwcomp.com

Legislative News

 

The 2022 West Virginia Legislature session surprisingly had a quiet finish despite the Republican supermajority and a bold attempt to fundamentally change intentional torts for workplace injuries. The House and the Senate proposed separate bills to completely change the definition of deliberate intent, commonly known as Mandolidis actions based on the seminal West Virginia case and resultant legislation. Ultimately the bills did not pass out of committee, so the 2015 amendments to West Virginia Code § 23-4-2 remain in place.

 

The Legislature passed an important and long-overdue bill sponsored by the Insurance Commissioner. House Bill 4296 cleaned up and revised outdated provisions within Chapter 23 of the West Virginia Code, which pertains to workers’ compensation. The bill modernized and updated workers’ compensation statutes, removed or revised provisions made obsolete by legislation and regulatory revisions in 2005 and 2006.

 

Recent Cases

 

The West Virginia Supreme Court of Appeals continues to analyze compensability in workers' compensation claims where the question is whether an injured employee's disabling condition was caused by a preexisting chronic condition or by a new injury. The Court is exploring the application of its holding in Syllabus Point 3 of Gill v. City of Charleston, 236 W. Va. 737, ___, 783 S.E.2d 857, 858 (2016)("A noncompensable preexisting injury may not be added as a compensable component of a claim for workers' compensation medical benefits merely because it may have been aggravated by a compensable injury. To the extent that the aggravation of a noncompensable preexisting injury results in a discreet new injury, that new injury may be found compensable.")

 

In Ramaco Resources, Inc. v. Rollins, No. 19-1163, 2021 WL 5216712, at *4 (November 9, 2021)(memorandum decision), the Court found the preponderance of evidence demonstrated Mr. Rollins aggravated a noncompensable wrist fracture while at work, and reversed the Board of Review and the Administrative Law Judge because they did not properly apply the Gill case. Rollins injured his right wrist at work on April 20, 2018. His employer questioned compensability because Rollins fractured the right wrist at home on January 5, 2018, and had recently returned to work when the new injury occurred. After the January 5 injury at home, Rollins had surgery on January 9, 2018, and completed physical therapy. He reported some stiffness and weakness in the wrist on April 2, 2018. His doctor stated he could return to work on April 9, 2018, without restrictions. Mr. Rollins returned to work full duty. On April 20, 2018, Mr. Rollins injured the same right wrist at work while loosening a bolt with a ratchet on a piece of heavy equipment. At the emergency room he reported that his right wrist popped while he was loosening a bolt with a pipe wrench. An x-ray showed a slightly impacted fracture at the volar aspect of the distal radial metaphysis. The diagnosis was right wrist fracture.

 

Claimant was treated by Dr. McCleary on April 23, 2018, who noted that Rollins had swelling and tenderness in the distal radius. Dr. McCleary also noted that an x-ray showed a nondisplaced distal radius fracture. He diagnosed a right wrist ulnar joint sprain. Dr. Mukkamala performed an independent medical evaluation of Mr. Rollins and determined he did not sustain a new injury on April 20, 2018. The x-ray performed on April 30, 2018, showed that the fracture was still visible and healing. Dr. Mukkamala believed Mr. Rollins prior right wrist fracture had not completely healed when the work incident occurred. He also noted that the x-rays revealed osteopenia, which was noncompensable.

 

A board-certified radiologist compared the x-rays taken on Mr. Rollins' right wrist on January 5, March 5, and April 20, 2018 and concluded that a January 5, 2018, right wrist x-ray (performed three months prior to the alleged work injury) showed an acute fracture of the distal radius and x-rays performed on April 20, 2018, showed a slightly impacted fracture of the distal radius. Dr. Luchs concluded that the x-rays showed a chronic healing distal radial fracture. Based on Dr. Luchs' findings, Dr. Stoll agreed with Dr. Mukkamala's assessment of Mr. Rollins did not sustain a new injury on April 20, 2018. Dr. Stoll believes that Mr. Rollins' initial fracture had not fully healed before he returned to work. Dr. Stoll also stated that the x-rays revealed osteopenia, which was non-compensable. Finally, he noted that while the treating physician was requesting authorization for an MRI, an MRI would not add any information to help the decision making process.

 

Ramaco first argues that the Board of Review's Order upholding the ALJs' compensability ruling is clearly wrong and contrary to the preponderance of the evidence. Ramaco states that substantial medical evidence shows that Mr. Rollins's noncompensable, wrist fracture of January 5, 2018, had not healed by the time he allegedly injured himself at work on April 20, 2018. Ramaco states that Dr. Luchs, Dr. Mukkamala, and Dr. Stoll all stated that Mr. Rollins merely aggravated a previous noncompensable injury. Mr. Rollins responds that simply because he suffered a prior fracture to the same body part does not now immunize Ramaco from responsibility in this claim. And Mr. Rollins contends that it is clear he was injured at work on April 20, 2018, considering he promptly reported the injury and sought medical attention. Mr. Rollins states that it was proper for the ALJ and the Board of Review to give considerable weight to the medical opinion of Dr. McCleary who provided treatment for his compensable injury and the prior wrist fracture.

 

The majority opinion of the Supreme Court found the x-ray evidence "critical" because the case involved a wrist fracture. The Court noted Dr. Luchs's review of the x-rays taken of Mr. Rollins's right wrist on January 5, March 5, and April 20, 2018, and determination that the January 2018 fracture had not healed as of April 20, 2018. Dr. Luchs stated, unequivocally, that the abnormalities revealed by the x-rays taken of Mr. Rollins's wrist following the injury of April 20, 2018, including the fracture of the distal radius, date back to January 2018. The Court found the administrative law judge "erroneously discounted this objective x-ray evidence in lieu of Dr. McCleary's self-serving, subjective belief." Importantly, the Court found, Dr. Luchs' findings are entirely consistent with the evaluation findings rendered by Drs. Mukkamala and Stoll. Inferring that Dr. McCleary subjectively believed that Mr. Rollins's fracture was completely healed, and that Mr. Rollins suffered a new injury, Dr. McCleary's belief is insufficient to support the compensability ruling when the other experts produced evidence showing that Mr. Rollins merely aggravated the preexisting injury.

 

The Court held that even when all inferences are resolved in favor of the ALJ's and Board of Review's findings, there is insufficient evidence to sustain the decision. The Court agreed with the Employer's argument the ALJ and Board of Review erred by failing to cite or discuss this Court's holding in Gill. "Because a preponderance of the evidence in this case demonstrates that Mr. Rollins aggravated his noncompensable wrist fracture while at work on April 20, 2018, Gill is a barrier to compensability. So, the [ALJ] and Board of Review committed legal error by failing to apply Gill to the facts presented." Ramaco Resources, Inc. v. Rollins, 2021 WL 5216712, at *5 (W.Va., 2021).

 

In a separate concurring opinion, Justice Jenkins and Justice Armstead noted the dissenting opinion mischaracterized the Court's comprehensive review of the record and its finding Rollins merely aggravated a preexisting injury to his right wrist.

 

Justice Wooton and Justice Hutchison wrote separate and strongly worded dissenting opinions. Justice Hutchison said the majority's opinion "violates the fundamental process due to every party in a lawsuit" when it substituted its findings of fact for those of the lower tribunal merely because it disagrees with those findings. Justice Hutchison note the Court should give substantial deference to the findings of fact of the administrative law judge that claimant presented sufficient evidence he suffered a personal injury in the course of and resulting from his employment.  He noted the ALJ rejected the expert testimony offered by the employer in favor of the expert testimony offered by the claimant, and concluded that the claimant sustained a new, compensable injury to his wrist. "The ALJ's conclusion was plausible on the record below, and that should have been the end of this Court's inquiry. The record clearly supports the ALJ's factual finding, as well as supports the Board of Review's affirmance of the judge's decision. The majority decision was clearly wrong in its decision to impose its after-the-fact judgment of the evidence. The fact that a claimant may have suffered a prior fracture to the same body part as the one injured in the workplace should not immunize an employer from responsibility for the claim. I respectfully dissent from this memorandum decision's subversion of the fact-finding process." Ramaco Resources, Inc. v. Rollins, 2021 WL 5216712, at *9 (W.Va., 2021)(Hutchison, J. dissenting).

 

In his dissenting opinion, Justice Wooton clarified his belief the evidence before the ALJ supported a finding Rollins suffered a discrete new injury to the healed right wrist fracture:

"Mr. Rollins' treating orthopedic surgeon testified that he was certain Mr. Rollins sustained a discrete, new injury on that date as evidenced by 1) the immediate pain and swelling; 2) the passage of time from the prior injury, which allowed for complete healing; 3) the greater amount of displacement of the fracture from the first fracture, as shown on x-ray; and 4) an MRI which showed the distal radius fracture in a “different formation” than the first fracture." Ramaco Resources, Inc. v. Rollins, 2021 WL 5216712, at *9 (W.Va., 2021) (Wooton, J. dissenting). He dissented because the majority made itself "a surrogate fact-finder" in contravention of West Virginia law.

 

The Supreme Court held oral argument on February 16, 2022, in the case of James Moore v. ICG Tygart Valley, LLC, No. 20-0028 in which the issue for resolution is the compensability of C5-6 spondylosis with C6 radiculopathy as secondary conditions. Claimant's counsel argued the initial work injury caused a discrete new injury that resulted in chronic cervical and radicular pain. Claimant's counsel also argued the work injury aggravated or accelerated the preexisting disc disease. The Employer argued the C5-6 spondylosis with C6 radiculopathy was a condition that preexisted the work injury and was not a discrete new injury. Both parties discussed the impact of the Gill case to the evidentiary record in their briefs and at oral argument. A decision has not been issued. You can watch the oral argument at http://www.courtswv.gov/supreme-court/calendar/2022/Dockets/feb-16-22ad.html

Shareholder Adam Brown, who also serves as our Director of Professional Development, was invited to speak on a panel for the MSBA's New Lawyers Section on March 29. The program was called Preparing for the Interview Process from an Employer's Perspective.

The National Workers' Compensation Defense Network will hold its spring conference in Philadelphia on April 27 and 28. Please click here for more details about the event. If you are able to attend, please connect with Tom Kieselbach, who will be there in his capacity as Immediate Past President of the NWCDN.

Save the date for the 2022 NWCDN Annual Conference, which will be held in Nashville on August 3 and 4.

NWCDN is a national network of the top workers' compensation firms across the country and Canada. CWK is the sole member firm from Minnesota, and CWK has a strong presence in the organization, with Tom Kieselbach serving as Immediate Past President, Parker Olson serving as Midwest Regional Vice-Chair, and Adam Brown serving on the Inclusion and Diversity Committee.

Shareholder Whitney Teel has been asked to speak at this year's Minnesota Workers' Compensation Symposium, which will take place on Thursday, May 12, 2022. Please click here for the Symposium's webpage and registration information.

Whitney will present at 11:10 a.m. during Breakout Session 2B. She will be addressing vocational rehabilitation benefits in a session entitled Vocational Rehabilitation Bootcamp - Managing Services and Expenses.

CWK will once again be an exhibitor at the Symposium, and we hope you will stop by our booth to say hello. Please make sure to sign up for Breakout Session 2B for a great presentation from Whitney!

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