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March 2022

Tennessee Returns to In-Person Settlements

Since the establishment of the Tennessee Court of Workers’ Compensation Claims in 2014, the Court followed a strict rule that settlement approval hearings should be conducted in-person.  Telephone hearings were only permitted under extraordinary circumstances. Workers’ Compensation Judges have a duty to ensure that settlements provide injured workers with substantially the benefits to which they are entitled under Tennessee law, and to ensure that settlements are in the injured workers’ best interests. The Court has long believed that in-person settlement approval hearings were the best way to fulfill this duty, since it allowed Judges to see the workers, listen to them, and observe their non-verbal communication. 

Of course, that was until the COVID-19 pandemic. The pandemic forced the Court to quickly change direction and to start conducting settlement approval hearings by telephone. Though not as effective as in-person hearings, they were a necessity under the circumstances.

Fortunately, effective April 4, 2022, the Court will return to in-person settlement approvals. This will be the primary method for settlement approvals, just like before the pandemic.  Exceptions will be made only upon request and for good cause shown.

The Court has rolled out the procedure for scheduling in-person settlement approval hearings at each of the Court’s offices throughout the state of Tennessee.  For more detail, see the Court’s recent announcement via Blog:  https://wccourt.com/2022/03/15/returning-to-in-person-settlements-2/

For any questions, please contact:
Fredrick R. Baker, Member
Wimberly Lawson Wright Daves & Jones, PLLC
1420 Neal Street, Suite 201
P.O. Box 655
Cookeville, TN 38503-0655
Phone: 931-372-9123
Fax:  931-372-9181
fbaker@wimberlylawson.com
www.wimberlylawson.com

Simon Law Group, P.C.

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

314-621-2828

MISSOURI WORKERS’ COMPENSATION CASE LAW UPDATE

January 2022 – March 2022

By Inhaling Fumes Claimant Sustained an Accident But Failed to Prove

Prevailing Factor for PPD

Mueller vs. Peoplease Corporation, Injury No. 15-003742

On the date of the alleged injury in January 2015, the claimant attempted to hook up the vehicle outdoors but it didn’t hook up correctly and he inhaled exhaust fumes and began to feel sick and vomit.  He then moved the truck inside and its exhaust was cracked, leaking and smoking.  The claimant became lightheaded, felt sick, fell, threw up again and lost consciousness. The employer called EMS who took the claimant to the emergency room. He did have prior work injuries as a result of inhalation of carbon monoxide.

The claimant filed a pro se claim alleging a January 13, 2015 work injury to this body due to over-exertion while attempting to hook up a loaded tanker kingpin.  He described the event as a “heart episode” stating that he had erratic heart beats, chest pains and difficulty breathing.  Thereafter, the claimant obtained an attorney who filed an amended claim alleging “While in the course and scope of employment, employee was working in the maintenance pit under a truck with faulty emissions which exposed employee to large amounts of carbon-monoxide poisoning, causing injury.”

The ALJ found that the claimant failed to prove a compensable accident because he never complained of “possible inhalation concerns” on the date of the allege injury, and therefore denied all compensation.

The Commission overruled the ALJ and found that the claimant had sustained an “accident” as defined by the statute.  They said that due to the claimant’s condition, it was understandable that he might not have specifically described the inhalation of fumes to EMT or hospital staff.  Furthermore, the Commission found that the original and amended claims are not in conflict but focus on different aspects of the same occurrence.

However, the Commission did not award PPD because there was no medical evidence that the work incident was the prevailing factor causing any PPD. One of the claimant’s doctors did not declare the work event to be the prevailing factor in claimant’s condition despite suffering an occupational injury that reduced his pulmonary function because the claimant stated he felt essentially well after the incident. The other doctor for the claimant stated that the claimant’s prior exposures in 2011 and 2012 while working for his former employer, along with his January 13, 2015 work event were the prevailing factor in causing the claimant ‘s disability but could not state which proportion of the overall 75% PPD rating was attributable to the 2015 exposure.

The Commission did find that the employer was liable for the EMS and hospital bills on the date of the injury as the employer authorized the same.  However, the Commission did not award additional medical benefits to the claimant, as the subsequent treatment was with the claimant’s own physicians, and not authorized by the employer. 

Claim Denied for Disability From Blood Clots Based on History of Unrelated

Health Problems

Copeland vs. Gencom, Inc. and Treasurer of Missouri as Custodian of Second Injury Fund, Injury No. 14-009289

The ALJ found that an accident occurred on February 15, 2014 when the tractor-trailer that the claimant was driving overturned. However, the ALJ found that the only injury that arose out of and in the course of employment was an injury to the claimant’s pelvis/sacrum.  The ALJ stated that the work accident was not the prevailing factor in causing the claimant’s arterial thrombosis, subsequent ischemia, leg amputation and bowel resection.   Instead, these injuries were idiopathic or personal conditions.  She noted that the claimant was in poor health for about two weeks prior to his accident and had not been taking his diabetes or high blood pressure medication.  The claimant had been seen in the ER for these conditions eight days before his accident, and in the days leading up to his accident, he remained in his truck, resting, eating poorly, and at one point requiring another trucker to bring him food.  His symptoms were present on the day of his accident before the truck overturned.

The ALJ found employer’s expert, Dr. Daniels, an endocrinologist, to be persuasive.  She was not persuaded by Dr. Schuman or Dr. Volarich.  She stated that the claimant was not a good historian and discrepancies existed among the claimant’s trial testimony, deposition testimony and recorded statements.

The Commission affirmed the ALJ’s decision, although one Commissioner dissented, taking note of Dr. Schuman’s explanation of the internal damage that resulted when the claimant, a large and heavy man, was suspended in the air by only his seatbelt for several minutes.  Furthermore, the doctor pointed out the emergency room staff’s failure to perform CT scans that would have identified the abdominal damage which led to the multiple blood clots.  There was no evidence of ketoacidosis at the time of the accident or diabetic neuropathy prior to the accident.

Claimant Failed to Show Employer Refused or Failed to Provide Treatment

Suchland vs. Department of Corrections and Treasurer of Missouri as Custodian of The Second Injury Fund, Injury No. 13-095685

The ALJ awarded the claimant benefits for PTD as a result of the primary injury.  However, the ALJ did not award the unpaid medical for unauthorized treatment.  The claimant appealed.

The Commission affirmed the ALJ’s decision.  The claimant had contacted the employer and requested additional treatment after employer’s initial physician, Dr. Henry, released her from care.  The claimant testified that the employer directed her to Dr. Cantrell for additional treatment “I’m going to say [in] a couple of months, I’m not real sure.”  In the interim, the claimant sought care on her own from her primary care physician who ordered a CT.  The evidence showed that the employer provided her with a nearly constant course of care from her first demand for treatment to her final release.  The claimant’s uncertain testimony regarding the employer’s possible two-month delay in responding to her request for authorized care after the first doctor’s release did not establish that the employer refused or failed to provide treatment reasonably required to cure and relieve the effects of the work injury.  Therefore employer was not responsible for the unauthorized treatment.

ALJ Failed to Consider Expert Testimony that Prior Conditions Aggravated

Primary Injury for SIF Liability

Swafford vs. Treasurer of Missouri as Custodian of the Second Injury Fund, Case No. WD84562 (Mo. App. 2022)

After settling his claim with his employer for the 2017 primary injury to his right shoulder, the claimant sought compensation from the Second Injury Fund for PTD.  The ALJ found that although the claimant’s pre-existing cardiac conditions and ankylosing spondylitis each met the 50-week threshold specified in the statute, there was “no medical evidence opining that any of the prior conditions significantly and directly aggravated or accelerated the primary right shoulder injury.”  The Commission affirmed the ALJ’s decision and the claimant appealed.

The Court reversed the Commission’s decision and remanded the case for further proceedings.  The Court noted that ALJ did not address Dr. Lingenfelter’s conclusion that the claimant’s cardiac condition rendered him a very poor candidate for shoulder surgery.  The ALJ also failed to consider the doctor’s conclusion that the ankylosing spondylitis bore and “equal share [of the] blame,” and

constituted an “equal …. contributing factor” with respect to the disability associated with the claimant’s right shoulder.  Furthermore, the ALJ’s decision did not refer to Dr. Koprivica’s conclusion that there was a “significant synergistic effect” between the claimant’s “significant pre-existing industrial disabilities” and the additional disability stemming from the primary work injury.

Claimant Allowed to Submit New Evidence to Meet New PTD Standards

Against SIF

Dubuc vs. Treasurer of the State of Missouri Custodian of The Second Injury Fund, Case No. WD84171 (Mo. App. 2022)

The ALJ found that the injuries sustained in the claimant’s work accident of October 2015 were alone sufficient to render him PTD.  On appeal, the Commission reversed the ALJ’s decision and awarded the claimant PTD against the SIF.  The SIF appealed.  The Court reversed and remanded the case back to the Commission because the Missouri Supreme Court had filed a ruling (Cosby vs. Treasurer) about two months after the ALJ’s Final Award that required the claimant to now meet the standards set forth in Section 287.220.3 to prove his claim.  This was a more “strident standard” on Second Injury Fund claimants to show if any of the claimants’ pre-existing disabilities were medically documented disabilities equaling a minimum of 50 weeks of PPD and directly and significantly aggravated and accelerated the subsequent work related injury.

When the Court remanded the case to the Commission, it stated “These determinations will require the Commission to consider all evidence and to make additional factual findings before applying the correct legal standard to the facts.”  Thereafter, the Commission refused the claimant’s motion to conduct additional discovery and submit additional evidence.

The Court reversed this decision and remanded the case back to the Commission again stating it acted arbitrarily and abused its discretion in denying the motion.  The Court noted that the Cosby  ruling so significantly changed the judicial interpretation of Section 287.220.3 when the evidentiary hearing was conducted in this case that it would be improper and unfair to deny the parties an opportunity to present new evidence relevant to the newly announced legal standard.

The Court also noted that “medically documented” evidence can be interpreted to include self-reported medical history in medical records.  It also emphasized that the Missouri Supreme Court made clear in Parker that for PTD against the SIF, the Commission must consider all of a claimant’s qualifying pre-existing disabilities whether just one is established or several are.

Uninsured Employers Appeal Denied for Failure to File Bond

Greig vs. McCaleb, Case No. WD84430 (Mo. App. 2021)

The Commission rejected the employer's Application for Review of a Final Award because the employer, who was uninsured, failed to file the required bond.  The employer appealed.

The Court dismissed the employer’s appeal.  Since the uninsured employer is subject to the Workers’ Compensation Act, its failure to file a bond as required under the Act was grounds for the dismissal.

Civil Actions Against Co-Employees Must Show Negligence for an Unforeseen Risk Beyond the Non-Delegable Duty of Employer to Provide Safe Workplace

Miller, As Guardian  of Jamela Perry, Sister of Deceased, James Quinn vs. Bucy and Baker, Case No. ED107055 (Mo. App. 2022)

The claimant, Quinn, was killed at work while riding in the employer’s truck.  The employer was in the business of assembling and delivering trash and recycling cans.  The claimant’s supervisor, Bucy, told the claimant to ride in the back of the truck which contained unsecured trashcans full of rainwater, some of which were on wheels.  The supervisor and the driver, Baker, instructed the claimant not to tie down or secure the trashcans.  The truck’s trailer gate was broken, leaving the trailer open.  The driver, who had no CDL drove at a high rate of speed and as he made a left turn, the uninsured trashcans knocked the claimant onto the street.

Miller filed a petition against the supervisor and the driver as co-employees for the wrongful death of the claimant.  The co-employees moved to dismiss the wrongful death claim on the basis that §287.120.1 of the Workers’ Compensation Act prevented them from being held personally liable for breaches of the employer’s non-delegable duties of care to the claimant.  The Circuit Court granted the co-employees’ motion to dismiss the petition.  On appeal, Miller argued the dismissal was in error because the petition sufficiently alleged that the co-employees owed the claimant personal duties of care, separate and distinct from the non-delegable duties of care owed by the employer.

The Appellate Court affirmed the dismissal of the Circuit Court because the petition failed to state a claim for common law liability outside the employer’s non-delegable duty to provide a safe work environment.

A plaintiff must show that the co-employee breached a duty separate and distinct from the employer’s non-delegable duty to provide a safe workplace.  The employer’s non-delegable duty is limited to those risks that are reasonably foreseeable.   An employer remains liable even though an employer assigns the performance of those duties to an employee.  When a claimant’s injuries result from the manner in which the work was being done, the injuries are attributable to a breach of the employer’s non-delegable duty to provide a safe workplace.

The Court determined that the business of trash and recycling removal necessarily involves risks from handling large loads and trucks, and the employer was aware of those risk factors.  The claimant’s death resulted from the manner in which the work was being performed and his death is attributable to a breach of the employer’s non-delegable duty to provide a safe workplace.

Personal Liability of Co-Employee Must Be Unforeseen Risk or Intended to

Cause Harm

Bestgen vs. Haile, Case No. WD83865 (Mo. App. 2022)

Haile, the employer, owned a very small excavation company.  The employer asked the claimant, Bestgen, to enter the trench that they were digging and there was a cave-in and the trench collapsed and injured the claimant.  The employer had chosen not to install a trench box, an OSHA required protective device to prevent trench collapse.

The claimant sued Haile personally for negligence alleging that Haile purposely and dangerously caused or increased the risk of injury to him by instructing the claimant and his co-workers to dig a deep trench without a trench box.

The Court affirmed the summary judgment in favor of Haile as it found that  Haile did not have personal liability as a co-employee defendant separate and beyond his duty as an employer under the Workers’ Compensation Act to provide a safe workplace.

To assert a common law negligence claim against a co-employee personally, a plaintiff is required to establish that a co-employee breached a duty unrelated to the employment, either independent of any master - servant relationship or unforeseeable breach of workplace safety outside the employer’s non-delegable duty to provide a safe workplace.

While Haile committed the affirmative negligent act of not shoring the trench with trench boxes, he did not do so with the conscious object or intention to cause or increase risk of injury to the claimant.  The claimant admitted this fact.  Furthermore, the risks associated with not installing a protective trench box were foreseeable risks to the employer, an excavating company.

By:  Kelly Hamilton (Office Managing Attorney - Redding) 

We've all been there . . . you file a Petition for Reconsideration and advise your client that we will have an answer within 60 days.  Then, on day 59, the WCAB issues a "grant and study" order, which essentially gives them an indefinite time period to issue a decision.  You are then in limbo potentially for years.

There has now been a Petition filed with the 2nd DCA arguing that the practice is unconstitutional on its face.  They further argue that it violates the "compensation bargain" of California workers' compensation because it denies a speedy delivery of benefits.  It is noted that some of the "grant and study" orders were issued within 10 days of the filing of the Petition for Reconsideration.

The article states that there have been over 500 "grant and study" orders issued in the last three years.  In part this is due to the reduced number of commissioners, having been short anywhere from one to three commissioners. Currently there are six commissioners and there must be three on a panel to issue a decision.

Read more on the Hanna Brophy website:  
https://highlights.hannabrophy.com/post/102hkbe/2nd-dca-to-evaluate-constitutionality-of-grant-study-orders

Written by: Julia Hooten 

Employers and adjusters in North Carolina have encountered the seven-day waiting period requirement when an employee is injured on the job and is out of work. While seemingly clear and straightforward, actual application of the seven-day waiting period to certain occupations or situations can be daunting.

Seven-Day Waiting Period

In North Carolina, the first seven days of disability are not payable to an injured employee unless that injury results in a disability of more than twenty-one days.

N.C. Gen. Stat. §97-28, the statute governing the seven-day waiting period, specifies:

“No compensation, as defined in G.S. 97-2(11), shall be allowed for the first seven calendar days of disability resulting from an injury, except the benefits provided for in G.S. 97-25. Provided however, that in the case the injury results in disability of more than 21 days, the compensation shall be allowed from the date of the disability. Nothing in this section shall prevent an employer from allowing an employee to use paid sick leave, vacation or annual leave, or disability benefits provided directly by the employer during the first seven calendar days of disability.” [emphasis added]

But what if the injured employee is someone who works twenty-four-hour shifts, and what if the days missed are not consecutive?  Or, what if the employer continues an employee’s salary, does that count toward the waiting period? Let’s take a deeper dive into these frequently asked questions related to the seven-day waiting period.

What If the Injured Employee Is Someone Who Works Twenty-Four-Hour Shifts? 

First, let’s examine the seven-day waiting period for an employee who may work irregular hours or a longer shift.  In the situation of an employee who works twenty-four hour shifts fewer days per week rather than the standard work week of five days, the employer and adjuster should be thinking in hours instead days. In this situation, if the twenty-four-hour shift employee misses more than forty hours, then they would be eligible for total indemnity benefits if they missed more than the hourly equivalent of twenty-one days (840 hours).

Likewise, if an employee is disabled for more than twenty-one days because of the work injury, regardless of whether those days are consecutive, the employee is entitled to the waiting period.

What If the Employer Continues to Pay an Employee’s Salary After an Injury?

If an employee misses more than twenty-one days as a result of a work-related injury, the employee would be entitled to the initial seven-day waiting period, but additional payment would not necessarily be owed since salary was continued.

In contrast, if an employee used sick pay for that first week of disability and was later out for more than twenty-one days, the employee would have to be reimbursed – paid weekly indemnity benefits – for that initial period.

When thinking about when the seven-day waiting period begins, employers and adjuster should confirm whether the employee was paid for the date of injury.  If the employee was paid, then the waiting period begins the next workday when the employee was scheduled to return to work.  If they were not paid for that workday, it begins on the date of injury.

Similarly, if an employee is partially disabled as a result of the work injury, they may still be entitled to the waiting period if unable to work a full work week.  In that case, the employer or adjuster would compare the employee’s post-injury reduction in hours.  If the employee misses more than the hourly equivalent of twenty-one days, they are entitled to the initial waiting period.

Is There Still A Waiting Period If the Employee is Not Disabled?

Is an employee, who was not disabled but ultimately receives a rating which exceeds three weeks/twenty-one days, entitled to the waiting period?  Simply put, yes.  If the permanent disability is more than twenty-one days in and of itself or if the permanent disability is more than twenty-one days when added to the period of temporary disability, the employee is entitled to payment for the initial seven-day waiting period.

Practice Tip for Employers and Adjusters

Navigating whether an employee in North Carolina is entitled to the waiting period in certain circumstances can be less than clear for employers and adjusters. It helps to keep accurate records of the employee’s post-injury work schedule and earnings. Be mindful that even with diligent recordkeeping, questions can arise. 

If you have questions about the seven-day waiting period, or other aspects of a workers’ compensation claim in North Carolina, reach out to Julia Hooten or a member of our Workers’ Compensation team.

Written by Matt Flammia

In North Carolina, most COVID-19-related workers’ compensation cases are rightfully being denied. The thought initially with COVID-19 claims, and still to a degree with the Delta variant, was that while a claimant will have a difficult time establishing a compensable claim, there are several occupations (i.e., health care workers, first responders, etc.) that could have some compensable situations. However, with the spread and infection rate of the Omicron variant, there is an argument to be made that no COVID-19 claims are compensable at this time and that COVID-19, like the flu, should now be considered an ordinary disease to which the public is generally exposed nationwide as well as in North Carolina.

For COVID-19 workers’ compensation claims in North Carolina, a claimant has the burden of proving: (1) That they were at an increased risk of contracting the virus when compared to members of the general public; and (2) a causal connection between their specific infection and their employment.  In other words, the claimant must prove that they were infected while at work, as opposed to outside of work. Further, the claimant’s employment must have placed them at an increased risk of contracting COVID-19.

We are close to two years since the beginning of the pandemic and there still has not been a filed decision from the North Carolina Industrial Commission on the compensability of a COVID-19 claim. This speaks to how the COVID-19 claims are being handled in North Carolina.

Based on recent numbers from the North Carolina Industrial Commission, there have been approximately 5,364 COVID-19 claims filed with either a Form 18 or Form 19.  Of those, approximately 40% have no response to the filed Form 19. Of the remaining 3,252 claims that do have some type of a response, it appears that approximately 65% of them were denied with a Form 61; approximately 13% were accepted on a Form 60; and approximately 21% were paid pursuant to a Form 63, without prejudice. In comparison to prior pandemic figures, it appears that the Form 61 denial rate has increased slightly.

Looking ahead, the denial rate likely will increase as additional Omicron variant claims are filed. Simply put, as the transmissibility of the COVID-19 variants increases, there is less of an increased risk in most employment settings, except for limited situations. Compared to the start of the pandemic, contact tracing has become impossible as individuals are more active, and masks have become optional throughout the State of North Carolina. For these reasons, we contend that COVID-19 should now be considered an ordinary disease to which the public is generally exposed and argue that almost no COVID-19 claims are compensable at this time.

If you have questions about the compensability of COVID-19, or other aspects of a workers’ compensation claim in North Carolina, reach out to Matthew Flammia or a member of our Workers’ Compensation team.

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