2021 has been a year of contrast in comparison to its predecessor.  Our Board did continue with limited and restricted business at the beginning of 2021 and as we all adjusted to the use of “zoom” for depositions and hearings, court events and proceedings again gained some badly needed momentum.  At present, in-person hearings have been reinstated with some continued restrictions and Zoom hearings and mediations have continued to play major roles in the handling of caseloads.  To their credit, the Georgia SBWC has done an admirable job in maintaining vital safety standards while remaining open.  Stunningly, claims between 2019 and 2020 were down only 3%, which is evidence of the efforts expended by all involved.  As of 2021, our new Chairmen Ben Vinson, reported that as of 2021, legal proceedings with hearings, mediations and PMT calls are all up over 30% and that there are no case backlogs to report internally.  Certainly, we expect for that trend to continue as we hopefully progress to a status quo similar to 2019.

              From a legislative and revised Board Rule changes perspective, there is nothing to report.  Although some proposals were reported, no new legislation emerged from the 2021 session that would impact our 34-9 statutes.  Board Rule changes were limited to revisions to very nominal and minimal issues that require no further comment here.  In sum, all smooth sailing to report on the legal front.

              2021 has also brought about little in the way of reported caselaw of interest.  In Baxter v. Tracie McCormick, 2021 WL 2701286 (July 1, 2021), the Georgia Court of Appeals provided further guidance on the Cap on Dependency benefits as referenced in O.C.G.A. 34-9-265.  In Baxter, the insurer suspended benefits due to reaching the cap of $150,000.00 in payout.  At the time of death, the deceased left a surviving spouse but no other minor children or other dependents.  Baxter argued that her mother-in-law was a partial dependent and that this status should invalidate the cap in that regard.  The Court of Appeals did not agree, finding that the mother-in-law was a partial dependent and could only receive dependency benefits if there were no persons wholly dependent.  Of course, this finding further confirmed the long-standing rule that partial dependents may only recover in the absence of those that are wholly dependent.

              In Sunbelt Plastic Extrusions Inc. et al. v. Paguia, A21A0867, Court of Appeals of Georgia (August 19, 2021), further guidance on the application of the change in condition two-year statute of limitations was provided.  In Sunbelt, the Claimant was paid TTD through November 29, 201 and filed a WC 14/Request for Catastrophic Designation on November 20, 2018.  The employer asserted a 34-9-104 Statute of limitations defense in that the last payment of TTD was “actually made” on November 15, 2016 and that the WC 14 was therefore filed after two years from that date.  This issue had been previously addressed by the Court of Appeals in finding that the critical date to be determined was when the last payment was ‘mailed’ to the recipient.  Unfortunately for the insurer, the evidence provided through adjuster’s testimony was not certain enough to prove by a preponderance of the evidence that the last payment was “actually made” on November 15, 2016.  It was the adjusters opinion that this was the date of mailing but further confirmed to lacking certainty of that fact.   Moreover, in denying the application of the Statute of Limitations, the Court of Appeals further affirmed the Board’s finding that the underlying claim was, in fact, Catastrophic.  The lesson for employers and insurers is to fully document the date that TTD payments are “actually made” with as much certainty as possible.

History of Board Application of Change of Condition

In its decision, the Full Board recited its consistency over the years in deciding the timeliness of Applications to reopen claims. Indeed, the Board’s enabling statute, Ind. Code § 22-3-1-3, grants it the ongoing power and jurisdiction to modify or change awards – as long as an Application for same is otherwise timely filed. In both Fitzgerald v. U.S. Steel, 892 N.E.2d 659 (Ind. Ct. App. 2008), and Krause v. IUPUI, 866 N.E.2d 846 (Ind. Ct. App. 2007), Indiana Courts have upheld the ongoing jurisdiction of the Board over previous awards. As the Court noted in Krause, it upheld the Board’s allowance of an Application within two years of the last day for which compensation was paid in reliance on the Board’s interpretation of the statute it administers and “in light of its expertise.”

As the Board award noted, to find otherwise would result in an inhumane interpretation of the principle on which the Indiana Act, and similar laws nationally, were enacted. If not for the ongoing jurisdiction of the board under Ind. Code § 22-3-3-27, the workers most significantly impacted would be those severely and permanently injured for whom medical treatment and ongoing compensation for disability is routinely provided by statute for a period of years. If the employer’s arguments were adopted, those injured workers would be required to hire counsel and file Applications within two years of the original injury simply to avoid losing employer-provided medical care after two years, even in an otherwise accepted and compensable case. The result would be increased legal costs and litigation expenses to employers and employees alike, along with significantly increased and pointless litigation.

Instructive Guidance

The instructive guidance in these two cases clarifies and assists worker’s compensation attorneys in our ability to provide counsel to our clients and appropriately defend untimely filed cases.

Submitted by:

Diana L. Wann Jackson Kelly PLLC 317-695-0552

diana.wann@jacksonkelly.com 221 NW 5th St.

Evansville, IN 47706

Virginia S. Gautier, Wise Carter Child & Caraway, PA

All settlements of workers’ compensation claims in Mississippi must be submitted to the Mississippi Workers’ Compensation Commission for approval.  Typically, if the claimant is represented by counsel and both the employer/carrier and the claimant mutually agreed to the terms of the settlement, the Commission will approve the settlement, absent unusual circumstances.  However, in the recent case of Himeliz v. Hog Slat, Inc. and Ace American Ins. Co., 322 So. 3d 956 (Miss. Ct. App. 2021), the Commission refused to approve a settlement reached by the represented claimant with the employer/carrier on the grounds that the settlement amount was insufficient to adequately compensate the claimant for his future medical care and was not in the claimant’s best interest.

In Himeliz, the claimant, legally working in the United States on a work visa, “sustained a compensable injury that rendered him a quadriplegic during the course and scope of his employment.”  The injuries resulted in Himeliz’s permanent and total disability, as well as the need for lifetime medical treatment.  He was paid the maximum amount of disability benefits, via a lump sum, to which he was entitled under Mississippi law, but the medical claim remained open.  Thereafter, through a mediation between the parties, Himeliz and his employer reached a structured settlement to close out his future medical.  Through a joint petition, the parties sought approval of the settlement from the Mississippi Workers’ Compensation Commission as required by the procedural rules of the Commission.  When submitted to the Commission, Commissioner Beth Aldridge reviewed the proposed settlement and would not approve it.  The Commission expressed concerns that (1) the life care plan “provided only ‘the best case scenario for [Himeliz]’”; (2) Himeliz’s family would actually be available to provide care for him at all times for the remainder of his life; and (3) the life care plan did not provide for an interpreter for claimant’s life expectancy. 

Following denial of the settlement, counsel for the claimant then sought a review by the full Commission (consisting of three Commissioners), but learned from the Commission’s staff attorney that neither Mississippi statute nor the Commission’s rules allowed for a request for review of a denied settlement by the full Commission.  As a result, “[t]he parties filed a joint emergency petition for review of proposed settlement” which was denied since there were no procedures allowing for such review under Mississippi law.  The claimant then filed an appeal with the Mississippi Court of Appeals on the grounds that he was not afforded a hearing before the full Commission upon the denial and that Commissioner Aldridge’s denial of the settlement was not based upon the substantial evidence, resulting in error.

Upon appeal, Himeliz argued that his settlement should have been approved as he was represented by counsel and determined competent by an independent doctor.  In considering Himeliz’s arguments, the Mississippi Court of Appeals reviewed the rules of the Commission, as well as the statute governing workers’ compensation settlements, noting that

In every case of compromise settlement, the proposed settlement will be explored

and medical reports will be examined to determine if the amount of the proposed

settlement appears fair and reasonable. The Commission or Administrative Judge

shall not approve the settlement if it is: 

a.     not accurately reported,

b.     not completely understood by the claimant, or

c.     not in the best interest of the claimant.

The Commission or Administrative Judge will approve the settlement if:

a.     the underlying facts, terms, and amount of the settlement are accurately

reported,

b.     claimant understands the settlement's import and effect, and

c.     the settlement is in claimant’s best interest. 

See Rule 2.15 of the Rules of the Mississippi Workers’ Compensation Commission.  The Court of Appeals noted that neither Rule 2.15 of the Commission’s rules nor Miss. Code Ann.§ 71-3-29 required a hearing for a settlement presented to the Commission when the claimant is represented.  The Court further noted that Himeliz cited no legal authority for requiring a hearing to review a settlement.  Finding that the “denial of the settlement was based on substantial evidence” and that the Court is required to give the Commission deference upon judicial review due to the Commission’s experience in administrative matters, the Court of Appeals upheld the Commission’s denial of approval of the settlement. 

The Himilez case has made clear that even if both the represented claimant and the employer/carrier agree to the terms of the settlement of the workers’ compensation claim, the Mississippi Workers’ Compensation Commission may deny approval of the settlement if the settlement does not appear to be in the best interest of the injured worker.  Of particular interest was the Court of Appeal’s statement that Himeliz set forth in his Petition to the Commission that the settlement was in his best interest, yet he did not list specific facts to support his assertion.  This statement by the Court is instructive in that settlements presented in the future by the parties in cases with significant injuries such as those sustained by Himeliz, should include facts to support the claimant’s averment that the settlement is in his or her best interest.  To help reduce the likelihood that a settlement will be denied by the Commission, the parties should further consider language barriers faced by the claimant and provide a realistic assessment of future medical costs, taking into account all facts known at the time of settlement.    

By Charity Lawrence and Dill Battle

              The 2021 West Virginia Legislative Session produced a major change for West Virginia workers’ compensation litigation in the West Virginia Appellate Reorganization Act of 2021.  Specifically, Senate Bill 275 was enacted and creates an Intermediate Court of Appeals for West Virginia.  It also eliminates the Workers’ Compensation Office of Judges (“OOJ”) and establishes the West Virginia Workers’ Compensation Board of Review (“BOR”) as the initial reviewing body for objections to decisions made by insurers regarding workers’ compensation claims.

              After June 30, 2022, the OOJ will be eliminated and, effective July 1, 2022, all powers and duties of the OOJ will be transferred to the BOR.  (W. Va. Code § 23-1-1h). After this date, all objections to decisions of the Insurance Commissioner, private carrier, or self-insured employer, must be filed with the BOR instead of the OOJ.  The BOR will have exclusive jurisdiction to review objections to a decision of the Insurance Commissioner, private carrier, or self-insured employer.  (W. Va. Code § 23-5-8b).  Instead of the 3 member-panel currently comprising the BOR, the BOR will consist of 5 members appointed by the Governor.  (W. Va. Code § 23-5-11a).

              The OOJ will officially terminate on or before October 1, 2022.  (W. Va. Code § 23-5-8a).  On or before September 30, 2022, the OOJ must issue a final decision or otherwise dispose of each matter pending before the OOJ.  (W. Va. Code § 23-5-8b(b)).  If a final decision on any pending matter before the OOJ has not been entered at the time of the OOJ’s termination, that matter will be transferred to the BOR.  (W. Va. Code § 23-5-8a).  For transferred matters, the BOR will adopt any existing records of proceedings from the OOJ, conduct further proceedings, and collect evidence necessary to issue a final decision.  (W. Va. Code § 23-5-8b(b)).  The BOR must review and decide all remaining appeals filed with the BOR regarding OOJ decisions issued prior to June 30, 2022.  (W. Va. Code § 23-5-8b(e)).

              The chair of the BOR shall assign, on a rotating basis, a member of the BOR to preside over the review process and issue a decision in each objection (formerly referred to as a “protest”) properly filed with the BOR.  (W. Va. Code § 23-5-9a).  That board member may delegate his or her duties to a hearing examiner employed by the BOR, but any order or decision of the BOR (except time frame orders, continuance orders, etc.) must be issued and signed by the BOR member assigned to the objection.  (W. Va. Code § 23-5-9a).  Hearing examiners must be persons admitted to the practice of law in West Virginia with at least 4 years of experience as an attorney.  (W. Va. Code § 23-5-8a).  The chair of the BOR will supervise hearing examiners.  (W. Va. Code § 23-5-8a).  If a hearing examiner is assigned to review an objection, the hearing examiner will submit the designated record at the end of the review process to the member of the BOR who was assigned the objection, along with the hearing examiner’s recommendation of a decision affirming, reversing, or modifying the action protested.  (W. Va. Code §23-5-9a).  The board member will render a decision with findings of fact and conclusions of law.  (W. Va. Code § 23-5-9a). 

              An appeal from a BOR decision may be filed with the West Virginia Intermediate Court of Appels within 30 days of receipt of notice of the BOR decision or within 60 days of the date of the decision, regardless of notice.  (W. Va. Code § 23-5-10a).  Any employer, employee, claimant, dependent, or the Insurance Commissioner, private insurer, or self-insured employer aggrieved by a BOR decision has a right to appeal to the Intermediate Court by filing a written notice of appeal stating the grounds for review and whether oral argument is requested.  (W. Va. Code § 23-5-12a).  A filing fee of $200 may be charged to the petitioner.  (W. Va. Code § 51-11-7).  Upon appeal to the Intermediate Court, the Workers’ Compensation BOR will then send a transcript of BOR proceedings to the Intermediate Court, including a brief recital of the proceedings in the matter and each order or decision entered.  (W. Va. Code § 23-5-12a).

              The WV Intermediate Court of Appeals will have exclusive jurisdiction of:

·       decisions or orders issued by the OOJ after June 30, 2022 and prior to the OOJ’s termination, and

·       final orders or decisions issued by the BOR after June 30, 2022.

(W. Va. Code § 23-1-1h).  The Intermediate Court may affirm, reverse, modify, or supplement the decision of the BOR.  (W. Va. Code § 23-5-12a).  It may also remand the case for further proceedings.  (W. Va. Code § 23-5-12a).  A decision of the BOR will be reversed, vacated or modified if the substantial rights of the petitioner have been prejudiced because the BOR’s findings are:

·       in violation of statutory provisions;

·       in excess of the statutory authority or jurisdiction of the BOR;

·       made upon unlawful procedures;

·       affected by other error of law;

·       clearly wrong in view of the reliable, probative, and substantial evidence on the whole record; or

·       arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.

(W. Va. Code § 23-5-12a).  An appeal of the Intermediate Court’s final decision may be sought by petition to the Supreme Court of Appeals of West Virginia.  (W. Va. Code § 29A-6-1).  The Supreme Court has discretion to grant or deny the petition for appeal of an Intermediate Court decision.  (W. Va. Code § 51-11-10).

              The Intermediate Court will be comprised of a three-judge panel.  (W. Va. Code § 51-11-3). Initially, the judges will be appointed by the Governor, with the advice and consent of the Senate.  Then, after the initial appointment by the Governor, the judges will be elected.  (W. Va. Code § 3-1-16, § 3-5-6e, and § 51-11-6).  The judges of the Intermediate Court must be members in good standing of the West Virginia State Bar and admitted to practice law in West Virginia for at least 10 years prior to their appointment or election, and also be residents of West Virginia for 5 years prior to appointment or election.  (W. Va. Code § 51-11-3). 

              This new legislation impacts workers’ compensation in several ways.  Eliminating the OOJ potentially eliminates experienced administrative law judges with significant knowledge (15-25 years) in workers’ compensation jurisprudence, and the practice in West Virginia.  New practice and procedure rules before the new BOR provides uncertainty of what parts of the OOJ's rules of practice and procedure will be adopted. The BOR’s ability to hire hearing examiners with only 4 years of legal experience and without workers’ compensation litigation experience may be detrimental to decisions affecting claimants, employers and insurers. However, the hearing examiners’ recommendations are not final decisions and must be reviewed by the BOR members, and the BOR members must issue the final decisions.  The hearing examiners will also be supervised by the BOR chair.  Hopefully, this will prevent the issuance of uneducated decisions.  Additionally, the new implementation of a $200 filing fee for appeals to the Intermediate Court will likely discourage claimants from appealing decisions of the Board of Review, which will decrease the overall number of workers’ compensation appeals.  SB 275 passed April 1, 2021, and is effective 90 days from passage (June 30, 2021).  The bill was sent to Governor Jim Justice on April 5, 2021, and is expected to be signed.

By:

Charity Lawrence

304-720-4056

clawrence@spilmanlaw.com

Dill Battle

304-340-3823

dbattle@spilmanlaw.com

Spilman Thomas & Battle, PLLC

300 Kanawha Blvd, E.

Charleston, WV 25301

Spilman Thomas & Battle, PLLC is the West Virginia member of the National Workers' Compensation Defense Network. The NWCDN is a nationwide network of defense firms specializing in protecting employers and carriers in workers' compensation claims and regulatory matters. For more information, visit www.nwcdn.com.

Effective October 19, 2021, the Tennessee Bureau of Workers’ Compensation adopted new regulations addressing the use of telehealth in the context of workers’ compensation claims. The purpose of the rules is to provide Tennessee workers’ compensation claimants with an option to utilize telehealth while treating for their injuries.

Under the regulations, telehealth may only be provided with the voluntary consent and agreement of the injured worker and the willingness of the healthcare provider. However, telehealth is not permitted for conditions which require an in-person physical examination. The regulations provide several examples of such conditions, including chest pain, significant burns, deformity of an extremity or suspicion of a fracture, and any bleeding that has not already stopped by direct pressure. However, this list is not exhaustive.

The treatment provided via telehealth is subject to utilization review and must follow all Tennessee standards of medical practice. The use of telehealth does not change any of the requirements for causation, date of maximum medical improvement, or permanent impairment ratings.

Employers are still subject to the same requirement to provide a medical panel to injured workers, and the panel must still include at least three medical providers who are qualified, willing, and able to timely treat the worker’s injury in person, but the panel doctors may also provide their services via telehealth with the employee’s consent. Before receiving medical benefits in the form of telehealth, the injured worker must be given an opportunity to receive in-person treatment. An injured worker may refuse a telehealth encounter at the time of the panel choice without affecting future care to which the injured worker is entitled.

The newly revised C-42 Medical Panel form also includes a space for an optional fourth choice of physician, which is a telehealth-only provider. However, this does not alleviate the employer’s obligation to still list three medical providers who can see the employee in person.

At any point during the initial visit or follow-up medical visits, the injured worker may refuse telehealth and request in-person care. If the authorized treating physician who is chosen from the medical panel declines to see the injured worker in person, the worker must select a new authorized treating physician from the names remaining on the original panel. The subsequent choice will become the new authorized treating physician.

The Tennessee Medical Fee Schedule applies to providers of telehealth services, and coding and billing regulations must follow the Medicare guidelines in effect for the date of service with no geographic qualifier.

These new regulations will have several practical effects on the way that employers, carriers, and third-party administrators handle their Tennessee claims, including:

-          Medical panels must now be provided on the newly revised medical panel form C-42, which may be found at https://www.tn.gov/content/dam/tn/workforce/documents/Forms/c42.pdf.

-       Regardless of these new telehealth rules, the medical panel still must include three or more doctors, surgeons, chiropractors, or specialty practice groups who are located in the employee’s community, and who are able to treat the employee in person.

-        When completing the medical panel form C-42 with the three medical providers who can see the injured worker in person, the medical panel form also requires that the employer indicate whether those providers also have a telehealth option, and if so, document that on the panel.

-       In addition to the three “in-person” medical providers, employers now have the option of including a fourth option, which is a telehealth-only option.  However, note that there are several types of medical conditions that cannot be treated by telehealth, and that the injured worker always retains the right to refuse the telehealth option.

For any questions, please contact:

Fredrick R. Baker, Member

Wimberly Lawson Wright Daves & Jones, PLLC
1420 Neal Street, Suite 201
P.O. Box 655
Cookeville, TN 38503-0655
Phone: 931-372-9123
Fax:  931-372-9181
fbaker@wimberlylawson.com
www.wimberlylawson.com

The “statutory employee doctrine was included in the initial 1936 draft of the Workers’ Compensation Act and is now found in S.C. Code Ann. § 42-1-400 and -410.  For decades, the appellate Courts have relied upon the following three factor test to determine a claimant’s statutory employment status:

1.     Is the worker’s activity an important part of the owner’s business;

2.     Is the worker’s activity a necessary, essential or integral part of the owner’s business; and

3.     Has the identical activity been performed by the employees of the principal owner.

Glass v. Dow Chemical Co., 325 S.C. 198, 482 S.E.2d 49 (1997).  However, in an August 2021 decision by the South Carolina Supreme Court in Keene v. CNA Holdings, LLC, the Supreme Court seemingly abandoned these three tests, and replaced them with a much more employer-centric approach. Keene v. CNA Holdings, LLC, 2021 WL 3521085 (SC 2021).

In Keene, the estate of a deceased worker brought a survival and wrongful death action against the manufacturer (CNA Holdings) that hired the claimant’s employer (Daniel Construction Co.), a sophisticated international construction company, based on the claimant’s asbestos exposure while maintaining and repairing pumps, valves, and other equipment in the piping network of a CNA plant.  The Circuit Court and Court of Appeals found CNA was not a statutory employer of deceased claimant and therefore found the claimant’s estate was not limited to the exclusive remedy of the Workers’ Compensation Act.  In affirming the lower courts’ decisions, the South Caroline Supreme Court acknowledged a shift from the previous three tests of “importance,” “necessity,” and “identical activity,” and recognized the importance of “corporate decision making” in allowing “owners” to contract out work when such outsourcing is economically beneficial, instead of holding the owner accountable regardless of the purpose. 

In redefining what is considered part of an owner’s trade, business, or occupation for statutory employment issues, the Court in Keene stated,

[W]hat is or is not part of the owner’s business is a question of business judgment, not law.  If a business manager reasonably believes her workforce is not equipped to handle a certain job, or the financial or other business interests of her company are served by outsourcing the work, and if the decision to do so is not driven by a desire to avoid the cost of insuring workers, then the business manager has legitimately defined the scope of her company’s business to not include that particular work.

Under this new rule, the Court found the deceased claimant was not a statutory employee of CNA Holdings, LLC, because: (1) only employees with the claimant’s company performed maintenance and repairs on the equipment in the plant; (2) none of the CNA Holdings employees performed maintenance and repair work; (3) CNA Holdings contracted with claimant’s company because it was a “qualified, capable contractor that can do the expert work that CNA needed done;” and (4) there was no evidence presented that proved that CNA’s corporate purpose included equipment maintenance.”  Id. at 7.

The Court further concluded that this decision did not run afoul of the original purpose of the statutory employee doctrine because the deceased claimant presumably received Workers’ Compensation benefits through his employer (Daniel Construction) since the contract between CNA Holdings and Daniel Construction required Daniel to provided workers’ compensation benefits to its workers.  Id.  The Court found that “it is not the role of the court to second-guess a legitimate business decision whose effect – far from the improper purposes the statutory employee doctrine was designed to prevent – was actually to guarantee that the workers affected by the decision would be insured against work-related injuries.  Id.

This Opinion of the Court, for which a Petition for Reconsideration is pending, could create a more subjective “business judgment” analysis as to the intent of the business owner as opposed to the traditional objective analysis of the actual activities of the business.  Any shift in how these cases are adjudicated will have far-reaching consequences particularly as it pertains to the protections afforded business by the exclusive remedy doctrine.  Further updates on this issue will undoubtedly be forthcoming in the next few months. 

Guidry v. Worknet 2000, Inc., 2021-89 (La. App. 3 Cir. 8/11/21)

(OWC Judge Anthony Palermo, District 4)

Summary: Claimant precluded from the receipt of workers’ compensation benefits based on his own actions (horseplay) is also precluded from recovering damages from a third-party in a subsequent tort suit.

              The Court of Appeal of Louisiana, Third Circuit affirmed lower court judgments dismissing Claimant, Robert Guidry’s workers’ compensation claim and tort suit for damages. Claimant was employed as a lumber puller with Worknet 2000, Inc. On the date of the incident, Claimant was engaged in lumber pulling at Gaiennie Lumber Company, LLC (“Gaiennie”), and was working alongside co-worker Marion Sam. At some point, another co-employee, Joseph John arrived driving a forklift, and commenced to complete donuts while Claimant held on to the side of the machine. In the process, Claimant either got off or fell off of the forklift which then rolled over his right leg causing serious, disabling injuries.

            Claimant filed a workers’ compensation claim against his employer and its workers’ compensation insurer. After a trial on the merits, the workers’ compensation judge (“WCJ”) took the matter under advisement, and later issued a ruling denying benefits because Claimant was engaged in horseplay and therefore not within the course and scope of his employment. Claimant also filed a suit for damages against his employer, Gaiennie, and Joseph Johns, alleging negligence, intentional tort, and vicarious liability. Gaiennie filed a motion for summary judgment on the basis of statutory employer immunity which was granted, resulting in the dismissal of Claimant’s disputed claims with prejudice.

            Claimant appealed both adverse rulings to the Court of Appeal of Louisiana, Third Circuit to review the correctness of those decisions. In support of his entitlement to workers’ compensation benefits, Claimant argues that while he admits to being engaged in horseplay, he maintains that he was in the process of returning to his duties when the accident occurred. In consideration of this fact, as noted in its opinion, the Court narrowed the issue to whether Claimant requested to stop or get off before the accident occur. Though Claimant argued that he purportedly asked Joseph John to stop prior to the accident, WCJ found the testimony and version of events offered by other witnesses, suggesting that Claimant did not ask to get off of the forklift, to be more credible.

            Moreover, Claimant argues that since the WCJ denied recovery on the basis of horseplay, he cannot be further denied the opportunity to bring his claim in tort. The First Circuit flatly rejected Claimant’s contentions, finding that Claimant’s injuries would have been covered under the Louisiana Workers’ Compensation Act, but for his own engagement in horseplay which caused him injury.

Hebert v. Aramark Servs., Inc., 2021-0631 (La. App. 1 Cir. 7/30/21)

(19^th Judicial District Court – Baton Rouge, Louisiana)

Summary: Claimant’s workers’ compensation file deemed discoverable in subsequent lawsuit.

            The Court of Appeal of Louisiana, First Circuit reversed a district court ruling which denied the production of a Claimant’s worker’ compensation file in a subsequent tort suit for damages. In its opinion, the Court held that the confidentiality provision of La. R.S. 23:1293[1] does not operate to preclude a claimant’s `workers’ compensation proceeding file from being sought through discovery in a subsequent personal injury action arising out of the same circumstances. The Court reasoned that Louisiana law[2] dictates that the information sought through discovery must be reasonably calculated to lead to the discovery of admissible evidence. In this instance, the information sought in Claimant’s workers’ compensation file could lead to the discovery of admissible evidence regarding the nature and extent of the Claimant’s injuries.

Zinn v. Zagis, USA, L.L.C., 2020-00971 (La. 3/2/21)

Summary: Language on the back of settlement check requiring claimant’s acceptance and endorsement is not an unconditional tender of settlement funds under Louisiana law and allows for additional penalties and attorney’s fees to be imposed.

            The Louisiana Supreme Court recently held that an employer who fails to unconditionally tender funds to a workers’ compensation claimant is subject to a mandatory award of penalties and attorney’s fees. In the case Zinn v. Zagis, USA, supra, the claimant settled his claim with his employer for $40,000 which was disbursed to him in two separate checks. The back of the settlement checks contained language which placed certain conditions on claimant’s acceptance and endorsement. Rather than contact the employer, claimant’s counsel retained the checks for 30 days then filed a motion seeking penalties and attorneys, which was ultimately granted by the Louisiana Supreme Court on the basis that the employer failed to unconditionally tender funds to claimant within 30 days as La. R.S. 23:1201(G) dictates.

Rodriguez v. Nola Motor Club, L.L.C., 19-447 (La. App. 5 Cir. 10/5/20), 304 So. 3d 147, 152, writ denied, 2020-01432 (La. 2/17/21)

Summary: Claimant forfeited his entitlement to workers’ compensation benefits after making false statements regarding pre-existing anxiety and heart related conditions.

            In this case, the Court of Appeal of Louisiana, Fifth Circuit affirmed the decision of a workers’ compensation judge who found that a claimant forfeited his right to compensation by willfully making false statements to obtain benefits in violation of La. R.S. 23:1208. The claimant sought benefits after a work-related accident in which a go-cart engine produced a false explosion pulling claimant to the back and the top of the go-cart. Claimant filed a disputed claim for compensation alleging that he sustained injuries to his lower back and left shoulder. Claimant’s employer and its workers compensation carrier filed a motion for summary judgment contending that claimant had violated La. R.S. 23:1208 by making false statements for the purpose of obtaining benefits in his deposition. The workers’ compensation judge granted the employer and its workers’ compensation carrier’s motion, and the claimant appealed.

            On appeal, the Fifth Circuit rejected the claimant’s argument that he was only seeking compensation for injuries to his lower back and left shoulder, and the statements he made regarding his anxiety and heart-related issues were inconsequential. Instead, the Court found the statements made by the claimant clearly and unambiguously indicated he suffered severe anxiety and heart-related issues as a result of the work-related accident. Moreover, claimant’s medical records indicated he was diagnosed and treated for anxiety less than two months prior to the work accident, he was taking anxiety medication the day of the work accident, and received significant medical treatment for his heart dating back to 2007 until as recently as three months prior to the work accident. Given the timing and extensive prior medical history, the Court believed it was highly unlikely that the claimant was mistaken or had a lapse in memory. Instead, it opined, at the very least, claimant was attempting to support or bolster his claim for injuries to his back and shoulder.

By Tracey Jones, Lindsay Underwood, Elizabeth Ligon, and Heather Baker

The North Carolina Industrial Commission has recently issued decisions in the first round of extended benefits cases, in which claimants are arguing entitlement to temporary total disability benefits past the 500-week cap. Seven cases have been heard and decided at the Deputy Commissioner level, and we recently received a decision from the Full Commission.  

To obtain indemnity benefits beyond the 500-week cap, the claimant must request a hearing and present evidence supporting an allegation of a total loss of wage-earning capacity. It should be noted that, pursuant to N.C.G.S § 97-29(d), there are certain claims which allow for automatic permanent and total disability benefits (i.e., catastrophic cases where a claimant loses two or more limbs). These claimants are entitled to lifetime benefits without findings concerning work ability or wage-earning capacity. Three other categories of claims create a rebuttable presumption of permanent and total disability benefits: (1) spinal injuries involving severe paralysis of both arms, both legs, or the trunk; (2) severe brain or closed-head injuries evidenced by severe and permanent motor or communication disturbances; and (3) second- or third-degree burns to 33% or more of the total body surface. Under these three categories of claims, if the employer can prove that the claimant is capable of suitable employment, then permanent and total disability would not be due and payable.

Deputy Commissioner Extended Benefits Decisions to Date

The first case, Milton Nobles v. North Carolina DHHS and CCMSI, was issued by Deputy Commissioner Robert Harris on January 25, 2021. The claimant in that case had no formal education outside of a high school diploma. He had work experience primarily as a health care technician. On June 26, 2011, the claimant was working for a hospital and sustained injuries while breaking up a fight, which ultimately resulted in headaches, PTSD, and depressive disorder. The Deputy Commissioner emphasized the severity of the fight and the resulting injuries to claimant as well as claimant’s limited job history and low IQ. Dr. Thomas Gualtieri saw the claimant for a one-time neuropsychiatric evaluation in September 2011 and opined that claimant was malingering. He testified in line with the same at hearing. Claimant then began seeing Dr. Edwin Hoeper, a psychiatrist, on his own starting in May 2012. Claimant was still seeing him as of the date of the hearing. Dr. Hoeper provided testimony for claimant that his PTSD would never be cured and that his treatment could only improve his life slightly. Dr. Hoeper testified that claimant was permanently and totally disabled, and unemployable in any job. Dr. Manish Fozdar also conducted a one-time independent medical examination of claimant. Dr. Fozdar found claimant to be uncooperative and opined claimant was malingering. He opined any further mental health treatment was not related to his initial injury. Defendants also hired a rehabilitation professional, who produced a labor market survey and identified several positions she believed claimant could perform. The defendants’ vocational expert never met with claimant and claimant did not hire his own vocational expert. 

Deputy Commissioner Harris determined that claimant was entitled to extended benefits beyond the 500 weeks. The Deputy Commissioner found that claimant had long-term chronic PTSD and chronic major depression, and that he had satisfied the requirements under N.C.G.S. § 97-29(c) and had proven by the preponderance of the evidence in view of the entire record that he “has sustained a total loss of wage-earning capacity.” Dr. Hoeper’s testimony was given more weight than that of Dr. Fozdar, Dr. Gualtieri, and the vocational rehabilitation professional. Thus, claimant was awarded extended benefits.

Defendants appealed to the Full Commission. On September 29, 2021, the Full Commission entered an Opinion and Award reversing Deputy Commissioner Harris’s Opinion and Award and denying claimant’s right to extended benefits beyond the 500 weeks, as well as his claim for PTSD. The Full Commission panel consisted of Commissioner Myra Griffin, Commissioner Kenneth Goodman, and Deputy Commissioner David Hullender. The Full Commission reviewed the evidence and testimony and noted that claimant had received no medical treatment for his physical injuries since 2012 and had no work restrictions related to those injuries. Additionally, the Full Commission noted that the Parsons presumption did not apply to claimant’s allegations of PTSD as it was not an accepted condition and found Dr. Gualtieri’s and Dr. Fozdar’ s testimony more creditable that that of claimant’s treating physician, Dr. Hoeper.  The Full Commission concluded that Dr. Hoeper relied solely on claimant’s subjective complaints without any diagnostic testing or objective finds to support his diagnosis of PTSD. They specifically noted that Dr. Fozdar and Dr. Gualtieri performed objective testing, which led them to conclude that claimant’s alleged mental conditions were not related to his work injury.  Accordingly, the Full Commission opined that claimant failed to prove that he suffered from PTSD or depression as a result of his work injury and did not prove that he lacked total wage-earning capacity. The Full Commission denied medical treatment for claimant’s alleged PTSD and denied his claim for extended benefits beyond the 500-week cap.

The next case, Mary Betts v. North Carolina Department of Health and Human Services and CCMSI, was issued on March 12, 2021, also by Deputy Commissioner Robert Harris. The claimant in that case graduated from high school and had CNA qualifications. She was a certified EMT, but her certifications had lapsed. Claimant worked as a health care technician and sustained her injury on August 12, 2011, while trying to restrain a combative patient. She sustained an injury to the ankle, which resulted in multiple surgeries. Claimant had sedentary work restrictions, but the treating physicians noted that, even while performing sedentary work, she would still experience pain and swelling and would need to elevate her foot every hour. Evidence showed that claimant remained involved with the Girls Scouts as a troop leader and summer camp director, volunteered with the PTA, cut her own grass, and did crafts. The vocational expert hired by claimant testified that claimant’s condition prevented her from being employable. Defendants also hired a vocational expert who did not meet or speak with the claimant and who did not contact any potential employers to discuss the claimant’s limitations. The vocational expert was unaware of claimant’s need to elevate her foot to prevent swelling and pain. The Deputy Commissioner found the defendants’ vocational expert report to be too general and not tailored specifically to claimant. Accordingly, the Deputy found that claimant had proven by the preponderance of the evidence in view of the entire record that she “has sustained a total loss of wage-earning capacity” because of this compensable long-term ankle condition. As such, claimant was entitled to extended benefits.

The third case, Michelle Brown v. NC Department of Public Instruction/Surry County Schools and Sedgwick, was issued on May 4, 2021, by Deputy Commissioner Jesse Tillman, III. The claimant was working as a teacher’s assistant at a high school on February 24, 2012, when she sustained an injury. Claimant worked for the county in multiple capacities in the past, including bus driver, substitute teacher, tennis coach, and band director, and had experience as a CNA, truck dispatcher, cashier, food preparation, a line worker, and phlebotomist. The claimant had permanent sedentary work restrictions; however, no doctor testified she could not work in at least some capacity. Claimant testified she rode a motorcycle a few times during the summer, used a riding lawnmower, could walk one to two miles without issue, bowled twice a week, cared for multiple animals, and actively swam. A vocational expert provided a labor market survey that showed the availability of jobs within claimant’s work restrictions. Claimant presented no evidence that she continued to suffer a total loss of wage-earning capacity. The Deputy Commissioner found that claimant could at least work a part-time, sedentary job. As a result, this claim for extended benefits was denied.

The fourth case is Martin Sturdivant v. North Carolina Department of Public Safety and CCMSI. The decision was issued by Deputy Commissioner Erin F. Taylor on May 5, 2021. In this case, claimant sustained a compensable back injury on August 31, 2011. He was a high school graduate and had completed some post-graduate courses. He was certified to drive a forklift, had training in blueprint reading, and had CPR experience. The claimant had been on his church’s Board of Trustees since 2008. On the date of his injury, claimant was working transporting inmates. Four of claimant’s physicians testified he could work and noted he could perform many of the essential functions of his prior job as a correctional officer. Claimant only started looking for work in January 2020 and produced a job log, but some of the entries were inaccurate. Defendants’ vocational expert met with claimant, performed a transferrable skills analysis, performed a labor market survey, and identified several jobs in the surrounding area that claimant was capable of performing. Claimant’s vocational expert testified claimant was unable to work at all and disagreed with the treating physicians’ work restrictions. However, the vocational expert did not contact any potential employers, did not perform a transferable skills analysis, and only looked for jobs in Anson County. As a result, the Deputy Commissioner afforded more weight to the defendants’ vocational expert and determined that claimant could not show a total loss of wage-earning capacity and was therefore not entitled to extended benefits beyond the 500-week cap.

The fifth case is Glendell Murphy v. North Carolina Department of Public Transportation. The decision was issued by Deputy Commissioner Robert Harris on August 6, 2021. Claimant was 56 years old and suffered a compensable right knee injury while working at a youth center. Claimant had a high school diploma, worked at a chicken plant for two years, was in the US army, worked as a correctional officer, worked as a counselor at a Methodist home for children, and worked as a delivery driver. He earned his associate degree in 2001, his bachelor’s degree in 2013, and his master’s degree in 2015; all in criminal justice. Claimant had prior issues with depression and treated through the VA, but never requested psychiatric treatment from defendants. Claimant testified he had not looked for work since 2016. The orthopaedic authorized treating physician stated claimant could work and earn wages, but claimant’s unauthorized psychiatric doctor opined that he could not work at all. Defendants hired a vocational expert who met with claimant, reviewed claimant’s medical records, and performed a labor market survey, which identified 12 jobs that claimant could do within his orthopaedic work restrictions. When the vocational expert was questioned about claimant’s depression, she testified that his psychiatric condition was a “concern regarding claimant’s employability.” Claimant did not hire a vocational expert, but the Deputy Commissioner opined that defendants’ vocational expert testimony did not support a finding that claimant had wage earning capacity, and as result, claimant was granted extended benefits.

The sixth case is George E. Tyson, Jr. v. North Carolina Department of Health and Human Services and CCMSI. The decision was issued by Deputy Commissioner Kevin Howell on August 12, 2021. Claimant in this case sustained a compensable injury to his lower back on October 8, 2011, while assisting a client from a wheelchair to a couch. Claimant was a 59-year-old high school graduate with some college education and a cosmetology certification. Claimant had previously worked as a seafood picker, cosmetologist, singer, custodian, and groundskeeper. Claimant was also an ordained minister and performed ceremonies for friends and family, but not for wages. He took online courses for psychology in 2016 and volunteered regularly at his church. Claimant’s treating physicians testified that claimant could work in the sedentary to light-duty category. Defendants’ vocational expert also testified that the claimant had the capacity for work. Claimant testified that he did not think he could work but provided no expert testimony to support this claim. The Deputy Commissioner determined that claimant could not show a total loss of wage-earning capacity. Therefore, claimant was not entitled to extended benefits beyond the 500-week cap.

The most recent case, as of the date of early November 2021, is Tapper v. Penske Logistics, LLC. This decision was issued by Deputy Commissioner Wes Saunders on October 7, 2021. Claimant sustained two compensable injuries to his back while delivering newspapers. He was 64 years old when the Opinion and Award was issued. His first date of disability was July 25, 2011. Following several surgeries, Dr. Dennis Bullard opined that claimant was totally disabled and precluded from gainful employment. Claimant was referred to Rex Pain Clinic for pain management, but his care was subsequently transferred to his primary care provider, Dr. Kirsten Avery, due to a lack of improvement. Dr. Avery saw claimant once every three months for medication refills. She testified that claimant lacked the functional capacity to return to work in any capacity. Deputy Commissioner Saunders found her testimony credible based on her familiarity with claimant and her status as claimant’s primary care provider for over twelve years.

Prior to the hearing, claimant obtained a second opinion evaluation with Dr. Charles Goodno and retained Michael Fryar as an expert in vocational counseling. Dr. Goodno did not have a complete copy of claimant’s medical records and did not consider that claimant was recovering from several unrelated surgeries when he tested claimant’s physical abilities. Consequently, Dr. Goodno’s testimony was given less weight by Deputy Commissioner Saunders because his opinions were based on incomplete information. However, Mr. Fryar testified that, because claimant had not been released to return to work in any capacity by any of his medical providers, his search for employment would be futile. Deputy Commissioner Saunders found Mr. Fryar’s testimony credible and concluded claimant had carried his burden of proving a total loss of wage earning capacity through Dr. Avery and Mr. Fryar’s expert testimony. Claimant was awarded extended benefits and ongoing medical compensation.  

Practical Takeaways for Jurisdictions with Statutory Caps

The decisions issued to date help to forecast what issues North Carolina appellate courts will consider when analyzing extended benefits cases. Below is a list of general takeaways on how to defend a claim for benefits beyond the statutory cap:

1.       Each case will be fact specific; documentation and communication remain critical.

2.       The claim will require the use of credible and, in many cases, multiple experts.

3.       Defendants should obtain solid expert opinions, both medical and vocational, that clearly support a finding that a claimant can participate in some form of employment.

4.       It is important to elicit detailed testimony, including dates, times, and follow-ups, from the claimant regarding his or her job search, or lack thereof.

5.       The vocational expert should meet with the claimant in person to identify jobs within the claimant’s labor market that are readily available in light of his or her work restrictions and educational and vocational background. Additionally, the vocational counselor should contact those potential employers to determine the likelihood that the claimant can secure employment within his or her work restrictions.

6.       The vocational expert should be provided an accurate summary of claimant’s work restrictions regardless of whether the condition has been accepted by defendants. Providing the vocational expert with claimant’s hearing testimony prior to his or her deposition should be considered.

7.       It is important to have a detailed understanding of the claimant’s job history, educational background, and daily activities, including volunteer activities, as evidence of the claimant’s wage-earning ability. 

8.       It will benefit the defense to develop solid medical evidence about the claimant’s loss of use or impairment ratings by highlighting the functionality of the injured body part.

Hearing requests for extended benefits are on the rise right now since there has been no guidance from the North Carolina Court of Appeals regarding the correct standard to be used when deciding these cases. These cases are fact specific and a full and complete understanding of the claimant’s medical, educational, and vocational history will be imperative. Defendants will need clear and strong expert testimony to prevail in these cases. 

We will continue to monitor extended benefits cases as they work their way through our court system. If you have any questions about extended benefits, please contact a member of our Teague Campbell’s workers’ compensation team.

In Florida, medical disputes before the Judge of Compensation Claims (JCC) are often handled with the appointment by the JCC of an Expert Medical Advisor (EMA). F.S. 440.13(9)(c) states in part:

If there is disagreement in the opinions of the health care providers, if two health care providers disagree on medical evidence supporting the employee’s complaints or the need for additional medical treatment, or if two health care providers disagree that the employee is able to return to work, the department may, and the judge of compensation claims shall, upon his or her own motion or within 15 days after receipt of a written request by either the injured employee, the employer, or the carrier, order the injured employee to be evaluated by an expert medical advisor.

The opinion of an EMA is presumed to be correct unless there is clear and convincing evidence to the contrary as determined by the JCC.   Thus, the appointment of an EMA in effect takes the litigation out of the JCC’s hands and the opinion of the EMA will for the most part  decide the disputed medical issues before him or her.   The presumption of correctness only attaches to the opinions responding to the precise questions asked of the EMA.

The First District Court of Appeal which hears all workers’ compensation appeals in Florida, recently issued two decisions involving EMAs.  The first case is ABM Industries, Inc. and ACE/ESIS v. Valencia, No. 1D20-2027 (Fla. 1^st DCA 2021).  In this particular case, the employer made an argument that the opinions of a physician chosen by the claimant through the one-time change of physician statute were not admissible.   However, as a contingent argument, the employer argued that if the opinions of the claimant selected physician were admissible, then the JCC must appoint an EMA because the claimant’s new physician has conflicting medical opinions with the prior treating physician.  The JCC after trial ordered that there was no dispute requiring the appointment of an EMA because it was not until the entry of judgment that the claimant’s new treating physician became authorized. 

The First DCA reversed and rejected this reasoning as flawed as a matter of both logic and law.   The appellate court held that the instant the JCC determined the claimant’s newly selected physician was authorized, it required the appointment of an EMA in light of the record conflict in the medical opinions.   While not groundbreaking this holding is an extension of existing case law from the First DCA that it is mandatory the JCC appoint an EMA when a disagreement exists between the opinions of two healthcare providers.  This is so even if the conflict becomes apparent after trial begins.

In another case, the Florida First DCA reaffirmed the necessity of appointing an EMA where conflicts in the medical evidence exist.   In Shelton v. Pasco County Board of Commissioners, No. 1D20-3511 (Fla. 1^st DCA 2021), the JCC did appoint an EMA who evaluated the claimant due to several conflicts in the medical evidence.   At trial the JCC struck the EMA’s opinions based on a Daubert objection raised by the claimant.[1]  The claimant moved for the appointment of a successor EMA, which the JCC denied.  The First DCA reversed the JCC once again holding that where conflicts exist in the medical evidence, an EMA must be appointed.   The striking of the EMA’s testimony and report did not resolve those conflicts so an alternate had to be appointed.   The end result was a remand with instructions to appoint an EMA for resolution of the conflicts in the medical testimony.

                                                                        Robert J. Grace, Jr.

                                                                        rgrace@bbdglaw.com

                                                                        Bleakley Bavol Denman & Grace

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