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.
Kathleen Clearly v. Decatur Memorial Hospital
The petitioner was claiming that she needed a lumbar fusion as a result of an accident at work. We prevailed at the Commission, and on December 13, 2011, the Circuit Court of Macon County confirmed the Commission’s decision, denying the petitioner’s request for a lumbar fusion, ongoing TTD and permanency. There we successfully convinced the Arbitrator, the Commission and the Circuit Court Judge to adopt the opinion of Dr. Pineda, the independent medical evaluator, over the treating physician. The petitioner never returned to work. (Decided February 24, 2010)
Dominique Kay v. Northern Illinois Medical Center and Centegra Health System,
The petitioner was alleging that Northern Illinois Medical Center was the employer and the only party entitled to protection under the Workers’ Compensation Act, alleging that Centegra Health System was liable for her injury under common law based on a negligence theory. She was also alleging that she was permanently and totally disabled as a result of her employment and entitled to $66,560.00 for 2-1/2 years in temporary total disability benefits and then $26,624.00 a year in permanent total disability benefits. At the time of the injuries, the petitioner was 37 years of age. The Arbitrator found there was dual employment between Centegra Health System and Northern Illinois Medical Center resulting in each entity receiving the necessary protection under the Workers’ Compensation Act, in a sense throwing out the common law negligence case in the Circuit Court based on duel employment. nbsp; The Arbitrator denied the 2-1/2 years of temporary total disability, awarding the petitioner 60% loss of use of a man for her multiple surgeries ($138,240.00) as opposed to the $66,560.00 in temporary total disability benefits and the $1,011,712.00 in permanent total disability benefits. The petitioner’s settlement demand in the civil case was $6 million. The petitioner has never returned to work. (Decided December 27, 2010) The petitioner has now appealed that decision.
Brett E Hill v. Tate & Lyle
The Arbitrator awarded $97,938.43 in medical bills, $23,953.00 in temporary total disability benefits and $69,079.62 in permanency representing 30% loss of use of the right arm and 25% of the left arm for repetitive trauma injuries. On review, the Commission reversed the Arbitrator’s decision finding the petitioner failed to prove his condition of ill-being was causally related to his employment. On April 17, 2012, the Appellate Court affirmed the “no award” of the Commission.
Jeff Hayes v. Henry Pratt
The petitioner was claiming that working as a Rubber Mold Operator caused or contributed to a heart attack and that a slow medical response caused the petitioner to develop anoxia to the brain. Our trial presentation proved the claims had no merit through testimony by occurrence witnesses and Dr. Fletcher. The arbitrator denied the claim. On July 7, 2011, the Commission affirmed that denial.
Maria Colon v. Aldi
A cashier claimed carpal tunnel syndrome due to repetitive activity and a torn rotator cuff due to a specific incident. Based on testimony by a district manager about the adoption of safe work practices, the arbitrator denied the carpal tunnel claim on October 24, 2012. The Workers’ Compensation Commission affirmed.
Frank Bird v. Eagle Wings
The petitioner was seeking an order from the Arbitrator compelling the company to authorize a wrist fusion and to award 95 weeks of temporary total disability benefits. The case was tried and the Arbitrator found there was no causal relationship between the petitioner’s undisputed accident and the need for a wrist fusion. He also denied the temporary total disability benefits. On November 28, 2012, the Commission affirmed that denial.
Courtney Carter v. Gottlieb Hospital
This was a disputed case that was tried. The petitioner was seeking 191 weeks of temporary total disability benefits and authorization for right knee surgery which they were trying to relate to an August 29, 2009 accident. On July 17, 2012, we received a favorable decision from the Arbitrator finding that the petitioner failed to prove that she sustained a compensable accident arising out of her employment.
Larry Matson v. City of Waukegan
The Arbitrator awarded the petitioner $88,199.35 in medical expenses, $19,933.44 in temporary total disability benefits and $88,765.59 in permanency representing 30% of a person for a spinal fusion. In total, the decision amounted to $196,898.29. We appealed, and in June of 2012, the Commission reversed that decision and reduced the Arbitrator’s decision from $196,898.29 to $22,191.38. The petitioner appealed to the circuit court where the matter is now pending.
Ann Morgan v. Tate & Lyle
The Arbitrator denied the petitioner’s repetitive trauma carpal tunnel claim. On June 21, 2012, the Commission affirmed the Arbitrator’s denial finding that the petitioner failed to prove that the carpal tunnel syndrome was causally related to her employment. (Decided June 15, 2012)
Patsy Burns v. Naperville Community Unit School District 203
The primary issues were whether the petitioner’s accidental fall was compensable and whether her foot conditions which had been surgically treated by Dr. George Holmes, were causally related to the accident. We took the position the fall did not arise out of the employment but rather was a personal risk due to her shoe wear. In the alternative, we argued that any award should be commensurate with the opinion of our Section 12 examiner, Dr. Samuel Vinci, who found the petitioner had a preexisting degenerative and hereditary condition which was only temporarily aggravated by her fall.
Arbitrator Kinnaman decided the petitioner's accident was compensable, finding the petitioner's sandal stuck to the carpeting which in turn caused her to fall. However, she agreed with our position the petitioner had sustained only a temporary aggravation of her preexisting congenital condition as a result of her accident. She found no basis for awarding TTD benefits and limited the permanency to 5% of a foot. Furthermore, since she did not find any causal relationship between the accident and the petitioner’s multiple surgeries, any potential exposure for reimbursing the husband's insurance carrier for the medical bills it had paid was eliminated.
Both sides filed reviews; we wanted to preserve the accident defense for appeal. After briefing and oral argument, the Commission issued a decision affirming the arbitrator’s decision in its entirety. The petitioner chose to forego further appeal.
Carrie Bond v. PPG
At arbitration, the petitioner was alleging that as a result of her 37 years of employment, she sustained repetitive trauma to her upper extremity. The respondent at the time objected to the petitioner’s testimony going back 37 years, arguing that the statute of limitations precluded her from going back more than three years. The Illinois Workers’ Compensation Commission affirmed the arbitrator’s decision, finding that the petitioner was entitled to go back 37 years in describing her repetitive trauma. On April 17, 2013, the Circuit Court of Macon County reversed the Illinois Workers’ Compensation Commission, finding that this was a case of first impression in holding that in repetitive trauma cases, the three year statute of limitations does apply. Therefore, the petitioner could only describe previous work activities going back three years from the date of accident.
Theresa Garrett v. Decatur Memorial Hospital
The petitioner alleged that she sustained accidental injuries to her back requiring a lumbar fusion. The petitioner never returned to work from the injury in question. At arbitration, we successfully argued that the petitioner returned to her pre-injury status after the work related injury, negating her claim for lost time, permanency or additional medical benefits, including the cost of the fusion surgery. The Illinois Workers’ Compensation Commission affirmed the favorable award and the Appellate Court of Macon County also confirmed eve n though the petitioner never returned to work and was alleging that she is permanently and totally disabled.
Mustafa Alassady v. Berner Foods (Nationwide)
This was a disputed case, where the petitioner was seeking two years of temporary total disability benefits and an order compelling the employer to authorize a spinal fusion. The case proceeded to trial on December 22, 2011. We called four witnesses and after hearing from the petitioner the Arbitrator denied the petitioner’s claim finding the petitioner not credible. As a result of that finding the Arbitrator went on to find that the petitioner failed to prove that he had sustained an accident that arose out of and in the course of his employment and denied the petitioner’s request for temporary total disability benefits, surgery and permanency. The petitioner filed a Petition for Review with the Commission, which affirmed the Arbitrator’s decision. The petitioner appealed to the Circuit Court, which also confirmed the Commission’s decision denying his claim. The petitioner has now appealed to the Appellate Court.
February 12, 2013
ISSUE 1:
SUPREME COURT SAYS FUENTES “A”
ISSUE 2:
WILKINSON DEAD
FUENTES
Until May 3, 2007, the question of how to compute the value of an award after apportionment under L.C. 4663 / 4664 had been answered / unanswered since April 19, 2004.
The first major landmark in this area was an en banc decision in the Escobedo case rendered April 19, 2005 (petition for Writ of Review later denied). A couple of months later, another en banc decision issued in Nabors on June 9, 2005. This decision would later be overturned by a 1st District Court of Appeal (DCA) decision one year later, June 8, 2006.
In between the 2 decisions in Nabors, the 5th DCA rendered its decision in Dykes on December 20, 2005. In short, the Dykes formula for computing the value of an award after apportionment was the polar opposite of the en banc decision in Nabors. The DCA opinion in Nabors agreed with Dykes.
On August 30, 2006, another panel of justices in the 1st DCA, different from the Nabors panel, issued an opinion inBrodie, basically agreeing with Nabors and Dykes in principle, but changing the formula a little.
A day later, the 3rd DCA weighed in with a 44 page opinion in 4 consolidated cases, referred to as Welcher. This opinion, in no uncertain terms, disagreed with Dykes and Nabors, and found that the original majority opinion in the Nabors en banc set forth the correct formula.
Given this great disparity in the interpretation of the new apportionment law, the Supreme Court granted review inWelcher and companion cases on November 15, 2006.
In related matters, the 3rd DCA, in a published opinion in Kopping dated 9-11-06, had confirmed that the L.C. 4664(b) presumption is indeed a conclusive presumption. The injured worker may not even offer evidence of medical rehabilitation following the prior award. However, the court also clarified that the burden is on the CA to prove overlap. Prior cases (Strong, Sanchez) had burdened the injured worker with disproving overlap.
On May 3, 2007, the Supreme Court issued its decision in Welcher/Brodie et al. Given the circumstances in the several cases before it, the Court addressed calculation of the level of permanent disability after apportionment under L.C. 4664 and also after apportionment under L.C. 4663.
In short, the Court retained what had become known as Fuentes Formula A, which in workers' compensation parlance became "subtracting percentages, not money". That is to say, if the current overall level of disability is 71%, and the employee had a prior award of 63%, the "new" disability would be 8% (71-63). Or, if the overall level of disability is 50%, but only 70% of the causation of disability is industrial and 30% of the causation is non-industrial, the disability is 35% (.7 x 50).
WILKINSON
When L.C. 4750 was repealed 4-19-04, the “(Bauer) Wilkinson Doctrine” – which held that when a worker sustains two or more injuries to the same part of the body [while employed by the same employer], and the condition resulting from the several injuries becomes permanent and stationary at the same time, the worker would be entitled to one over-all level of permanent disability without apportionment – became ancient history.
L.C. 4750 had allowed apportionment for “pre-existing” disability. L.C. 4663 requires apportionment of permanent disability based on CAUSATION. One of the apportioned CAUSES of current disability may be a prior injury which had not yet resulted in a definable disability which “pre-existed” the subject injury.
So concluded the WCAB (en banc) in Benson v. WCAB 72 CCC 1620, a decision affirmed by First DCA 74 CCC 113. On April 29, 2009, the Supreme Court denied review.
February 12, 2013
NOTE: A Board Panel Decision issued on 7-24-12 in the case Anderson v. Jaguar ADJ716686 on this issue. The Board determined that estimating future SAWW increases at 3% each year was in the best interest of the injured worker.
Labor Code Sec. 4453(a)(10) provides for certain increases to the statutory AWE structure for TD payments and Labor Code Sec.4659(c) provides for certain increases in life pension and total permanent disability payments based upon the "state average weekly wage" (SAWW). SAWW is a number compiled by the United States Department of Labor based on the average weekly wage of California employees covered by unemployment insurance for the 12 months ending March 31 of the calendar year (preceding the year in which the injury occurred).
As of March 31, 2006, the SAWW for the 12 months preceding was $880.00 per week. As of March 31, 2005, the SAWW was $838.42. This results in a 4.96% increase in SAWW from 2005 to 2006.
Labor Code Sec. 4453(a)(10) provides that for injuries occurring on or after 1-1-05, for purposes of computing temporary disability indemnity, earnings shall be taken at not less than $189.00, nor more than $1,260.00. (There was no change in this structure for injuries on or after 1-1-06) However, this subsection further provides:
"Commencing on January 1, 2007, and each January thereafter, the limits specified in this paragraph shall be increased by an amount equal to the percentage increase in the state average weekly wage as compared to the prior year."
The effect of this (4.96%) increase is that for injuries occurring on or after 1-1-07, for purposes of computing temporary disability indemnity, AWE shall be taken at not less than $198.37 (1.0496 x $189.00), nor more than $1,322.50 (1.0496 x $1,260.00). This results in a so-called "Minimum TD Rate" of $132.25 per week ($198.37 x 2/3), and a "Maximum TD Rate" of $881.67 per week ($1,322.50 x 2/3)).
The SAWW as of 3-31-07 was $914.60 reflecting a 3.93% increase over 3-31-06. This 3.93% increase becomes effective 1-1-08. As of then, for purposes of computing temporary disability indemnity rates, AWE shall be taken at not less than $206.18 (1.0393 x 198.37) and not more than $1,374.47 (1.0393 x 1,322.50). These changes result in so-called "Minimum TD Rate" of $137.45 / wk and a so-called "Maximum TD Rate" of $916.32.
Of course, these increases in the statutory AWE structure may affect temporary disability indemnity rates for "older" injuries also. See Labor Code Sec. 4661.5.
While the SAWW increased the statutory AWE structure in Labor Code Sec. 4453(a)(10), it actually increases the amount of the life pension or total permanent disability payment under Labor Code Sec. 4659(c).
This subsection provides:
"For injuries occurring on or after January 1, 2003, an employee who becomes entitled to receive a life pension or total permanent disability as set forth in subdivisions (a) and (b) shall have that payment increased annually commencing on January 1, 2004, and each January 1 thereafter, by an amount equal to the percentage increase in the "state average weekly wage" as compared to the prior year."
Past SAWW increases were 1.97% effective 1-1-05 and 4.01% effective 1-1-06. There was no SAWW increase effective 1-1-04.
As an example, assume an employee with real life earnings of $904.00 per week was injured 1-2-03. His statutory AWE for TD was $903.00/wk [Labor Code Sec. 4453(a)(8)], yielding a TD rate of $602.00/wk. If he was declared 100% PD as of 12-31-03, his permanent total disability indemnity rate would be $602.00 [L.C. 4453(a)(8)]. Note that if his injury had occurred prior to 1-1-03, this would have been his weekly rate for life. Crutcher v. WCAB 46 CCC 843. However, for this 1-2-03 injury, Labor Code Sec. 4659(c) applies.
As there was no SAWW increase effective 1-1-04, his weekly rate remained $602.00/wk throughout 2004. As of 1-1-05, the weekly rate would have had to increase to $613.86/wk (1.0197 x $602.00); as of 1-1-06, the weekly rate would have had to increase to $638.48 (1.0401 x $613.86); and as of 1-1-07, the weekly rate had to increase to $670.15/wk (1.0496 x 638.48). As of 1-1-08, the weekly rate will have to increase to $696.49 (1.0393 x 670.15).
For injuries after 1-1-03, where the permanent disability is less than 100%, but 70% or more, life pension payments would not yet have commenced.
If you have any questions, please email them to tbyrne@hannabrophy.com.
For the past several years, partner Tony Macauley has authored a workers' compensation article for the ABA Tort Trial & Insurance Practical Law Journal. This year's article, Recent Developments in Workers' Compensation and Employers' Liability Law, was co-authored by Hanna Brophy associates Darren Chan and Natasha Dighe. The piece provides an overview of recent case law across twenty different states.
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Ever since the en banc opinion in Aldi v. Carr, McClellan, et al, (2006) 71 CCC 783 (W/D 71 CCC 1822), it has been clear that the revised permanent disability rating schedule adopted January 1, 2005 applies to injuries sustained prior to January 1, 2005, UNLESS the injured worker can establish that one of the exceptions set forth in the third sentence of 4660(d) is applicable. This sentence reads: The revised schedule will apply to pre-January 1, 2005 injuries:
"when there HAS BEEN either no comprehensive medical-legal report or no report by a treating physicianindicating the existence of permanent disability, or when the employer IS not required to provide THE notice required by Section 4061 to the injured worker." (Emphasis added)
The principles of Aldi were reaffirmed in a published opinion from the Third Appellate District in Chang v. WCAB (7-24-07) 72 CCC 921.
This third sentence of 4660(d) has fostered much litigation over the last several years. Issues included the question whether a "comprehensive medical-legal report" could be any such report or only one which indicates the existence of permanent disability. Another major issue was: what does "is not required to provide the notice required by Section 4061" mean? But perhaps a bigger question was what does “indicating the existence” mean.
DEFINING THE EXCEPTIONS
On April 6, 2007, the WCAB issued two en banc (4-3) decisions addressing two questions. In the first of these,Baglione v. Hertz 72 CCC 444, the question analyzed was what kind of medical report had to be written before 1-1-05. Would “any” comprehensive medical legal report, e.g. L.C. 4060, suffice? The Board found that not just "any" comprehensive medical-legal report before 1-1-05 would suffice to trigger the 1997 Schedule. In the battle over "to comma or not to comma", it was determined that to invoke this exception, the medical-legal report must also "indicate the existence" of permanent disability.
Also on April 6, 2007, the Board issued its decision in Pendergrass v Duggan Plumbing 72 CCC 456. This case concerned the "notice required by Section 4061". Some had argued that the duty to provide a 4061 notice arose with the first payment of temporary disability indemnity. The argument continued that therefore if TDI was paid before 1-1-05, a 4061 notice was required before 1-1-05, and therefore the 2005 Schedule for Rating Permanent Disability should NOT apply. The majority disagreed. Where payment of temporary disability indemnity starts before 1-1-05 and continues until 1-1-05 or later, there is no requirement to provide a 4061 notice until the last payment of TDI is made, the majority stated:
"...[I]f the last payment of temporary disability indemnity was made for any period of temporary disability ending before January 1, 2005, then the 1997 Schedule applies to determine the extent of permanent disability, pursuant to section 4660(d), because section 4061 requires the employer to provide the injured worker with a notice regarding permanent disability "[t]ogether with the last payment of temporary disability indemnity ...," (Emphasis added)
The principles of Baglione and Pendergrass have been reaffirmed in two published cases. On May 23, 2007, the decision in Costco v. WCAB (Chavez) 72 CCC 582 issued from the First DCA. On July 24, 2007, the decision inEnergetic Painting v. WCAB (Ramirez) (7-24-07) 72 CCC 937 issued from the Third DCA. Also see W/D and non-published cases: Bryer (9-27-07); City of Galt (Ramos) (9-21-07); Lyngso Garden Materials v. WCAB (Ruiz) 72 CCC 1097; Zenith v. WCAB (Watts) 72 CCC 1135.
A couple of questions not addressed by any of these decisions are:
WHAT EXACTLY DOES “INDICATING THE EXISTENCE OF PERMANENT DISABILITY MEAN?
The first case decided by a DCA on this issue was Vera v.WCAB 72 CCC 1115. The court had concluded that a medical condition had to be permanent and stationary before there could be an "indication".
In an opinion from the 2nd DCA in Genlyte Group v. WCAB (Zavala), 73 CCC 6, certified for publication on January 3, 2008, that Court stated:
“[T]he Vera court’s conclusion miss[es] the mark. ... The language of the statute is not limited to what the Vera court properly describes as the typical final or permanent and stationary report....
[I]n an appropriate case a physician is not precluded from reporting that permanent disability exists prior to the time the injured worker (sic) has reached permanent and stationary status or the extent of ratable permanent disability is known....”
The Court went on to cite several circumstances where the existence of permanent disability may be indicated before the injured worker’s condition becomes permanent and stationary. These included cases of insidious and progressive occupational disease, or severe burns or loss of sight or limbs, or where the injured worker becomes entitled to vocational rehabilitation.
Several decisions since January 2008 have favored the Genlyte rationale over Vera while none have favored Veraover Genlyte. In fact, the Genlyte decision was considered a change in the law and "good cause" to reopen a ces previously decided based on Vera, Avila - Gonzalez 75 CCC 1069. See Tenet v. WCAB (Reddick) 73 CCC 329 (in 10-04, QME advised: P&S if no surgery; expected PD if surgery done); Virginia Surety v. WCAB (Wragg) 73 CCC 75 (In 12-04, PTP advised: Wragg "will be left with some measure of permanent residual disability and limited functional capacity resulting from said industrial injury.); Zenith v. WCAB (Cugini) 73 CCC 81 (On remand to WCAB, instruction to follow Genlyte rationale). There were also numerous Board Panel decisions following Genltye.
Prior to Genlyte, there were there were a variety of Board Panel decisions and Writ Denied cases with similar views as to the meaning of "indicating the existence of permanent disability". The following is a sampling of these and related earlier decisions. In a W/D of 6-14-07 in Xerox v. WCAB (Blair) (6-14-07) 72 CCC 1044, where there had also been a 4061 notice issued before 1-1-05, the WCJ found that a PR-2 reporting loss of cervical motion after surgery was "an indication" of the existence of permanent disability. Also, presumed medical-QIW status [L.C. 4636(c)] was another "indication". As for QIW status, see also Panel Decisions in Compton (8-14-06); Mancinas (3-8-06); andCamacho (11-20-05). In Zurich v. WCAB. (Nunes) (W/D 3-1-07) 72 CCC 368, the WCJ had used the 2005 Rating Schedule. On reconsideration, the WCAB determined that a medical report of 9-27-04 showing that the IW had a herniated disc, footdrop, used a cane, and needed surgery constituted an "indication" of the existence of PD, and therefore the 1997 schedule should apply.
What about a surgery already done prior to 1-1-05? In Owens (2007)(W/D) 72 CCC 148 and in Helm (2007)(W/D) 72 CCC 962, carpal tunnel surgery done in 2003 did not "indicate" PD, but in Conroy (BPD 10-13-06), the Board held that virtual ACL reconstruction surgery itself (done 10-21-04) was an indication of the existence of PD, in part, because there was some indication in the AMA Guides that such a procedure would probably result in ratable permanent disability. And in Santa Rosa School District v. WCAB (Hagle) (W/D 8-29-07) a total hip replacement done in 5-04 (which would yield a WPI of 15-30 under the AMA Guides) was determined a sufficient "indication" of the existence of permanent disability to apply the 1997 schedule even though the condition had not become P&S before 1-1-05. Also, in City of Vacaville v. WCAB (Lee) (W/D) 71 CCC 1853, when the PTP reported on 12-30-04 that indeed the IW would have permanent disability, but his condition would not become P&S for 2-4 months, the Board found this report to be an "indication", and the 1997 schedule applicable. On the other hand, in SCIF v. WCAB (Echeverria) 72 CCC 33, the Court of Appeal found the WCAB decision to apply the 1997 schedule not supported by substantial evidence where the PTP signed a statement prepared by the IW's attorney on 12-15-04, to wit: "I believe permanent disability is within reasonable medical probability emanating from this injury." Similary, in HSR, Inc. v. WCAB (Mariscal) (non-published 9-24-07), the Sixth DCA found a "check the box" report before 1-1-05 inadequate to establish an "indication".
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The California Third District Court of Appeal, following oral argument, granted Defendant County of Sacramento’s Petition for Writ of Review on a Labor Code section 3208.3 good faith personnel action defense argued by Elizabeth Trimm of the Sacramento office on April 22, 2013.
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Hanna Brophy Attorney Christian Kerry wins Appellate Court Decision - Labor Code §4850 benefits are subject to the 104-week cap set forth in Labor Code §4656(c)(2) County of Alameda (Knittel) v. WCAB - Read more about this significant victory for California public entities here.
Article on Decision
An award of future medical treatment can include procedures not contemplated at the time of the award but the claimant must still prove they are related to the compensable accident and injury. It is a factual determination that will be upheld if there is evidence in the record to support the decision. The claimant had longstanding knee problems aggravated by a work accident. In 2008, the Court awarded future medical for the right knee. At the time a total knee replacement was not contemplated. When it was recommended, the employer disputed that it was included in the award and that it was reasonable and necessary as a result of the aggravation. Initially the trial court denied the surgery and that was appealed and remanded because while the surgery was not contemplated at the time of the 2008 award, the trial court did award future medical treatment. On remand the trial court held that the surgery was not related to the work aggravation, which was supported by an expert report and other medical records, and the decision was affirmed.
Pearson v. Archer-Daniels-Midland Milling Co., 285 Neb. 568 (2013).
The Nebraska Court of Appeals confirmed that an award of vocational rehabilitation was premature absent a finding the claimant was at MMI. The Court also held the trial court implicitly found claimant did not abandon his job when he refused to take a position he believed was outside his temporary restrictions. Claimant testified he could not perform the position and the employer testified claimant was terminated for refusing to perform the position pending evaluation of whether it was within his restrictions. The testimony provided a factual basis for the trial court to find claimant did not abandon his employment and the award of temporary disability was supported. The Court also reversed the offset of claimant’s temporary benefits with his unemployment compensation as that is contrary to Nebraska law.
Hernandez v. JBS, 20 Neb. App. 634 (2013).
The Nebraska Court of Appeals affirmed the trial court’s finding of a recurrence as there was no evidence of a second accident, just continued flare-ups from the original injury. The trial court found that claimant originally sustained a 20% loss of earning capacity. A small portion of the permanent partial disability benefits were paid late and underpaid, and the trial court awarded a small penalty with interest and attorney’s fees. While the trial court did find that the recurrence resulted in a 40% loss of earning power it declined to award additional permanent disability. The Court of Appeals reversed, indicating that the permanent disability weeks should be paid at 40% with credit for the 20% paid. It also reversed the award of penalties, interest, and fees, finding that the action was not a modification (there was no prior settlement or award) and that the two opinions of 20% and 40% created a reasonable controversy that insulated the employer from penalties.
Tuttle v. Bunge Milling, 20 Neb. App. 615 (2013).
New WV Law Regarding Payment of Attorney’s Fees in Workers’ Comp Litigation
West Virginia Update – May 30, 2013
By: Dill Battle and Karin Weingart
This past legislative session, the West Virginia Legislature passed H.B. No. 3069, which will be effective as of July 12, 2013.
Prior to the enactment of H.B. 3069, there were only two means by which a claimant’s lawyer could recover a fee. The first is under West Virginia Code §23-5-16 which essentially permits 20% of any indemnity benefits awarded or 20% of the total value of a final settlement – each with certain limitations. The second was under West Virginia Code §23-2C-21(c) which provides for an award of attorney fees for an unreasonable denial of compensability, TTD, or authorization for medical benefits. The determination is made by the Office of Judges if the responsible party cannot demonstrate that there was reasonable evidence or legal basis to support the denial at the time the decision was made.
With the enactment of H.B. No. 3069, West Virginia Code §23-5-16 has a new subsection (c) which provides for an award of attorney’s feesand costs to be paid by the private carrier or self-insured employer where a claimant successfully litigates a denial of medical benefits before an arbitrator, mediator, the Office of Judges, Board of Review or court. Within 30 days of the final decision granting the benefits, the claimant’s lawyer must file a petition for fees before the body which made the decision.
The fees must be reasonable, and there are limits to the fees that can be awarded: $125/hour, not to exceed $500 per litigated issue or $2500 per claim.
This new Code provision will not require any immediate action or change in practices by any responsible party. The potential for an award of attorney’sfees and costs may suggest that each request for medical services be reviewed more closely in order to prevent the denial of a requested service that is likely to be reversed on protest or appeal. In cases where you have a difficult time obtaining the medical records needed to evaluate any request, best practices might dictate that you consider issuing an “under investigation” letter before outright denying the request. When a provider is not cooperative in disclosing necessary information to assist an adjuster in making a decision, the regulations allow issuance of a letter advising the claimant that you have received the request from the treating physician for certain treatment, but despite numerous requests for treatment records and treatment plan, no response has been received. Ultimately any final decision denying treatment must be protestable and in compliance with the statute and regulations.
Office Max, Inc. v. Academy, Ltd. - Released May 17, 2013
This case stems from a workers’ compensation case involving an employee of Office Max. The employee claimed that in 2002 and 2005 she injured her knees and shoulders, respectively, while working in the line and scope of her employment with Office Max. On three occasions, June 2008, March 2010 and July 2010 the employee sought orders compelling Office Max to provide medical treatment, which were granted. Office Max responded to the second motion arguing that the employee suffered a new injury, or aggravation of a preexisting injury, to her knees and shoulders while working for her new employer, Academy, Ltd. Pursuant to the Last Injurious Exposure Rule, Office Max argued that Academy was responsible for the medical treatment and any disability benefits related to the current treatment and injury. Office Max brought Academy into the action and Academy responded with a motion for summary judgment. Academy argued that the employee suffered a recurrence of the injuries she originally incurred while employed by Office Max. At the same time the employee filed a fourth motion to compel Office Max to provide further surgery on the left knee. The trial court granted the Motion for Summary Judgment and the Motion to Compel.
Under the Last Injurious Exposure Rule liability falls on the employer or carrier covering the risk at the time of the most recent injury with a casual connection to the disability. In order to determine this, the court must decide if the second injury is a new injury, an aggravation of a prior injury, or a recurrence of an old injury. If deemed a recurrence, then the first employer/carrier is responsible. However, if the second injury is a new injury or aggravation of the first injury, the second employer/carrier is responsible. A recurrence is found to have occurred when the second injury does not even slightly contribute to the disability. This is supported when the employee suffers injury, followed by a period of work with continued symptoms and then suffers a second event causing a second period of disability. An aggravation is deemed to have occurred when the second injury contributed independently to the final disability.
In regards to the shoulders, prior to starting employment with Academy in 2007, the employee suffered from tendinitis in both shoulder that lead to a diagnoses of a rotator cuff tear in the right shoulder. This lead to surgery in January 2007 and a determination that the plaintiff suffered from a 8% impairment rating in October 2007. In November of 2008, over one year after starting her job with Academy, the employee reported increased symptoms in her right shoulder which was ultimately determined to be another rotator cuff tear requiring surgery. After that surgery it was determined that the employee had a 9% impairment. The authorized treating physician testified that this would certainly be an aggravation. The Alabama Court of Civil Appeals found that the doctor’s testimony, coupled with the increased impairment would amount to substantial evidence supporting a finding that the employee suffered an aggravation and that Academy was responsible for the medical bills and indemnity benefits.
As to the knee, the evidence showed that, prior to her employment with Academy, the employee had no significant abnormalities. However, after her employment with Academy an MRI revealed a medial meniscal tear. The employee also testified that during her employment with Academy her job duties aggravated her knee condition. Given the new damage and the employee’s testimony, the Court of Civil Appeals again found that there was substantial evidence supporting a finding that the employee suffered an aggravation and Academy was responsible for the medical bills and indemnity benefits.
The Court of Civil Appeals found that the trial court erred in granting the motion for summary judgment in favor of Academy noting that the trial court must decide which employer is responsible given that the facts support that the employee suffered a compensable injury.
The Court of Civil Appeals also found that the order compelling Office Max to pay for medical treatment was premature and reversed it as well.
Of note the Presiding Judge, J. Thomas and Judge P.J. Thompson, wrote specially to highlight the problem created by these situations and called for a legislative amendment to address the issue.
My Two Cents
: Depending on the facts and circumstances of a particular case, it may be advisable to consider paying for medical treatment pending a judicial determination of responsibility so that you do not lose control of the medical treatment (SeeFlour Enterprises, Inc v. Lawshe blog posting, February 6, 2009). In the event that the judge eventually agrees that the other employer is responsible, then full reimbursement will also likely be ordered. However, if you are not successful, then you will have maintained control of the medical treatment.
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ABOUT THE AUTHOR
The article was written by Joshua G. Holden, Esq. a Member of Fish Nelson, LLC, a law firm dedicated to representing employers, self-insured employers and insurance carriers in workers’ compensation and related liability matters. Mr. Holden is AV rated by Martindale-Hubbell, which is the highest rating an attorney can receive. He is the current Chair of the ABA/ TIPS Workers’ Compensation and Employers’ Liability Committee. He is also on the Board of the Alabama Workers Compensation Organization and a member of numerous other associations and organizations. Holden has been selected as a "Rising Star" by Super Lawyers.
Holden and his firm are members of The National Workers’ Compensation Defense Network (NWCDN). The NWCDN is a national and Canadian network of reputable law firms organized to provide employers and insurers access to the highest quality representation in workers’ compensation and related employer liability fields.
If you have questions about this article or Alabama workers’ compensation issues in general, please feel free to contact the author atjholden@fishnelson.com or 205-332-1428.