Simon Law Group, P.C.

720 Olive Street, Suite 1720, St. Louis, MO 63101

314-621-2828

MISSOURI WORKERS’ COMPENSATION CASE LAW UPDATE

July 2019 – September 2019

Claim Not Compensable Because Accident Caused Aggravation of Pre-Existing Condition but not a New Injury 

Jones vs. Orbital ATK (f/k/a ATK Alliant Techsystems, Inc.), Injury No. 13-031100

The claimant was walking at work when he stepped in a hole in the plant floor and twisted his right knee.  He previously underwent right knee surgery in 1999 for an ACL tear.  After his work injury, treatment was authorized with Dr. Samuelson, who noted significant DJD in the knee and findings indicative of chronic ACL deficiency, and the doctor opined that the claimant’s current condition was the result of degenerative changes and prior trauma.

Dr. Strong examined the claimant at the request of the employer and opined that the claimant had a severely arthritic knee and would require a total knee replacement.  However, Dr. Strong did not relate the need for a total knee replacement back to the work accident, which she opined caused a knee contusion.  Dr. Strong opined that the claimant would have needed a knee replacement at some point in time irrespective of the work accident.  At his attorney’s request, the claimant was examined by Dr. Stuckmeyer, who opined that the claimant’s physical exam was suspicious for a medial meniscus tear and recommended surgery.

At a Hearing, the ALJ held that the claimant did sustain an accident at work.  However, the ALJ found the opinions of Dr. Samuelson and Dr. Strong more persuasive than Dr. Stuckmeyer and held that the claimant did not sustain an injury as the result of the accident at work but instead had aggravated his pre-existing knee condition.  The ALJ differentiated this claim from the decision inTillotson by noting that the claimant in Tillotson had sustained meniscus tear as a result of his accident, but Dr. Strong and Dr. Samuelson credibly opined that the claimant sustained only an aggravation of his pre-existing condition without a new injury.  Therefore, the ALJ found that the claimant had not sustained a compensable injury as a result of his work accident and denied any benefits.  On Appeal, the Commission affirmed the ALJ’s decision and Award.

Claimant Not Injured in Course and Scope of Employment After Falling in Parking Lot Because Equally Exposed to Hazard or Risk of Tripping on Parking Island Outside of Work in Normal Non-Employment Life

Nugent vs. State of Missouri, Missouri State University, Injury No. 17-011083

On the date of injury, the claimant drove to a business center where she went to the Post Office on a personal errand.  She then decided to visit some work colleagues whose offices were located in the same business center to discuss something work-related.  After leaving the Post Office, she drove her car to the other end of the parking lot to be near the door of the Missouri State University offices.  As she was walking in the parking lot to go to those offices, she tripped on a parking island and sustained an injury to her wrist.

At a Hearing, the claimant testified that she lost her balance as she turned to head towards the building.  She was not carrying anything work-related at the time.  When asked whether there was anything defective in the area, she answered, “No! I missed a small curb that was clearly marked.”  Testimony also established that the claimant regularly used parking lots at Wal-Mart, an Urgent Care Clinic, a U.S. Bank, and two churches, and she also used the parking lot where she fell for non-work-related reasons such as using the Post Office.  Testimony established that these parking lots also had parking islands that were in similar or worse condition than the parking lot where the claimant fell.

The ALJ found that the claimant was not injured in the course and scope of her employment because the hazard or risk of injury was the parking island in the parking lot where she fell, which was a parking lot that she used outside of work in her normal non-employment life, and she was also routinely exposed to similar parking islands in similar parking lots in her normal non-employment life.  Therefore, the ALJ held that the employee was at least equally exposed, if not more exposed, to parking lots with similar parking islands outside of and unrelated to her employment in her normal non-employment life.  The ALJ also found that there was no particular defect to the parking island which caused an increased hazard or risk of injury greater than that in the parking lots she was exposed to outside of work.  Therefore, this injury was found to be not compensable.  On Appeal, the Commission affirmed the ALJ’s decision and Award. 

Editor’s Note:  Neither the ALJ’s opinion nor the Commission opinion discussed whether the parking lot was owned or controlled by the employer.

Court Reversed Commission Decision and Found Claimant Injured in Course and Scope of Employment Because the Risk or Hazard of Injury Was Slipping on Dirt/Ice on that Hallway Floor, and Claimant Was Injured in a Hallway Owned and Controlled by Employer

Annayeva vs. SAB of the TSD of the City of St. Louis and Treasurer of Missouri Custodian of the Second Injury Fund, Case No. ED107558 (Mo. App. 2019)

FACTS:  On January 8, 2013, the claimant, a teacher, sustained an injury when she slipped and fell.  She had just entered the school building using a general entrance and was carrying student papers and lesson plans, although she was not “clocked in” at the time.  She did not see any defects in the linoleum tile floor, and when filling out an investigation report, she did not mention any ice, salt, or dirt on the floor that caused her to slip and stated that she “could not determine the cause of the accident.”  The claimant alleged injuries to numerous body parts as well as a psychological injury.

At a Hearing, the ALJ found the claimant’s testimony was not credible and denied her claim due to lack of causation.  On appeal, the Commission affirmed the ALJ’s Award, but based on the grounds that the claimant was not injured in the course and scope of her employment.  The Commission found that nothing about the claimant’s work caused her to fall, and the hallway was “normal” where she fell.  When specifically asked by her attorney, the claimant testified that the floor was dirty and moist, but the Commission did not find her testimony credible and noted that none of the medical records noted any hazardous conditions on the hallway floor.  Therefore, the Commission found that the only risk source was that of walking on an even flat surface, to which the claimant was equally exposed in her normal non-employment life, and she failed to show that her injury arose out of and in the course and scope of employment.

HOLDING:  On appeal, the Court of Appeals reversed the Commission’s decision.  The Court held that when the Commission rejected the claimant’s testimony regarding the condition of the floor and found it was not credible, its opinion was based on conjecture and unsupported by sufficient competent evidence in the record, and the Commission’s Award did not provide a reasonable or substantial basis for refusing to believe the uncontradicted testimony of claimant.  With respect to the medical records, the Court also held that medical records were meant to provide proof of medical history and diagnosis, not proof of a hazard or risk present on the floor where the claimant fell.  Therefore, the fact that they did not mention dirt or ice on the floor was not persuasive.  The Court held that the claimant was injured in the course and scope of her employment because the risk of her injury was not simply walking on an even surface, it was walking in the employer’s hallway which was dirty with dirt and ice, where she walked every workday as a function of her employment.  The Court also found that it did not matter that the claimant had not yet clocked in at the time of her injury because the employer owned and controlled the hallway where she fell.  Therefore, the Court reversed the Commission’s decision and remanded the matter back to the Commission for additional findings with respect to medical causation.

Court Affirms Commission’s Decision that Claimant Not Employee of Ginger C, and Ginger C Not a Statutory Employer

Hayes vs. Ginger C, LLC and Treasurer of the State of Missouri Custodian of the Second Injury Fund, Case No. WD82256 (Mo. App. 2019)

FACTS:  Ginger C (GC) worked as a rental business and did not perform construction or have any employees.  It did hire three contractors, including the claimant, to repair and remodel buildings as needed.  On June 26, 2013, the claimant and two other contractors were performing a concrete job and sustained alkali burns from the concrete.  GC did not have workers’ compensation insurance.  The claimant sought PPD benefits from GC and the Fund. 

At a Hearing, the ALJ expressly found the claimant was not a credible as a witness, because his testimony was exaggerated and inconsistent with his deposition testimony and the testimony of the other two contractors and Mr. Asmar, GC’s owner.  The ALJ found that credible testimony established that GC did not issue W-2’s and instead issued 1099’s to each contractor, Mr. Asmar was never present at the job sites and did not control or direct the way that the claimant or other contractors performed their work, the claimant owned and used his own tools, he could choose the hours he worked, and he could turn down maintenance calls if he wanted.  Therefore, the ALJ found that the claimant was an independent contractor and not an “employee” under workers’ compensation.  The ALJ also found that GC was not an “employer” under workers’ compensation because GC’s regular business was apartment rental, not construction, and it did not have any employees.  Therefore, the ALJ denied any benefits.  On appeal, the Commission affirmed the ALJ’s Decision and Award.

HOLDING:  On appeal, the claimant argued that he was an employee of GC.  The Court noted that the key to determining whether a claimant is an employee or an independent contractor is the amount of control exercised by the alleged employer, and the Commission was correct in determining that GC did not exercise sufficient control over the claimant’s work to render him an employee.  The claimant also argued that GC was his statutory employer at the time of his injury.  The Court noted that the claimant was performing work for GC pursuant to a contract, and he was injured while performing work on GC property.  Therefore, GC may be a statutory employer if the work the claimant was performing at the time of his injury was in the usual course of GC’s business.  The Court noted that the claimant was injured while performing concrete work, and there was no evidence that concrete work was routinely performed by GC on its rental properties.  Therefore, there was insufficient evidence to find that GC would have been required to hire permanent employees to perform the concrete work absent the agreement with the claimant, and the claimant did not sustain his burden to establish a statutory employment relationship with GC.  The Court affirmed the Commission’s decision and Award.

Employer Liable for Shoulder Replacement Despite Pre-Existing Condition Because Surgery Reasonably Required to Cure and Relieve Claimant of Effects of Work Injury

Persley vs. The Parking Spot, Injury No. 14-079573

On September 4, 2014, the claimant fell and sustained an injury to his left shoulder.  X-rays and an MRI of the shoulder showed significant pre-existing conditions.  When the employer denied treatment, the claimant underwent unauthorized treatment with Dr. Satterlee, who performed a reverse total shoulder replacement on May 6, 2015.  Dr. Stuckmeyer examined the claimant at his attorney’s request and opined that he had pre-existing asymptomatic rotator cuff pathology as well as an acute injury due to the work accident, and he opined that the procedure performed by Dr. Satterlee was reasonably required to cure and relieve the claimant from the effects of the work injury.  Dr. Clymer agreed that the claimant had significant pre-existing conditions in the shoulder and opined the work accident aggravated the pre-existing condition and possibly caused some additional rotator cuff tearing and joint surface damage.  Dr. Clymer agreed that the shoulder replacement was the most reasonable approach given the claimant’s chronic degenerative problems, but he opined the prevailing factor causing the need for surgery was the claimant’s pre-existing condition rather than the work accident.

At a Hearing, the employer argued that it was not responsible for the medical treatment the claimant underwent with Dr. Satterlee because the claimant’s pre-existing chronic condition was the prevailing factor in causing the need for a total shoulder arthroplasty, not the work accident.  However, the ALJ noted that the prevailing factor was the incorrect standard.  Instead, pursuant to the Court’s decision inTillotson, an employer is required to provide treatment reasonably required to cure and relieve the effects of the injury.  The ALJ opined that the shoulder replacement was reasonably required to cure and relieve the claimant from the work injury, and therefore, the employer was responsible for paying for that treatment.  The ALJ ordered the employer to pay unpaid medical bills, provide future medical care, and pay TTD and PPD benefits.  On Appeal, the Commission affirmed the ALJ’s decision and Award. 

Injuries Sustained When Tripped by Authorized Treatment Provider Were Compensable

Schoen vs. Mid-Missouri Mental Health Center and Treasurer of the State of Missouri, Custodian of the Second Injury Fund, Case No. WD82258 (Mo. App. 2019)

FACTS:  The claimant initially complained of throat and eye irritation after exposure to Cypermethrin on May 8, 2009.  She sought emergency treatment on her own and returned to work immediately without limitations in regards to that exposure.  She had continuing complaints and was sent by the employer to Dr. Runde for evaluation on May 22, 2009.  While at Dr. Runde’s office, a person with a small dog was sitting in the waiting room.  The claimant was being escorted to an exam area for pulmonary function tests when Dr. Runde attempted to walk around the dog and accidentally tripped the claimant, causing her to fall.  She alleged injuries to her cervical and lumbar spine, left shoulder, and left knee as a result of her fall.

At a hearing, the ALJ found that the injuries the claimant sustained when she fell in Dr. Runde’s office were compensable injuries because she sustained them while seeking authorized treatment for the chemical exposure.  The Commission reversed the ALJ’s decision and Award and held that the injuries the claimant sustained at Dr. Runde’s office were not compensable, despite the fact that the claimant was undergoing authorized treatment, because those injuries were not the direct result of any necessary medical treatment for her primary injury, the Cypermethrin exposure.

HELD:  On appeal, the Court of Appeals reversed the Commission’s decision and found that the injuries the claimant sustained in Dr. Runde’s office were compensable.  The Court reasoned that the claimant was tripped while following her doctor’s directive, and being directed to and from other locations for testing is a part of authorized medical treatment.  Since the claimant was injured while undergoing authorized medical treatment, her injuries were a natural and probable consequence flowing from the original injury, and the original injury was the prevailing factor in causing her additional injuries.  The Court remanded the matter back to the Commission.

On September 27, 2019, Tom Kieselbach of Cousineau, Waldhauser & Kieselbach, P.A. (CWK) of Minnesota, was elected President of  NWCDN, the premier national network of defense counsel. Tom will be serving a one year term.

NWCDN consists of lawyers from 45 states and Canada. Only one law firm per state is invited for admission. CWK has been a proud member of this organization for years. NWCDN’s goal is to further the interests of insurance, risk and business professionals. We provide clarity on trends and developments locally and nationally. Annually NWCDN sponsors a cutting conference for clients and industry specialists. In 2019 the national conference was in Chicago. In 2020 NWCDN will be in Charlotte and Philadelphia. 

NWCDN also partners with LexisNexis in connection with the publication, “Workers Compensation Emerging Issues Analysis” (WCEIA). WCEIA tracks workers compensation trends and developments nationwide. We anticipate that the book will be available for purchase within the next few weeks. 

We congratulate Tom on taking the leadership role at the NWCDN. This is a singular honor for the firm. 

There are surprisingly few appellate division cases focusing on the employer’s obligation to provide continuing opioid treatment.  Martin v. Newark Public Schools, A-0338-18T4 (App. Div. October 4, 2019) is therefore one case practitioners should study closely. 

The case involved a reopener of an award for Samuel Martin of 15% permanent partial disability for aggravation of a pre-existing lumbar disc herniation and bulging disc.  Several years after the award was entered, respondent stopped paying for ongoing Percocet prescriptions.  Petitioner then filed a motion for medical benefits seeking reimbursement for continued prescription opioid medication that he was paying for himself.

The initial award occurred in November 2014. The treating physician, Dr. Patricio Grob, oversaw petitioner’s treatment from 2011 to 2017.  Petitioner was using opioids for much of this time.  In a note from his June 2016 examination of petitioner, Dr. Grob said that Percocet was controlling Mr. Martin’s pain poorly. He added that “prolonged narcotic use would not manage his radicular complaints … and can complicate recovery.”   Dr. Grob did suggest surgery, but petitioner declined surgery due to an unrelated blood condition which might cause complications. 

In Dr. Grob’s final medical note dated September 13, 2017, he wrote, “I would recommend an attempt to wean from Percocet and if we are unsuccessful, Martin would then need to consider having a discussion with a pain management specialist to see if there is any palliative standpoint that may be needed from a chronic management of Martin’s discomfort.”  It was the opinion of Dr. Grob that Percocet was not relieving Martin’s condition and would never improve it. 

On January 8, 2018, Martin saw Dr. Harris Bram, a pain medicine physician, for a one-time evaluation in support of petitioner’s motion for medical benefits.  Dr. Bram noted that petitioner’s MRI showed disc desiccation at L4-5 and L5-S1, and a disc herniation at L5-S1.  Dr. Bram noted that petitioner self-reported that Percocet abated his pain by about 60% and that he was more active on the medication.  However, Dr. Bram also reviewed petitioner’s history and noted that petitioner reported his Percocet provided only “small pain relief.”

Dr. Bram found only a few positive physical findings on physical examination.  Martin’s lower extremities were neurologically intact and his gait was normal.  Nonetheless, Dr. Bram found petitioner had low back pain, lumbar radiculopathy, and sacroiliitis.  He said “it was reasonable that Martin be on opioid medication on a long term basis for his pain.  I thought that was reasonable for him.”

The Judge of Compensation found that Dr. Grob was more persuasive than Dr. Bram, who was a one-time evaluator. The Judge commented that Dr. Bram “did not provide any medical evidence that such treatment will permit the petitioner to function better.” The Judge also found no evidence that continued opioid medication would relieve Martin’s pain.

Petitioner appealed and argued that the Judge misapplied the standard governing an application for palliative care.  The Appellate Division first noted that treatment is compensable if competent medical testimony shows that it is “reasonably necessary to cure or relieve the effects of the injury.” Hanrahan v. Twp. of Sparta, 284 N.J. Super. 327 (App. Div. 1995). The Court added that the Hanrahan case required that the treatment would “probably relieve petitioner’s symptoms and thereby improve his ability to function.”  The Court finally reflected that the Hanrahan decision concluded that there may be a point at which “the pain or disability experienced by the worker is insufficient to warrant the expense of active treatment.” Hanrahan at p. 336.

The Appellate Division suggested that Dr. Grob was in a much better position to opine on reasonable and necessary treatment in this case because he had treated petitioner for six years and had concluded that Martin’s pain had not been alleviated with medication or therapy. Petitioner argued that Dr. Grob had referred petitioner for pain management. The Court disagreed, “It was Dr. Grob’s medical opinion that if petitioner was unsuccessful in weaning himself from prescription opioid medication, Martin ‘would then need to consider having a discussion with a pain management specialist.’”  The point the Court was making was that the referral would only be needed if petitioner could not wean himself off opioid medication.

The Appellate Court was not impressed with the testimony of Dr. Bram because there were few objective physical findings on examination and no testimony that continued opioid use would reduce Martin’s pain symptoms and return him to better function.  The Court did not believe it was sufficient to order continued opioid medication with a mere assertion by Dr. Bram that continued opioid use was “reasonable.”

One other side issue in this case is worth noting as well.  Shortly before Dr. Grob was scheduled to testify at trial, petitioner’s counsel sought an opportunity to interview Dr. Grob ex parte.  Dr. Grob was not returning phone calls from petitioner’s counsel about a meeting.  The Judge of Compensation allowed the interview but only if respondent’s counsel was present since respondent’s counsel had made clear that Dr. Grob would be his witness in the motion trial.  The Judge of Compensation denied the request for an ex parte interview without respondent’s counsel.  Petitioner’s counsel argued that  his client had a patient-physician privilege and therefore he should have the right to an ex parte interview.

The Appellate Division found that the Judge of Compensation exercised proper discretion in requiring that both counsel be present for the interview.  This ruling is significant because it is the appellate case in workers’ compensation that comments on such an issue.

This case is very interesting for a number of reasons.  Paying for opioid medications – even after awards are entered – occurs with greater frequency in the last decade.   There seems to be a great deal of disagreement on when such continued opioid use is required past the point of MMI.  This case suggests a very practical solution:  there must be proof that the opioid medications are providing curative relief and proof that the continued use of opioids is improving the function of the injured worker.  This emphasis on function comes from the Hanrahan case.  In this case the surgeon made clear that opioid use would not improve function, would not relieve pain and might even create more complications.   The problem in this case was that petitioner could not present proof of improvement of function caused by continued opioid use over the many years the petitioner had been on Percocet.

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John H. Geaney, Esq., is an Executive Committee Member and a Shareholder 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. 

The New Jersey workers’ compensation system has one glaring drawback for employers, namely the absence of any formal discovery in traumatic injury cases.  There are no standard interrogatories in traumatic claims and no depositions.   The consequence of this is that claims sometimes get passed through workers’ compensation that really involve long-standing and preexisting conditions which no one asked the worker about.   There are many cases where preexisting conditions that may have been highly relevant are discovered only in the final IME for permanency long after surgery has taken place.  The defense IME physician will often question causation at this point, but it is too late to recover payments made by that time.

What should adjusters and treating physicians ask about when new claims arise?  There are numerous areas of inquiry that are important, but this blog will focus on only five main areas.  Before delving into past medical and life history, remember that knowing the mechanism of injury is the starting point in every case.  Best practice is to have the injured worker write down in his or her own words how the injury occurred and where the pain is located.  Once that is done, we move on to the past medical history.  Certainly in all states, particularly densely populated states like New Jersey, an important question is about past motor vehicle accidents.  If the answer is that the worker has been involved in prior motor vehicle accidents, this should be narrowed down to accidents which led to treatment along with the names of the treating physicians so that the adjuster or defense counsel can take steps to obtain prior records.  Yes, ISO reports are helpful but there are many cases where the ISO report does not reference a prior motor vehicle accident that the employee talks about.  Remember that the focus should not be just on prior car accidents but on prior accidents in general, such as slip and fall injuries, sports injuries and the like. 

Another critical area to inquire about for spine and shoulder cases concerns prior chiropractic history.  Why is this important?  Because prior chiropractic treatment records will often bear directly on any claim involving the shoulders or spine.  The records themselves often reference preexisting injuries, prior x-rays and prior MRI scans.  This information may be from many years ago or may be fairly recent.  If it is from many years ago, the information may still help the employer obtain credits for preexisting disability under N.J.S.A 34:15-12(d).  That may mean a cost savings for employers.  If the prior chiropractic treatment was close in time to the accident, the records may raise causation issues that may result a denial of the case or a Section 20 settlement.

That leads to our third important area of inquiry:  prior x-rays, prior MRIs, prior CT scans, and prior EMGs.  These are the studies that Judges of Compensation must focus on because the emphasis in New Jersey, when it comes to permanency, is on “objective medical evidence.”  All of these studies are considered to be objective evidence.  Employers are often surprised that their treating doctors do not ask specifically about these prior studies, but experienced workers’ compensation physicians will routinely ask about prior studies.   Defense counsel can write to opposing counsel and ask about prior studies and scans, yet there is no formal rule in New Jersey for exchange of such information.  That means that adjusters who do initial interviews are often in the best position to ask these questions, and initial treating physicians should also be asking questions along these lines. 

Prior and current hobbies and recreational activities are paramount.  Consider, for example, a worker who reports that many years of standing and lifting at work caused severe knee degeneration leading to a need for bilateral knee replacements.  As we know, total knee replacement surgery is performed because of a painful bone-on-bone condition that takes years to develop.  Yet seldom does one see specific questions about long-distance running, jogging or martial arts in the medical records.  These are activities that can cause or contribute to knee problems. 

Last but not least in the top five areas of inquiry (there are many more areas of importance, of course) are second jobs and other employment involving physical activities.  Many New Jersey residents have second jobs.  The state is an expensive place to live in, and a surprisingly large percentage of workers has secondary employment.  Many police officers and firefighters have second jobs because they have shift work with several days off in a row.   If a worker files a claim for carpal tunnel syndrome from occasional typing and answering phones at work, the adjuster and treating doctor should be asking about typing activities in any other job, Facebook and social media keyboard activities, and certainly part-time jobs such as working as a deli clerk or playing music professionally.    

Many years ago this practitioner had a bewildering case in which a worker with a sedentary job filed for a hernia claim from some minor physical effort at work.  The employer did not want to accept the traumatic claim and subsequent surgery because the accident seemed so minor.  The case went to trial.  In the course of testimony, the worker admitted to having a second job which he conceded was very physical: namely, tree climbing for 20 hours per week.  He admitted to having abdominal pain while performing this activity.  No one knows anything about this second job!  Why? Because the New Jersey compensation system does not have formal discovery.  This puts employers at a huge disadvantage.   The lesson is that sometimes the second job is much more physical than the full-time job for which the claim has been filed, but you won’t know about the second job if no one asks.

A recorded statement taken by an adjuster at the start of the case is invaluable to defense counsel, as are employee accident forms filled out by injured workers and detailed medical histories obtained by occupational and treating physicians.  We generally know what happened after the work accident, so there must be some time spent on taking a history of the injured worker’s prior injuries, jobs and recreational activities.  Without this information employers are often at a loss to make an intelligent decision on whether to accept or deny a case.  Causation is the threshold issue in workers’ compensation:  if it is not a work-related condition, the case should not be going through workers’ compensation.

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John H. Geaney, Esq., is an Executive Committee Member and a Shareholder 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. 

Employers are responsible for “accidents arising out of employment” under most state workers’ compensation laws.  What does this language really mean?  The easiest way to interpret this language is to consider whether the accident has a genuine connection to work or just happens to occur at work.

Take for example someone who is sitting at work talking to a colleague about a work matter when suddenly her jaw locks, causing severe pain and leading to treatment.  Would this be a work accident covered under workers’ compensation? It happened at work, yes, but what is the connection to work? The answer is that there is no bona fide connection to work activities.  Talking is something we do all day and does not amount to an accident.  If you consider the same scenario to have happened at home, where a husband is speaking to his wife when his jaw locks, one would certainly not call this a “home accident.”  Just as the home did not cause this to occur, neither would work be the cause of such an incident.  Some events just happen to occur at home or at work because we spend most of our time in these two locations.  These kinds of events could just as easily happen at the local supermarket or at a museum.

In much the same way, if one is walking from his den to his kitchen at home when his knee locks, leading to a visit to a knee surgeon for treatment, few would call this a “home accident” unless there was a fall on the floor or a collision with an object.  The same would be true at work: feeling leg pain while just walking is not an accident absent a fall or some other force acting on one’s body.  Yet we all know that claims like this get accepted all the time by employers because of a mistaken belief that something is compensable in workers’ compensation just because it happened at work.   The part of the equation that is often missed is that there must be some genuine connection to work, such as a slip and fall on a hard surface, a trip and stumble on a torn carpet, or a collision with an object at work.

The definition of an accident is “an unexpected event.”  So if a teacher is walking and a student comes barreling down the hallway, not paying attention, and slams into the teacher causing a hard fall and damage to the knee, that is an unexpected event clearly connected to work.  It both happens at work and arises out of work and is therefore compensable.

It remains this practitioner’s opinion that many cases get accepted in workers’ compensation that really have no connection to work other than that the event just happens to occur at work.  If you are at home, and you put on your overcoat on a cold day to go outside, when you feel a tear in your shoulder, you would not think that the home caused the tear in the shoulder.  The same is true if this happened to occur at work.  The reason such events often get accepted is that the employer sends the employee to a doctor, thinking the compensability decision depends on a doctor’s opinion.  It doesn’t.  The doctor then prepares a report and states the obvious: that putting on the coat caused a tear in the shoulder.  But the issue is a legal one not a medical one:  does it arise out of work, or is there a true work connection?  We all put our coats on during cold weather several times a day.  As a matter of law, not medicine, this tearing one’s shoulder while putting on one’s coat to go home is not an accident covered by workers’ compensation.  There is no work connection at all, and it just so happens that at this point in one’s life a tear occurred while from a personal action.

We all know this concept is true because we all have heard of cases where someone is driving a car and suddenly has a stroke.  Or someone is sitting at a chair at home or work when the stroke occurs.  Where the stroke happens to occur is simply pure coincidence because there is just no way for medicine to predict when a person who has risk factors will have such a cerebrovascular event.  But we do know that having a stroke sitting at one’s desk is not work related.  Those claims get denied and are won by the employer.  So think of “arising out of work” as meaning that there is a genuine “work connection.”

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John H. Geaney, Esq., is an Executive Committee Member and a Shareholder 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. 

OKLAHOMA TRENDS:

New Law

On May 28, 2019, the Governor of Oklahoma signed into law HB2367. An emergency provision made
the changes to the Oklahoma Workers’ Compensation Act effective at the time the Bill was signed at
2:51 p.m. The Bill deleted or modified 64 provisions of the Oklahoma Workers’ Compensation Act.

Changes to TTD and PPD

Due to space limitations, it would not be possible to cover all of the changes to the Oklahoma Workers’
Compensation Act. The rates awarded for injuries were increased to $867.71 for temporary total
disability (“TTD”.) The maximum number of weeks for TTD was also increased, in most cases, from
104 weeks to 156 weeks. The rate for permanent partial disability (“PPD”) was increased to $350.00.

Termination of TTD and Claims for Employment Retaliation or Discrimination

Employers are allowed to terminate benefits if an injured worker abandons medical treatment for 60
days or refuses to comply with an Order from the Judge. Jurisdiction for retaliatory discharge claims
had been in the Workers’ Compensation Commission since February 1, 2014, but the latest version of
the Act moved jurisdiction for those cases back to the district courts.

New Limitations Periods

The Statute of Limitations was shortened to 1 year from the date of injury or 6 months from the date of
last benefits paid, whichever is longer. A claim may be dismissed if after 6 months without payment of
benefits, no request for a hearing has been filed. An injured worker now has 6 months following an
Order for Permanent Partial Disability to file a request to reopen a claim based on a change of condition
for the worse.

Revivor

The changes create a revivor action for permanent partial disability after the death of an injured worker,
which was unclear under the previous law. Benefits are limited to the spouse and/or dependent children.

Limitation on Overpayment Credit for Wages Paid in Lieu of TTD

The previous version of the law allowed an employer which paid wages in lieu of TTD to collect an
overpayment back at the time of trial on permanent disability for any money paid in excess of the
maximum allowable amount of TTD, apparently based on the period of time or the maximum rate.
However, the latest Act does not allow the employer to collect the overpayment if the payments were
made pursuant to a collective bargaining agreement.

Jurisdiction

Oklahoma jurisdiction was not mentioned in the previous version of the law, which appeared to be a
glaring oversight. The current version clarified that the Act covers injuries in which the employee was
hired in the state or the accident occurred in the state. It does prevent double recovery in Oklahoma if
injured worker has received benefits in another state. It further extends jurisdiction to injuries that occur
on federal land.

© Copyright 2019 by John Valentine, Lott and Valentine, PLLC. Reprinted with permission.

Oklahoma-Trends-2019.pdf

La petite mort is more than a mere expression in France; it turns out it may actually constitute a compensable work injury. 

According to aNew York Post article of September 10, 2019, an engineer working for a Paris railroad construction company was on a business trip in February 2013 when he suffered a fatal heart attack in his hotel.   His death was determined to be an“accident du travail”—a work accident—thus allowing the deceased man’s family to claim benefits from the state and the employer.  Benefits were deemed payable in the amount of 80% of the decedent’s salary until his would-be retirement age, after which his beneficiaries would be entitled to a portion of his pension. 

The employer fought the determination, citing the non-work-relatedness of the married man’s activities at the time of his death, which occurred during a spontaneous round of adulterous intercourse with a local woman he had just met. 

However, an appeals court decided that the victim was under continuous coverage during his business trip, thus entitling him to benefits sustained via a work-related injury.  The Court equated the sexual encounter to any other “act of normal life like taking a shower or eating a meal.” Such romantics, the French.

(Editor’s note: alternate titles for this entry included “Really Dangerous Liaisons” and “French Kiss of Death”.)
 
Copyright 2019,Stone Loughlin & Swanson, LLP

The Division is once again bypassing public discourse in its latest effort at ad hoc rule-making. During the DWC’s August Workers’ Compensation seminar in Austin, Benefit Review Officers were instructed that an insurance carrier representative in a Benefit Review Conference must do more than merely state the conditions thus far accepted by their clients, he or she will be required to sign a Form DWC024 agreement to that effect.  In other words, a party’s assurance that a given set of conditions is not in dispute will no longer suffice; a formal and legally-binding agreement must be entered into instead.  

This new policy has yet to be circulated in writing to system participants for comment or questions, so much of what is known of it has been obtained anecdotally.  According to those we have spoken with, the Benefit Review Officer will ask the parties to sign a DWC024 accepting as compensable any conditions listed as such in a PLN-11 or DWC032 completed by the Carrier.  If the Carrier representative will not agree, he or she may be subject to a violation referral, and the heretofore undisputed conditions would then become part of an extent of injury issue. 

The goal of having the parties enter into such an agreement is ostensibly to minimize the number of previously accepted conditions that suddenly become disputed ones.  The Division has been silent as to why this policy does not create the very problem it was intended to solve.

The purported authority for this rule change is Section 415.002(a), which states that “[a]n insurance carrier or its representative commits an administrative violation if that person: (9) attends a dispute resolution proceeding within the division without complete authority or fails to exercise authority to effectuate agreement or settlement.”  Thus far presiding officers have not been swayed by protestations that PLN-11’s and DWC032’s are not legally-binding documents, that stipulated conditions can simply be memorialized in a Benefit Review Officer’s Report, or that accepted injuries may change as the medical evidence develops. 

In the meantime, Carrier representatives are faced with a difficult choice: either sign an agreement that is perhaps not in their clients’ best interests, or subject themselves to potential violation referrals if they refuse.
 
Copyright 2019, Stone Loughlin & Swanson, LLP

Two medical practitioners have run afoul of the Division’s Medical Quality Review Panel in recent months, both for having made unnecessary referrals. 

On September 3, 2019, Wilson A. Cochrane, a Physician Assistant, was the subject of an audit pertaining to nine cases in which he ordered lumbar MRI’s.  The Panel determined that in 100% of those cases, the ordered MRI was not reasonable or necessary, as at least one month of conservative therapy had not yet been administered.  Mr. Cochrane’s failure to apply the Official Disability Guidelines appropriately resulted in an administrative violation and a fine of $3,000.00.

In August 2019, Al Jameson, D.C., was scrutinized for his tendency to refer work comp claimants out for further testing in his capacity as a designated doctor.  In ten audited cases, he was found to have made unnecessary referrals 100% of the time.  It was determined that Dr. Jameson had not adequately explained in any of his designated doctor reports why the referrals for additional testing were necessary to resolve the questions posed to him.   The Panel concluded that he had committed a violation each time he made unnecessary referrals to other healthcare providers for additional treatment or testing, and for failing to explain as much in his DD reports. Dr. Jameson was removed from the Designated Doctor List for two years.
 
Copyright 2019, Stone Loughlin & Swanson, LLP