NWCDN Members regularly post articles and summary judgements in workers’ compensations law in your state.
Select a state from the dropdown menu below to scroll through the state specific archives for updates and opinions on various workers’ compensation laws in your state.
Contact information for NWCDN members is also located on the state specific links in the event you have additional questions or your company is seeking a workers’ compensation lawyer in your state.
Legal Update by Attorney Nick Cooling and Law Clerk Jordan Gehlhaar
Numerous decisions have interpreted the definition of “shoulder” since the Iowa legislature added it as a scheduled member under Iowa Code 85.34(n) in 2017. The most recent decision came on June 17, 2021 by Deputy Commissioner James Christenson in Bolinger v. Trillium Healthcare Group, LLC. Thus far, decisions have developed the definition of shoulder to include the rotator cuff muscles (Deng), labrum, and acromion (Chavez). Deputy Christenson distinguished this case from others, and concluded this permanent partial disability resulted from an injury to the body as a whole.
Claimant Bolinger had a pre-existing injury to her left shoulder resulting in bursitis with capsulitis. While employed by the Defendant, the Claimant fell on her left side and dislocated her shoulder. She underwent a shoulder reduction procedure, but continued to have pain and a limited range of motion. An MRI revealed subluxation of the glenohumeral joint, full thickness tears of the supraspinatus and subscapularis tendons, a partial tear of the infraspinatus tendon, and a torn biceps tendon.
Her treating physician did not believe the shoulder was fixable, and recommended a reverse shoulder replacement. This procedure is unique in that a prosthetic ball is pinned into the scapula (shoulder blade) and connects with a prosthetic joint that is placed into the arm bone. In effect, the ball and socket are reversed from the natural shoulder, and the surrounding muscles are utilized differently. Following surgery, the Claimant had an independent medical evaluation (IME) with Dr. Stoken, who found a 24 percent permanent impairment to the upper extremity, which converts to a 14 percent permanent impairment to the body as a whole.
Dr. Stoken opined that a reverse total shoulder arthroplasty extends proximally beyond the shoulder joint due to involvement of periscapular muscles and tendons, such as the rhomboids and trapezius. This procedure and post-operative physical therapy do not include the rotator cuff muscles, but rather the muscles of the upper back, which are proximal to the shoulder joint. For this reason, the Claimant’s shoulder injury was found to extend into the body as a whole.
Generally, compensation for unscheduled, body as a whole injuries is “paid during the number of weeks in relation to five hundred weeks as the reduction of the employee’s earning capacity.” Iowa Code § 85.34(2)(v). However, if an employee returns to work or is offered work for the same or greater earnings as the time of injury, then the employee will be compensated based on their functional impairment rather than their reduction in earning capacity. Claimant Bolinger returned to work with the Defendant at a higher wage. Therefore, she was statutorily limited to functional impairment of her injury, or 96 weeks of permanent partial disability benefits (400 weeks x 24 percent).
When an employee sustains an injury involving the shoulder region, medical records should be thoroughly reviewed to determine whether the injury involves bones, muscles, and tendons that are on the proximal side or distal side of the glenohumeral (shoulder) joint. Shoulder injuries are more likely to be scheduled when they are on the distal side of the joint, or involve the muscles of the rotator cuff rather than the muscles of the back.
Peddicord Wharton will continue to monitor case law on this issue.
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NOTICE TO THE PUBLIC
The determination of the need for legal services and the choice of a lawyer are extremely important decisions and should not be based solely upon advertisements or self-proclaimed expertise. This disclosure is required by rule of the Supreme Court of Iowa.
Peddicord Wharton Legal Updates are intended to provide information on current developments in legislation impacting our clients. Readers should not rely solely upon this information as legal advice. Peddicord Wharton attorneys would be pleased to answer any questions you may have about this update. ©2021 Peddicord Wharton. All Rights Reserved.
As of July 1, 2021, the maximum workers’ compensation payable is increased to $983.00 per week and the minimum is increased to $270.00 per week. The memorandum regarding the new minimum and maximum rates issued by the Director of the Alabama Department of Labor Workers’ Compensation Division, Steve Garrett, can be accessed at https://labor.alabama.gov/docs/guides/wc_weeklywage.pdf.
About the Author
This blog submission was prepared by Mike Fish, an attorney with Fish Nelson & Holden, LLC, a law firm dedicated to representing self-insured employers, insurance carriers, and third party administrators in all matters related to workers’ compensation. Fish Nelson & Holden is a member of the National Workers’ Compensation Defense Network. If you have any questions about this submission or Alabama workers’ compensation in general, please contact Fish by e-mailing him at mfish@fishnelson.com or by calling him directly at 205-332-1448.
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What happens when an injured worker gets a normal MRI study after a work injury but later on a second MRI shows an operable tear? Can the findings on the second MRI be related back to the original injury? The Appellate Division addressed that issue inCostanzo v. Meridian Rehab, A-5547-18 (App. Div. June 17, 2021).
Patricia Costanzo slipped and fell on April 1, 2016 while working at Meridian Rehab as a recreational aide. She felt pain in her left knee and underwent an MRI, which showed no tear and no fracture. It did show some prior osteoarthritis in the knee. Respondent paid for PT and a series of injections, and petitioner returned to work thereafter. She had a subsequent injury in August 2017 while walking on a beach (unrelated to work) and injured her right knee, requiring a meniscectomy.
The issue in this case arose when petitioner started feeling increased pain in her left knee in January 2018 and underwent a second MRI for the left knee. She denied reinjuring the left knee in the beach incident that injured her right knee. On this new 2018 left knee MRI, an anterior cruciate ligament tear and a meniscal tear could be plainly seen. Petitioner filed a motion for medical benefits for the left knee tear seeking payment from Meridian Rehab for surgery. Capehart Shareholder,Carla Aldarelli, Esq., handled this case successfully for Meridian Health System.
Petitioner’s expert, Dr. Cary Skolnick, testified that the new tears in the left knee were related back to the original accident of April 1, 2016. He stated that the action of striking the ground caused petitioner’s arthritis to worsen to the point where additional treatment was needed. Further, he opined that both the meniscus and ligament were stretched in the 2016 incident to the degree that only a few fibers were holding them together and those fibers eventually broke.
In contrast, the Judge of Compensation credited the testimony of Dr. Shawn Sieler, who diagnosed only a left knee contusion in the April 2016 fall. Dr. Sieler testified that petitioner fully recovered from this incident. Dr. Sieler was of the opinion that the meniscal and ACL tears “can only be explained by some subsequent traumatic accident.” He did not accept Dr. Skolnick’s theory about fibers in the knee being stretched to a breaking point. He noted that if arthritis was a factor, there was evidence before the April 2016 incident of arthritis in the knee.
The Honorable Salvatore Martino, Judge of Compensation found Dr. Skolnick’s testimony to be lacking in both credibility and logic. The judge observed that Dr. Skolnick did not directly address some questions posed to him, and he became somewhat argumentative with respondent’s attorney. Judge Martino said, “While it is clear that more severe pathology currently exists as compared to the time period closer to the injury date, there does not appear to be a reasonable connection between the mechanism of the injury and the current state of her pathology.” The judge found Dr. Sieler’s testimony on lack of causation to be more credible because it was more consistent with the order of the MRIs.
Petitioner appealed and argued that Judge Martino erred in assessing Dr. Skolnick’s credibility. The Court wrote, “Contrary to petitioner’s contentions on appeal, there was ample evidence in the record to support the judge’s conclusion that the current condition of petitioner’s left knee was not related to the injury she suffered when she fell at work in April 2016. At that time, petitioner suffered only a contusion. The MRI taken in June 2016 revealed no meniscus tear and no ACL tear. Although the MRI showed that petitioner had arthritis in the knee, this was a preexisting condition.”
For these reasons, the Appellate Division endorsed the conclusion of Judge Martino that there was no medical evidence that the arthritis in petitioner’s left knee had worsened as the result of the April 2016 fall.
The argument in this case occurs quite frequently in workers’ compensation. While every case is fact sensitive, the general rule for practitioners should be that when there are two MRIs that are vastly different from each other, the MRI closest in time to the work accident will generally control. If a subsequent MRI shows findings that did not appear in the first MRI close to the time of accident, it makes little sense to draw causation.
The analogy would be to a car that has a few tiny nicks on the windshield. A minor car accident occurs at some point and a photo taken a few weeks after the accident shows no change in the windshield at all. The nicks are exactly as they were. Two years later the owner gets in the car one morning and is shocked to find that there are now giant cracks all over the windshield. The entire windshield needs replacement. Under Dr. Skolnick’s theory, the minor car accident would be responsible as opposed to some other intervening event during the past two years. While anything is possible, the legal standard remains more likely than not. Under Dr. Sieler’s logic, the dramatic change in the windshield would be more likely due to some intervening event.
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John H. Geaney, Esq., is a Shareholder and Co-Chair in Capehart Scatchard's Workers’ Compensation Group. Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at jgeaney@capehart.com.
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Written by: Lindsay Underwood
The Commission has recently issued decisions in the first extended benefits cases, in which plaintiffs are arguing entitlement to benefits past the 500-week cap provided in the 2011 reform. The cases have only been heard at the Deputy Commissioner level but give some additional insight into how they may be treated in the near future while we await inevitable appeals to the Full Commission and Court of Appeals. As a reminder, to obtain benefits beyond the 500-week cap, the injured employee must request a hearing and present evidence supporting an allegation of a total loss of wage-earning capacity. The employee is only eligible to request a hearing on this issue after 425 weeks have passed from the first date of disability. In the cases below, the decisions are split.
The first case, Milton Nobles v. North Carolina DHHS and CCMSI, was issued by Deputy Commissioner Robert Harris on January 25, 2021. The plaintiff in that case had no formal education but did have a high school diploma. He had work experience primarily as a health care technician. On June 26, 2011, he was working for a hospital and sustained injury while breaking up a fight. He experienced a significant beating, which ultimately resulted in headaches, PTSD, and depressive disorder. Deputy Commissioner Harris determined that was entitled to extended benefits beyond the 500 weeks. The Deputy found that plaintiff had long-term chronic PTSD and chronic major depression and that he had satisfied the requirements under N.C. Gen. Stat. § 97-29(c), and he has proven by the preponderance of the evidence in view of the entire record that he “has sustained a total loss of wage-earning capacity.” Thus, he was entitled to extended benefits. The plaintiff presented expert evidence that the plaintiff was totally disabled from any employment and the defendants presented medical evidence that the plaintiff was not disabled at all. The case basically hinged on which medical expert was found to be most credible.
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 plaintiff in that case graduated from high school and had CNA qualifications. She was a certified EMT, but her certifications had elapsed. Plaintiff worked as a health care technician and sustained her injury on August 12, 2011, while trying to restrain a combative patient. She sustained injury to the ankle which resulted in multiple surgeries. Plaintiff had sedentary work restrictions. Evidence showed that plaintiff remained involved with the Girls Scouts as a troop leader and summer camp director, volunteered with PTA, cut her own grass, and does crafts. The vocational expert testified that plaintiff’s condition prevented her from being employable. The Deputy found that plaintiff 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, Plaintiff was entitled to extended compensation.
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 plaintiff was working as a teacher’s assistant at a high school on February 24, 2012 when she sustained injury. Plaintiff worked for the County in multiple capacities in the past, including bus driver, substitute teacher, tennis coach, band director, and had experience as a CNA, truck dispatcher, cashier, food preparation, a line worker, and phlebotomist. Plaintiff had permanent sedentary work restrictions. Plaintiff testifies that she rides a motorcycle a few times during the summer, uses a riding lawnmower, can walk 1-2 miles without issue, bowls twice a week, cares for multiple animals, and actively swims. A vocational expert provided a labor market survey that showed the availability of jobs within plaintiff’s work restrictions. Plaintiff presented no evidence that she continued to suffer a total loss of wage-earning capacity. The Deputy found that plaintiff could at least work a part-time, sedentary job. Plaintiff’s claim for extended benefits was denied.
The last new case is Martin Strudivant v. North Carolina Department of Public Safety and CCMSI. The decision was issued by Deputy Commissioner Erin F. Taylor on May 5, 2021. Plaintiff sustained a compensable back injury on July 23, 2013. He was a high school graduate and had completed some post-graduate courses. He was certified to dive a forklift, had training in blueprint reading, and had CPR experience. Plaintiff had been on his church’s Board of Trustees since 2008. On the date of his injury, plaintiff was working transporting inmates. Four of plaintiff’s physicians testified plaintiff could work and noted he could perform many of the essential functions of his prior job as a correctional officer. Defendants’ vocational expert also testified that plaintiff had capacity for work. It was determined that plaintiff could not show a “total loss” of wage-earning capacity and that the plaintiff’s wage earning capacity had not been destroyed. Thus, plaintiff could not show entitlement to compensation beyond the 500-week cap on benefits.
As you can see, the four decisions that have been issued to date have been a 50-50 split on entitlement to extended benefits. The cases are also very fact specific. What is clear from the decisions where entitlement to extended benefits has been denied is that the testimony from medical providers and a vocational rehabilitation specialist are necessary to support a finding that a plaintiff has wage earning capacity. Defendants should make sure to have good experts secured prior to the hearing, along with possible surveillance and a labor market survey. It is also helpful to have a complete picture of the plaintiff’s job history, educational background, and other activities outside of work or education, like the ability to exercise, do yardwork, or maintain positions on boards or as a volunteer. We will continue to monitor cases as they are issued at the Deputy level, and as they are appealed to the Full Commission and Court of Appeals.
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All too often holiday parties end with some unfortunate injury. Is such an injury covered in workers’ compensation? It depends on the circumstances. The Court in Regalado v. F&B Garage Door, A-0083-20, (App. Div. June 8, 2021), found that the injury in this case did not arise out of and in the course of employment.
Some of the facts in the case were undisputed. On Friday, December 23, 2016, the company hosted its annual holiday party at a local restaurant. The party was for employees, friends and family. No company clients or vendors were invited. The owner of the company, Frida Ferrera, said that the purpose of the party was to thank employees for their hard work throughout the year.
Petitioner, Ms. Regalado, invited her brother as in prior years. Since neither of them drove, the owner drove them to the party. The vehicle in which they all drove was owned by Martinez, who was not employed by the company. Everyone at the party except the owner consumed alcohol. No one was paid to attend the party nor compensated for travel time.
The parties also agreed on the circumstances of the accident. After the party ended, Ferrara drove first to her own home. She exited the vehicle and then Martinez, the car owner, got in the driver’s seat. Minutes later Martinez drove into a parked car, which caused the vehicle to flip over, resting on its roof. Petitioner and her brother were treated at the ER and petitioner required surgical procedures to her neck and jaw.
Petitioner filed a workers’ compensation claim petition. She argued that the owner told her she would not receive a holiday bonus if she did not attend the holiday party. This allegation and others made by petitioner were disputed. Petitioner also claimed that she received her cash bonus at the restaurant. During testimony, however, petitioner said that she would not have attended the party if transportation had not been provided.
Respondent produced three lay witnesses. They all testified that bonuses had already been paid prior to the holiday party. The owner denied saying that petitioner’s bonus was contingent on attending the party. The owner testified that the party was optional and there were no job ramifications for refusal to attend. Another employee testified that he attended the party for two years and was never told his bonus was contingent on attending. He also said the bonus was paid prior to the party.
The only documentary proof offered by petitioner was a bank statement listing her deposit history between December 9, 2016 through January 10, 2017. Those documents showed $540 was deposited on December 27, 2016. Petitioner’s math did not add up. She said this amount represented three days of pay at $60 per day plus a $300 cash bonus received at the party. That total was $480, not $540.
After hearing testimony on several days, the Judge of Compensation found petitioner not credible nor consistent. He observed that petitioner testified to receiving different amounts on different days of testimony. He also thought it was contradictory for petitioner to say that she would not have attended the party without transportation being provided but then maintain that her attendance was essentially mandatory. As for the bank deposit, the Judge of Compensation noted that there was no showing when petitioner received these funds. The judge dismissed the case and petitioner appealed.
The Appellate Division explored the requirements under N.J.S.A. 34:15-7. It noted that for a social activity to be compensable petitioner must prove that there is a benefit to the employer beyond improvement of health and morale. In this case the party was clearly about employee morale since only coworkers, friends and family were invited, not clients or vendors.
That left one remaining legal argument made by petitioner, namely that her attendance was mandatory. There is a line of cases in New Jersey that establishes compensability when an employee is required to perform some activity, whether recreational or social. The Court found no evidence that petitioner was in fact required to attend, or that there were threats of reprisal to her for non-attendance. The Court viewed the party as an informal gathering on an optional basis. It gave no weight to petitioner’s argument that her bonus was on the line because other witnesses made clear that the bonus was paid prior to the party. The Court agreed with the Judge of Compensation that petitioner’s statement that she would not have attended the party absent transportation conflicted with the so-called mandatory nature of the party.
The lesson from this case is that employers who wish to host holiday parties and other similar events should make clear in writing that attendance is optional and voluntary and that there are no adverse job consequences for non-attendance.
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John H. Geaney, Esq., is a Shareholder and Co-Chair in Capehart Scatchard's Workers’ Compensation Group. Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at jgeaney@capehart.com.
