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Written by: Luke West and Tracey Jones
Originally appeared on Teague Campbell website.
As part of the employer’s and carrier’s prompt investigation of a claim, NCIC Rule 608 allows the taking of a recorded statement to determine the facts and circumstances surrounding the injury. Rule 608 is broad in scope. It requires the adjuster to tell the claimant the statement they are giving may be used to determine whether to pay or deny their claim. These frequently play a critical role in determining compensability of a claim or defending a denial, particularly when it seems the claimant did not experience an injury that arose “by accident” – e.g., where the claimant was doing nothing unusual at the moment of injury and performing his or her usual job tasks in the usual way. However, the utility of the recorded statement is far reaching and can be an important barometer of the claimant’s credibility.
As always, the burden to prove compensability of any claim lies with the claimant. In order to make an informed decision about compensability and prepare a proper defense, adjusters should take the following tips into consideration when taking the recorded statement:
Memories fade. Stories change. In many cases, the description of the claimant’s injury will be the only evidence you have when determining whether the injury is compensable. We recommend contacting the claimant as soon as possible after notice of the claim to take their statement – ideally before claimant retains representation. With time, the claimant’s description of that injury may change, but a contemporaneous description of the injury will often be the most reliable account of events leading to the injury.
The content of the recorded statement is decidedly broad and includes the “facts and circumstances surrounding the injury.” Therefore, it pays to be thorough.
Always obtain the claimant’s address and e-mail, relevant medical history, the claimed mechanism of injury, other plausible explanations of the injury including hobbies and sports activities, identification of witnesses, and the claimant’s employment history. In addition, it is wise to include questions on covering the following topics:
Ask enough questions for a full understanding of the exact mechanism that caused injury. Lifting a tire may cause a shoulder injury, but if the claimant lifted the tire in the same way and under the same circumstances he or she always encounters, the injury did not arise “by accident.” Also obtain a full description of the injury itself – what hurts and where the injury took place.
Be sure to ask for a full description of claimant’s job tasks, including whether they work in multiple locations, roles, or job descriptions. Identify anything new or unusual within the claimant’s job and the length of time that new or unusual activity has been a part of the claimant’s regular job.
Always request the identity and contact information of Claimant’s supervisor, any claimed witnesses, and the co-workers claimant most often encounters on a day-to-day basis to allow interviews and fact investigation with those individuals.
Additional things to look out for include a short tenure with the employer of injury, an unwitnessed injury or injury that the employer disputes, or a shifting description of the mechanism of injury.
Always include questions regarding the alleged injured body part and whether there has been treatment to that body part in the past. If so, get the name of the provider and practice and when the treatment occurred and the length of that treatment. While the law does generally find new exacerbations of chronic injuries to be compensable, depending on the circumstances, a claimant may assert a chronic condition to be a new and distinct injury when that is not really the case. These cases require a physician’s testimony to support causation.
Ask about motor vehicle accidents and injuries associated with same. We strongly encourage carriers to include questions regarding the name and contact information of claimant’s primary care physician and any other specialist they have seen.
While psychological-only claims are rare, a psychological component of a physical injury may arise much later. Therefore, carriers should ask questions in the recorded statement regarding a claimant’s history of mental illness and to identify any treatment providers for that issue.
In addition, primary care physician records can offer a wealth of knowledge about past problems and treatment that a claimant may overlook or forget.
You want to know if claimant is actively involved in any activities that may lead to injury such as archery, concerts, off-roading, hunting, weightlifting, or woodworking. Ask enough questions to understand how frequently and where hobbies and activities take place so that further investigation can be done.
In order to maximize the claimant’s post-injury earning capacity, be sure to identify enough background information to help gauge their candidacy for other work in the event permanent claim-related restrictions preclude the claimant’s pre-injury job at some point during the claim.
If the claimant is working from home, focus questions on their activities at the time of injury and the normal routine they have developed while working remotely. Questions should include a specific description of the home office layout and timeline of usual daily activities including personal activities.
Like any occupational disease, the claimant has the burden to prove they had an increased risk of contracting COVID-19 because of their specific job, as opposed to elsewhere in the general public. With that in mind, the recorded statement is a good opportunity to assess compensability and potential defenses. In addition to the usual topics, COVID-19 claims require a more specific line of questioning.
We recommend obtaining a 14-day timeline prior to the date of the first symptoms. For that period of time, you will want to know:
You will need to know the claimant’s vaccination status. If the claimant is vaccinated, find out which vaccine they have and whether and when they received a booster. If the claimant is not vaccinated, find out why. Determine whether and under what circumstances the claimant wears a mask and whether the mask is an N95 or KN95.
Consider the claimant’s job (e.g., healthcare, retail, service, professional) and trace work-related contacts as described above for a 14-day period prior to the date of first symptoms or positive testing. In addition,
A claimant’s refusal to give a recorded statement can support a denial of the claim on the grounds that they will not comply with the investigation or provide enough details from which to determine compensability. By and large, claimants comply with the request for a recorded statement and Rule 608 tells adjusters to advise the claimant that the statement may be used to determine whether the claim will be paid or denied, and) to provide a copy to the claimant within 45 days after a request for a copy or after a Form 33 hearing request is filed. Failure to comply with the rule can prohibit introduction of the recorded statement at a hearing.
By incorporating these principles into your recorded statements, you will have a clearer understanding of the compensability of your claims, reduce the frequency and potential cost of litigation, and provide defense counsel with a head start in our defense of the claim. If you have questions about recorded statements or wish to discuss further, reach out to a member of our workers’ compensation team.
The New Hampshire Supreme Court recently issued two decisions a day apart: Appeal of Pelmac, Docket No. 2019-0605 (Slip Op. issued 10/13/21) and Appeal of Dodier, Docket No. 2020-0185 (Slip Op. issued 10/14/21), setting forth a new “chain of causation” test for determining compensability of suicide following a work-related injury.
Pelmac Case
In the first case, Pelmac, the claimant was driving home from a jobsite, approximately 2 hours away from his home when he was involved in a single vehicle motor vehicle accident. It was unclear why the claimant went off the road. There was evidence that sleep apnea may have been the cause. The claimant’s injuries included lacerations to his head, fractured C5-6 vertebrae, a concussion, a rotator cuff tear and rib fractures.
Within three months of the accident, the claimant committed suicide. The carrier denied the claim on the basis that the injuries sustained in the motor vehicle accident did not arise out of and in the course of employment. The carrier also denied the claim that the suicide was a compensable consequence of injury, and as such, denied death benefits to the claimant’s dependents. After a first level hearing, the Department of Labor determined the claimant’s injuries from the accident arose out of and in the course of his employment. However, the claim for death benefits to the dependent widow was denied with a finding that the suicide was not compensable.
Both parties appealed the Department’s decision to the Compensation Appeals Board (“CAB”). On appeal, the CAB found that the injuries sustained in the accident were compensable. The Panel also determined that death benefits were payable to the widow as it also found the suicide compensable.
The record contained no medical evidence diagnosing depression. The CAB also found that the family did not know the extent of the claimant’s “depression like mental state.” Pelmac, at 3. Further, evidence showed that, on the day of his suicide, the claimant was acting “completely normal.” A suicide note was left. The note made no mention of the injury or the effects of the injury on the claimant. The claimant expressed love for his wife and hoped she would find happiness. The CAB reviewed the note and concluded that the claimant was “thanking his wife and expressing deep dissatisfaction with his present and future situation.” Pelmac, at 3.
The carrier appealed the decision to the NH Supreme Court.
Dodier Case
In the Dodier case, the claimant was a branch manager of a logistics company. In 2016 the claimant began experiencing stress related to work and in his personal life. By February 2017, the claimant was hospitalized with “symptoms resembling a panic attack.” Dodier, at 2. He was discharged from the hospital “with a diagnosis of unspecified anxiety disorder.” Id. He was once again admitted to the hospital, “expressing worsening anxiety and suicidal thoughts.” Id.
From March 1 to March 9, 2017, the claimant expressed “significant stress related to his employment,” “feeling of inadequacy at work.” He was “looking for a new job,” felt “guilty about taking anxiety medications” and was “experiencing financial stress.” Id. The claimant committed suicide on Sunday, March 12, 2017. The claimant’s Estate requested a hearing on causation and sought death benefits. The Department of Labor denied the Estate’s claim. The Estate appealed to the CAB.
The CAB concluded that the Estate failed to meet its burden of proof on causation and found the claimant “experienced several sources of stress, and that ‘the largest number’ were personal stressors unrelated to his employment.” Dodier, pg. 3. The record contained competing medical evidence. Dr. Drukteinis, the Estate’s psychiatric expert, opined that work “substantially contributed” to cause the injury. Id. The insurance carrier’s expert, Dr. Bourne, concluded, “one cannot attribute [the claimant’s] depression to any one cause [and] one should not conclude that work stressors played a substantial contributor to the depression….” Id.
The CAB determined that Dr. Drukteinis’ opinion did not “meet the legal requirement that the injury would not have occurred ‘but for’ the work stress.” Id. at 6. The CAB denied that the claimant sustained a compensable work-related injury and, therefore, did not reach the decision as to whether the suicide was compensable. The CAB denied the Estate’s Motion for Reconsideration and “summarily maintained that it did not apply a ‘but for’ legal standard in regard to causation.” Id. at 4. The Estate appeal the decision to the NH Supreme Court.
Supreme Court Rulings
In the Pelmac and Dodier opinions, the Court set forth a new standard for determining the compensability of suicides following work injuries. The Court stated, “We have not had occasion to consider whether and under what circumstances suicides can be deemed to result from a prior, work-related injury and deemed not to be the product of the employee’s ‘willful’ intent or conduct, as relevant to awards of death benefits.” Pelmac, Slip Op. pg. 10. The Court went on to announce a “newly articulated chain-of-causation test applies to determine the compensability of an employee’s death by suicide that follows the employee’s work-related injury….” Id. at 16, 17.
The Court’s chain-of-causation test “addresses the requisite causal connection between the prior work-related injury and the employee’s subsequent death by suicide to permit an award of workers’ compensation benefits, even when there are statutory limitations on injuries caused by an employee’s willful act….” Pelmac, pg. 11. In New Hampshire, the statute provides, “No compensation shall be allowed to an employee for injury proximately caused by the employee's willful intention to injure himself or injure another” (emphasis added). The Court, citing to a Florida case, said, “in those cases where the injuries suffered by the deceased result in his becoming devoid of normal judgement and dominated by a disturbance of mind directly caused by his injury and its consequences, his suicide cannot be considered ‘willful’ within the meaning and intent of the Act.” Pelmac, at 11. In light of this decision, if a claimant commits suicide, it is now very unlikely to be considered a “willful” act precluding compensation.
The chain-of-causation test is satisfied when the “work-related injury has produced a disturbance of the mind such that at the time of the suicide the employee does not have conscious or rational control over his actions, his realization that his action is self-destructive is not an independent, intervening cause of his death.” Pelmac, at 11. The Court explained that this test “places the burden on the claimant to prove by a preponderance of the evidence that there was an unbroken chain of causation between the work-related injury, the disturbance of the mind, and the ultimate suicide.” This appears to be a low threshold where in Pelmac the claimant was not diagnosed with a “disturbance of the mind” rendering him unable to maintain “rational control over his actions.” The testimony was that the claimant was acting “completely normal” prior to his suicide. The Court, however, agreed with a majority of the jurisdictions that “the physical consequences of the act of suicide wrongly ignores the role that severe or extreme pain, anxiety, despair, or depression may play in the deterioration of a person’s rational mental process.” Pelmac, at 12.
On review, the Court does “not reweigh the evidence” but determines “whether the CAB’s findings are supported by competent evidence in the record.” Pelmac, at 9 (citing to Appeal of Dean Foods, 158 N.H. 467, 474 (2009)). The Court further noted that “all findings of the CAB upon questions of fact properly before it are deemed to be prima facie lawful and reasonable.” Pelmac, at 5 (citation omitted). Despite these principles, the Court in Dodier did, in fact, reweigh the evidence and failed to accept the CAB findings lawful and reasonable.
In Dodier, the Court noted the CAB “did not make the factual findings necessary to support a proper causation analysis” but, instead of a remand, the Court remarked that “when a lower tribunal has not addressed a factual issue, but the record reveals that a reasonable fact finder necessarily would reach a certain conclusion, we may decide that issue as a matter of law.” Dodier, at 7. The Court determined and found that the depression and anxiety was a work-related injury. Since the CAB did not address the suicide, the Court remanded the case to apply the chain-of-causation test.
Traveling Employee
The Court in Pelmac also provided a new framework for determining whether an employee is a “Traveling Employee.” This is significant since injuries sustained traveling to and from work are not typically found to be in the course of employment under the “coming and going” rule. An exception to this rule is a “traveling employee.” Injuries sustained by a traveling employee, coming and going to work, will likely be compensable.
The Court stated, “Traveling employees are employees for whom travel is an integral part of their jobs, such as those who travel to different locations to perform their duties, as differentiated from employees who commute daily from home to a single workplace.” Pelmac at 7. The Court noted that the claimant’s “employment with Pelmac involved extensive travel throughout New Hampshire, and he usually traveled directly between the remote work sites and his home in a company van…and [such travel] was integral to his role…” in performing his job duties. Pelmac, at 8.
The Traveling Employee test has four elements. The employee must (1) travel extensively between home to remote work sites; (2) travel as an integral part of employment; (3) be using a company vehicle (or be reimbursed by employer for the use of a personal vehicle), see, Whittemore v. Sullivan County Homemaker's Aid Service, 129 N.H. 432, 433 (N.H. 1987) ("she used her own personal vehicle and was reimbursed for mileage expenses incurred in traveling to clients' homes..."); and (4) be on call before and after hours.
Appellate review of workers’ compensation cases by the NH Supreme Court are discretionary. However, in recent years, the Court appears to be accepting more cases as evidenced by these two decisions.
Gary S. Harding, Esq.
Margaret P. Sack, Esq.
Bernard & Merrill, PLLC
814 Elm Street, Suite 407
Manchester, NH 03101
(T) 603-622-8454
(F) 603-626-8490
E-mail: gary@bernard-merrill.com
Simon Law Group, P.C.
720 Olive Street, Suite 1720, St. Louis, MO 63101
314-621-2828
MISSOURI WORKERS’ COMPENSATION CASE LAW UPDATE
October 2021 – December 2021
Need for Total Knee Replacement Necessitated by Work Injury
Rogers v. Marion C. Early R V School District, Injury No. 15-093845
On November 19, 2015, the claimant was running across a grass covered area to answer a fire alarm when he stepped in a hole, twisting and injuring his left knee. He underwent an MRI which showed an oblique tear of the medial meniscus. On January 13, 2016, Dr. Goodman performed a left knee arthroscopy and debridement of the meniscal tear. On April 4, 2016, Dr. Goodman performed a second left knee arthroscopy and debridement of the meniscal tear after the claimant was diagnosed with a recurrent medial meniscal tear with mechanical symptoms. The claimant’s symptoms persisted and on January 11, 2017, Dr. Goodman opined that a total knee replacement was warranted and stated that the meniscal pathology was work related, but the arthritis was not. The employer/insurer denied additional treatment. The claimant sought treatment with Dr. Mahnken who performed a left total knee replacement on April 21, 2017.
The claimant obtained a report from Dr. Hopkins who opined that the left knee injury on November 19, 2015 was the direct and prevailing factor in necessitating the left knee replacement. Dr. Stuckmeyer also opined that the November 19, 2015 injury was the prevailing factor requiring a left total knee replacement. The employer obtained a report of Dr. Mall who opined that he did not believe the need for total knee arthroplasty in any way flowed from the work accident but was related to the degenerative process that had already started prior to the work injury. Dr. Goodman opined that the claimant’s arthritis was the prevailing factor and cause for the need of a left total knee arthroscopy and the arthritis was not part of the work injury.
The ALJ opined that the left total knee replacement was necessitated by the work injury and noted there was no medical evidence presented that he had any prior injuries or conditions with the left knee which would have led to his need for a total knee replacement. Therefore, the employer was responsible PPD, TTD, and past and future medical treatment. The Commission affirmed the Award of the ALJ.
Claim Denied as Claimant’s Injuries Sustained in Motor Vehicle Accident After Choking on Breakfast Sandwich Not Sustained in Course and Scope of Employment
Booth v. DISH Network Inc., Case No. SC98948 (S. Ct. 2021)
FACTS: The claimant, an installer for DISH Network was injured in a single car accident in a DISH van which he was driving on the way to his first job of the day. He choked on a breakfast sandwich, blacked out, and crashed into a pillar on the side of the highway. The claim was denied by the employer. The case went to a hearing and an ALJ awarded benefits concluding that the risk source was having to travel on a rural highway on a strict timeline in a DISH van. The employer appealed and the Commission reversed the decision of the ALJ finding that the risk source was actually the claimant’s decision to eat a breakfast sandwich while driving. The Commission found there was no aspect of the claimant’s work that required him to eat breakfast while driving and the employer prohibited him from doing so. The claimant appealed and the Appellate Court disagreed and concluded that the claimant’s injury occurred within the course and scope of the employment. The employer then again appealed.
HOLDING: The Supreme Court concluded that the claimant’s risk source was eating while driving which created a risk of choking and led to the accident resulting in injury. The Court noted that DISH did not require him to eat breakfast after starting work for the day and as the claimant acknowledged he could have had breakfast before he began work. The claimant argued that aspects of his job such as the tight schedule, limits on the ability to eat lunch, and driving on certain roads played a role in the accident, but the Court found these arguments unconvincing. The Court concluded that the claimant failed to establish that his injury arose out of and in the course of employment and therefore the Commission’s decision denying benefits was affirmed.
Testimony of a Vocational Expert Relying on Hearsay Found Admissible
Otwell v. Treasurer of Missouri as Custodian of The Second Injury Fund, Case No. ED109447 (Mo. App. 2021)
FACTS: The claimant developed bilateral carpal tunnel syndrome and underwent surgery in April of 2009. She filed a claim for PPD and settled with the employer in February of 2010. In January of 2016 the claimant amended her claim, seeking coverage under the Fund for PTD due to a combination of her bilateral carpal tunnel syndrome in combination with pre-existing disabilities of a prior shoulder injury, incontinence, and psychiatric illness.
Mr. Lalk, a vocational expert for the claimant, concluded that she was unable to maintain employment in the open labor market and was PTD. Mr. Lalk reviewed various records and reports including a 2012 report prepared by Dr. Shuter who had performed an IME but who died before testifying. The SIF attorney on cross asked whether Mr. Lalk relied on Dr. Shuter’s report in reaching his conclusions and Mr. Lalk stated he had. On this basis, the SIF objected to the admission of Mr. Lalk’s testimony. The ALJ agreed and excluded the entirety of the Mr. Lalk’s testimony and his report as inadmissible hearsay. The claimant also introduced testimony from Dr. Volarich and the ALJ ruled to exclude the portion of Dr. Volarich’s testimony where he concurred with Mr. Lalk’s assessment that the claimant was PTD due to a combination of the primary injury and her psychiatric disability.
The ALJ found in favor of the claimant and awarded her PPD against the Fund. The ALJ denied the claimant’s claim for PTD finding no substantial evidence that the claimant suffered from a significant pre-existing psychiatric disability. The Commission affirmed and adopted the ALJ’s Award of PPD with minor changes and found that the claimant was not entitled to PTD against the Fund. The claimant appealed.
HOLDING: The claimant argued the Commission erred in excluding the entirety of Mr. Lalk’s vocational expert testimony. The Court concluded the Commission abused its discretion in excluding the entirety of Mr. Lalk’s testimony. They noted that Missouri law does not prohibit an expert from relying on hearsay when entering an opinion and found that although Mr. Lalk said in cross-examination that he relied on Dr. Shuter’s report, the Court rejected this response as dispositive on the issue of reliance because the broad definition of the term upon which the Fund’s counsel posed their question. The Court noted that Mr. Lalk made limited reference to Dr. Shuter’s report and referred to numerous other medical providers and therefore they were persuaded that the Commission’s ruling to exclude the testimony was against the logic of the circumstances and displayed a lack of careful deliberate consideration. The Court reversed the decision and directed the Commission to admit Mr. Lalk’s testimony and reconsider the Award in light of the testimony.
Expert Need Not Have Specialized Knowledge of Workers’ Compensation Law to Qualify as Expert Witness
Laura Williams, Jennifer Williams, Courtny Williams, and Kennedy Williams v. Reed, LLC, Case No. SD36883 and SD36892 (Mo. App. 2021)
FACTS: Jacob (claimant) was the sole member of the employer, an automotive parts and repair shop. Jacob’s wife, Laura, kept Reeds’ books. Jacob was not on the payroll as an employee, and he reported no wages but took a weekly draw of $600 or more by writing checks to himself on the business checking account and used the account for personal expenses. In 2015, Jacob was killed in a work-related accident. Laura and Jacob’s then minor daughters from a prior marriage, Courtny and Kennedy, filed claims for workers’ compensation benefits. Prior to the hearing before the ALJ, Courtny turned 18.
The ALJ admitted deposition testimony from the daughters’ expert, an attorney with experience in family law but little or no training or experience in workers’ compensation law or tax law. The expert testified that when calculating child support, income would be imputed when a parent owns a business, and their income is more difficult to ascertain that that of a salaried employee. The expert calculated Jacob’s earnings to be $62,100.13 for the year immediately preceding Jacob’s death, or an average weekly wage of $1,194.23.
The employer offered testimony from a CPA who testified that the company’s net profit reported on tax returns would be a proper measure of earnings for the LLC’s sole member and testified that the tax returns showed net profits of $13,127 in 2014 and $13,337 in 2015. The ALJ credited the testimony of the daughters’ expert and found Jacob’s average weekly wage was $1,194.23 resulting in a weekly compensation rate of $796.15. The ALJ found Courtny remained a dependent because she was enrolled at a community college and compensation was to be apportioned equally between Laura, Courtny, and Kennedy until one was no longer eligible.
The employer challenged the admission of testimony from the daughters’ expert, the compensation rate, and Courtny’s dependency. The Commission affirmed the ALJ’s average weekly wage calculation but determined that Courtny’s dependency terminated on her 18th birthday because she had enrolled in only three course credits for the semester during which she turned 18, which was not a full-time course load. The daughters appealed and the employer cross appealed.
HOLDING: The Court found that the daughters’ expert did not need specialized knowledge of workers’ compensation law to be qualified as an expert witness. It noted that when §287.250.4 applies, as in this case, the standard wage formula does not apply and what is relevant and helpful is testimony about methods and considerations to calculate an employee’s wages fairly which is what the daughters’ expert provided. The Court noted to the extent that the employer argued the methods of the daughters’ expert were not as compelling as the employer’s expert the Court must defer to the Commission’s determinations. The Court concluded that the Commission did not abuse its discretion in admitting and relying on testimony from the daughters’ expert and that the Commission’s findings of fact as to Jacob’s average wage was supported by the evidence.
Fund Liable for Benefits as Priors Met Criteria for Fund Liability
Marberry v. Treasurer of Missouri as Custodian of the Second Injury Fund, Case No. ED109554 (Mo. App. 2021)
FACTS: On September 24, 2015, the claimant fall backwards and hit his buttocks and upper back and sustained a whiplash injury to his neck. He was sent to Barnes Care and diagnosed with a contusion of his low back and pelvis and an injury to his neck level.
With respect to his preexisting condition, on July 19, 1999 sustained a work related cervical injury. He was diagnosed with multiple disc herniations and settled the claim with his employer for 20% PPD referable to the cervical spine. On October 7, 2002 he again injured his neck at work and had surgery. Then on December 19, 2014 he sustained an injury to his right shoulder at work. The claimant settled with his employer for 34.8% of the shoulder.
Dr. Volarich assessed 10% PPD referable to the lumbar spine and 35% PPD referable to the cervical spine as a result of the work injury. He also assessed 35% of the shoulder as a result of the 2014 date of injury and 20% referable to his pre-existing neck injuries. He concluded that the claimant was PTD as a result of his primary injury and the 2014 work injury in combination with each other as well as his pre-existing medical condition. Mr. Lalk opined that he was not able to work in the open labor market.
Dr. Chabot examined the claimant at the request of the employer and found he sustained thoracic, lumbar and cervical strain injuries as a result of the primary injury but did not attribute any PPD as a result of the primary injury and instead believed his complaints and PPD were associated with his 2002 neck injury and surgery.
The claimant settled his primary claim with the employer for 13.4% referable to the cervical spine and went to a hearing against the SIF. The ALJ found the claimant’s right shoulder could not be considered in determining Fund liability because his right shoulder had not reached MMI before the primary injury. The ALJ also found that the claimant’s low back injury could not be considered in determining Fund liability because it did not meet the 50-week PPD threshold. The ALJ concluded that the claimant’s evidence did not meet §287.220.3 and only demonstrated he was PTD from all his injuries, not just his primary injury and single qualifying pre-existing disability. The Commission affirmed the ALJ’s decision. The claimant appealed.
HOLDING: The claimant argued the Commission erred in determining his right shoulder injury and resulting disability could not be considered for Fund liability. He also argued that the Commission erred by mischaracterizing his low back injury as a prior injury. The Court found that the Commission erred by excluding the claimant’s right shoulder disability from consideration as, per Parker, the statute does not require the claimant to know his injury equals at least 50-weeks PPD before sustaining his primary injury. The Court noted that the claimant settled with his employer for 34.8% PPD which is more than 80-weeks PPD and that the Fund did not present any other evidence to dispute the disability rating, and therefore the right shoulder injury was a qualifying pre-existing disability under §287.
With respect to his low back, the Court noted that the Commission errored in prohibiting consideration of the low back disability because it did not satisfy the 50-week PPD threshold. The Court noted this applies only to pre-existing disabilities, not disabilities resulting from the primary injury, and the undisputed evidence in the record established that the claimant’s low back disability was a direct result of the primary injury. The Court also found that the claimant was entitled to PTD benefits from the Fund when considering the primary injury and his pre-existing conditions. The Commission’s Award was reversed.
Commission's Decision Reversed After Substituting Own Opinion in Lieu of Qualified Medical Expert's Opinion
Lynch v. Treasurer of the state of Missouri, Custodian of the Second Injury Fund, Case No. ED109502 (Mo. App. 2021)
FACTS: The claimant worked for the employer as a brewery worker from 1974 until 2009 performing physically demanding and repetitive tasks. His primary injury was carpal tunnel syndrome for which he underwent releases in 2011. He settled with the employer for 20% PPD of each wrist with a 10% loading factor. He continued with his claim of PTD against the Fund, alleging he was disabled as a result of a combination of his carpal tunnel syndrome and pre-existing conditions/injuries which included:
· neck and low back injury from a boating accident in 1990
· two work related injuries to his low back which he settled
· total hip replacements in 2003
· osteoarthritis in both knees
· injury to the left shoulder requiring surgery
· injury to the right shoulder which required surgery
· right shoulder surgery immediately after his 2009 retirement
· neck and back complaints shortly after his retirement in 2009
The claimant was evaluated by Dr. Woiteshek who found him PTD as a result of his pre-existing disabilities combined with his primary work injury. The claimant’s vocational expert, Mr. Cordray, found that his physical limitations precluded all jobs in the competitive labor market. The Fund did not submit any evidence. The ALJ issued an Award in favor of the Fund. The claimant appealed.
The Commission made no credibility findings regarding the testimony of the claimant or Dr. Woiteshek and neither was impeached. The Commission explicitly found Mr. Cordray’s opinion neither credible nor persuasive as Mr. Cordray stated he did not consider the claimant’s subjective complaints yet his report included a list of such complaints. The Commission found that the claimant’s primary injury did not contribute to his overall PTD but rather the claimant retired or removed himself from the open labor market because of his pre-existing disabilities. The Commission affirmed the Award of the ALJ. The claimant appealed.
HOLDING: The claimant contended that the Commission ignored the only expert medical opinion in the record and substituted its own personal opinion regarding the cause of the claimant’s PTD. The Court agreed with the claimant. The Court noted that the Commission did not find that the claimant was not credible nor was the claimant impeached but the Commission simply relied on the claimant’s lack of treatment for a specific diagnosis of carpal tunnel syndrome before he retired. At the same time the Commission ignored other portions of claimant’s testimony where he stated he had issues and problems with his hands and wrists but did not know he had carpal tunnel syndrome until he was diagnosed. The Commission also ignored the qualified medical opinion of Dr. Woiteshek entirely despite the fact that he was neither impeached nor found not credible. The Court therefore found that the Commission disregarded and ignored competent substantial and undisputed evidence and instead relied on an excerpt from Mr. Cordray’s report quoting Dr. Rotman, the employer’s expert, as saying the claimant took early retirement for health issues mainly related to his heart, when Dr. Rotman’s report was not in evidence and not contained in the record. The Court found that the Commission’s decision was not supported by sufficient competent evidence and was against the overwhelming weight of the evidence. The Commission’s decision was reversed.
Fund Not Responsible for PTD Benefits as No Evidence That All Claimant’s Pre-existing Disabilities Met Threshold for Fund Liability
Clinkenbeard v. Department of Corrections & Central Accident Reporting Office & Treasurer of Missouri as Custodian of Second Injury Fund, Case. No. SD36942 (Mo. App. 2021)
On October 28, 2014 the claimant, a correctional officer sustained an injury to his elbow and shoulder. He received authorized care and Dr. Hicks performed a left shoulder arthroscopy.
The claimant did have a variety of preexisting conditions including a right shoulder fracture, bilateral work-related knee surgeries, bilateral hip pain, back pain, sleep apnea, a left wrist surgery, GERD/acid reflux, diabetes, restless leg syndrome, cataracts and deafness. Dr. Volarich and Mr. Eldred testified that the claimant was PTD as a result of the last injury along with his preexisting conditions. The ALJ found that the Fund was responsible for PTD benefits. The Fund appealed arguing that all the claimant’s preexisting conditions did not meet Fund liability pursuant to §287.220.3.
The Commission noted that Dr. Volarich and Mr. Eldred both concluded that the claimant was PTD based on all the claimant’s preexisting conditions and his primary injury. Since all the pre-existing conditions did not meet the criteria for Fund liability the Commission concluded that the Fund was not liable for benefits.
HOLDING: The claimant argued that because one of his pre-existing disabilities, a prior shoulder fracture qualified under §287.220.3 then all of his pre-existing disabilities must be considered in determining the Fund is liable to pay him PTD benefits. The Court disagreed and noted that that argument was inconsistent with the Supreme Court’s decision in Parker. The claimant also argued that the Commission erred when it denied his request to remand the case back to the ALJ. The Court noted that the Commission may remand any decision of an ALJ for more complete Finding of Fact but it does not require that the Commission remand a case as a matter of law. Therefore, the Commission did not abuse its discretion not to remand the matter to the ALJ. Therefore, the Commission’s decision was affirmed.
Co-employee Immune from Liability for Claimant’s Injury Absent Intention to Cause or Increase Risk of Injury to Claimant
Brock v. Dunne as Defendant Ad Litem for Mark Edwards, Case No. SC97542 (S. Ct. 2021)
FACTS: The claimant worked at JMC Manufacturing on its lamination line with Edwards, a supervisor. JMC used a laminating machine with rollers that propelled sheets of particle board through the machine. A safety guard rested over the bottom pair of rollers and guarded the pinch point created where the bottom rollers met each other. The guard could be removed from its position while the machine was running to provide access to the bottom rollers. On April 30, 2013, Edwards instructed the claimant to clean the glue off the rollers. Despite his awareness of JMC safety rules and the machine’s warnings, Edwards removed the safety guard while the machine was still running. The claimant then squeezed water from a wet rag onto the rollers and the rag got caught and pulled the claimant’s thumb into the pinch point, crushing it. The claimant underwent three surgeries to repair his thumb but continued to have various restrictions due to the injury. He applied for Workers’ Compensation benefits and also filed a petition asserting product liability and negligence against the machine’s manufacturer and a negligence claim against Edwards. Edwards died before the trial and Dunne was substituted as Defendant Ad Litem.
Dunne filed a Motion for Directed Verdict which was overruled, and the jury returned a $1.05 million verdict in the claimant’s favor. Dunne then filed a Motion for Judgement Notwithstanding the Verdict “JNOV” arguing that the claimant failed to make a submissible case of common law negligence and Edwards was immune from liability under workers’ compensation. This was also overruled. Dunne appealed.
HOLDING: The Court noted that the relevant portion of the statute governing work place injuries and immunity for co-employees states that “any employee of such employer should not be liable for any injury…and…shall be released from all other liability whatsoever…except that an employee shall not be released from liability from injury or death if the employee engaged in an affirmative negligent act that purposefully and dangerously caused or increased the risk of injury.” The Court noted that Dunne would therefore be immune from liability for claimant’s injury unless the exception to the immunity statute applied.
The claimant argued that a factfinder could infer Edwards acted with purpose to increase risk of injury to the claimant simply from the fact that Edwards intentionally removed the safety guard knowing JMC’s safety rules and that the machine’s manufacturer prohibited and warned against removing the guard during operation. The Court opined that this required improper speculation and was not reasonable and concluded there was not sufficient evidence to make a reasonable inference that Edwards lifted the safety gate with the intention and purpose to increase the risk of injury to the claimant. The Court noted that while the injuries suffered were tragic, they were not the deliberate and deviant actions of a co-worker who sought to cause or increase the risk of injury to a co-employee. The Court noted that while evidence would support a finding that Edwards acted outside the safety rules, this merely demonstrated he acted negligently and not that he intended to cause or increase the risk of any injury to Claimant or others. The Court concluded that Dunne was therefore legally entitled to immunity under the statute and so the Circuit Court erred in overruling Dunne’s Motions for Directed Verdict and JNOV.
The Court also found that Claimant failed to make a submissible case of common law negligence which requires the plaintiff to demonstrate a claim of negligence and that the defendant co-employee breached a duty separate and apart from the employer’s foreseeable duty to provide a safe workplace. The Court noted that Edwards lifting the safety guard fell within the employer’s nondelegable duty to provide a safe workplace and therefore any alleged negligence on the part of Edwards in lifting the safety guard could not form the basis of common law liability. The Circuit Court’s judgement was reversed.
ALJ Has Authority Reopen a Record After a Hearing Before Final Award
Weibrecht v. Treasurer of Missouri as Custodian of Second Injury Fund, Case No. ED109591 (Mo. App. 2021)
FACTS: The claimant sustained an injury to his low back on July 19, 2016. He had previous injuries to his low back in 2005 and 2009 as well as an injury to his right shoulder in 2014. He settled his claim against the employer and in December of 2017 he filed a claim against the Fund for PTD benefits or in the alternative PPD benefits. He asserted in his Claim that the Fund was liable under §287.220.2. This was due to the fact that per Gattenby all of his injuries, both priors and the primary had to have occurred after 2014 in order for §287.220.3 to apply which limits the Fund’s liability. A hearing was held on May 29, 2019 and the record was closed and proposed Awards were to be filed in 30 days.
Before the ALJ issued her Award, on June 25, 2019 The Supreme Court handed down Cosby which abrogated Gattenby with respect to what “injury” had to take place after January 1, 2014 in order for §287.220.3 to apply. The claimant filed a motion to reopen the record for a supplemental hearing asserting that Cosby changed the law and that since some of his injuries occurred after January 1, 2014 his claim was governed by §287.220.3. He alleged that he had only prepared evidence for a hearing that related to Gattenby. The Fund agreed that the ALJ has that authority but noted that reopening the record was not appropriate due to the facts of the case. The ALJ denied the claimant’s motions to reopen the record. The ALJ issued an Award in August of 2019 denying compensation. The claimant appealed and the Commission affirmed and adopted the ALJ’s final Award with supplemental opinion.
HOLDING: The claimant appealed and argued that the ALJ erred when it denied post-hearing motions on the ground that she had no statutory authority to reopen the record and the Commission erred in affirming these rulings for the same reason. The Court agreed and required remand to allow the ALJ to rule on the merits of the claimant’s request.
The Court found that the power to reopen a closed record after hearing and take additional evidence at a subsequent hearing before the ALJ has entered an Award is not conferred by statute however the regulations implicitly authorize the ALJ to do so. The Court concluded that the ALJ had the authority to grant the claimant’s request and therefore the Commission acted beyond its powers when it affirmed the denial of those requests on the ground that the ALJ lacked authority to do so.
The claimant argued that Gattenby was the controlling law at the time under which §287.220.2 applied to his claims and §287.220.3 evidence was irrelevant. He noted that when Cosby abrogated Gattenby that provided “good cause” for him to request the record be reopened. The Court agreed. However, the Court noted that there must be a decision as to whether the particular evidence offered by the claimant actually pertains to the requirements of §287.220.3 and whether that evidence is necessary for a full and complete record. Therefore, the case was remanded to the Commission with directions to remand the case to the ALJ to determine whether the evidence offered by the claimant in his post-hearing motion was relevant and necessary and if so the ALJ was to make a more complete Finding of Facts based on that evidence.
Cousineau, Waldhauser, & Kieselbach of Minnesota relaunched its website in 2021 and placed even more of a focus on providing helpful resources for adjusters. These resources a variety of practice pointers, webinar replays, a COVID-19 litigation guide, and even a podcast. The website also contains reference guides covering all types of benefits, defenses, and helpful tips in managing claims. Below is a link to the practice pointer section on the website. Stay tuned for more pointers and updates in 2022 from CWK Law in Minnesota! CWK will continue to focus on servicing the needs of clients and providing helpful and timely resources on their website.
Practice Pointers — Cousineau, Waldhauser & Kieselbach, P.A. (cwk-law.com)
These criteria are particularly difficult to confirm at the least severe end of the mild TBI continuum, especially when relying on subjective, retrospective accounts. The postconcussive syndrome is a controversial concept because of varying criteria, inconsistent symptom clusters and the evidence that similar symptom profiles occur with other disorders, and even in a proportion of healthy individuals.
H. Douglas Jones and Margo J. Menefee, JSB Attorneys,
PLLC
So you’ve settled a workers compensation claim on a full and final basis with all waivers including reopening rights. Congratulations, now you can close that file and move on to the next. But wait, what if the employee dies after the settlement and the death is attributable to the work injury?
In Kentucky when an employee dies due to a work injury or occupational illness, the employee’s surviving spouse and dependents are entitled to “death benefits” per KRS 342.750. The weekly benefits payable to all beneficiaries in case of death can equate to as much as 75 percent of the average weekly wage of the state (current max is $688.34 weekly for injuries in 2021). Continued payment of those weekly benefits can continue until the date the deceased indemnity benefits would have ended per KRS 342.730 (age 70 or 4 years after injury, whichever occurs last).
In addition to the above weekly benefits, if the death occurs within four years of the date of injury, the deceased’s estate is entitled to a lump sum payment (currently $90,150.18 for injuries in 2021).
Death benefits can be quite the contingent liability, yet they are rarely discussed or analyzed as part of the settlement of a workers’ compensation claim. That’s because when we think of death benefits, we usually think of some catastrophic accident that has caused the death of the employee before that employee is able to adjudicate his/her own claim. The estate gets the lump sum payment, and the surviving spouse and dependents get weekly benefits as described above.
When settling a workers’ compensation claim with an injured worker, the parties usually don’t consider a possible future death relating to the work injury. However, what happens if a death occurs several years after the accident and after settlement of the underlying claim?
In the Supreme Court of Kentucky case Family Dollar v. Baytos, 525 S.W.3d 65 (Ky. 2017), the employee tore his aortic artery at work. He entered into a “full and final” settlement of all claims and died a year later as a result of the torn artery. His wife brought a claim for death benefits despite the prior settlement. The court affirmed the death benefit award, holding that death benefits are not derivative of the injured employee’s claim and therefore were not covered under the prior “full and final” settlement of her husband’s claim. Acknowledging that this interpretation of KRS 342.750 doubled the employers’ exposure, the court stated it was bound by the text of the statute.
KRS 342.750 creates a separate cause of action for surviving spouses and dependents when an injured worker dies as a result of a work injury, which results in a lingering contingent liability even after a claim is settled or paid in full. Whether the claimant can waive the rights of estates and death benefit recipients as part of a full and final settlement has not been resolved, but it is worth discussing death benefits as part of the settlement. We have included such waivers, along with additional consideration to the spouse as part of full and final settlements and would recommend exploring same when settling claims -- especially in high value and serious injury cases.