State News

BY Keith J. Kasper, Esq.

DEPARTMENT OF LABOR

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Case Law Updates

Jurisdiction

Brian K. Martin, Employee, vs. Morrison Trucking, Inc., Respondent, and Travelers Insurance Company, Relator, and Minnesota Department of Labor and Industry, Special Claims Section, f/k/a Special Compensation Fund, Respondent, Minnesota Supreme Court, filed August 3, 2011.

Minnesota Statutes § 175A.01, subd. 5 (2010), provides jurisdiction to the Workers’ Compensation Court of Appeals to decide only questions of law and fact arising under the workers’ compensation laws of Minnesota.

The Workers’ Compensation Court of Appeals has jurisdiction to determine whether an insurance contract provides Minnesota workers’ compensation insurance.

The Workers’ Compensation Court of Appeals did not have jurisdiction to declare an unambiguous exclusion of Minnesota coverage in the insurance contract held by the employer in this case to be invalid and unenforceable because the exclusion conflicted with Wisconsin statutory provisions and public policy.

Reversed. Justice G. Barry Anderson. Concurring, Justice Paul H. Anderson. Took no part, Justice Alan C. Page.

Age 67 Presumption

Frandsen v. Ford Motor Company, A11-0126, Minnesota Supreme Court, filed August 10, 2011

The Minnesota Supreme Court determined the age 67 retirement presumption, codified in Minn. Stat. § 176.101 subd. 4, applies unless the employee rebuts the presumption or proves the employer and insurer knowingly and intentionally waived the statutory right to assert the presumption.

The Workers’ Compensation Court of Appeals (WCCA) held the employer waived its right to later assert the retirement presumption in a to-date stipulation for settlement.  The WCCA reviewed the to-date settlement and concluded the employer waived the retirement presumption because “the parties did not incorporate into the settlement agreement the presumptive retirement provision.”

The Minnesota Supreme Court reversed the WCCA.  The Court criticized the WCCA’s decision as it required an employer to expressly reserve the retirement presumption and such requirement improperly relieves the employee of his or her burden to rebut the presumption by a preponderance of the evidence or to prove the employer knowingly and intentionally waived the presumption.  The Court clarified for there to be waiver, two elements must exist: (1) knowledge of a right; and (2) intent to waive that right.  Waiver can be expressed or implied, but either type requires an expression of intent to relinquish the right.  Employee must prove waiver by producing evidence of knowledge and intent in the form of:

(1)    language in a stipulation for settlement between the parties;
(2)    affirmative conduct on the part of the employer; or
(3)    circumstances that would ascribe meaning to the employer’s silence.

The Minnesota Supreme Court held the retirement presumption shall apply unless the employee rebuts the presumption or affirmatively proves waiver.  Simple absence of specific language reserving the retirement presumption in a stipulation for settlement is not enough, standing alone, to support a finding the employer and insurer waived their right to assert the age 67 retirement presumption.

Medical Expenses

Troyer v Vertlu Management Co., Minnesota Supreme Court, filed August 17, 2011 ~ Reviewed by Craig A. Larsen

The Supreme Court affirmed the Compensation judge and the WCCA’s decision that a hospital can charge directly for implant hardware, and that a compensation judge has no authority to determine a reasonable price for the hardware to be less than 85% of a hospital’s usual and customary price.

The employee had a spinal cord stimulator implanted at HealthEast St. Josephs Hospital.  HealthEast billed $73,320, its usual and customary charge, for the hardware along with other charges for the surgery. This charge included a significant mark up over what it actually paid the manufacturer. The insurer paid the other charges, but paid only a portion of the amount billed for the hardware, less than 85% of the charge. HealthEast filed a medical Request for the difference between the amount paid and 85% of their usual charge.

The employer and insurer argued that HealthEast did not “furnish” the hardware, but that the manufacturer was the entity that “furnished” the hardware. Consequently, the manufacturer should be the entity billing for the hardware pursuant to Minn. R. 5221.0700, subp.2A. The Supreme Court held, after going through a tedious construction of the rules regarding payment of medical expenses, that when more than one health care provider is responsible for the creation or transmission of a service, article or supply, the provider that provides it in its final usable form has “furnished” it, and is the one to properly charge for it.

The employer and insurer also argued that the compensation judge has authority to determine a reasonable value for a service, article, or supply at less than 85% of the usual and customary charge, or prevailing charge, in accordance with Minn. Stat. 176.136. After discussing the language contained in Minn. Stat. 176.136, and specifically Minn. Stat.176.136, subd. 1b(b) the Court held that a compensation judge does not have authority to determine a reasonable value of medical services at less than 85% of usual and customary or prevailing charges.

Given the outcome of this case, it will be difficult to contain future medical costs for implantable devices associated with workers’ compensation claims.

Covered Employees

Francisco Vargas-Velasquez v. Hernandez Expert Roofing, WCCA, filed June 23, 2011 ~ Reviwed by Joshua Borken

The WCCA affirmed the Compensation Judge’s conclusion that Vargas-Velasquez was not an employee of Hernandez Expert Roofing and was not covered by that company’s workers’ compensation insurance policy because the Articles of Incorporation and the certificates of workers’ compensation insurance clearly identified the petitioner as a stockholding executive officer of the corporation who had not expressly opted for personal insurance coverage as required under the statute.

Expansion of Issues Upon Appeal

Ellingboe v. Lowes, WCCA, filed May 13, 2011 ~ Reviewed by Jennifer Augustin

The Employer and Insurer filed a NOID based on an IME report opining that the Employee’s left foot condition was a result of his genetic makeup, not his work injury.  An administrative conference was held, whereby the issue of causation was addressed and the compensation judge found for the Employee.  The Employer and Insurer appeal and argue the Employee did not engage in a diligent job search.  The WCCA held this was an improper expansion of the issues beyond those addressed at the hearing.  The Employer and Insurer argued that when the Employee’s attorney failed to object to questions about job search asked of the Employee during cross-examination and made no objection to the employer and insurer’s attorney raising the issue in her closing argument, the Employee’s attorney consented to the job search as an issue.  The WCCA held an agreement to the expansion of the issues could not be construed in any way on these facts.

Mental Injuries

Quijada v. Heikes Farms, Inc.,  WCCA, filed May 4, 2011 ~ Reviewed by Jennifer Augustin

The Employee appealed the compensation judge’s finding that this psychological condition was unrelated to his personal injury.  The WCCA affirmed, stating that, in cases involving mental injury, the fact that there exists a temporal relationship between the injury and the onset of a mental condition, standing alone, is insufficient to establish causation.  It does not necessarily follow that because the depression came after the injury that the injury caused the depression.  Rather, some medical opinion causally relating the mental condition to the physical injury is required before the depression can be found compensable.  The Employee further argued that his personal injury caused him to be unemployed which, in turn, resulted in financial and family problems.  The WCCA found this to be an intervening non-medical factor which separated the personal injury from the claimed psychological consequence.

Payments to Out-of-State Intervenors

Schatz v. Interfaith Care Center,  WCCA, filed June 16, 2011 ~ Reviwed by Joshua Borken

Minn. Stat. §176.136, subd. 1b(d), which limits an employer’s liability for the cost of medical treatment provided outside of Minnesota, is not in conflict with Minn. Stat. §176.135. The Court reversed the compensation judge’s finding that relieving the employer of liability under Minn. Stat. §176.136, subd. 1b(d)would effectively transfer liability from the employer to the employee in conflict with Minn. Stat. §176.135.  The Employee was injured in Minnesota and then moved to Wyoming and received treatment for her injury in Wyoming.  The statute at issue has a provision that limits an insurer’s liability for out-of-state medical care to the amounts the providers would have received under the workers-compensation law of the state where the treatment occurs.  The Wyoming provider’s financial policy form, initialed by the Employee, provided that the Employee was responsible for any remaining balance not covered by workers’ compensation.  This is the first application of the statute by the WCCA.  The dissenting opinion believes the statute reverses 90+ years of case law and conflicts with a fundamental provision of the workers’ compensation statute, specifically requiring an injured work to pay for medical treatment that is related to the work injury and is necessary to cure and relieve the effects of the injury.

Physical-Mental Injuries

Kim v. Moneygram International, Inc.,  WCCA, filed June 14, 2011

The WCCA affirmed the Compensation Judge’s finding that a claimed unwanted sexual contact during an IME was not a substantial contributing factor to the employee’s psychological or mental symptoms. The employee attended an IME for a claimed low back injury.  During the examination, the IME doctor placed his hands on the employee’s breasts as part of the exam.  The employee claimed, as a result of the unwanted sexual contact she developed PTSD and panic disorder.  The Compensation Judge found no physical injury, and therefore any psychological injury was not compensable under Lockwood v. ISD #877.  The Compensation Judge adopted the independent psychological evalutor’s opinion that the events at the IME  were not a substantial contributing cause of any psychological symptoms.  Finding the psychological evaulator’s opinion to be well founded, the WCCA affirmed.

Removal from Job Market

Schweder v. Covalence Specialty Materials Corp., WCCA, filed May 26, 2011 ~ Reviewed by Jennifer Augustin

The Employee appealed the compensation judge’s conclusion that his move from the Twin Cities to Hoyt Lakes constituted a withdrawal from the labor market so as to preclude the receipt of temporary total disability benefits.  The WCCA reversed, holding that, while the labor market in St. Louis County is smaller than the labor market in the Twin Cities, the evidence did not support a determination that the employee would be able to obtain only sporadic, short-term employment resulting in grossly insubstantial income or that employment opportunities were virtually nonexistent in St. Louis County.

Chronic Pain Program

Griffin v. Kindred Hospitals,  WCCA, 4/4/11 ~ Reviewed by Nicole Kampa
The WCCA held that the Compensation Judge erred in finding treatment received at a pain center was closed out under a prior stipulation for settlement. In the present case a prior stipulation for settlement closed out medical expenses in the nature of “multi-dimensional in-patient and out-patient chronic pain treatment programs.” The WCCA held that the treatment received in the present case did not meet all mandatory requirements of Minnesota Rules 5221.6600, subpart 2.E. defining multidisciplinary chronic pain management programs. Careful attention to language in a stipulation for settlement may help ensure a complete close-out of all desired medical expenses.

Joinder

Johnson v. McDowall Companies,  WCCA, 4/12/11 ~ Reviewed by Nicole Kampa
The WCCA affirmed the Compensation Judge’s denial of a motion for joinder on grounds it would delay an expedited hearing and was not necessary for resolution of the claims. The WCCA held a motion to join a subsequent employer and insurer that was filed the week before an expedited hearing would have delayed the hearing. The employer was not prejudiced since the Court found it could assert a contribution claim in a subsequent proceeding. The WCCA also held the Compensation Judge’s factual conclusions concerning competing medical opinions was not clearly erroneous as a matter of law.

BY Keith J. Kasper, Esq.

DEPARTMENT OF LABOR DECISIONS

Touchette v Vermont Slate and Roofing, Opinion No. 1-12WC (Jan. 13, 2012).

In 2007, Claimant, a New York resident,  suffers a work-related back injury in Vermont with a Vermont employer. In 2009, Claimant has a new work related incident in New York with a New York employer. Claimant files a workers’ compensation claim in New York which is rejected by the New York Workers’ Compensation Board. Claimant files new claim in Vermont to determine which employer is responsible for Claimant’s current injury. Commissioner concludes that Vermont lacks personal jurisdiction over New York employer even though New York employer has an all-states workers’ compensation insurance policy covering Vermont. Also, full faith and credit clause of United State Constitution “preclude[s] the imposition of liability on account of a finding of aggravation against ” New York employer. Claimant to proceed with compensability claim against Vermont employer alone. Vermont employer can raise defense of aggravation relieving it of liability in this matter and effectively leaving Claimant without benefits in this matter.

Jacobs v. Metz and Associates Ltd., Opinion No. 2-12WC (Jan. 13, 2012).

Claimant’s treating physician’s opinions found more credible then Defendant’s IME opinions and allow for trial implantation of spinal cord stimulator in CRPS Claimant.

Bower v. Mount Mansfield, Opinion No. 3-12WC (Jan. 19, 2012).

Claimant’s 2010 apple picking incident not so severe so as to amount to intervening cause so as to relieve Defendant of liability for 2009 work injury. “It is only in instances where the claimant, knowing of certain weaknesses arising from the primary injury, ‘rashly undertakes activities likely to produce harmful results’ that the causa connection disintegrates. In other words, for an intervening, non-work-related event to sever the connection back to a compensable injury the facts must establish that the claimant acted negligently under the circumstances.” (citations omitted).

Mujic v. Vt Teddy Bear, Opinion No. 4-12WC (Feb. 8, 2012).

Company doctor who is also treating physician opines that Claimant’s neck condition is compensable, but Defendant’s IME doctors’ opinions prevail. Despite treating physician’s “familiarity with Claimant’s condition [his opinion] was undermined by his failure to acquaint himself with her prior medical history.”

Lydy v, Trustaff, Inc., Opinion No. 5-12WC (Feb. 8, 2012).

Claimant’s physical-mental claim succeeds on basis of treating psychologist’s opinion over those of IME doctor. “In contrast, [the IME doctor's] opinion was based almost entirely on his determination that Claimant was exaggerating both her prior history and her current symptoms. As I do not accept as credible his analysis, nor can I accept as credible his ultimate conclusion.” However, the disputed portions of Claimant’s  physical injury claims to her ankle and knee are successfully denied. Also, Claimant’s attempt to include health insurance benefits into the AWW calculation rejected.

Carr v. Copley Hosp., Opinion No. 6-12WC (Feb. 23, 2012).

Claimant’s treating physician’s opinion as to compensability found more credible then that of Defendant’s IME doctor. Also, while Claimant’s IME doctor renders impairment rating, claimant not seek PPD benefits so none awarded.

Sadriu v. The Home Depot, Opinion No. 7-12WC (Feb. 23 2012).

Claimant notified by IME and Defendant of ability to RTW and his good faith job search obligations. Claimant’s treating physician’s subsequent statement that Claimant was not ready to return to work found not credible as “it appears to have been motivated at least in part by Claimant’s own preference to remain off work rather than by a well-reasoned medical determination as to his work capacity. Beyond that, merely stating that a patient is ‘not ready to return to work’ or is ‘totally disabled’ is unlikely to be persuasive in cases such as this one, where the claimant obviously retains the ability to engage in at least some work-related activities.” Claimant not found to be at medical end result as Claimant referred to interdisciplinary rehabilitation program which “is another treatment option that, until adequately investigated, might well preclude a finding of medical end result.”

Yustin v Dep’t of Public Safety, Opinion No. 8-12WC (Mar. 20, 2012).

Claimant’s request for Attorney fees filed in 2011 relating to a March 2008 interim order denied as untimely. Statutory amendment to 21 V.S.A. §678(d) was procedural and not substantive and 30 day filing deadline after favorable decision “is analogous to a statute of limitations or repose.”  Furthermore, Claimant’s claim for Attorney fees fails under WC Rule 10.1300 as Claimant had a “reasonable basis” for initial denial of benefits. “Were I to accept the position Claimant advocates, the result would be to award attorney fees in virtually every case in which an interim order issues. This would directly contradict the language of Rule 10.1300, which authorizes an award of fees short of formal hearing only in ‘limited instances.’”

Skovira v. Mylan Technologies, Inc., Opinion No. 9-12WC (Mar. 30, 2012).

Claimant with chronic knee problems, falls in Defendant’s parking lot but does not treat for two days with symptoms “similar in nature to what she had experienced chronically… though far worse in degree.” Despite poor results, decision for arthroscopic surgery found reasonable. “In the workers’ compensation context, the test for determining the reasonableness of a particular medical treatment is what is known at the time the treatment was undertaken, not what became known later with the benefit of hindsight.” Subsequent joint replacement found not caused by work incident. “Where a claimant’s preexisting condition is a progressively degenerative disease, the test for determining work-related causation is whether, ‘due to a work injury or the work environment the disability came upon the claimant earlier than otherwise would have occurred. Mere continuation or exacerbation of symptoms, without a worsening of the underlying disability, does not establish compensability.” (citations omitted).

Lehneman v. Town of Colchester, Opinion No. 10-12WC (Mar 13, 2012).

Commissioner denies claim brought by claimant, a police officer, while on a 12 hour shift and eating at his desk who breaks a tooth while biting into a boughten burger with bacon. Defendant concedes that injury occurred “in the course of” his employment, but disputes that injury “arose out of”  his employment pursuant to the “positional risk doctrine.” “The question in this case, then, is whether the obligations of Claimant’s employment- specifically, that he take his meals while working his shift – constitute a sufficient connection to his injury as to render it compensable.” “To impose liability upon  employers for injuries suffered under the circumstances presented by the current claim would be both unrealistic and unwieldy. In effect it would require them to ensure that all of the food their employees consume while at work, no matter what the source, is safe. But how would an employer do so? Should it be granted the right to inspect an employee’s lunch box? To ban hard candy or caramels? To declare certain restaurants off-limits? I suspect that neither employers nor employees would stomach such intrusive devices well.”

ARBITRATIONS

Waterhouse v Blue Seal Feeds Inc., State File Nos. Z-11789 & CC-1747 (Jan. 4, 2011)(Atty Kolter Arbitrator).

In aggravation versus recurrence dispute between Zurich Insurance (2010 claim) and Liberty Mutual (1986 claim)  recurrence found. “Work activities such as those Mr. Waterhouse performed in December 2010 ‘can contribute to a claimant’s symptoms of pain and discomfort without contributing to the underlying pathology.’ This is exactly what occurred. Since the 2010 work did not causally contribute to claimant’s disability, there was no aggravation as Liberty Mutual argues.” (citations omitted).

NWCDN DISTRICT OF COLUMBIA WORKERS’ COMPENSATION UPDATE

New District of Columbia Benefit Rates

Effective January 1, 2012, the following are the benefit rates for District of Columbia:

Maximum Weekly Compensation Rate: $1,416.00

Minimum Weekly Compensation Rate: $ 354.00

Supplemental Allowance for Permanent Total and Death Benefits: 5%

If you would like benefit rate cards prepared by Franklin & Prokopik detailing the District of Columbia benefit rates from 2002-2011, please contact F&P Principal, John P. Rufe, on (301) 745-3900, or by email at jrufe@fandpnet.com.

While working as a welder for Gene Bennett Company, David Gross, who had a history of prior back problems dating from an injury suffered in 1997, fell through a ceiling, landing on a concrete floor 10 to 12 feet below.  He was treated by Dr. Thomas Florian, who eventually released him to return to full duty work.  Later, Gross sought additional treatment from Dr. David Allen, an orthopaedic surgeon.

An MRI of Gross’ low back showed evidence of mild degenerative changes.  A second MRI performed nine months later revealed a herniated disc at L4-5.  At that point, Gross requested a hearing, contending that his herniated disc resulted from the fall at work 14 months earlier. 

The parties stipulated in their pretrial agreement that the defendants had accepted Gross’ claim on a “medical only” basis.  Later, after the case was appealed to the Full Commission, it entered an opinion and award favorable to claimant which stated that greater weight had been given to Dr. Allen’s opinions than those of Dr. Florian.  The Commission interpreted Dr. Allen’s testimony as a sufficient basis for concluding that the herniated disc found on claimant’s second MRI was a compensable progression of the injuries he sustained in his fall at work.  

As legal authority for its resolution of the causation issue, the Commission cited Perez v. American Airlines, a 2005 Court of Appeals decision that applied to claims in which compensability is admitted on a Form 60 the “Parsons presumption” that if the Commission finds that a compensable injury occurred, all of the injured worker’s future medical treatment is presumed to be causally related.  The welding company and its insurer appealed the Commission’s ruling to the Court of Appeals, which in Gross v. Gene Bennett Co., a unanimous opinion filed on January 18, held that the “Parsons presumption” does not apply in “medical only” cases, because in such cases there has been neither a prior finding of compensability by the Commission nor an admission of liability by the defendants.

In the Parsons and Perez cases, the Court of Appeals placed the burden of proof on the defendants to rebut the presumption of causal connection and prove that the employee’s ongoing complaints and medical treatment were not causally related to his original work-related injury.  But, in Gross, the Court distinguished Parsons and Perez, noting that in Parsons, the Commission made a specific determination of compensability, and in Perez, the defendants had admitted compensability on a Form 60.   The Court held that “in the absence of an admission of compensability of an injury by the employer or an agreement between the parties, the Parsons presumption cannot arise at the initial hearing on compensability before the Commission.”  This is so because “it has long been the law of this State that acceptance of a claim on a medicals-only basis ‘cannot in any sense be deemed an admission of liability.’”

No presumption of medical causation having arisen from the defendants’ acceptance of Gross’ claim on a “medical only” basis, the Court went on to review the evidence of record on the issue of causal connection and find that the testimony of Dr. Allen, upon which the Commission had relied in concluding that there was a relationship between claimant’s original injury and his disabling condition, did not rise above the level of mere possibility or speculation and, therefore, was not legally sufficient to support the Commission’s award of benefits. 

Dr. Florian testified that claimant must have suffered a new injury to develop the herniated disc that was seen on the second MRI, but missing from the first.  When asked for his opinion on the subject, Dr. Allen was unable to say if the herniated disc’s presence established that a new injury had occurred.  And, he added that only if claimant had not had prior back problems would he be able to state to a reasonable degree of medical certainty that the herniated disc was likely related to his original on-the-job injury.  But, as claimant’s medical records clearly established, and the Commission specifically found, that he had previously injured his back, the Court concluded that the testimony from Dr. Allen upon which claimant was relying to establish causal connection did not rise above the level of possibility or speculation and, therefore, was insufficient support for the Commission’s award of benefits.

Risk Handling Hint:  Ever since  Parsons and Perez, it has been an open question as to whether acceptance of a claim on a medical only basis is sufficient to give the injured employee the benefit of the “Parsons presumption” that his later medical problems and treatment were caused by his initial work-related injury.  With the ruling in Gross, risk managers can now accept “medical only” claims and subsequently assert, and indeed successfully maintain, a defense if the employee later alleges additional medical problems, attempts to link them to his on-the-job injury and claims entitlement to indemnity compensation as a result. 

Settlement Agreement Containing Employment Release Held Unenforceable

Andre Kee, a Certified Nursing Assistant with Caromont Health, Inc., injured her back turning a patient, but continued to work under light duty restrictions.  Five months later, when her doctor took her out of work, she requested a hearing.  At a Commission-ordered mediated settlement conference, Caromont offered Kee two options:  (1) it would accept her claim as compensable if she would return to light duty work or (2) it would pay her a lump sum settlement in exchange for a clincher and her agreement to resign from her job and release all of her employment rights. 

Kee accepted Caromont’s clincher settlement offer and the parties executed a written agreement at the settlement conference which provided that Caromont would pay Kee $20,000 and the entire mediator’s fee for her agreement to pay her own medical bills, execute a standard compromise settlement agreement that complied with N.C.G.S. § 97-17, and sign a resignation and employment release.  The mediated settlement agreement specifically provided that Caromont’s payment of Kee’s share of the mediator’s fee would be the consideration for her resignation and release. 

When defense counsel prepared and sent a clincher to Kee, she refused to sign it, so  Caromont requested a hearing to enforce the agreement that she signed at mediation.  The hearing was held by Deputy Commissioner Phillip Holmes, who subsequently entered an opinion and award approving the settlement.

However, Kee appealed to the Full Commission, which reversed the deputy commissioner and ruled that the mediated settlement agreement was unenforceable because it failed to comply with Industrial Commission Rule 502(2)(e), which provides that no compromise settlement agreement will be approved by the Commission unless it contains the following language or its equivalent: “no rights other than those arising under the provisions of the Workers’ Compensation Act are compromised or released.”

Caromont appealed the Full Commission’s opinion to the Court of Appeals, which on January 4, in Kee v. Caromont Health, unanimously affirmed the Commission’s refusal to enforce the settlement that the parties had agreed to at mediation.  The Court rejected Caromont’s argument that the Commission could have severed the offending resignation and release provision from the agreement the parties executed at the settlement conference, and that would have brought it into compliance with all statutory requirements and applicable Commission rules. 

The Court was also not persuaded by Caromont’s citation to and reliance on American National Electric Corporation v. Poythress Commercial Contractors, Inc., which held that “when a contract contains provisions which are severable from an illegal provision and are in no way dependent upon the enforcement of the illegal provision for their validity, such provisions may be enforced.”  In the Court’s view, even if the resignation and release provision were severed from the rest of the agreement, it would still not comply with Rule 502(2)(e), as it did not contain the language required by that rule, i.e., that “no rights other than those arising under the provisions of the Workers’ Compensation Act are compromised or released.”  In order to enforce the parties’ settlement agreement, the Court would have had to add language to the agreement, not merely excise the objectionable portion of the agreement.  This, the Court was unwilling to do.  Therefore, since the agreement signed at mediation did not contain the language required by Rule 502(2)(e), the Court ruled that the Commission was correct in refusing to enforce  it.

Risk Handling Hint:  In light of the decision in Kee, risk managers are cautioned to carefully examine the terms of any settlement agreement that the mediator might produce for the parties to use, so as to ensure that it contains all of the language required by Rule 502.  At the same time, if the negotiations at mediation lead the parties to agree that the injured worker will resign from her employment and release whatever employment rights she might have, the terms of that agreement should be carefully drafted so as to avoid being in violation of Rule 502.  

I.                   Supreme Court

 Society v. LIRC, 326 Wis. 2d 444 (Supreme Court, July 8, 2010)

Facts: The Applicant sustained a work related injury in 1982 that required amputation of his right leg below the knee.  He received various disability benefits from the workers compensation insurer, Society.  The last payment was paid out on June 12, 1990.  In 2002, the statute of limitations ran.  The Applicant filed an additional claim in 2004, which Society directed to be filed with the Work Injury Supplemental Benefit Fund.  However, the Fund relied on the 2006 amendment to §102.17(4), which suspended the statute of limitations for traumatic injuries. 

Issue:  Whether retroactive application of Wis. Stat § 102.17(4) and 102.66(1), which would place the burden on Society rather than on the Fund, is unconstitutional?

Holding: The retroactive application of the 2006 amendments are unconstitutional in regards to Society because it violates their due process rights and substantially impairs their contractual obligation.  The application would cause increased exposure to Society without the ability of Society to recoup losses through an increased premium.

Madison Gas & Electric v. LIRC, No. 2010AP1849 (Ct. App. June 16, 2011)

Facts:  In 1997, the Applicant suffered a left knee injury and underwent a medial meniscectomy.  The treating doctor assessed the statutory minimum 5% permanency to the knee, which the employer paid.  In 2007, the Applicant underwent a total knee replacement, which was a result of the original work injury.  The treating physician assessed the statutory minimum 50% permanency.  The employer paid 45%, taking a credit for the 5% previously paid.  The Applicant contends he is owed a total of 55% permanency.  The ALJ and LIRC agreed, awarding 55%; the circuit court reversed. 

Issue:  Whether “stacking” of permanency is appropriate in cases of joint replacements?

Holding:  The carrier argued that total joint replacements eliminated the disability that resulted from the first surgery.  The Court of Appeals saw the argument as a direct challenge to DiamlerChrysler v. LIRC, 2007 WI 15.  However, because the Court awarded controlling weight deference, and the prior DiamlerChrysler court had no basis for its decision other than its deference to the Commission, the Court similarly found it was not unreasonable for LIRC to add the minimum permanency for both surgeries. 

Tower Automotive Milwaukee, LLC v. Samphere, No. 09AP1043 (Ct. App. Feb. 9, 2010) unpublished

Facts: Applicant retired on June 30, 2003, and later asserted that his work for the employer was the cause of his knee condition and need for his left knee replacement in May, 2006.  He was also seeking a prospective order for a right knee replacement.  Following his left knee replacement, the Applicant’s doctor opined that he was “permanently” unable to work from July 1, 2003 forward because of “knee pain” and “disability.”  The ALJ concluded that Applicant’s work activity was the cause of his knee conditions.  LIRC and the circuit court affirmed.  Respondents argued that the Applicant withdrew from the labor market when he retired, so TTD should not have been awarded because he was not suffering an actual wage loss.

Issue: Whether the Applicant withdrew from the labor market when he retired, which would preclude his claim for TTD because he did not suffer an actual wage loss? 

Holding: The Court affirmed LIRC’s finding that the Applicant would have continued working for the employer had it not been for his knee problems.  LIRC also inferred from the medical evidence that Applicant’s knee problems had been an ongoing, major factor in his failure to obtain employment since his retirement.  Even though the Applicant retired from his employment with the employer due to his knee injuries, he did not withdraw from the labor market, so awarding TTD benefits was appropriate.

Deboer Transportation Inc. v. Swenson, 2010 WI App 54 (March 25, 2010)

Facts:  After several months off due to a work related injury, the Applicant sought to return to his work as a truck driver.  The employer and Applicant had gone through several steps in the rehire process.  The process halted at the “check ride” step, which required being observed on a drive away from home.  The Applicant refused to participate in an overnight trip contending his normal job did not require overnight stays.  The employer refused to accommodate and the Applicant failed the rehiring process.  LIRC concluded that the employer failed to show reasonable cause for not rehiring the Applicant.

Issue:  Whether the employer unreasonably refused to rehire the Applicant under Wis. Stats. §102.35?

Holding:  The Court of Appeals reversed the prior decision and concluded that the statute does not require employers to deviate from a facially reasonable and uniformly applied policy.  Further, it does not require employers to explain why it would be burdensome to accommodate. Reasonable cause is present here in the employer’s uniform application of his longstanding safety procedure, as well as the absence of evidence that the refusal to rehire was based on the injury.

County of Barron v. LIRC, 2010 WI App 149 (October 19, 2010)

Facts:  A quadriplegic was a recipient under a long term support community options waiver program (COP-W), which the Applicant served as his in-home care provider.  The Applicant was injured while performing services for the COP-W recipient.  The recipient was required to have a fiscal agent manage government-provided funds and the Applicant’s wages came from a fiscal agent account.  The amount of wages was established by the County.  The County routinely checked in with the recipient regarding his needs and the quality of service.  However, the recipient directed the Applicant’s daily tasks and had the power to terminate her. 

Issue:  Whether the Applicant had an employer-employee relationship with the County?

Holding:  The recipient of the services had no control over the compensation of the Applicant.  The County developed a service plan and periodically reviewed it with the recipient.  A social worker monitored the care given.  The evidence inferred that the County was in control of the COP- W program.  Thus, the Applicant was an employee of the County.

Aurora Consolidated Health Care v. LIRC, 2010 WI App 173 (November 30, 2010)

Facts:  The Applicant underwent surgery from when he slipped on ice while making a delivery in 2001.  He also underwent hip replacement surgery in 2006, which was unrelated to work and his previous surgery.  Also, in 2006 he applied for additional workers compensation benefits related to his 2001 injury.  The ALJ appointed their own doctor to perform a medical assessment.  The doctor expressed that 100% of the Applicant’s disability was related to the back injuries he sustained in 2001.  LIRC found the Applicant was permanently and totally disabled due to the work injury.  Aurora argues it was denied due process because it was not allowed to cross examine the tie-breaking physician. 

Issue:  Whether the carrier was entitled to cross examine the tie-breaking physician?

Holding:  The ALJ provided the parties an opportunity to have their own experts review the report and submit rebuttal testimony.  Nothing in the statute allows cross-examination of an IME physician.  

Oshkosh Corporation v. LIRC, 2011 WI App 42 (December 2, 2010)

Facts: The Applicant was injured while on the job in 2002.  The ALJ found the surgeries on his knee left him with permanent work restrictions.  In 2006, he was fired for sleeping on the job.  He brought a claim for vocational rehabilitation benefits, which the employer denied because the Applicant did not have physical restrictions as assessed by the Independent Medical Examination physician; he was offered work; and he was fired for just cause.  LIRC awarded vocational rehabilitation benefits. 

Issue:  Whether the Applicant was entitled to vocational rehabilitation benefits?

Holding:  The Applicant is entitled to receive vocational rehabilitation benefits because the evidence showed the Applicant had permanent work restrictions from the injury based on the treating doctor’s opinion.  Further, an injured employee that has been terminated is entitled to disability benefits; nothing in the law allows an employer to deny benefits because the individual was terminated for just cause. 

City of Kenosha v. LIRC, 2011 WI APP 51 (March 16, 2011)

Facts: The Applicant was a firefighter that was injured playing basketball while on active duty.  The firefighters were encouraged to engage in physical activity while on duty.

LIRC found the claim was compensable.

Issue:  Whether basketball was a “wellness program” and therefore, rendering the injury not compensable?

Holding:  The well-being activity exclusion was not applicable because the Applicant was being compensated by the City to stand ready at the fire station.  The City argued that the statute requires additional compensation for a wellness program to be considered “compensation” under the exception; the Court found such a narrow reading would produce absurd results.  

Pelletier v. Technology Plus Inc., WC Claim No. 2009-012283 (LIRC, 6/8/2010)

Facts:  Applicant was a temporary help employee injured in an automobile accident.  The injury happened nine days into his first assignment.  The work was on an as-needed basis, despite a contract indicating the work would last 5-6 months.  Prior to the accident the Applicant intended on renting an apartment.  Additionally, the Applicant was reimbursed for food and lodging, and the employer agreed to allow the Applicant one expense paid trip home a month. 

Issue:  Whether the Applicant was a traveling employee when he suffered injuries in an automobile accident?

Holding:  The Applicant was a traveling employee based upon the fact that other employees had been transferred after training, so there was no guarantee the work would last 5-6 months.  The Commission also relied on the fact he received a per diem and one paid trip home per month, which was indicative of a traveling employee

Busse v. Norco Windows Inc., WC Claim No. 1992-021488 (LIRC, 6/23/2010)

Facts: The Applicant submitted a medical note from her doctor dated July 14, 2009, for her one day of missed work on November 13, 2008.

Issue: Whether post-dated medical notes are sufficient to show “disability”?

Holding:  The physician note indicated the Applicant missed work to treat with him; there was no indication that she could not work.  For payment of disability, there must be an actual physical incapacity to work.  Treatment alone does not mean the Applicant is incapable of working.  Payment of temporary disability was denied.   

Huppert v. Dane County Sheriffs Dept, WC Claim No. 95-017617 (LIRC, 6/30/2010)

Facts:  The Applicant was injured while working on February 18, 1995.  She received workers compensation benefits for the injury with the final lump sum paid on June 11, 1996.  In 2007, the Applicant had surgery and received sick pay and holiday pay.  Her doctor claimed that it was due to the 1995 accident.  The carrier obtained an IME and denied benefits on the basis that treatment was unrelated to the prior injury.  The Applicant filed a hearing application on July 21, 2008, which was 12 months and 5 weeks after the last workers compensation payment. 

Issue:  Whether sick pay and holiday pay may be deemed payment of wages and toll the statute of limitations under Wis. Stat. 102.17(4)?

Holding:  Sick leave and holiday pay paid by an employer are not “wages,” and therefore the claim is barred by the statute of limitations.

Bailey v. KAE Development Corp, WC Claim No. 2003-018597 (LIRC, 10/25/2010)

Facts:  The Applicant was injured while attempting to repair a piece of machinery for KAE and Mr. Mews.  On the day of injury, he was asked by Mr. Mews to help fix the equipment with a member of KAE.  The equipment was owned by KAE.  Neither Mr. Mews nor KAE had worker’s compensation insurance.

Issue:  Whether the Applicant was performing services as an employee at the time of injury and, if so, whose employee was he?

Holding:  Because of Mr. Mews’ control over the Applicant’s work, the use of Mr. Mews or KAE’s equipment, and the fact Mr. Mews exercised his right to hire/fire, the Applicant was an employee.  He regularly performed work under Mr. Mews’ direction. 

The work the Applicant was doing at the time of injury was as an employee of both Mr. Mews and KAE Development.  The two acted together in the development of property and the ownership of construction machines used to develop property.  Additionally, the record showed that they shared in profits.  Thus, the Applicant was in the service of a joint venture when he was injured.

Lynn v. Stoughton Trailers LLC, WC Claim No. 2009-015770 (LIRC, 11/30/2010)

Facts:  Applicant injured herself while walking from her car parked on the street into work.  She fractured her elbow when she fell on a public sidewalk.  However, because her head fell on the employer’s property, she argues that she was on the premises when injured, therefore making her claim compensable.

Issue:  Whether the Applicant was coming and going or within the course and scope of employment at the time of the fall?

Holding:  An employee injured upon abutting property can fall into the scope of recovery where an employer exercises full control over property that is not owned by the employer.  Here, the control the employer took upon the property (i.e. snow removal) was required by city ordinances, which was not enough to constitute control.  Further, although the Applicant’s head landed on the employer’s property, the Applicant did not establish that the elbow was injured after her head struck the property.  Thus, it is not compensable.

Mentor v. PB Design Build Co Inc., WC No. 2009-017348 (LIRC, 12/27/2010)

Facts:  The Applicant was injured with a hammer drill supplied by the PB Design, which did not carry worker’s compensation insurance.  The respondent argues that the Applicant was an independent contractor. 

Issue:  Whether the Applicant was an independent contractor when he was injured?

Holding:  The Applicant did not meet all of the eight requirements for an independent contractor pursuant to Wis. Stat. § 102.07(8)(b).  Specifically, he did not use his federal identification number for the project, he was paid wages based on his time, and the respondent directed his work.  Thus, the respondent was his employer.

Martens v. Village of Allouez, WC Claim No. 2009-024590 (LIRC, 1/20/2011)

Facts:  The Applicant, a firefighter, suffered a myocardial infarction while working. The ALJ found that there was legitimate doubt that it was caused by his work activities.

Issue:  Whether the firefighter presumption applies in worker’s compensation claims?

Holding:  Under Wis. Stat. § 40.65(2) and Wis. Stat. § 891.45 a presumption would arise that coronary disease is related to employment.  However, this case falls under Wis. Stat. Ch. 102 where there is no presumption.

Nofzinger v. City of Appleton, WC Claim No. 2009-009564 (LIRC, 1/27/2011)

Facts:  The Applicant injured his shoulder while performing push ups in his basement in preparation for the employer fitness test approaching in 11 days.  The collective bargaining agreement required employees hired on or after January 1, 1980 to participate in a fitness test twice a year and to maintain a rating of adequate or better.  Those employees with high scores were provided cash and retirement incentives. 

Issue:  Whether the shoulder injury sustained while preparing for a fitness test for work falls into the scope of employment?

Holding:  Five factors have been considered by courts: whether the injury occurred during working hours; whether the injury occurred on the employer’s premises; whether the employer initiated the employee’s exercise program; whether the employer exerted any control or direction over the employee’s exercise program; and whether the employer stood to benefit from the employee’s exercise program.

Here, the injury fell into the scope of employment.  The collective bargaining agreement required employees to be involved in a physical fitness program for six months proceeding the fitness test.  The Commission noted that the incentives were linked to the success of the fitness test and participation was linked to a mandatory fitness program.  Furthermore, he was performing the same exercise at home that he was to be tested on when he was injured.

Schwenk v. Waukesha Electric, WC Claim No. 2000-041047 (LIRC 1/31/2011)

Facts:  In 1999, the Applicant suffered a work injury and underwent rotator cuff repair.  He was laid off from the employer due to a reduction in work force in June, 2003.  In 2008, he underwent surgery for a re-tear in his previously-repaired shoulder.  The respondent argued that the Applicant was retired and therefore, he was not entitled to TTD following surgery.  However, he had applied to work with other employers and had remained self employed up until the time of the surgery, though he did not pay himself actual wages.

Issue:  Whether the Applicant’s claim is a theoretical loss of wages or represents actual wage loss?

Holding:  A worker remains eligible for temporary disability after being laid off for economic reason because their ability to work remains impaired.  This is more than a theoretical loss of wages as the Applicant had tried to find work and his ability to earn wages was impaired by the work injury.  Specifically, he was forced to hire an employee to do the work on his rental property when he was convalescing.

Gantt v. Marten Transport Ltd, WC Claim No. 2007-000778 (LIRC, 1/31/2011)

Facts:  The Applicant injured her ankle in 2006 while working as a truck driver.  After treatment she went to work for a different employer.  In 2008, she resumed treatment after she started experiencing pain from walking at her new place of employment.  Expert testimony expressed that the Applicant’s diabetes and weight contributed to the re-injury, but that the current injuries were a direct cause of the prior injury.

Issue:  Whether the symptoms and disability in 2008 were caused by the 2006 work injury?

Holding:  Re-injury is compensable if it is caused by the weakened condition of a worker or if the work related injury made the worker more vulnerable to re-injury.  While the Applicant’s work at her subsequent employer caused an aggravation of her condition, she would not have suffered the same injury to the same extent had she not previously suffered the injury in 2006.  Therefore, the employer at time of the 2006 injury must pay TTD.