Written by: Matthew Flammia 

Over the holiday season, the Industrial Commission filed the first couple of Deputy Commissioner decisions for COVID-19 claims. Several decisions have been filed under the N.C. Gen. Stat. § 143-166.1 et seq for death benefits for public safety employees, which is a different standard than what is required under the North Carolina Workers’ Compensation Act. A decision on whether an employee can prove COVID-19 as a compensable occupational disease pursuant to N.C. Gen. Stat. § 97-53(13) had not been decided until recently, as discussed below. For COVID-19 workers’ compensation occupational disease claims in North Carolina to be compensable, a claimant has the burden of proving: (1) that their employment placed them at an increased risk of contracting the virus when compared to members of the general public; and (2) that there was a causal connection between their specific infection and their employment. In other words, the claimant must prove that they were infected while at work, as opposed to outside of work. Further, the claimant’s employment must have placed them at an increased risk of contracting COVID-19.

In both decisions, Britney McNeair v Owens Illinois, Inc./O-I Glass (November 21, 2022) and Tony Esai Chambers v North Carolina Department of Public Safety (December 22, 2022), the Deputy Commissioner determined that claimant failed to meet his/her burden of proof to establish a compensable occupational disease claim. The claimants in both claims could not show that they actually contracted COVID-19 from their employment as a Crew Leader of a glass manufacturing line or as a Corrections Officer. Further, it was determined that neither one of their positions placed them at an increased risk to contract COVID-19 compared to the general public. Of interesting note, the claimant in the McNeair decision asserted an injury by accident claim, but it was denied as well.

The decisions highlight the difficulty an employee will have to establish a compensable COVID-19 claim in North Carolina. The claimants in these claims contracted COVID-19 in 2020 and 2022, contracted different COVID-19 variants, and during times when different safety protocols were in place. However, these distinguishing facts did not seem to influence the decision either way. The claimants were employed in occupations where there was frequent contact with a number of co-workers, but it was determined those facts alone were not enough to establish the increased risk element needed to prove a compensable claim. Finally, these decisions demonstrate the importance of a thorough investigation. In both decisions, contract tracing and investigation into the claimant’s personal and work schedule were important when determining whether COVID-19 was actually contracted in the workplace.

Overall, the recent decisions give us the insight into how the Industrial Commission will handle COVID-19 claims. It affirms how difficult it will be for an employee to show that he/she actually contracted COVID-19 from their employment instead of outside of work when COVID-19 can be contracted anywhere. Further, the decisions establish in multiple industries that just having contact with a number of co-workers is not enough to establish that the employment places individuals at a greater risk than the public of contracting COVID-19. Along those lines, there is an argument to be made that COVID-19, like the flu, should now be considered an ordinary disease to which the public is generally exposed nationwide as well as in North Carolina.

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MISSOURI WORKERS’ COMPENSATION CASE LAW UPDATE

October 2022 – December 2022

Tripping Over Pallet is Not a Hazard Which Employee is Equally Exposed Outside of Work

Burns v. Wal-Mart Associates, Injury No. 20-025625

FACTS:  Claimant testified that her injury at work occurred on April 24, 2020. She stated that as she was walking from the break room to her workstation in the self-checkout section of the store, she tripped on a pallet on the floor. She stated that she did not remember actually falling. Her next memory was sitting on the pallet with a paramedic helping her to get up. She alleged injuries to her head and left shoulder.

Although the ambulance and emergency room records indicated that claimant might have experienced a syncope episode or fainted, there was no evidence showing that the first responders or the emergency room personnel asked claimant whether she had fainted or experienced a syncope episode. There was no evidence showing that they had even asked claimant what happened. In addition, the ambulance records indicated that claimant was not oriented as to the time, meaning that she was confused and the medical records confirmed that she was knocked unconscious and suffered a concussion when she struck her head on the hard floor surface or pallet. She testified to short-term memory problems as a result of her concussion. Wal-Mart did not deny that it left a pallet impeding the trafficway or aisle where claimant fell however argued that the injury did not come from a hazard or risk unrelated to the employment to which workers would have been equally exposed outside of an unrelated to the employment in normal non-employment life. The ALJ awarded benefits and the claimant appealed.

HOLDING: The Commission found that while it is true that claimant was walking when she tripped on the pallet and fell and that she walks in her personal non-employment life, there was a clear nexus in claimant’s case between her injury and her work and her risk for the injury. The Commission noted that the focus should have been on her tripping and falling on a pallet Wal-Mart left in a congested aisle in the store and not merely on her walking as she does in her personal non-employment life or whether she possibly could have tripped on some pallet in her personal non-employment life.

Thus, unlike the Johme case, where Ms. Johme’s work had nothing to do with the risk of her twisting and turning her ankle and falling off her sandal, claimant’s work was the cause of her injury when she tripped on a pallet Wal-Mart left in a congested aisle and falling and injuring her head and shoulder. In addition, there was no evidence showing that claimant was “equally” exposed to the same risk of tripping on a pallet and falling in her personal non-employment life.

Therefore the Commission affirmed the ALJ’s Award and decision.

Work Accident Was Not the Prevailing Factor, Because Based on Credible Expert Testimony and Prior Medical Records, Claimant Had Symptoms Prior to Date of Injury

Taylor v. Darden Restaurants, Inc./Olive Garden, Injury No. 17-098731

FACTS: On December 13, 2017, claimant injured her neck while at work. She bent over to locate a lid, straightened up, and a box fell from a shelf, striking her on the head. At the time of the incident, she was working under permanent light duty restrictions as a result of having a cervical fusion in January 2017 as a result of a May 3, 2015, work injury.

After her December 13, 2017 work injury, she was referred to Dr. Mirkin by Concentra who stated that the claimant had no symptomology prior to the December 13, 2017 incident and developed symptoms that correlate with her MRI findings after the 2017 incident. He opined that the prevailing factor in her need for treatment was the December 13, 2017 incident working at Olive Garden.

Following the December 13, 2017 work injury, Dr. Bernardi noted in his IME report the claimant’s ongoing symptoms after her January 30, 2017 cervical surgery and before the December 13, 2017 work injury. He opined that the claimant had a poor result from her January 30, 2017 surgery and that her current symptoms most likely represent chronic cervical myeloradiculpathy related to her prior work accident in May 2015 and that the more acute symptoms were related to an aggravation of her residual cervical stenosis. He further found that the claimant sustained no PPD to her cervical spine attributable to her December 13, 2017 work injury. The ALJ found that the employer was responsible for treatment and the employer appealed.

HOLDING: The Commission noted that based on the expert opinion of Dr. Bernardi, it was not persuaded that the claimant’s December 13, 2017 work injury was the prevailing factor causing her current cervical condition and need for surgery. They discredited Dr. Mirkin’s contrary opinion because it was based on his incorrect assumption that the claimant had fully recovered and had no physical complaints or limitations after her January 30, 2017 cervical surgery and before the December 13, 2017 work injury. Therefore, the Commission reversed the ALJ’s temporary or partial Award for additional medical treatment regarding the cervical spine.  

Claimant Met Objective Standard of Extraordinary and Unusual Stress Involving Police Shooting Incident

Dahman v. City of Clinton, Injury No. 17-090567

FACTS: On August 6, 2017, claimant was working as a police officer for the City of Clinton when he heard a radio report from his co-worker and friend, Officer Michael, that shots had been fired and that an officer was down. Claimant immediately responded and found Officer Michael on the ground with another officer attending to him. Officer Michael was still alive when claimant arrived.

Claimant was tasked with the duty of responding to where the suspect’s vehicle had apparently crashed after the shooting. He had to stay at the scene for most of the evening into the early morning to secure it. He later learned that evening that Officer Michael had passed away.

Subsequently, the City of Clinton took immediate measures to provide counseling to claimant. He then sought treatment with his family physician for anxiety. Thereafter, he left the City of Clinton to work as an insurance adjuster, with this event being the main factor for him leaving his position. However, his employment as an adjuster ended when he failed to show up to work on a number of occasions for symptoms which he attributed to the shooting event.

Prior to the shooting, claimant had other events in his life including responding to the death of a child as an officer and issues with alcohol use. However, he did not take any medication for anxiety, did not have difficulty sleeping, or other symptoms.

Dr. Logan, the employer’s expert, diagnosed claimant with PTSD, mild major depression, and alcohol use disorder. He opined that the August 6, 2017 shooting event did rise to the level of extraordinary and unusual mental stress. He also rated claimant’s PPD at 10% of the body.

Dr. Halfaker, the claimant’s expert, opined that the event of August 6, 2017 and the stress that it caused was both extraordinary and unusual. He provided a 10% to 14% disability of the body.

HOLDING: Pursuant to the statute “Mental injury resulting from work-related stress does not arise out of and in the course of employment, unless it is demonstrated that the stress is work-related and was extraordinary and unusual. The amount of work stress shall be measured by objective standards and actual events”.

The objective standard for determining whether claimant’s stress was compensable is whether the same or similar actual work events would cause a police officer extraordinary and unusual stress. The claimant must demonstrate the actual events he experienced were such that a reasonable policeman would experience extraordinary and unusual stress.

The City of Clinton argued that police officers’ shootings are not extraordinary, but the ALJ declined to accept this reasoning. The particular facts of claimant’s experiences, including but not limited to, responding to the scene of Officer Michael’s shooting which was a friend, knowing the suspect was still at large and had a long rifle, and knowing that the protective vest would not help along with claimant feeling like a sitting duck in the dark, are all factors in support of the Award for compensation to the claimant.

The ALJ awarded the claimant 10% PPD of the body as a result of the events of August 6, 2017. The Commission affirmed the Award and decision of the ALJ.

Claimant Has Burden of Proof to Show That a Contract of Employment Was Entered Into in the State of Missouri to Establish Jurisdiction

Wulf v. Tradesmen International, Inc., Injury No. 18-113120

FACTS: The sole issue to be addressed was jurisdiction. The accident occurred on November 14, 2018 in Marietta, Georgia.

The employer/insurer disputed and denied that Missouri had jurisdiction. They admitted that the Kansas Division of Workers’ Compensation had jurisdiction over this claim and admitted claimant sustained a compensable injury. Benefits were immediately started and continued under the Kansas Workers’ Compensation Act.

Claimant testified that he originally applied for employment with Tradesmen, the employer, in July or August of 2013. He filled out an application online at the job center in Leavenworth, Kansas where he was living at the time. Following his completion of the application, he was invited to the Tradesmen office located in Kansas City, Kansas for an interview.

The claimant and Tradesmen had a rather unique employment relationship. Claimant did not have an office which he reported to on a daily basis. Instead, he reported to whatever project might be available for the clients of Tradesmen. All job assignments were provided by way of telephone call or text messages to him, at times daily, or a weekly basis. However, there was a sporadic nature to claimant’s employment assignments. There would be times when he was working full regular duty, and at other times, there would be gaps in employment of two months, six months, or longer.

In September 2017, claimant was laid off from a different employer. As he was in his car, his phone flashed that Tradesmen was calling about a job assignment. This was a brief phone call. Claimant then received a text message with more information about the job assignment in Overland Park, Kansas. The ALJ determined that Missouri did not have jurisdiction over this claim and the claimant appealed.

HOLDING: Pursuant to statute, Missouri has jurisdiction only under three circumstances: (1) when the injury occurs in Missouri; (2) when the claimant’s employment is localized in Missouri in 13 weeks leading up to the date of injury, and (3) when the contract of employment was entered into in Missouri.

In this case, the claimant was injured in Georgia and all of claimant’s employment in the 13 weeks prior to the injury occurred either in Kansas or Georgia. With regard to the contract of employment, it was entered into in Kansas in August of 2013. The claimant conceded that he had an interview at the Kansas City, Kansas office of Tradesmen and was offered employment at that time.

To form a contract, there must be a meeting of the minds between the parties. That occurred in August of 2013. However, there was no “meeting of the minds” to form a new contract of employment in September of 2017. It was the claimant’s burden of proof to convince the Court there was somehow a new contract of employment during this brief phone call with the representative from Tradesmen. The pattern and practice of conduct between the parties clearly demonstrates otherwise. Therefore the Commission found that the claimant failed to sustain his burden of proof and Missouri does not have jurisdiction. Therefore the Award of the ALJ was affirmed.  

Work Injury Alone Sufficient for PTD Where Restrictions Are Result of Accident Despite Significant Pre-Existing Conditions

White v. Schrieter Materials LLC and Treasurer of Missouri as Custodian of Second Injury Fund, Injury No. 18-046371

FACTS: On June 14, 2018, the 65-year-old claimant was working on the back end of a concrete mixer truck and fell to the ground striking his head and breaking his arm. Due to the accident, he suffered closed head trauma with subdural hematoma, nasal fractures, comminuted left wrist fractures, a cervical fracture, and severe contusion to the right calf. After the accident, the claimant was transported to Mercy Hospital and underwent an open reduction internal fixation of the distal radius fracture to his left wrist. For his C7 end plate fracture, he received non-operative conservative treatment. He was discharged from the hospital two days later on June 17, 2018. Thereafter he began occupational therapy, and then physical therapy.

It was noted that claimant continued to use a cane at times after his work injury, but this was because of left hip pain which was unrelated to the work-related injury. The claimant had a number of pre-existing conditions. He suffered a prior work-related injury from a 2006 motor vehicle accident and was awarded PPD of 25% of the cervical spine, 1% of the nose, 2% of an eye, 10% for seizures, 15% of the left shoulder, 3% of the left knee, 2% for a rib injury, 8% of the lumbar spine, and 15% for depression.

With respect to the June 14, 2018 work accident in question, Dr. Volarich opined that the claimant had significant restrictions for his post-concussion syndrome and confirmed that these restrictions related solely to his June 14, 2018 accident. The claimant’s testimony also supported the restrictions provided by Dr. Volarich as a result of the head injury from the June 2018 accident.

It was further noted that the defense did not directly impeach Dr. Volarich’s findings regarding the claimant’s closed head injury. Also, Dr. Randolph examined the claimant and found that the episodes of vertigo and dizziness were largely resolved, but Dr. Volarich found that claimant had significant residual complaints relating to vertigo and dizziness.

HOLDING: The ALJ determined that the evidence was persuasive that the 2018 work injury considered alone was sufficient to render the claimant unemployable in the open labor market. Due to the injuries sustained in the 2018 accident, the claimant had significant, ongoing and disabling symptoms that prevented him from returning to any work. The Judge noted that given the two contrasting perspectives, Dr. Volarich’s conclusions were more consistent with the other evidence. He noted that while the claimant certainly had many pre-existing disabling conditions, the claimant’s disabilities from the work injury from this occurrence were sufficient to render him permanently and totally disabled. Based on the weight of the evidence, the claimant was awarded permanent total disability benefits from the employer/insurer. Because the employer was found liable for the permanent and total disability, the claim against the Second Injury Fund was denied. The Commission affirmed the Award and decision of the ALJ.

Prior Disabilities Must Individually Meet Fifty Week Threshold for SIF Liability for PTD

Adams v. Treasurer of the State of Missouri – Custodian of Second Injury Fund, Case No. WD84818 (Mo. App. 2022)

FACTS: The material facts were undisputed. Claimant suffered three significant work-related injuries during his career.

In 1984, claimant tore ligaments, tendons, and nerves in his left hand which resulted in reconstructive surgery. He settled his claim for 32.5% of the left wrist or 56.875 weeks of disability.

In 2001, claimant fell off scaffolding while working. His doctor found 35% PPD of the right leg, 35% of the left leg, and 7.5% of the lumbar spine. The employer’s doctor provided a 5% PPD rating of the right leg, 3% of the left leg, 2% of the lumbar spine, or 5% of the body as a whole for all three disabilities.

The claimant settled his 2001 injury against the employer based on “approximate” disability of 15% of the body referable to bilateral knees and low back which was 60 weeks of disability. The Compromise Settlement does not provide a breakdown of weeks of disability attributed to the low back or each knee.

On September 17, 2015, claimant sustained his final work-related injury. His right hand was crushed and his right shoulder injured when his hand was pinned between a jack handle and the bottom of a trailer. Surgery was performed. Thereafter, claimant filed a workers’ compensation claim against his employer for PPD and a claim against the SIF for PTD.

The ALJ issued his final Award concluding that the claimant was PTD due to the primary injury together with his prior disabilities from the 1984 injury and the 2001 injury.

The SIF appealed the ALJ’s Award because the disabilities which resulted from the 2001 injury did not qualify under Section 287.220(3)(a). They noted that the 2001 injury resulted in disabilities to two specific body parts, the knees and the back, that do not separately meet the 50-week threshold.

The Commission reversed the ALJ’s Award finding the SIF had no liability. The claimant appealed.

HOLDING: The claimant appealed the Commission’s Final Award denying compensation from the SIF. Claimant claimed the Commission erred in failing to find the SIF liable for claimant’s combined disabilities from his work-related 2001 injury because together they met the 50-week threshold required by Section 287.220.3.

It was noted that the Commission found “as a factual matter, that pre-existing disability relating to employee’s (2001) work injury did not result in PPD of at least 50 weeks to either employee’s back or bilateral knees”. Also, that in 2001, the SIF entered into this Compromise Settlement does not also infer or result in an agreement that the disabilities meet the current statutory requirements of Section 287.220.3. Rather, the Court noted that they were bound by the Commission’s factual determination that the Compromise Settlement does not presently satisfy the statutory requirements of Section 287.220.3. It was noted that the settlement contract clearly states that “There are disputes between the parties” and “because of the dispute…the parties…enter into a compromise lump settlement…” Based upon “approximate disability”. In doing so, the Court noted the Compromise Settlement simply agreed to an approximated and cumulative disability rating for purposes of settlement without separately rating the individual disabilities themselves, a function necessary to determine whether either qualifies as a pre-existing disability as defined by Section 287.220.3(2).

The Court further noted that both the claimant’s and Dissent’s use of pre-2005 Missouri caselaw recognizing the “body as a whole” approach in construing Section 287.190.3 is not persuasive. Their cited cases analyze the prior statutory framework that called for a liberal construction of the provisions of Chapter 287.

The Court noted that the claimant interpreted the prior decision in Parker to mean that all disabilities which are the direct result of a compensable injury or to be combined to determine if the 50-week threshold is met. However, the claimant’s interpretation was incorrect. It was noted that not only was it at odds with the current statutory framework calling for strict construction, but it was also contrary to the holding in Parker which required that each of the pre-existing disabilities must qualify on its own under Section 287.220.3(2)(a) to be considered.

Therefore, the Court concluded that the Commission’s findings were supported by substantial and competent evidence. The claimant failed to establish a qualifying pre-existing disability which, with his primary injury would entitle him to PTD benefits from the SIF pursuant to Section 287.220.3. Accordingly, the Commission’s decision was affirmed.

To Establish a Claim Against the SIF, The Claimant Must Meet the Burden of Persuasion That a New or Second Injury Occurred

Danner v. Treasurer of Missouri as Custodian of Second Injury Fund, Injury No. 14-050921

FACTS: The claimant testified at a Hearing that on June 4, 2014, as she lifted a patient’s legs to place a wedge underneath them, she felt a pop and immediate pain in her low back. The following day, she sought treatment.

On July 17, 2014, the claimant claimed that she injured her low back again while lifting a patient from the floor to a mattress on the floor. At a Hearing, the claimant testified she felt worsened pain in the “same spot” and that she “aggravated the back” injury from June 4, 2014. She finished her shift and then returned to Dr. Boyett with whom she was treating for her June 4, 2014 injury.

The ALJ found the claimant to be a credible witness as her demeanor was clear and direct and her testimony was consistent with the exhibits in evidence. The Judge also found that claimant is unemployable on the open labor market and was thus permanently and totally disabled.

However, the Judge noted that Dr. Hopkins stated that based on the short period of time between her two injuries with the injuries in the same portion of her body, the doctor believed that her low back injury on July 17, 2014 was a continuation of her first injury just over one month prior. This was consistent with the expert medical testimony of Dr. Robson and Dr. Bailey who both opined that the July 17, 2014 incident was an aggravation or continuation of the June 4, 2014 injury.

Considering all of the medical evidence, along with claimant’s testimony, the Judge found that based upon the overwhelming majority of the expert medical evidence and claimant’s credible testimony, that the claimant failed to meet her burden that she suffered a new and distinct work injury on July 17, 2014. The Court found that the June 4, 2014 work injury in isolation was the prevailing factor causing claimant’s medical condition and disability.

Since the Judge found that the claimant did not suffer a new or distinct work injury on July 17, 2014 but that the claimant’s injuries and disability were the result of the work injury on June 4, 2014, the Court concluded that there was no work injury subsequent to June 4, 2014 that combined with a pre-existing disability to result in the claimant’s permanent total disability. Therefore, the Judge determined that the claimant had failed to meet her burden that the SIF is liable to her for PTD benefits.

HOLDING: The Commission affirmed the Award and decision of the ALJ. The Commission noted the Supreme Court of Missouri’s recent decision in March v. Treasurer of the State of Missouri-Custodian of Second Injury Fund (2022). In that case, the Commission denied a post 2014 SIF claim for PTD where the SIF produced no evidence and the Commission did not discredit the claimant’s experts. The Court held the fact that the SIF did not offer contradicting evidence and did not cross-examine the claimant did not establish a “presumptively valid claim”.

The Commission emphasized that to establish a claim, the claimant must not only meet the burden of production but also the burden of persuasion. In this matter, the Commission found that the claimant’s evidence, though not controverted, is insufficient to support her claim. Therefore the decision and Award of the ALJ was affirmed.

Settlement of Civil Suit Against Uninsured Employer Barred Recovery From Second Injury Fund for Medical Expenses Under Workers’ Compensation Statute

Hood v. Michael Menech, Vandalia Area Historical Society and Missouri State Treasurer as Custodian of the Second Injury Fund, Case No. ED110331 (Mo. App. 2022)

FACTS: On August 20, 2012, claimant was injured when he was working as a carpenter on property owned by the Vandalia Area Historical Society. He was hired by Michael Menech. At the first Hearing, the parties stipulated that neither Vandalia nor Menech carried workers’ compensation insurance. The Judge issued his initial decision finding that Menech was the claimant’s employer, the claimant had incurred $51,183.42 in past medical expenses due to the work-related injury, and the Second Injury Fund was required to reimburse the claimant for past medical expenses and pay future medical benefits pursuant to Section 287.220.

On appeal, the Commission issued a Temporary Award ordering the SIF to pay only $23,226.27 in past medical expenses and to provide claimant with future medical care necessary to cure and relieve the effects of the injury.  The Commission noted that the Award was only temporary or partial until further final Award was made.

The claimant also filed a civil action against Vandalia and later amended his Petition to add Michael Menech and additional co-employees as Defendants. Subsequently, the claimant settled his civil suit against all Defendants for $53,000.00. With respect to claimant’s medical bills, the settlement agreement stated that all medical bills must be paid by the claimant from the settlement amount of $53,000.00.

On December 9, 2020, the parties appeared for a final Hearing before the Judge on the claimant’s workers’ compensation claim. The Judge found that, under the Election of Remedies Doctrine, the claimant was not entitled to workers’ compensation benefits from Menech, Vandalia, or the SIF. Further, the Judge ordered claimant to reimburse the SIF for the $23,226.67 it paid to claimant pursuant to the Temporary Award.

On Appeal, the Commission affirmed the ALJ’s decision stating that the Election of Remedies Doctrine applies and it barred the claimant from recovering the payment of his medical bills by the SIF due to his settlement of the civil suit.

HOLDING: The Court of Appeals affirmed the Commission's decision denying claimant’s workers’ compensation benefits and ordering him to reimburse the SIF $23,226.27.

The Court noted the general statement of the law in Brookman v. Henry Transportation that if an employer is not insured and does not qualify as a self-insurer, an employee who is injured in the course of employment can elect to file a workers’ compensation claim or can bring suit against the employer in Circuit Court, but not to both.

In this matter, the Court noted, that although claimant’s civil action included additional parties as co-defendants and its workers’ compensation claim included the SIF, because Menech was party to both the workers’ compensation claim and the civil action, the Election of Remedies Doctrine governs. The claimant’s civil action and settlement with Menech barred the claimant from receiving benefits under the workers’ compensation statute under the Election of Remedies Doctrine. The claimant elected his remedy when he accepted the $53,000.00 settlement payment in his civil action against Menech and Vandalia.

Claimant is Not a Statutory Employee Unless Performing Activities Within the Usual Business of Alleged Employer

Brooks v. William J. Laurie and Crown Center Farms, Inc., Case No. WD85031 (Mo. App. 2022)

FACTS: The claimant suffered an injury while he was employed as a superintendent for Little Dixie Construction while cutting down trees at Big Buck Resort. He was injured when a tree was cut by Defendant Laurie and fell down on him. Laurie was a shareholder and member of Big Buck Resort. Laurie also co-owned Crown Center Farms which employed Tim Cullen to assist with maintaining and caring for Crown Center Farms and various properties owned by Laurie including helping to manage Laurie’s hunting area at Big Buck.

On the day of the incident, Laurie contacted the claimant and requested his assistance at Big Buck. On that day, the people working at Big Buck included the claimant, Laurie, Cullen, and two additional laborers. Following the incident, the claimant filed a workers’ compensation claim against Little Dixie Construction for the injuries sustained while working at Big Buck. The claimant also filed a civil suit against Laurie, Crown Center Farms, and Big Buck.

The Court dismissed the lawsuit based on a Summary Judgment as it found Crown Center Farms was a statutory employer of claimant, so as to trigger the exclusive remedy provision of the workers’ compensation law. It also found Laurie was an employee of Crown Center Farms so as to shield Laurie from liability under the workers’ compensation law. The claimant appealed.

HOLDING: The Appellate Court reversed the trial Court’s judgment and reinstated the lawsuit. The Court stated that pursuant to statute for a person to be a statutory employer, the work done under the contract on the premises must be “an operation of the usual business which he there carries on…”. It noted that in this case there was a genuine issue of material fact regarding whether the claimant was injured while doing work in the usual course of Crown Center Farms’ business in order to qualify as a statutory employee. Specifically, the cutting of trees at Big Buck was rarely performed and Big Buck usually employed a professional logger to clear the property.

The Court did not find that the claimant was performing work that was within the usual business of Crown Center Farms. Also, Laurie was not entitled to the protection of the workers’ compensation law under immunity as an employee of Crown Center Farms as Crown Center Farms was not the claimant’s statutory employer.

In Alabama, all disputed workers’ compensation claims are handled through the regular court system.  Alabama is the only remaining state to handle disputed claims in this manner.  The statute of limitations (“SOL”) for filing a workers’ compensation lawsuit is 2 years from the date of injury or date of last indemnity payment.  For cumulative trauma or exposure claims, it is 2 years from the date of last exposure.  One exception to the 2-year SOL is if the claimed injury was latent and could not reasonably have been discovered until a later date.

In the recently released opinion of Dillard v. Calvary Assembly of God, the Alabama Court of Appeals affirmed and clarified that a latent injury exception to the SOL is not applicable to situations where a reasonably minded employee knows they have a compensable injury even when there has been no lost time from work. Further, an injury will not be considered latent based on the employee not knowing the full extent of the injury.   In Dillard, the employee testified that he had frequent low back pain.  Despite being off work following each of his two back surgeries, he never claimed and did not receive temporary-total-disability benefits.  As a result, the trial court concluded that a reasonable person would have known the nature, seriousness, and probable compensable nature of the work-related injury as of the date the first surgery was recommended as a possible treatment option.

This blog submission was prepared by Karen Cleveland, an attorney with Fish Nelson & Holden, LLC, a law firm dedicated to representing self-insured employers, insurance carriers, and third-party administrators in all matters related to workers’ compensation. Fish Nelson & Holden is a member of the National Workers’ Compensation Defense Network. If you have any questions about this submission or Alabama workers’ compensation in general, please contact Cleveland by e-mailing her at kcleveland@fishnelson.com or by calling her directly at 205-332-1599.

Motion to Reopen a Prior Claim Based on Mistake Supported by Subsequent IME Report

Dreibach Wholesale Florists, Inc. v. Leitner, 2021-CA-1495-WC (11/10/22, not final)

Holding: Medical opinion acquired after ruling that could have been obtained prior to closure of case does not justify reopening on ground of “mistake” per KRS 342.125. The purpose of the “mistake” provision is to correct a decision based on misconception concerning the workers’ condition, not to give the losing party an opportunity to bring up reinforcements and relitigate.
 
Conflicting medical evidence was presented to the Administrative Law Judge ("ALJ") regarding the worker’s condition, including allegations of neck pain. The ALJ awarded medical benefits for the left knee and right shoulder; there was no award for the neck and there was no appeal of the award.
 
After undergoing cervical surgery to resolve ongoing shoulder pain, the worker submitted an IME assessing a 29% impairment for his neck and opining that the shoulder pain was previously misdiagnosed and was actually a result of the neck maladies. The worker then filed a motion to reopen, claiming that newly discovered evidence, the IME report, supported reopening. Denying the motion to reopen, the ALJ found that the IME report was not newly discovered evidence because it could have been discovered by the exercise of due diligence prior to the hearing. The worker also sought to reopen based on mistake and a change in condition. The ALJ determined that the IME report did not support reopening based on mistake or a change in condition, as there was no original award for any neck condition. The Workers' Compensation Board reversed, holding the worker had made a prima facie showing of mistake as to the original finding that he had not sustained a compensable neck injury.
 
The employer appealed, arguing that the Board usurped the ALJ’s role as fact finder by reopening a case to allow presentation of evidence discoverable before the initial hearing. The Court of Appeals agreed, finding that when an ALJ considers conflicting medical evidence regarding a workers’ compensation claim in making his ruling upon a final hearing, a subsequent medical opinion that could have been obtained prior to the close of evidence will not justify reopening on the ground of “mistake” as contemplated by KRS 342.125(1)(c).

Language in Settlement Agreement Required Continuation of Survivor Benefits with No Modification of Weekly Amount

Kentucky Employers’ Mutual Insurance Authority v. Fleming, Cl No. 201401039 (11/18/22, Workers' Compensation Board Opinion, not controlling)
 
KEMI appealed order substituting Debra Fleming, widow of Lenville Fleming, deceased, as a party and continuing indemnity benefits pursuant to KRS 342.730(3)(a). The order also extended the time of benefits to be paid to Debra for an additional 3 years, until Fleming would have turned 70.
 
KEMI argued proper procedure was to file a separate claim pursuant to KRS 342.750 (death statute) based on Baytos and Calloway County. Furthermore, KEMI contended Debra was not entitled to continuation of benefits because she was 63 at time of death and the 1996 version of KRS 342.730 did not provide for continuation of benefits after age 60. KEMI also argued that reopening rights were waived, and the 110 included waiver of reopening under KRS 342.750 and 342.730.
 
The Board disagreed that Debra’s sole avenue of relief was to file an action pursuant to KRS 342.750 noting that the death certificate didn’t conclusively show the death was work-related and the fact that Fleming was still owed indemnity benefits per the settlement agreement distinguished this case from Baytos and Calloway County. The Board rejected the notion that the waiver of reopening rights precluded Debra from reopening the claim to enforce the settlement agreement. The Board held that Fleming waived the right to reopen only to seek an increase in benefits and Debra was instead seeking to enforce a valid contract pursuant to KRS 342.265(4).
 
The Board found the terms of the settlement agreement controlling, construing the agreement as requiring indemnity payments to Fleming, and now to his widow, through 9/6/29, without modification of the amount. Below is the language in the 110:

In Other Information the settlement was stated to encompass any claim which might later arise and be claimed by Fleming and/or his dependents, further supporting the Courts conclusion that KEMI must continue payments through the settlement date without alteration to Fleming’s widow.
 
The Board reversed the order extending the benefits for 3 years, again stating that the terms of the Agreement control.

Pending Before the Supreme Court of Kentucky: 45-day Requirement for Submission of Medical Bills by Medical Provider 
 
P & P Construction, Inc. v. Farley, 2022-CA-0332-WC

Several cases have gone before the Workers' Compensation Board regarding whether KRS 342.020(4), requiring medical bills to be submitted by the medical provider within 45 days after the date or service, applies prior to an award of medical benefits (either by opinion or agreement). Based on Wonderfoil, the Board has consistently found that the 45-day rule only applies post-award. 

In P & P Construction, the Kentucky Court of Appeals overturned the Board, stating that the clear language of the statute requires the submission of medical bills by the provider within 45 days of service, period. This decision has been appealed and is currently before the Supreme Court of Kentucky. We will let you know when a decision has been issued, but it is currently safe to deny any medical benefits submitted more than 45 days from the date of service as untimely per KRS 342.020(4).  

New Administrative Law Judge, Kenneth Smith

Kenneth Smith has been appointed to replace ALJ Christina Hajjar, who has resigned. He will serve for the remainder of the term expiring December 31, 2023. ALJ Smith graduated UK law school in 2004 and has spent his career as a Plaintiff attorney handling personal injury, SSD and workers' compensation cases.

New Supreme Court of Kentucky Chief Justice

The justices of the Supreme Court of Kentucky have elected Justice Laurance B. VanMeter as the next chief justice of the commonwealth of Kentucky. Chief Justice-elect VanMeter is the 6th chief justice and will serve a four-year term beginning Jan. 2, 2023. 

Chief Justice-elect VanMeter will succeed Chief Justice Minton, who is retiring Jan. 1 after serving more than 14 years as administrative head of the Judicial Branch. 


Should you have any questions or wish to discuss any related matters, please contact us at your convenience.

H. Douglas Jones, Esq. – djones@jsbattorneys.com, 859.594.4200
Margo Menefee, Esq. – mmenefee@jsbattorneys.com, 859.594.4200

Effective January 1, 2023, the maximum weekly income benefit under the Nebraska Workers’ Compensation Act will increase to $1,029.00. This amount applies to work-related injuries and illnesses occurring on or after January 1, 2023 (https://www.wcc.ne.gov/home/court-news/2022-6-news).

Permanent injuries in Nebraska are either to a “scheduled member” or to the “body-as-a-whole.”  In general, “scheduled members” are those injuries specifically listed in § 48-121(3). Scheduled members include fingers, hands, toes, feet, knees, eyes, ears, and hearing. Permanent impairment to a single scheduled member, such as an arm, is compensated in terms of loss of function. You’ll most frequently see this loss of function expressed as a percentage of permanent impairment.

Alternatively, injuries to body parts not expressly listed in § 48-121(3) are commonly called whole-body or body-as-a-whole injuries. Most commonly, these include injuries to the back, neck, head, and psyche. For these whole-body injuries, compensation is based on the employee’s “loss of earning capacity” or “LOEC” which is also referred to as the employee’s “loss of earning power.”  There is no numerical formula to determine an employee’s LOEC. It is determined by considering four factors: (1) the worker’s general eligibility to procure and (2) hold employment, (3) the worker’s capacity to perform the tasks required by the work and (4) the worker’s ability to earn wages in employment for which he or she is engaged or fitted. Sidel v. Travelers Ins. Co., 205 Neb. 541, 288 N.W.2d 482 (1980).

Pursuant to a 2007 statutory amendment, the Act also provides that if an employee suffers two or more scheduled member injuries arising out of one accident and the loss of earning capacity is at least 30 percent, the compensation court has the discretion to compensate the employee based upon the resulting loss of capacity. Neb. Rev. Stat. § 48-121(3).  This is commonly called the “two scheduled member exception,” but for purposes of this post, it will be referred to succinctly as the ”exception.”

Historically, the purpose of the exception was meant to apply to bilateral injuries arising from the same accident or injuries to completely different body parts. For example, an employee who suffered bilateral knee injuries or both a hand injury in conjunction with a knee injury would be considered under the exception. That argument seemed to change in 2017 when Judge Hoffert held that an employee’s injuries to two different fingers on the same hand could also fall within the exception.

In Abdi v. JBS Holdings, 2017 WL 2437763 (Neb. Work. Comp. Ct.) Judge Hoffert first addressed whether or not a thumb and index finger qualify as multiple member injuries under the exception. To that, Judge Hoffert concluded, “The Court has carefully reviewed the subject statute and searched in vain for any applicable case law. In the end, the Court finds no prohibition against considering a thumb and finger injury as two separate member injuries as each are certainly listed as scheduled injuries under Section 48-121(3). If it were the legislature’s intent to exclude thumb and finger injuries from consideration an affirmative statement to that effect would likely have been made. Additionally, one could easily imagine a circumstance where an injured worker may lose or suffer serious injury to both thumbs in a single accident and would undoubtedly be significantly impaired as to his future earning capacity.” (emphasis added). Importantly, even Judge Hoffert seemed to recognize that the exception was most relevant to bilateral injuries.

Since Judge Hoffert’s decision, several similar cases were decided at the trial court level with differing opinions from the Judges as to whether injuries to the same extremity or limb can satisfy the “two scheduled members” exception.

The most relevant is Judge Fitzgerald’s recent decision in Espinoza v. Job Source, USA, 2022 WL 432217 (Neb. Work. Comp. Ct.). In Espinoza, Judge Fitzgerald held that a right arm and right-hand injury were not two separate injuries for purposes of the exception. As background, the employer in that case stipulated that the employee suffered both a right wrist and right elbow injury as a result of an accident on March 20, 2019. Shortly after the accident, the employee underwent a right wrist surgery. One month later, she had surgery on her right elbow. In light of the same, the employer stipulated that the employee was entitled to a 13% rating to the right upper extremity pursuant to the AMA Guidelines. This rating was a combination of a 5% rating to the elbow and a 9% impairment to the wrist. This is important because § 48-121(3) values an injury to the elbow differently than an injury to the wrist. Specifically, an injury to the elbow is worth up to 225 weeks while an injury to the wrist is worth up to 175 weeks.

Citing to the two-member exception, Judge Fitzgerald held: “A loss of use due to an injury to the wrist and the elbow in a single arm is not an injury to parts of more than one member. The arm is a single member, and any loss of use for an injury below the elbow would be included in the loss of the use of the same arm. The Court finds that an injury to the wrist and the elbow of the same arm is still an injury to a single member and does not entitle an employee to a loss of earning power.”

Espinoza is now on appeal to the Nebraska Supreme Court and is drawing attention from both sides of the workers’ compensation aisle. The Plaintiff’s bar argues that § 48-121(3) should be read to allow an employee to prove multiple injuries to the same limb to satisfy the two-member exception. However, such an argument overlooks the plain language of § 48-121(3), and the intent of the legislature from when it was passed.  Indeed, when the 2007 legislative session created the two-member exception, the phrase “bilateral injuries” was consistently utilized by proponents. The example of bilateral carpal tunnel was specifically raised as a type of injury that should qualify under the exception. Other examples included entirely different limbs – a rotator cuff and a knee.

A decision from the Supreme Court will likely not be issued for several weeks, but CPW Law will continue to closely monitor the same as it will certainly impact a dispute among the trial court Judges as to when the two-member exception applies.

If you have questions about a case involved multiple scheduled member injuries, please contact any of the lawyers at CPW by phone or email. Want to ensure you don’t miss out on the next post in the CPW compendium series? Be sure to subscribe to our newsletter.

Practical Advice In New Jersey Workers’ Compensation

N.J.S.A. 34:15-57.4 (commonly known as the Workers’ Compensation Fraud Act) states in pertinent part: “If a person, purposely or knowingly makes, when making a claim for benefits pursuant to R.S. 34:15-1 et seq., a false or misleading statement, representation or submission concerning any fact which is material to that claim for the purpose of obtaining the benefits, the division may order the immediate termination or denial of benefits with respect to that claim and a forfeiture of all rights of compensation or payments sought with respect to the claim.”

This means that both past and future benefits may be forfeited as a result of fraud (past benefits generally being medical and TTD, and future benefits generally being potential permanency benefits).

The Fraud Act goes on to state: “[I]n addition to any other remedy available under law, if that person has received benefits pursuant to R.S. 34: 15-1 et seq. to which the person is not entitled, he is liable to repay that sum plus simple interest to the employer or the carrier … and the division shall issue an order providing for the repayment …” N.J.S.A. 34:15-57.4(c)(2).

The Fraud statute sets a very high burden of proof for Respondents, as Respondent needs to demonstrate: 1. A false or misleading statement was made by petitioner; 2. The false statement must be material to the claim; and 3. The false or misleading statement was made for the purpose of obtaining benefits in the workers’ compensation case.

Below are hypothetical situations where Respondent may have a good argument that an employee committed fraud, and should consider filing a Motion to Dismiss for Violation of the Fraud Act.

Scenario 1: Tom is under authorized treatment for a January 1, 2022 work accident where he injured his low back and left shoulder. The authorized doctor placed petitioner out of work as of January 25, 2022. Petitioner is receiving TTD as he is out of work and he continues to deposit his TTD checks but at the same time, he continues to work as a delivery driver for a food delivery company and is paid from his second job as a delivery driver at the same time he receives TTD from his first job.

Our position is that this is fraud. An injured worker cannot collect TTD for not being able to work but actually be working. In this example, petitioner is representing that he cannot work but is working and therefore, he is making a fraudulent representation.

Scenario 2: During testimony on a Motion for Med/ Temp, Ryan testifies that due to his April 15, 2022 work injury, he cannot walk more than one block. He also cannot do any household chores and testifies that he has had to hire a housecleaning service. However, surveillance shows Ryan performing in triathlons and marathons, winning awards for being in second and first place in various events. He is also seen working on his home and building an addition to his back patio.

As Ryan has grossly exaggerated his abilities, our position would be that this is fraud. Misrepresenting of abilities to this degree is similar to the case of DuBrel v. Maple Crest Auto Group, No. A-3321-10T3 (App. Div. January 30, 2012), where petitioner testified that he could no longer do a variety of things, including training and trailering horses. However, petitioner was observed doing these activities, in direct opposition of his testimony. The court in this case found that this type of false testimony was a flagrant violation of the Workers’ Compensation Fraud Act. The Appellate Division affirmed the decision of the Judge of Compensation in terminating all benefits.

Scenario 3: Mary has a work accident of March 1, 2022, where she injures her left knee. During her course of authorized treatment, she specifically denies any prior left knee issues, injuries, or treatment. However, Respondent’s investigation reveals that on January 2, 2022, petitioner underwent arthroscopic surgery to the left knee. She then underwent a course of post-operative physical therapy through February 15, 2022 and treated with her prior surgeon through February 28, 2022. When confronted with this information, Mary indicates that she simply “forgot” about her prior surgery and prior treatment.

We would maintain that this is fraud in misrepresenting past medical history. In a case like this, testimony, or specific interrogatories, would likely be needed to elicit further details. It is difficult to believe that Mary “forgot” about a surgery from two months ago and “forgot” about her prior relevant treatment, which ended just before her work accident to the same knee, but the Judge of Compensation will ultimately decide on this issue.

Scenario 4: Bob says he got hurt in Aisle 4 of the grocery store, falling by the cereal boxes. He reported the injury right away and specifically says he fell by the Cheerio boxes. Security video shows Bob never even walked down Aisle 4 on the alleged date.  In fact, he never fell at all.

It would be our position that this is fraud. The fabrication of a work injury for the purposes of obtaining medical treatment, TTD, and/or permanent disability benefits, is fraud.

If Respondent obtains new information in a closed file, Respondent can re-open the case. For example, in a case where a prior Order Approving Settlement was awarded and there may now be fraud (for example, petitioner is observed doing very physical activities that he stated he could not do at the time of settlement), Respondents can file its own Re-opener application to lower the Award. Alternatively, Respondents can file a Motion to Vacate the Prior Order Approving Settlement. Finally, Respondents can file a Motion to Dismiss for Violation of the Workers’ Compensation Fraud Act. Respondents may also be able to negotiate a small Section 20 settlement, or dismissal, of a case where the employee committed fraud.

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Maura Burk, Esq., is a Shareholder in Capehart Scatchard's Workers’ Compensation Group.  Ms. Burk concentrates her practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation matters.  If you have any questions or would like more information, please contact Ms. Burk at 856.840.4941 or by e‑mail at mburk@capehart.com. 

In Saiti v. Garden Homes, No. A-1328-20 (App. Div. October 11, 2022), the petitioner received an award for $66,074 on September 3, 2020.  The terms of the settlement were memorialized in an order signed by the Judge of Compensation and both parties. Petitioner’s attorney made numerous phone calls in the ensuing 60 days regarding non-payment of the order.  After 60 days, petitioner moved to enforce the Order since payments still had not been made.  Over 90 days after the Order was entered, a telephone conference occurred on December 7, 2020 regarding the late payment.  There was no record of the conversation and no record of any oral argument by the parties, although there is mention that the parties appeared.

On December 7, 2020, the Judge of Compensation issued an oral decision on petitioner’s motion, noting that the payments were now due over 90 days.  The Judge of Compensation ordered:

1.     Costs and interest on the settlement payments;

2.     An additional assessment of 25% of the monies due for the unreasonable payment delay to the petitioner with $16,287 payable to Saiti;

3.     $4,000 in attorneys’ fees payable to counsel for Saiti;

4.     $5,000 in penalties payable to the Second Injury Fund;

5.     Additional legal fees of $2,188 to counsel for Saiti in relation to enforcement efforts.

Respondent appealed the December 7, 2020 Order and argued that the Judge of Compensation abused his discretion in awarding penalties and sanctions without affording counsel the opportunity to be heard. 

The Appellate Division observed, “The Workers’ Compensation Act does not establish a specific timeframe for payment of workers’ compensation settlement proceeds.”  That statement is puzzling because N.J.S.A. 34:15-28 states as follows: “Whenever lawful compensation shall have been withheld from an injured employee or dependents for a term of 60 or more days following entry of a judgment or order, simple interest on each weekly payment for the period of delay of each payment may, at the discretion of the division, be added to the amount due at the time of settlement.” While this statute gives the Judge of Compensation some discretion, it also clearly refers to a 60-day time period.

The Appellate Division held, “Having reviewed the parties’ arguments in light of the record and the applicable legal principles, we are unable to determine whether the imposition of penalties and assessments under the December 7, 2020 order was reasonable.”

The Court held, “We are satisfied that it was a mistaken abuse of discretion to enter an order awarding sanctions without permitting counsel to be heard and without findings as to why the payment delay was unreasonable.”

The Court directed that the Judge of Workers’ Compensation “shall conduct a hearing and consider the steps taken by Saiti’s counsel to secure payment within sixty days of the entry of the September 7, 2020 order.” The Order was vacated pending a new hearing.  The case seems to turn on procedural due process, namely the need for the Judge of Compensation to hear oral arguments on the reasonableness of the delay, specifically whether the delay in payment had some justification.

This decision provides no comfort for respondents.  It is true that the December 7, 2020 Order was vacated, but a new hearing will be held in which the Judge of Compensation will hear oral arguments from defense counsel explaining the reason, if any, for delays in paying the Order of September 3, 2020.   The best advice to employers remains this:  all orders need to be paid within 60 days.  That is the clear import of the relevant statute.

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John H. Geaney, Esq., is a Shareholder and Co-Chair in Capehart Scatchard's Workers’ Compensation Group.  Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at jgeaney@capehart.com. 

Claimant was allegedly injured in a work incident on July 25, 2018. Following a Hearing, the Industrial Accident Board issued a Decision finding claimant had sustained only a limited injury which had resolved, with treatment only compensable through January 2, 2019. Later, several medical bills for treatment after the date of resolution of injury were paid by accident.

Upon learning of the mistaken payments, the adjuster immediately requested reimbursement, with Heckler & Frabizzio providing a letter to be sent to each provider, explaining the consequences of the Board’s prior Decision, and reinforcing the need to issue reimbursement. However, none of the providers complied. The Employer filed a Motion with the Board, seeking to compel reimbursement of the mistaken payments. At the Legal Hearing, no physicians were present, despite receiving notice. Claimant’s attorney was present and argued against ordering reimbursement, out of concern the providers would then seek payment from the claimant.

In an Order dated August 11, 2022, the Board agreed with the Employer and granted the Motion. Because the treatment was all administered by certified providers under the Workers’ Compensation System, and because the Board has statutory authority over medical payments, the Board was empowered to compel reimbursement. Further, as the payments were issued for treatment after a clear cutoff date, the Board agreed they were made by mistake. As such, the providers were required to issue reimbursement within thirty days, or else they would be subject to further sanctions from the Board.

Should you have any questions regarding this Decision, please contact Nick Bittner, or any other Attorney in our Workers’ Compensation Department.

Patricia Wesley v. State of Delaware, IAB No. 1475026 (Aug. 11, 2022).