State News

Effective January 1, 2013, the standard mileage reimbursement rate for Alabama was increased to 56.5 cents per mile.

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About the Author

This article was written by Michael I. Fish, Esq. of Fish Nelson LLC, a law firm dedicated to representing employers, self-insured employers and insurance carriers in workers’ compensation matters. Fish Nelson is a member of The National Workers’ Compensation Network (NWCDN). If you have any questions about this article or Alabama workers’ compensation issues in general, please feel free to contact the author at mfish@fishnelson.com or any firm member at 205-332-3430.

On December 14, 2012, the Alabama Court of Civil Appeals released its opinion in Goodyear Tire & Rubber Company v. Marvin Wilson. On appeal, was the trial court’s holding that the employee’s current complaints of back pain were caused, at least in part, by a 1986 lumbar back strain. The 1986 claim resulted in a 1987 lawsuit which was subsequently settled with future medical benefits remaining open. Per the authorized treating physician, he had been treating the employee from time to time from 1987 until the present. However, it was his opinion that the employee’s current complaints were likely due to his degenerative arthritis rather than the original compensable lumbar strain. In holding the employer to be responsible for the current care, the trial judge noted that the physician could not rule out with certainty that the lumbar strain did not, at least, contribute to the employee’s degenerative arthritis. In reversing the trial court, the Court of Appeals noted that the physician’s testimony only provided a mere possibility that the current back pain and the 1986 injury were related. As such, the trial judge’s holding was not considered to be supported by substantial evidence.

My Two Cents: At the trial of this case, it was assumed that the burden of proof was on the employer to prove that the current complaints of pain were not related to the previously accepted and compensable injury. However, it should be noted that it is always the burden of the employee to prove, by a preponderance of the evidence, that the complaint for which he or she seeks medical treatment arose out of and in the course of his or her employment.

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About the Author

This article was written by Michael I. Fish, Esq. of Fish Nelson LLC, a law firm dedicated to representing employers, self-insured employers and insurance carriers in workers’ compensation matters. Fish Nelson is a member of The National Workers’ Compensation Network (NWCDN). If you have any questions about this article or Alabama workers’ compensation issues in general, please feel free to contact the author at mfish@fishnelson.com or any firm member at 205-332-3430.

NC Risk Handling Hint - Futile Job Search

TheThompson Court reinforces the Commission’s discretion to weigh evidence, draw inferences from the evidence and paraphrase testimony. Defendants challenged the Commission’s factual conclusions regarding Thompson’s vocational and educational history, but the Court found that while Thompson may not have used the ‘precise’ words in the Full Commission’s decision, the Commission’s findings ‘paraphrased’ Thompson’s testimony and that the Commission drew reasonable inferences from his testimony. The Court continues to clarify that it will not disturb the Commission’s credibility determinations on appeal.

Kelvin D. Thompson filed a claim for workers’ compensation benefits on October 21, 2008. One year later, the Deputy Commissioner entered an Opinion and Award concluding that Thompson had suffered a compensable back injury and awarding him temporary total disability benefits, payment of past and future medicalexpenses, and attorney’s fees. On appeal by Defendants, the Full Commission adopted the Deputy Commissioner’s Opinion and Award with minor modifications. In its Opinion and Award, the Full Commission incorporated language from both the first and third prongs ofRussell v. Lowes Prod. Distribution, 108 N.C. App. 762, 425 S.E.2d 454 (1993), to justify its determination that Thompson was disabled (“[G]iven plaintiff’s current physical andvocational limitations, plaintiff is incapable of work in any employment”). Defendants appealed, and the North Carolina Court of Appeals remanded the case for clarification of the basis for the Full Commission’s conclusion that Thompson was disabled.

The Full Commission entered a new Opinion and Award on remand, finding that Thompson had “met his initial burden to show that he was totally disabled . . . by showing that a job search would be futile in light of his physical and vocational limitations.” The Full Commission further concluded that “[D]efendants have not shown that suitable jobs are available for plaintiff and that plaintiff is capable of obtaining a suitable job, taking into account plaintiff’s physical and vocational limitations.” Defendants appealed again to the Court of Appeals.

On November 6, 2012, inThompson v. Carolina Cabinet Co.,the Court of Appeals first considered Defendants’ argument that theFull Commission’s conclusion of law that Thompson was disabled failed to adequately identifywhich prong of Russell the Commissionapplied. In rejecting this argument, the Court noted that although the Full Commission did not expressly state which prong ofRussell it applied, it was apparent from the Commission’s findings that it applied the third prong. In order to support a conclusion of disability, the Commission must find that Thompson was incapable of earning pre-injury wages in the same or any other employment, and that the incapacity to earn pre-injury wages was caused by his injury.Hilliard v. Apex Cabinet Co., 305 N.C. 593, 595, 290 S.E.2d 682, 684 (1982). Pursuant toRussell, an employee may meet his initial burden of production on this issue by producing one of the following: (1) medical evidence that he is physically or mentally, as a result of the work-related injury, incapable of work in any employment; (2) evidence that he is capable of some work, but that he has, after a reasonable effort, been unsuccessful in his efforts to obtain employment; (3) evidence that he is capable of some work, but that it would be futile because of pre-existing conditions, such as age, inexperience, or lack of education, to seek employment; or (4) evidence that he has obtained other employment at wages less than his pre-injury wages. Russell, 108 N.C. App. at 766, 425 S.E.2d at 457.

Defendants pointed to theCommission’s reliance on Thompson’s“physical” and “vocational” limitations, arguing the Commission improperly merged the first and third prongs ofRussell. The Court concluded, however, that any determination under the third prong necessarily required the Commission to consider both types of limitations, since a job search would be limited only to those jobs consistent with Thompson’s physical restrictions. The Court further noted that the Commission was not required to state specifically that Thompson was “capable of some work,” because a finding of futility presumes that an employee is capable of some work physically. According to the Court, there would be no need for a finding that a job search would be futile if an employee was in fact incapable of working at all under the first prong ofRussell.

The Court also rejected Defendants’ argument that the Full Commission erred in determining that Thompson meet his burden of showing disability under the third prong of Russell. With respect to vocational considerations, the Commission pointed out that Thompson was, at the time of itsdecision, 45 years-old with a high school education and limited work experience. With respect to physical limitations, the Commission noted that Thompson was restricted to lifting no more than 15 pounds and working no longer than nine hours per day. In addition, he was required to avoid repetitive bending, lifting, and twisting, and had been experiencing steady, intense pain. The Court held that these findings were supported by competent evidence and were sufficient to support the Commission’s conclusion that it would be futile for Thompson to search for a job consistent with his physical restrictions. The Court also pointed out that once an employee meets his initial burden of production underRussell, the burden of production shifts to the employer to show that suitable jobs are available and that the employee is capable of obtaining a suitable job taking into account his physical and vocational limitations and that Defendants made no argument that the Full Commission erred in concluding that they failed to meet this burden.

NC Risk Handling Hint - Necessary Findings of Facts Supporting an Opinion and Award and Credibility

The issue of credibility is squarely within the domain of the Industrial Commission and their findings rooted in the issue of credibility will rarely be disturbed on appeal.

Corey McAdams worked for Safety Kleen as a vacuum customer service representative. On March 22, 2007, he was injured under compensable circumstances as a result of a motor vehicle accident. He received ongoing medical treatment from multiple physicians, some of whom concluded that McAdams had a variety of injuries and was unable to return to work. Other physicians who treated McAdams concluded that he had not sustained any serious injuries, and that there was nothing preventing him from returning to work. In addition, McAdams provided conflicting accounts of the circumstances under which he was injured. He initially stated that he was making a left turn and the driver of another vehicle struck the rear of his car as he was turning. Contrary to this account, McAdams later indicated that his vehicle was actually stopped on the side of the road and that as he started to exit his car, the driver of the other vehicle involved rear-ended his car, throwing him around and causing him to lose consciousness. Shortly after the accident, McAdams also completed an accident report in which he checked the box indicating that he had not been injured in the accident.

After a hearing and appeal to the Full Commission, the Full Commission entered an Opinion and Award granting indemnity and medical benefits. The Full Commission did not make any Findings of Fact as to what injuries McAdams actually sustained in the accident and did not reconcile the different versions of the accident which were provided by McAdams. Defendants appealed to the Court of Appeals.

In January 2012, the Court of Appeals remanded the case to the Full Commission to make specific Findings of Fact with respect to the crucial facts upon which the question of an employee’s right to compensation depends. The Court noted that the findings must be sufficiently specific to enable a Court on appeal to determine whether they are supported by the evidence and the law appropriately applied. According to the Court, it was unclear which version of McAdams’ accident the Commission found credible, and the Findings of Fact that were made tended to indicate that McAdams had made many representations and exaggerations regarding the accident and his medical condition. Notwithstanding these inconsistencies, the Full Commission never made a determination of McAdams’ credibility. The Full Commission also failed to determine whether the doctors who had concluded that McAdams required medical care based their opinions on an entirely inaccurate description of the accident. Judge Bryant dissented, however, noting that, notwithstandingthe different versions of the accident which McAdams conveyed, defendants admitted compensability of the accident on a Form 60 and that the Court should be careful not to extend its authority to areas solely reserved for the Commission – credibility of evidence. Judge Bryant also indicated that the Findings of Fact were supported by the evidence despite the existence of contradictory evidence.

On October 5, 2012, inMcAdams v. Safety Kleen Sytems, Inc., the Supreme Court reversed the Court of Appeals for the reasons in Judge Bryant’s dissent.

The policy for settlement of cases involving child support liens is set forth in the Mississippi Workers' Compensation Notice dated June, 2012.  The link for the notice is as follows: www.mwcc.state.ms.us/law-clms/Child%20Support%20Web%20Policy.pdf 

If you have any questions about this article or about Mississippi's workers’ compensation system, please feel free to contact Virginia S. Gautier, Andrew D. Sweat or Jennifer H. Scott at Wise Carter Child & Caraway, PA.  Information about the Wise Carter Child & Caraway PA law firm can be located at www.wisecarter.com.

Mississippi enacted legislation that became effective on July 1, 2012 that amended the Mississippi Workers' Compensation Act.  A brief summary of some of the changes to the Act include the following.  First, prior to the amendment to the statute, case law required the Mississippi Workers’ Compensation Act to be construed in a light most favorable to the claimant in situations where the Commission did not think the evidence clearly supported one side over the other. Miss. Code Ann. §　71-3-1 now requires the Workers’ Compensation Act to be impartially construed and applied according to the law and the evidence in the record.  Second, the Legislature added language to Miss. Code Ann. §71-3-7(1),which assists the employer and carrier in the event the claimant files a Petition to Controvert and the employer had absolutely no knowledge of the injury. Where no benefits of any kind have been paid, the claimant is now required to attach medical records supporting his claim when filing a Petition to Controvert for a date of injury after July 1, 2012. If the Petition is filed near the end of the two year limitation period, the claimant will have an additional 60 days after filing the Petition to file supporting medical records with the Commission.  Third, Miss. Code Ann. §71-3-7(2) contains a provision which assists the employer and carrier in seeking apportionment. Previously, apportionment was not available to the employer and carrier unless it could be shown that the pre-existing medical condition had rendered the claimant occupationally disabled in some form. The new statutory language states that the pre-existing condition does not have to be occupationally disabling for apportionment to apply. Additionally, pursuant to Miss. Code Ann. §71-3-15(1), if an employee has surgery for the injury at issue or treats with a physician for six months or longer, that physician is now deemed the employee’s choice of physician.

This article was written by Virginia S. Gautier, Esq. of the law firm of Wise Carter Child & Caraway PA.   If you have any questions about this article or about Mississippi's workers’ compensation system, please feel free to contact the author atvsg@wisecarter.com.  Information about the Wise Carter Child & Caraway PA law firm can be located atwww.wisecarter.com .

Our network is based upon personally referenced and extensively vetted defense firms with a reputation for excellence.  We are currently actively seeking a firm to represent our network in Montana, and value any suggestions you may have as either an employer or an adjuster/risk administrator dealing with workers' compensation claims in Montana.

If you have had an excellent experience with a firm or attorney that you trust as counsel in Montana, please let us know!  You can contact Kim Martens at: martens@hitefanning.com

Our network is based upon personally referenced and extensively vetted defense firms with a reputation for excellence.  We are currently actively seeking a firm to represent our network in North Dakota, and value any suggestions you may have as either an employer or an adjuster/risk administrator dealing with workers' compensation claims in North Dakota.

If you have had an excellent experience with a firm or attorney that you trust as counsel in North Dakota, please let us know!  You can contact Kim Martens at: martens@hitefanning.com

Pay me once, pay me twice, pay me thrice? Recent ruling from the Supreme Court of Appeals of West Virginia may open the door for an injured employee to recover medical bills three times over.

By:     Glen A. Murphy, Esquire

           Spilman Thomas & Battle, PLLC

           gmurphy@spilmanlaw.com

           On November 15^th the Supreme Court of Appeals of West Virginia issued the opinion ofJeffery Jenkins, et ux. v. City of Elkins, et al. (No. 11-1059). Factually, Mr. Jenkins was an employee of Bombardier Aerospace driving a company vehicle, within the course and scope of his employment, when he was struck by another vehicle owned by the City of Elkins and driven by its employee Stephen Stanton, likewise in the course and scope of his employment. Because Mr. Jenkins was on the job at the time, he received workers compensation benefits for his injuries. Mr. Jenkins sought to pursue a claim against the City of Elkins and Mr. Stanton. However, the City informed Mr. Jenkins that because he was covered by workers’ compensation, the City had statutory immunity under W. Va. Code § 29-12A-1et seq. (aka the “Tort Reform Act”).  The City’s insurer, National Union, likewise asserted its immunity as the City’s immunity was preserved in a provision of National Union’s policy.  This immunity has been previously recognized in the longstanding holding ofO’Dell v. Town of Gauley Bridge, 188 W. Va. 596, 425 S.E.2d 551 (1992). Suit was filed against the City and Mr. Stanton. Mr. Jenkins also filed suit against his employer’s insurer (Greenwich), as well as his personal insurer (Westfield), seeking either Under or Uninsured (UM/UIM) coverage. Greenwich and Westfield asserted exclusions of coverage under their policies because of a “governmental vehicle” exclusion.  Greenwich also asserted that Jenkins was not entitled to the Medical Payments coverage under his policy based upon an exclusion for injuries arising out of and in the course of employment.

           As there were no facts in dispute, the case was briefed for summary judgment before the Circuit Court of Harrison County.  Judge Bedell found in favor of the City and National Union’s assertion of immunity. He found that the “governmental vehicle exclusion” as asserted by Greenwich and Westfield, were valid exclusions, but only for amounts over and above the State’s mandatory minimum coverage ($20K/$40K/$10K).  Finally, he found that Greenwich’s “workers compensation” exclusion in its medical payments coverage section was valid. Mr. Jenkins appealed from this ruling.

           After review by the Supreme Court of West Virginia, the Court significantly upheld the immunity of the City (and thus its insurer) and reaffirmed its longstanding holding inO’Dell (Syl pt. 1); that if an individual is injured by a tortfeasor who is immune from liability, underinsured motorist coverage is triggered for the limits in place (Syl pt. 2); that the “government owned vehicle” exclusion is against the public policy of this State and is unenforceable; and, of most significance to those involved with workers compensation, held in Syllabus point 5:

5. An employer’s insurance policy that excludes coverage for auto medical payment benefits to an employee who sustained an injury arising out of and in the course of employment is only enforceable to exclude medical payment coverage for that part of a claimthat exceeds the amount subrogated by the employer’s workers’ compensation carrier.(Emphasis added.)

The Court, in reaching this holding, noted that it has previously held that:

 “an employee who receives workers’ compensation benefits for injuries that result from a motor vehicle collision with a third-party which occurs in the course and scope of the employee’s employment is entitled to assert, against his/her employer’s motor vehicle insurance carrier, a claim for underinsured motorist benefits, where the employee’s employer has in effect motor vehicle insurance providing underinsured motorist coverage and where the employee’s recovery against the third-party activates such underinsurance coverage.” Syl. pt. 4, Henry v. Benyo, 203 W. Va. 172, 506 S.E.2d 615 (1998). 

           This Court looked at Greenwich’s medical payment exclusion as essentially being a workers’ compensation exclusion. The Court noted that a majority of courts have upheld similar exclusions, but that “some courts have invalidated this exclusion when a workers compensation insurer successfully asserts its subrogation on third-party proceeds.”  [Citation omitted]. Therefore, our Court determined, both in reliance on its prior holding inBenyoand for public policy considerations, an employee should have equal application to the recovery of medical payment benefits under the employer’s policy.  Statutory subrogation rights for workers’ compensation payments are still in place for employers’ workers’ compensation insurers as provided under W. Va. Code § 23-2A-1(b)(1), but as for the employers’ auto insurers, they can now only exclude medical payments coverage under their policies for the amount that exceeds the amount subrogated by the employers’ workers’ compensation carrier.   Additionally, it must be remembered that W. Va. Code § 23-2A-1(e), in pertinent part, advises that the statutory subrogation described in this preceding section, “does not apply to uninsured and underinsured motorist coverage or any other insurance coverage purchased by the injured worker or on behalf of the injured worker.”(Emphasis added) Medical payments insurance is just such a coverage. This creates what appears to be an inconsistency which was noted by Justice Benjamin, of the Supreme Court of Appeals of West Virginia, in his dissent.  He noted his displeasure with majority’s ruling and suggested that the majority misunderstood and misquotedBenyo by stating:

“[t]he actual effect of the law created in the majority opinion is that the plaintiff will receive a windfall by virtue of having his or her medical bills paid more than once. For example, in the instant case, Mr. Jenkins has had his medical bills paid by the workers' compensation provider. Also, he will be able to collect uninsured benefits from his employer's auto policy which sum will include medical costs. Pursuant to W. Va. Code § 23–2A–1(e) (2009), the workers' compensation provider's statutory subrogation right does not apply to the uninsured coverage so that Mr. Jenkins will receive his uninsured benefits free and clear. Finally, as a result of the majority opinion, Mr. Jenkins will receive auto medical payment benefits from his employer's policy despite the fact that his medical bills have already been paid by the workers' compensation provider.It is unclear under W. Va.Code § 23–2A–1(e), whether the workers' compensation provider will have subrogation rights against these auto medical payment benefits.” (Emphasis added)

           Finally, Justice Benjamin stated that this ruling “potentially will have [Mr. Jenkin’s] medical bills paid three times over.  Such a result is inexplicable to me and has no basis in law.”  

           The ramifications of any court’s ruling that eliminates an insurers exclusions and/or expands coverages, typically results in an insurers reevaluating the premium received for the risks that are written. Medical payments coverage is usually a rather inexpensive addition to coverage under personal and commercial policies. It is a no-fault insurance that covers medical bills related to an occurrence (usually for a fixed period of time). Employers who maintain medical payments coverage on their commercial insurance policies may want to talk to their commercial agents about their limits of coverage. Worker’s compensation insurers will need to give additional scrutiny to subrogation claims involving employees who are involved in motor vehicle accidents, especially so when the employers Under, Uninsured (UM/UIM) or Medical Payments coverage comes into play as, at least according to Justice Benjamin’s dissent, there may no longer be a right of subrogation by the workers’ compensation carrier.

For further inquiries regarding this article contact Mr. Murphy at (304) 340-3840 or at gmurphy@spilmanlaw.com.