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.
By: Tracey Jones and Chris Stipes
The increasing trend of employers to provide on-site medical staff can have numerous benefits for both employees and employers. Due to convenience, employees may be more likely to utilize the on-site medical services, leading to quicker identification of health issues and easier management of health care needs and costs for both parties. Employees may spend less time away from work dealing with medical issues, leading to fewer insurance claims. Essentially, on-site medical staff seems to encourage prevention, which is an overall cheaper and more effective method of health care. Unfortunately, a recent Court of Appeals decision has created concern over liability exposure for the employer.
The Workers’ Compensation Act has frustrated North Carolina employers because there is no “fault base” analysis in cases, however, the Act has afforded North Carolina employers “limited” liability in cases and allows employers to calculate their exposures with a much needed accuracy that is hard to obtain in the civil liability arena.
This benefit has been strained in Jackson v. The Timken Co., a recent decision from the North Carolina Court of Appeals published in May, 2019. The Court allowed a Plaintiff in a denied workers’ compensation claim to bring an action in civil court, potentially spoiling the exclusive remedy doctrine.
Plaintiff suffered a stroke while at work. His supervisor noticed Plaintiff was having difficulty completing work tasks and escorted him to the occupational health nurse (with 41 years of experience) who completed a physical examination of Plaintiff. Plaintiff walked without assistance, responded appropriately to questions, exhibited no weakness, followed commands, and had no change in speech, balance or facial feature. Plaintiff’s wife was called to pick him up. Plaintiff collapsed in the parking lot of his primary care provider’s office and was rushed to the hospital by EMS. He survived, but suffered permanent injuries.
Plaintiff first filed a workers’ compensation claim with the Industrial Commission. The parties stipulated that each party was bound by and subject to the North Carolina Workers’ Compensation Act, and noted the Industrial Commission had subject matter jurisdiction. While Plaintiff was waiting for the Industrial Commission to issue a decision, Plaintiff filed a complaint in Gaston County Superior Court. The employee alleged he was negligently diagnosed and treated by the on-site nurse. The Deputy Commissioner issued an Order denying Plaintiff’s workers’ compensation claim because Plaintiff did not suffer a compensable injury by accident, and Plaintiff did not appeal the Order. Defendants then filed a Motion to Dismiss for lack of subject matter jurisdiction in the Superior Court, which was denied. Defendants appealed.
The main issue is whether the Superior Court had jurisdiction over Plaintiff’s claim when the claim has already been heard and denied by the Industrial Commission because it does not fall under the scope of the Act. Unfortunately, the Court held that if the Industrial Commission lacks exclusive jurisdiction to hear a claim that occurs in the course of one’s employment, a trial court does not err in asserting subject matter jurisdiction over the claim.
In upholding the Superior Court’s decision to assert subject matter jurisdiction over this case, the Court contradicted the Supreme Court’s decision that the Act “provides the exclusive remedy when an employee is injured in the course of his employment by the ordinary negligence of co-employees.” Abernathy v. Consolidated Freightways Corp. of Delaware, 363 S.E.2d 559 (N.C. 1987). The Court tried to distinguish Abernathy on the basis that the Plaintiff alleged his co-worker was liable for breaching N.C.G.S. §90-21.12, our statute establishing a special duty for medical professionals when rendering care, and because, unlike in Abernathy, Plaintiff did not suffer a compensable injury by accident.
These weak distinctions do not help employers in North Carolina feel better about the Court’s analysis. Typically the only exception to the exclusive remedy doctrine happens when an employer’s conduct is intentional and substantially certain to cause serious injury or death, which is not the case here. The Court’s analysis on this question is concerning for two reasons. First, the Court seems to carve out an additional exception for claims asserted under the medical malpractice statute, which potentially increases exposures for employers that keep medical staff on site. Second, the Court seems to suggest that whenever a claim is denied by the Industrial Commission for not meeting the elements of a compensable claim, the Plaintiff has a second chance at a remedy by filing a civil suit. That seems to defeat the purpose of the exclusive remedy provision and opens the floodgate for ordinary workers’ compensation claims being heard in civil courts.
Risk Handling Tips: In light of this case, North Carolina employers must ask themselves whether having an occupational health professional on site to help their employees is worth the risk of being sued in civil court, which inevitably results in higher exposures. This Opinion was unanimous, but a Petition for Discretionary Review has been filed with the North Carolina Supreme Court.
On July 8, 2019, Governor Phil Murphy signed Senate No. 716 into law, a bill which makes sweeping changes to occupational disease claims for New Jersey public safety employees. There are many aspects of the new law, known as the “Thomas P. Canzanella Twenty First Century First Responders Protection Act.” The single most onerous provision in the bill for municipalities, counties and the State is the provision covering firefighters for a wide range of cancers that will now be presumed to be compensable.
With respect to firefighters, both paid and unpaid, the bill provides that firefighters under the age of 76 will be presumed to have work related occupational disease if the firefighter develops cancer, including leukemia, so long as the firefighter has completed more than seven years of service. The presumption means that if such a firefighter is diagnosed with cancer, the Judge of Compensation must presume that the cancer is work related. There is no need for a firefighter with more than seven years of active service under age 76 to identify specific exposures or fires that he or she fought. The burden of proof does not rest on the firefighter to prove his or her case. Rather, the employer will lose unless the employer can disprove the case by a preponderance of the evidence. To defeat the presumption created by this law, the employer has to prove that there is a greater than 50% chance that the cancer is not due to work exposure.
For a firefighter 75 years of age or under with seven years of service, the firefighter can seek workers’ compensation benefits for any type of cancer, even the most common cancers. The only limitation is that the cancer must be a type which may be caused by exposure to heat, radiation, or a known or suspected carcinogen as defined by the International Agency for Research on Cancer. That organization is part of the World Health Organization.
The problem for public employers in disproving a presumed cancer claim is that there are any number of contradictory and competing studies in the medical literature with respect to firefighting and cancer. Some articles say there is no link between firefighting and common cancers like prostate cancer and colon cancer, but others make the connection. Prostate cancer is the most common cancer in men, and the incidence climbs with age. There is more of a scientific consensus linking firefighting to certain skin cancers, multiple myeloma, lung cancer, malignant melanoma, leukemia and non-hodgkins lymphoma.
A firefighter with less than seven years of service can still file a claim, but he or she must meet a different and new standard pertaining to public safety workers. That provision states that a public safety worker is covered for workers’ compensation if he or she is exposed to a known carcinogen, cancer-causing radiation or a radioactive substance, including cancer. This section of the law specifically covers damage to reproductive organs. Again, there is a presumption of compensability, so the burden of proof shifts to the employer. But this section requires the public safety worker to show that he or she was exposed due to fire, explosion or other means to a known carcinogen, to cancer-causing radiation or radioactive substances. In addition, he or she must demonstrate that the injury, illness or death manifested during his or her employment as a public safety worker. The language regarding manifestation during employment is helpful to employers. However, this language is not included in the previous provision dealing with firefighters who are 75 years old or younger and have seven years of service.
Public safety workers are defined as follows:
1. Member, employee or officer of a paid, part paid or volunteer fire or police department;
2. State police member
3. Community Emergency Response Team member approved by the New Jersey Office of Emergency Management;
4. Member of certain correctional facilities;
5. Advanced medical technicians of a first aid or rescue squad;
6. Any other nurse or advanced medical technician responding to a catastrophic incident who is in contact with the public during such an incident.
Public safety workers who contract a serious communicable disease or related illness also shall have a presumption of compensability that the injury or illness is work related and compensable. The new law protects public safety workers who are exposed to secretions, blood or other bodily fluids of one or more other individuals as well as those who are exposed to any pathogen or biological toxin used in biological warfare or prevalent in epidemics.
The new law also applies to public safety workers who are injured or become ill while administering a vaccine including smallpox, or as part of an inoculation program in the workforce. Once again there is a presumption of compensability, but the employer can prevail if the employer can show by a preponderance of evidence that there is no link between the medical condition and work exposures.
In all of these new provisions, there is interesting language stating as follows: “The employer may require the worker to undergo, at the expense of the employer, reasonable testing, evaluation and monitoring of health conditions of the worker which is relevant to determining . . . whether the occupational disease arose from the employment.” This language seems to suggest that when the employer is presented with such a claim, the employer can then test and evaluate the worker going forward. It is not clear if this means that an employer can test existing employees who have not brought claims.
Here are a number of questions that clients are already asking:
Question: What can a public entity do to make sure that a public safety job applicant does not have a covered cancer when hired?
Answer: Public employers are strongly encouraged to perform post-offer medical examinations of public safety job applicants using a detailed questionnaire regarding medical conditions that the employee may already have. Readers can consult with the undersigned for advice on this questionnaire.
Question: How will employers know if public safety workers could have exposures to known carcinogens, cancer-causing radiation or a radioactive substance?
Answer: The new law requires public employers to maintain records regarding any instance in which any public safety worker is deployed to a facility or location where the presence of one or more substances which are known carcinogens is indicated in documents provided to local fire or police departments and where fire, explosions, spills or other events occurred which could result in exposure to those carcinogens. The law requires that the records must include the identity of each deployed public safety worker, and it requires that each worker must be provided notice of the records. This requirement also pertains to firefighters.
Question: What if the firefighter or public safety worker wears respiratory protection when attending a fire, spill or explosion? Does the employer still have to document all such workers?
Answer: This law makes no mention of documenting use of respiratory protection, but it will obviously be advisable to employers to include this information in documentation. Whether or not the public safety worker used respiratory protection, the new law requires the employer to document every public safety worker who appears at a fire, spill or explosion or other potentially hazardous event.
Question: Will DNA testing be allowed to determine whether a worker carries a certain cancer gene?
Answer: There is no discussion of the use of DNA testing, but this is an issue that will likely be addressed by the courts.
Question: Is the provision relating to firefighters limited to existing and active employees?
Answer: No, firefighters age 75 or younger are protected so long as they have not been out of active service for more than 20 years. This means that employers will be getting claim petitions for cancer-related conditions from firefighters who have long departed from active service. Employers should therefore retain records of exposures for decades.
Question: What impact will these new occupational disease laws have on our workers’ compensation programs?
Answer: The Office of Legislative Services estimates that the bill will most likely increase annual expenditures by State and local public entities that utilize public safety workers. The Office has no idea how much the increase will be. In this practitioner’s opinion, there will be substantial increased costs on public entities for medical, temporary disability and permanency benefits as well as defense costs and the cost of oncologists and other defense experts. More trials are likely because presumptions tilt the scales in the favor of workers.
Question: Does this new law apply to public safety workers and firefighters who have already retired?
Answer: This law is effective immediately, and the law does seem to apply to those who have already retired. There is no language restricting this law to existing employees of public entities. There will certainly be a sharp increase in the filing of workers’ compensation claim petitions in the public sector given that common cancers will now be presumed to be work related.
Question: How are public entities supposed to defend cancer claims of this nature?
Answer: Presumptions are very hard to overcome for employers. It will help that the employer has to disprove the claim by a preponderance of the evidence, as opposed to the initial draft of the law which required proof by clear and convincing evidence. Since cancer cases are going to be the main focus of the new bill, and since these claims will always involve high exposure, employers will need to retain lawyers and oncologists who specialize in complex occupational disease claims. Aggressive discovery not seen in ordinary workers’ compensation claims will now be paramount with special interrogatories almost certainly needed given the inadequacy of form occupational disease interrogatories.
Question: Should employers retain board certified internists as experts in future cancer claims?
Answer: Retaining board certified internists will not likely be sufficient to overcome a presumption of compensability since these cases will center on highly technical epidemiological studies done in many countries on cancer risks in firefighters and public safety workers. There will be a great deal of discussion of current thought by the International Agency for Research on Cancer. The cases will also center on the reliability of certain medical journals and studies, and oncologists are more familiar with these issues than other physicians. Although board certified oncologists will be more expensive to retain, employers will need experts with impeccable credentials in order to overcome the statutory presumption of compensability.
Question: Does this law eliminate the statute of limitations on occupational disease claims?
Answer: No, this bill does not mention or eliminate the provision that an employee has two years to file from the date when the employee knows he or she has a cancer condition and thinks it is related to work.
Public entities and third party administrators may contact the undersigned for additional advice on defending claims under this new statute.
--------------------------------
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.
On July 8, 2019, Governor Phil Murphy signed Senate No. 716 into law, a bill which makes sweeping changes to occupational disease claims for New Jersey public safety employees. There are many aspects of the new law, known as the “Thomas P. Canzanella Twenty First Century First Responders Protection Act.” The single most onerous provision in the bill for municipalities, counties and the State is the provision covering firefighters for a wide range of cancers that will now be presumed to be compensable.
With respect to firefighters, both paid and unpaid, the bill provides that firefighters under the age of 76 will be presumed to have work related occupational disease if the firefighter develops cancer, including leukemia, so long as the firefighter has completed more than seven years of service. The presumption means that if such a firefighter is diagnosed with cancer, the Judge of Compensation must presume that the cancer is work related. There is no need for a firefighter with more than seven years of active service under age 76 to identify specific exposures or fires that he or she fought. The burden of proof does not rest on the firefighter to prove his or her case. Rather, the employer will lose unless the employer can disprove the case by a preponderance of the evidence. To defeat the presumption created by this law, the employer has to prove that there is a greater than 50% chance that the cancer is not due to work exposure.
For a firefighter 75 years of age or under with seven years of service, the firefighter can seek workers’ compensation benefits for any type of cancer, even the most common cancers. The only limitation is that the cancer must be a type which may be caused by exposure to heat, radiation, or a known or suspected carcinogen as defined by the International Agency for Research on Cancer. That organization is part of the World Health Organization.
The problem for public employers in disproving a presumed cancer claim is that there are any number of contradictory and competing studies in the medical literature with respect to firefighting and cancer. Some articles say there is no link between firefighting and common cancers like prostate cancer and colon cancer, but others make the connection. Prostate cancer is the most common cancer in men, and the incidence climbs with age. There is more of a scientific consensus linking firefighting to certain skin cancers, multiple myeloma, lung cancer, malignant melanoma, leukemia and non-hodgkins lymphoma.
A firefighter with less than seven years of service can still file a claim, but he or she must meet a different and new standard pertaining to public safety workers. That provision states that a public safety worker is covered for workers’ compensation if he or she is exposed to a known carcinogen, cancer-causing radiation or a radioactive substance, including cancer. This section of the law specifically covers damage to reproductive organs. Again, there is a presumption of compensability, so the burden of proof shifts to the employer. But this section requires the public safety worker to show that he or she was exposed due to fire, explosion or other means to a known carcinogen, to cancer-causing radiation or radioactive substances. In addition, he or she must demonstrate that the injury, illness or death manifested during his or her employment as a public safety worker. The language regarding manifestation during employment is helpful to employers. However, this language is not included in the previous provision dealing with firefighters who are 75 years old or younger and have seven years of service.
Public safety workers are defined as follows:
1. Member, employee or officer of a paid, part paid or volunteer fire or police department;
2. State police member
3. Community Emergency Response Team member approved by the New Jersey Office of Emergency Management;
4. Member of certain correctional facilities;
5. Advanced medical technicians of a first aid or rescue squad;
6. Any other nurse or advanced medical technician responding to a catastrophic incident who is in contact with the public during such an incident.
Public safety workers who contract a serious communicable disease or related illness also shall have a presumption of compensability that the injury or illness is work related and compensable. The new law protects public safety workers who are exposed to secretions, blood or other bodily fluids of one or more other individuals as well as those who are exposed to any pathogen or biological toxin used in biological warfare or prevalent in epidemics.
The new law also applies to public safety workers who are injured or become ill while administering a vaccine including smallpox, or as part of an inoculation program in the workforce. Once again there is a presumption of compensability, but the employer can prevail if the employer can show by a preponderance of evidence that there is no link between the medical condition and work exposures.
In all of these new provisions, there is interesting language stating as follows: “The employer may require the worker to undergo, at the expense of the employer, reasonable testing, evaluation and monitoring of health conditions of the worker which is relevant to determining . . . whether the occupational disease arose from the employment.” This language seems to suggest that when the employer is presented with such a claim, the employer can then test and evaluate the worker going forward. It is not clear if this means that an employer can test existing employees who have not brought claims.
Here are a number of questions that clients are already asking:
Question: What can a public entity do to make sure that a public safety job applicant does not have a covered cancer when hired?
Answer: Public employers are strongly encouraged to perform post-offer medical examinations of public safety job applicants using a detailed questionnaire regarding medical conditions that the employee may already have. Readers can consult with the undersigned for advice on this questionnaire.
Question: How will employers know if public safety workers could have exposures to known carcinogens, cancer-causing radiation or a radioactive substance?
Answer: The new law requires public employers to maintain records regarding any instance in which any public safety worker is deployed to a facility or location where the presence of one or more substances which are known carcinogens is indicated in documents provided to local fire or police departments and where fire, explosions, spills or other events occurred which could result in exposure to those carcinogens. The law requires that the records must include the identity of each deployed public safety worker, and it requires that each worker must be provided notice of the records. This requirement also pertains to firefighters.
Question: What if the firefighter or public safety worker wears respiratory protection when attending a fire, spill or explosion? Does the employer still have to document all such workers?
Answer: This law makes no mention of documenting use of respiratory protection, but it will obviously be advisable to employers to include this information in documentation. Whether or not the public safety worker used respiratory protection, the new law requires the employer to document every public safety worker who appears at a fire, spill or explosion or other potentially hazardous event.
Question: Will DNA testing be allowed to determine whether a worker carries a certain cancer gene?
Answer: There is no discussion of the use of DNA testing, but this is an issue that will likely be addressed by the courts.
Question: Is the provision relating to firefighters limited to existing and active employees?
Answer: No, firefighters age 75 or younger are protected so long as they have not been out of active service for more than 20 years. This means that employers will be getting claim petitions for cancer-related conditions from firefighters who have long departed from active service. Employers should therefore retain records of exposures for decades.
Question: What impact will these new occupational disease laws have on our workers’ compensation programs?
Answer: The Office of Legislative Services estimates that the bill will most likely increase annual expenditures by State and local public entities that utilize public safety workers. The Office has no idea how much the increase will be. In this practitioner’s opinion, there will be substantial increased costs on public entities for medical, temporary disability and permanency benefits as well as defense costs and the cost of oncologists and other defense experts. More trials are likely because presumptions tilt the scales in the favor of workers.
Question: Does this new law apply to public safety workers and firefighters who have already retired?
Answer: This law is effective immediately, and the law does seem to apply to those who have already retired. There is no language restricting this law to existing employees of public entities. There will certainly be a sharp increase in the filing of workers’ compensation claim petitions in the public sector given that common cancers will now be presumed to be work related.
Question: How are public entities supposed to defend cancer claims of this nature?
Answer: Presumptions are very hard to overcome for employers. It will help that the employer has to disprove the claim by a preponderance of the evidence, as opposed to the initial draft of the law which required proof by clear and convincing evidence. Since cancer cases are going to be the main focus of the new bill, and since these claims will always involve high exposure, employers will need to retain lawyers and oncologists who specialize in complex occupational disease claims. Aggressive discovery not seen in ordinary workers’ compensation claims will now be paramount with special interrogatories almost certainly needed given the inadequacy of form occupational disease interrogatories.
Question: Should employers retain board certified internists as experts in future cancer claims?
Answer: Retaining board certified internists will not likely be sufficient to overcome a presumption of compensability since these cases will center on highly technical epidemiological studies done in many countries on cancer risks in firefighters and public safety workers. There will be a great deal of discussion of current thought by the International Agency for Research on Cancer. The cases will also center on the reliability of certain medical journals and studies, and oncologists are more familiar with these issues than other physicians. Although board certified oncologists will be more expensive to retain, employers will need experts with impeccable credentials in order to overcome the statutory presumption of compensability.
Question: Does this law eliminate the statute of limitations on occupational disease claims?
Answer: No, this bill does not mention or eliminate the provision that an employee has two years to file from the date when the employee knows he or she has a cancer condition and thinks it is related to work.
Public entities and third party administrators may contact the undersigned for additional advice on defending claims under this new statute.
--------------------------------
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.
Legal Update by Attorneys Alison Stewart andNick Cooling
A new electronic filing system has been implemented beginning July 22, 2019. The new system is known as Workers’ Compensation Electronic System, or WCES (pronounced “wick-ess”). The system will provide for electronic filing of all pleadings and documents with the Division and is intended to provide for more efficient scheduling of hearings, comprehensive case management, and greatly improved EDI transactions. New Administrative Rules have been passed and provide instructions for parties about how to appropriately navigate the new system. Those rules can be found at Iowa Administrative Code 876-2.5
Most of the changes will affect the practitioners, but Iowa Workers’ Compensation Insurance Carriers should be aware of the following:
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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 Legislative 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. ©2019 Peddicord Wharton. All Rights Reserved.
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One hundred years ago today, the Alabama Senate approved bill 26-1 which, when enacted into law the following month, became what is now known as the Alabama Workers’ Compensation Act. Much of the original 33 page Act has remained unchanged in the last century. Here are a few items from the original Act that have changed:
While all of the above parts of the law have all changed over the years, according to at least one Jefferson County circuit judge, some of the changes have not kept pace with the times. A little over 2 years ago, we reported that anAlabama Circuit Court Judge issued an Order declaring the entire Alabama Workers’ Compensation Act unconstitutional. Only 2 portions of the Act were actually deemed unconstitutional ($220 maximum weekly maximum for permanent partial benefits and the 15% contingency fee). However, our Act now contains a non-severability provision which means that if any portion of the Act is determined to be unconstitutional, then the entire Act is considered unconstitutional. Although the judge ended up staying the Order for 120 days to give the legislature more time to act, the case settled and the immediate threat was gone. That being said, the threat is certainly not gone and we can expect similar orders to be issued in the future at the state and possibly even the federal level if changes are not made soon.
In 1979, the New Jersey Legislature made sweeping changes to the Workers’ Compensation Act. Among those was the creation of a sliding scale on the Schedule of Disabilities found in N.J.S.A. 34:15-12c. The legislative intent was to award greater compensation to the more seriously injured worker. To accomplish this intent, the pertinent language in Section 12c says: “When a claim petition alleges more than one disability, the number of weeks in the award shall be determined and entered separately for each such disability and the number of weeks for each disability shall be cumulative when entering the award.”
Initially judges of compensation as well as appellant panels had mixed interpretations of the above section. The issue was resolved in 1984 with the New Jersey Supreme Court decision in Poswiatowski v. Standard Chlorine Chemical Co., 96 N.J. 321 (1984). Poswiatowski was actually a consolidation of three cases and the other two are: Fagan v. City of Atlantic City and Smith v. United States Pipe and Foundry Company.
In Poswiatowski, the petitioner fell in 1981 fracturing his back and left foot and received an award of 20% permanent partial disability for the back, 40% of the foot and 10% permanent partial disability for the neuropsychiatric component. The trial court, believing that the award should be entered separately, gave $6,924 (120 weeks @ $59) for the back, $4,328 (92 weeks @ $47.04) for the foot and $2,820 (60 weeks @ $47) neuropsychiatric for a total of $13,172. Petitioner argued that the total of the weeks should dictate the rate, and he should have been awarded 272 weeks at 50% SAWW (State Average Weekly Wage) or $33,456. The Appellate Division affirmed and the Supreme Court granted certification.
In the Fagan case, the petitioner, a public health nurse, was assaulted and robbed during the course of her employment. She suffered a concussion, fractured nose, facial scarring, sinus disorders, headaches, facial numbness and recurring nightmares. The compensation court awarded her 7 ½% permanent partial disability (45 weeks) for the fractured nose, 7 ½% permanent partial disability (45 weeks) for severe contusions of the scalp, lips and mouth with numbness, and 15% permanent partial disability (90 weeks) for the post traumatic nightmares. That totaled 180 weeks (30% permanent partial disability) at an average rate of $57.30 or $10,314. The Appellate Division reversed and modified the award to $8,460. ($2,115 nose + $2,115 contusions and numbness of face plus $4,230 nightmares). Again, the Supreme Court granted certification.
In Smith, petitioner received a significant crush injury to his right forearm resulting in numerous surgeries for vascular, orthopedic and cosmetic injuries together with skin grafts from petitioner’s abdomen and right thigh. The compensation court awarded 23% permanent partial disability (138 weeks @ $66) for the combination of the right hand and right leg (apportioned 50% of the hand and 5% of the leg), 10% permanent partial disability (60 weeks @ $47) for the cosmetic scarring of the abdomen and 12 ½% permanent partial disability (75 weeks @ 47) for neuropsychiatric residuals for a total of $15,468. Petitioner argued that he was entitled to 273 weeks at 50% SAWW or $33,759. The Appellate Division agreed with petitioner, finding that the compensation court’s interpretation was “inconsistent with the purposes of the 1980 amendments.”
The Supreme Court stated “(W)e believe that the Smith case best illustrates the method most consistent with statutory purpose.” The court added, “We hold that the weeks of compensation awarded for one accident’s multiple injuries that establish a single compensable disability should be cumulated, not separated, in computing the award.”
The Supreme Court went on to explain, “(O)f course, if the compensation judge uses the schedule as an aid in determining the extent of the award, such may be regarded as a reasonable finding if expressed in terms of permanent partial disability. Orlando v. F. Ferguson & Son, supra, 90 N.J.L. at 553, 102 A. 155. But the point of the Smith panel is to focus on the nature of the injury. The method of calculating permanent partial disability to two or more major body members under N.J.S.A. 34:15-12(c)(20), -12(c)(22), has not been affected by the 1980 amendments. The compensation court is not to determine the scheduled number of weeks for each injury separately; rather, it is to look at the effect of the injuries and to make a reasonable assessment of the extent of the combined disability in terms of a percentage of permanent and total disability. This requires the court to make a judgment about the extent of impairment resulting from the combined injuries without being limited by the statutory schedules. See Cooper v. Cities Serv. Oil Co., supra, 137 N.J.L. at 182, 59 A.2d 268; Orlando v. F. Ferguson & Son, supra, 90 N.J.L. at 557, 102 A. 155; Vishney v. Empire Steel & Iron Co., supra, 87 N.J.L. at 483-84, 95 A. 143.”
In further support the Court said: “(B)ut under the new schedule of benefits set forth in N.J.S.A. 34:15-12(c), the difference is of great significance. If the weeks due the injuries are added together when entering an award, more money is awarded. By the 1979 amendments, L. 1979, c. 283, § 5, the Legislature not only increased the weekly rate for permanent disability from a maximum of $40 to a maximum of 75% of statewide average weekly wage (SAWW), but also created a sliding scale of weekly dollar payments ranging from $47 where the adjudicated disability requires payment for 90 weeks or less, up to $82 for the last six weeks of disability for which 180 weeks of payments are required. Over 180 weeks of entitlement, there is a dramatic increase in weekly dollars payable. From 181 up to 600 weeks, disability is compensated from a low of 35% of SAWW (for disabilities drawing entitlement of from 181 to 210 weeks), to a maximum of 75% of SAWW (for disabilities falling within the 421- to 600-weeks bracket.)1 See **1259 Gothelf v. Oak Point Dairies of N.J., 184 N.J.Super. 274, 445 A.2d 1170 (App.Div.1982).”
Based on this logic, the Supreme Court reversed the appellate division decisions in Poswiatowski and Fagan and affirmed the decision of the appellate division in Smith.
Now let’s consider how stacking affects reopener claims and new accidents. Where an injury results in an award encompassing more than one body part, and the petitioner seeks to reopen that award under N.J.S.A. 34:15-27 for review and/or modification of the prior award, the petitioner need not allege an increase in disability to all affected body parts. Since the original award set the overall disability for the accident, an increase of disability to one part is added to the overall award. In effect, the prior award becomes the base.
For example, let us assume that petitioner receives an award for injury occurring in 2017 to his or her lumbar spine and left shoulder. The award is for 35% permanent partial disability apportioned 20% to the low back and 15% to the left shoulder (210 weeks x $418 = $85,260 assuming wages sufficient for maximum rates in 2017). In 2019 petitioner files an application for review and/or modification alleging an increase in disability to the left shoulder. The judge of compensation finds an increase in disability of 7 ½% of the left shoulder, taking into consideration the overall disability to the petitioner in 2019. The overall award must be increased to 42½% permanent partial disability apportioned 20% (unchanged) to the low back and 22 1/2% of the left shoulder. Because it is an extension of the original award, the award must be paid at the rates in effect for the year of the accident, which is 2017. (255 weeks x $522 = $133,110 less credit for the prior award of $85,260) The award calculation is made by going back to the beginning of the original award and changing the rate to $522 and paying the accrued weeks at the increased rate of $104 per week and the balance of the non-accrued weeks at the full $522.
In contrast to the example above, stacking does not occur with a new accident to one of several previously awarded body parts. Suppose our petitioner above received the original award of 35% permanent partial disability and then had a new accident in 2019 causing increased disability to the left shoulder only. The Judge of Compensation finds an overall disability to the left shoulder to be 22 1/2% permanent partial disability. That is 7.5% higher than the prior shoulder apportionment of 15%, but the new award is only based on the shoulder, not the low back. In effect, the shoulder can be separated from the previously stacked award. So the new award would be 22 ½ % permanent partial disability for the left shoulder minus a credit of 15 % preexisting with no mention of the back at all. The new award would equal 135 weeks x $271.33 or $36,630 credit $22,140 (15% @ the 2019 rate) or $14,490. Obviously, if the new award had been stacked on the prior back/shoulder award, it would have resulted in a great deal more money.
Notice in this example of the new 2019 accident impacting only the shoulder, that the rates must be those for 2019 for both the new award AND the credit. Obviously the new award should command 2019 rates since the new injury occurred in 2019, but the credit also jumps to 2019 rates, unlike the situation noted above for reopeners.
About the Author:
Prior to joining Capehart Scatchard as Of Counsel, Judge Hickey III (Ret.) served as the Compensation Administrative Supervisory Judge for the State of New Jersey from 1991 to 2009. Previous to his judgeship, he served as a Prosecutor in Gloucester County, New Jersey from 1986 to 1991
About the Editor:
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.
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MISSOURI WORKERS’ COMPENSATION CASE LAW UPDATE
April 2019 – June 2019
Work Accident Prevailing Factor in Causing Ankle Injury and Resulting Disability, Including Death Due to Pulmonary Embolism
Knutter vs. American National Insurance, Case No. SD35644 (Mo. App. 2019)
FACTS: On March 25, 2013, the employee sustained a non-displaced right ankle malleolus fracture, which was treated conservatively, and the claimant was advised to use a wheelchair. Less than two months later, she died as the result of a pulmonary embolism. The claimant filed a Claim for Compensation for death benefits on behalf of the employee.
Doctors disagreed as to whether the claimant’s ankle injury was the prevailing factor in causing the PE and death. Dr. Wright provided a report at the claimant’s attorney’s request and opined that the employee had underlying risk factors, but the employee’s immobility following her ankle injury was the tipping point that caused the PE. Dr. J. Mullins provided a report at the employer/insurer’s request and opined there was a lack of evidence directly tying the ankle fracture to DVT or a blood clot, and he noted that the employee had other contributing factors such as obesity, a sedentary lifestyle, obstructive sleep apnea, and chronic kidney disease, all of which raised her risk of DVT. Dr. Cross reviewed the medical records at the employer/insurer’s request and opined that without an autopsy, it was impossible to conclude that the claimant had DVT in the lower extremity that may have caused a PE to the lungs.
After a Hearing, the ALJ denied death benefits and opined it would be pure speculation to causally relate the PE back to the work injury since there was no autopsy or evidence in the medical records directly tying a blood clot or DVT to the claimant’s injury or the use of a wheelchair. On appeal, the Commission reversed the ALJ’s decision and Award. The Commission found the expert opinion of Dr. Wright credible and concluded that it was not coincidence that the claimant developed a PE just forty-five days after being confined to a wheelchair due to her injury.
HOLDING: The employer/insurer appealed the Commission’s decision, which was affirmed by the Court, who specifically found that the Commission’s decision was supported by sufficient competent evidence on the record and deferred to the Commission’s credibility determinations.
Claimant's Work as Firefighter Prevailing Factor in Development of Non-Hodgkin's Lymphoma and Claimant's Death
Cheney (Deceased), Cheney spouse vs. City of Gladstone, Case No. WD81939 (Mo. App. 2019)
FACTS: The claimant, a longtime firefighter, developed non-Hodgkin’s lymphoma (NHL). He filed a workers’ compensation claim, underwent treatment, and subsequently died as a result of the disease on May 22, 2014. He was exposed to smoke and other emissions during his work as a firefighter, including fumes from burning household objects that contained toxins and carcinogenic chemicals. He was also regularly exposed to diesel fumes in the fire station due to poor ventilation.
Dr. Lockey and Dr. Koprivica testified that the claimant’s occupational exposure as a firefighter was the prevailing factor in causing his NHL. Dr. Lockey cited a statistical correlation between firefighting and NHL. Dr. Shah testified on behalf of the employer that NHL has no known cause and is a disease to the lymphatic system, not the respiratory tract or cardiovascular system, and age, race, and obesity are known risk factors for NHL. The claimant’s treating oncologist also opined in a report that it is impossible to know the cause of NHL.
At a hearing, the ALJ found that the claimant failed to prove that his job duties as a firefighter were the prevailing factor in causing his NHL and opined that statistical correlation does not equal causation. On Appeal, the Commission reversed the ALJ’s decision and Award and held that with respect to occupational disease, the claimant does not need to establish causation to a medical certainty. The Commission found the claim compensable because there was an increased risk of contracting NHL as a result of occupational exposure as a firefighter, and the employer was ordered to pay death benefits to the claimant’s dependent widow.
HOLDING: The employer appealed, and the Court of Appeals affirmed the Commission’s decision and Award. The Court noted that the Commission had expressly found the expert opinions of Dr. Lockey and Dr. Koprivica the most credible and persuasive with respect to causation and the prevailing factor in the development of the claimant’s NHL, and it declined to disturb the Commission’s credibility findings.
Court Reversed Circuit Court Decision Granting Summary Judgment Finding a Genuine Issue of Material Fact as to Whether Defendant Engaged in Affirmative Negligent Act That Purposefully and Dangerously Caused or Increased Risk of Injury to Employee
Mems vs. Labruyere, Case No. ED106319 (Mo. App. 2019)
FACTS: On June 27, 2013, the defendant was removing a heavy overhead roller door from a mechanical assembly and caused the door to suddenly detach and fall onto the claimant, causing injury. The Circuit Court granted summary judgment at the defendant’s request, holding that the employee failed to establish a genuinely disputed fact that the defendant engaged in “purposeful, inherently dangerous conduct.” The employee appealed.
HOLDING: The Court of Appeals first looked to whether the defendant breeched a duty owed to the employee by engaging in “an affirmative negligent act that purposefully and dangerously caused or increased the risk of injury.” The Court first found that the defendant performed an affirmative act by loosening the bolts and prying the roller door loose from its wall anchors. It also held that the defendant’s actions werepurposeful because he meant to do the physical acts of
detaching the bolts and prying the roller door. He did not need to intend to cause harm for his actions to be purposeful. The Court then found that there was sufficient evidence for a jury to find that the defendant’s actions werenegligent and dangerously caused or increased the risk of injury to the employee. The Court also found that the defendant’s actions created a transitory risk to the employee that was not reasonably foreseeable by the employer, and therefore, he breached a duty that was separate and distinct from the employer’s non-delegable duty to provide a safe workplace. Therefore, the Circuit Court’s award of summary judgment was reversed, and this matter was remanded for trial.
Compensable Injury Because No Evidence Claimant was Equally Exposed to Hazard or Risk of Injury of Pulling 2-Wheeled Cart Through Congested Doorway Outside of Work in Non-Employment Life
McDowell vs. St. Luke's Hospital of Kansas City, Case No. WD82076 (Mo. App. 2019)
FACTS: The claimant had a pre-existing hip condition which caused her to use a support cane and transport her belongings between her vehicle and work using a 2-wheeled rolling cart. She parked in a parking garage at work, where she frequently encountered other people. On her date of injury, the claimant went through a door in the garage and attempted to maneuver to the right to avoid another employee, at which time the wheel of her rolling cart pulled and caught on the door frame, causing her to fall to the ground and fracture her left wrist.
At a hearing, the claimant testified that she only used the cart when arriving to and departing from work, and she exclusively used the north parking garage because it was the door closest to her destination. The ALJ found the claim compensable because the risk source was pulling a cart of work-related supplies through a congested entryway, which was related to the workplace and not a risk source the claimant would be likely to encounter in her non-work life. The Commission affirmed the ALJ’s decision and Award, and the employer appealed the Commission’s decision.
HOLDING: On appeal, the Court held that the Commission did not err when it held that the claimant’s injury arose out of and in the course and scope of employment. The employer first argued there was no causal nexus between the claimant’s use of the rolling cart and her work because the cart was not necessary for her to complete her work. However, the Court found that the risk source of the claimant’s injury was the door frame of a congested exit, and there was no evidence to suggest that the claimant was equally exposed to the cause of this injury outside of work. The employer also argued that the risk of injury was unrelated to the claimant’s work because she only used the cart due to her prior hip replacement. However, the Court held that an using an assistive device due to a pre-existing condition does not render an injury involving the use of that assistive device non-compensable.
Claimant Not Injured in Course and Scope of Employment Because Equally Exposed to Risk Source of Descending Stairs Outside of Work in His Normal Non-Employment Life
Marks vs. Missouri Department of Corrections, Injury No. 17-086644
The claimant was required to perform security checks and cell searches, which required him to go up and down stairs at work. On his date of injury, he was descending the stairs when he mis-stepped off a stair, felt his right knee twist, and injured the same. He reported the injury, but no treatment was authorized by the employer. He completed a questionnaire four days after the accident wherein he denied that he was responding to a code or other emergency-type situation, that he was distracted for any reason while on the stairs, that he was carrying anything at the time, that there were any offenders in the area, or that there was anything on the floor or physically wrong with the steps. When asked specifically to state what caused his injury, the claimant answered that he “stepped off the step wrong.”
At a hearing, the claimant testified that he also uses stairs outside of work to access his apartment. He did not testify that there was anything physically defective about the stairs. The claimant did testify that he was performing security training and was looking back for another officer to ensure her safety when he missed the step. However, the ALJ did not find his testimony credible in light of the fact that it was inconsistent with his prior statements just four days after the date of injury.
The ALJ held that the accident and injury did not arise out of and in the course and scope of employment because the hazard or risk of injury was descending stairs and stepping wrong, which was unrelated to the claimant’s employment, and the claimant was equally exposed to that risk outside of work in his normal non-employment life. The ALJ found that the claimant was simply walking down the stairs and was not carrying anything, responding to a code, hurrying to complete a task, distracted, or looking for a co-worker. The ALJ also found there was nothing on the stairs, and the stairs were not physically defective. The ALJ further opined that even had the claimant been looking at his co-worker and attempting to complete a task in a timely manner, the only risk source in this case was walking down stairs. Therefore, the ALJ found that the claimant failed to meet his burden of proof that he sustained a compensable injury. On Appeal, the Commission affirmed the ALJ’s Decision and Award.
Windsor Not Liable for Benefits as Statutory Employer, Because ALJ Found No Joint ans Several Liability with Primary Employer, A Staffing Agency
Chilton vs. Productive Staffing Ajinomoto Windsor Inc., Injury No. 15-098442
The claimant was hired by staffing agency Productive Staffing (PS) to work at Windsor Foods (WF), where he performed maintenance work. He received paychecks through PS, but daily instructions were given by his supervisors at WF. PS had a contract with WF noting that PS would provide all workers’ compensation insurance for employees. The claimant had an employment contract with PS but not with WF. On December 22, 2015, claimant sustained an injury to his right hand. PS authorized treatment and paid TTD. The claimant filed a Claim for Compensation against both PS and WF. PS filed a timely Answer, but WF did not. The claimant reached a settlement agreement with PS and then pursued additional benefits against WF.
At a hearing, the claimant argued that WF was a statutory employer. The ALJ noted that a 3-part test determines statutory employment, including whether: the work at the time of the injury was being performed pursuant to a contract; the injury occurred on or about the premises of the alleged statutory employer; and the work was performed in the usual course of the alleged statutory employer’s business. The ALJ found that all three parts of the statutory employment test had been met, and WF was a statutory employer of claimant. However, the ALJ also held that WF was not liable for benefits because PS was the immediately employer, and pursuant to statute, no other employer shall be liable if the employee was insured by his immediate employer, which was the case here.
The claimant argued that PS and WF were joint employers and were jointly and severally liable for benefits. However, the ALJ rejected this argument and held that PS and WF were not joint employers. The ALJ noted that joint employment occurs when a single employee is under contract with two employers, under simultaneous control of both, and performs services for both employers, and the services are the same or closely related to that of the other. The ALJ noted that the claimant had an employment contract with PS but not with WF, and there was no persuasive evidence of simultaneous control or that the claimant provided services for both employers that were the same or closely related. Therefore, the ALJ denied the claim against WF. On appeal, the Commission affirmed the ALJ’s decision and Award.
Court of Appeals Reversed Commission Decision and Found That Employer That Went Out of Business Before 2014 Could Still Be Liable for Enhanced Benefits by Fully Insuring Its Liability for Occupational Disease at Time of Last Exposure
Hegger vs. Valley Farm Dairy Company, Case No. ED106278 (Mo. App. 2019)
FACTS: The employee was last exposed to asbestos through the employer in 1984. The employer went out of business in 1998. The employee then died in 2015 from mesothelioma caused by exposure to asbestos while working for the employer. He initially filed a Claim for Compensation, and his children subsequently sought benefits after his death.
At a Hearing, the ALJ addressed the sole issue of enhanced benefits under Section 287.200.4(3). The ALJ found that the claimant was last exposed to asbestos while working for the employer, and his exposure was the prevailing factor for his diagnosis of mesothelioma which resulted in his death. However, neither of the insurers who insured the employer during the claimant’s dates of employment were liable for paying enhanced benefits because the enhanced benefits provision did not go into effect until January 1, 2014. The ALJ reasoned that the employer could not possibly have elected to be liable for enhanced benefits, because it went out of business in 1998. The ALJ also held that insuring its liability for occupational diseases in 1984 did not qualify as electing to be liable for enhanced benefits, which are separate from and additional to benefits otherwise payable for an occupational disease. Therefore, the claimant was not entitled to enhanced benefits. On Appeal, the Commission affirmed and adopted the ALJ’s decision and Award.
HOLDING: On appeal, the claimants argued that the Commission erred because the employer did elect to accept liability for benefits under strict construction when it insured its liability at the time of last exposure and the employer was not required to provide the Division with notice of an election to accept liability. The Court of Appeals first noted that the employer was fully insured on the date of last exposure and held that this meant the employer had elected to accept liability for any occupational diseases that manifested from that exposure “regardless of the length of time” it took for the occupational disease to manifest and be compensable. The Court held that it did not matter that the statute regarding enhanced benefits did not exist at the time of last exposure. With respect to the claimants’ second point on appeal, the Court noted that employers could accept liability for enhanced benefits by “insuring their liability, by qualifying as a self-insurer, or by becoming a member of a group insurance pool.” The Court concluded that under strict construction of the statute, only employers who chose to become a member of a group insurance pool were required to provide notice to the Division of an election to accept liability for enhanced benefits. Therefore, the Court reversed the Commission’s decision and Award and remanded this matter to the Commission to determine which insurer is liable for paying enhanced benefits.
Employer/Insurer Liable for PTD After Rotator Cuff Tear Due to Permanent Lifting Restrictions, Age, Education, and Other Life Factors
Duarte (Deceased), Dobrauc vs. Butterball, LLC and Treasurer of Missouri as Custodian of Second Injury Fund, Injury No. 09-111523
The 76-year-old claimant obtained degrees in political science and law in Peru and also worked as an accountant, secretary, and owned two businesses while in Peru. When he immigrated to the United States in 2003, he was 63-years-old, spoke very little English, and did not have a U.S. driver’s license. He briefly worked for a florist and then on the line at a cereal plant before he started working for the employer, where his job duties involved pulling skin and cutting meat off of hanging turkey carcasses on the line using his right arm. The claimant developed right shoulder pain, and he was diagnosed with a chronic rotator cuff tear and underwent two unauthorized shoulder surgeries in 2009 and 2010. He has not worked since March 31, 2009. He did collect unemployment benefits for a time in 2010 and 2011. Although the claimant had prior medical conditions including cataracts, DDD in the lumbar and cervical spine, and tenosynovitis in the left wrist, he denied that those conditions hindered or impaired his ability to work prior to 2009.
Dr. Volarich examined the claimant at his attorney’s request, causally related the claimant’s right shoulder condition and need for surgery back to his job duties, placed the claimant at MMI, and recommended permanent lifting restrictions for the right arm. Dr. Parmet examined the claimant at the employer/insurer’s request and opined that the prevailing cause of his need for treatment was age and preexisting arthritis, although his job duties could have aggravated his condition. Mr. Eldred provided a vocational report at the request of claimant’s counsel and opined that the claimant did not have a preexisting disability that constituted a hindrance or obstacle to employment and was PTD as a result of the primary injury alone. Mr. Dreiling provided a vocational report at the employer/insurer’s request and opined that the claimant was unemployable due to a combination of his primary injury and preexisting conditions.
At a hearing, the ALJ found the opinions of Dr. Volarich and Mr. Eldred more credible than the opinions of Dr. Parmet and Mr. Dreiling and held that the claimant sustained a compensable injury by occupational disease to his right shoulder. The ALJ also noted the claimant’s 5-pound lifting restriction, noted that he did not have any permanent restrictions before 2009, and found the claimant PTD as a result of the primary work injury alone. The ALJ opined that although the claimant was previously limited to manual labor by his age, education, and other life factors, these were not pre-existing disabilities that triggered Fund liability. The ALJ ordered the employer/insurer to pay TTD benefits from April 1, 2009 until his last office visit with Dr. Lieurance on April 29, 2010 as well as PTD and future medical. On appeal, the Commission affirmed the ALJ’s decision and Award with a supplemental opinion, wherein it held that the claimant’s MMI date was the date of Dr. Volarich’s examination on June 12, 2013, because it was the first medical record to expressly address MMI. However, the Commission also held that the claimant was not entitled to TTD during the periods in 2010 and 2011 where he was receiving unemployment.
Claim Barred by Statute of Limitations Because Medical Payments Made in Kansas Did Not Toll Statute of Limitations in Missouri Under Strict Construction
Austin vs. AM Mechanical Services and Missouri State Treasurer as Custodian of the Second Injury Fund, Injury No. 11-112011
On March 10, 2011, the claimant sustained a neck injury and also had complaints in his wrists and shoulder. He underwent a multi-level cervical fusion as well as surgeries on the bilateral wrists/hands and right elbow. The claimant’s injury occurred in Kansas, but he entered a contract for employment in Missouri. He previously settled a workers’ compensation case referable to this accident in Kansas. The claimant testified that he was under duress at the time of the settlement, which closed out all claims in all jurisdictions for injuries related to the date of injury. This was approved at a conference before an ALJ in Kansas.
At a Hearing in Missouri, the ALJ held that he did not have jurisdiction to rule on the validity of the Kansas settlement, and there was no evidence showing that the employer pressured, forced or coerced the claimant into the settlement agreement. The ALJ noted that he must give full faith and credit to the Kansas settlement agreement and denied the claimant’s claim for benefits in Missouri against the employer.
The ALJ also noted that the claim against the Fund was denied because the statute of limitations had run. The claimant argued that the treatment provided by the employer in Kansas pursuant to the Kansas claim tolled the statute of limitations, but the ALJ noted that the statute had to be strictly construed in Missouri. Therefore, only payments made pursuant to Chapter 287 in Missouri, and not payments made pursuant to the Kansas Workers’ Compensation Act, would toll the Missouri statute of limitations. The ALJ also held that there is no authority stating that payment for an examination for rating purposes tolls the limitation period, only payment for a doctor’s bill for treatment. Therefore, the claimant’s claim in Missouri was denied in full. The employee appealed the ALJ’s decision, which was affirmed by the Commission.
Claimant Not Owed Past TTD After Terminated for Post-Injury Misconduct When He Failed To Work For Several Months After Being Released From Care Without Restrictions and Failed to Follow Employer Policies
Hicks vs. Missouri Department of Corrections and Treasurer of Missouri as Custodian of Second Injury Fund, Injury No. 14-004926
The claimant was working as a corrections officer and was undergoing training when he sustained an injury to his left arm and shoulder. He underwent authorized treatment, including a surgery performed by Dr. Emanuel, who placed the claimant at MMI without restrictions on August 26, 2014. However, the claimant did not feel he could return to work full duty, and light duty was not available. He demanded a second opinion and additional treatment, which was denied, and he advised that he would not come back to work until his shoulder was fixed. The claimant was then a no call, no show for work during most or all of September 2014. He was aware of the employer’s attendance policies due to his recent training. Attendance policies required the claimant to notify his supervisor at least 60 minutes prior to the beginning of the work shift each day he was unable to work. The claimant was also instructed by the employer via letter to return to work no later than October 27, 2014, and if he was unable to do so, to submit a voluntary resignation in writing effective on that date. The claimant did not do so, did not request additional leave without pay, and was ineligible for FMLA benefits. A pre-disciplinary meeting was scheduled for October 22, 2014, but the claimant did not attend, and his employment was subsequently terminated.
At his attorney’s request, the claimant was evaluated by Dr. Snyder, who opined that the claimant required additional surgery and was unable to work from the date of injury until January 2015. The employer then sent the claimant back to Dr. Emanuel, who performed a second surgery on April 1, 2015. The claimant subsequently underwent a third authorized shoulder surgery, which was performed on December 17, 2015 by Dr. Lenarz, who subsequently placed the claimant at MMI again on February 10, 2016.
At a Hearing, the claimant demanded TTD to cover the period from his date of injury until he reached MMI on February 10, 2016. The employer argued that he forfeited his right to additional TTD when he was terminated for post-injury misconduct. However, the ALJ held that the claimant was unable to return to any employment during that period and failure to comply with the employer’s attendance policies did not rise to the level of post-injury misconduct. The ALJ also held that pursuant to statute, post-injury misconduct does not include absence from the workplace due to a workplace injury. Therefore, the ALJ awarded full TTD benefits in the amount of $26,999.12 as well as PPD.
The employer appealed, and the Commission modified the ALJ’s decision and Award with respect to TTD. The Commission found that the claimant only called in sporadically to report absences between September and November 2014, despite the fact that he did not return to work in violation of attendance policies, and he failed to make arrangements with his supervisor, request additional leave without pay to cover his absences, respond to the employer’s letters, or attend the pre-disciplinary hearing. The Commission found that the employer did not terminate the claimant merely because of his absences but because he failed to follow proper procedures to report his absences, which was post-injury misconduct. Therefore, the claimant was not entitled to TTD benefits after his termination.
When Primary Work Injury Occurs After January 1, 2014, Claimant Not Entitled to PPD Benefits From SIF
Douglas Cosby vs. Treasurer of the State of Missouri as Custodian of Second Injury Fund, Case No. SC97317 (S. Ct. 2019)
FACTS: On January 22, 2014, Douglas Cosby injured his left knee at work. He filed a workers’ compensation claim against the employer and Second Injury Fund alleging he was totally or, alternatively, partially disabled as a result of his knee injury combined with his pre-existing disabilities, which included bilateral inguinal hernias in 2002, a left shoulder rotator cuff tear in 2004, and a right shoulder rotator cuff tear in 2008.
At a hearing, the ALJ determined the claimant was not permanently and totally disabled. Also, the ALJ found that the claimant was not entitled to PPD benefits due to the fact that §287.220.3(2) which was added to the Statue in 2013 applied to the case at hand, which states that PPD claims against the Fund shall not be filed for injuries occurring after January 1, 2014. The Commission affirmed the ALJ’s award.
HOLDING: The claimant’s attorney made various arguments, including that §287.220.3(2) did not apply because the claimant’s pre-existing disabilities and/or injuries occurred prior to January 1, 2014. The Court did not agree, as it noted that “injury” is defined in the statute as “an injury which has arisen out of and in the course of the employment.” Therefore, “injury” pertained to the primary work-related injury, and since that injury occurred and a Claim was filed after January 1, 2014, §287.220.3(2) does apply, and therefore the claimant is not entitled to PPD benefits from the Fund. The claimant’s attorney also made other arguments, including that §287.220.3(2) violates the open courts provision, due process and equal protection, but the Court was not persuaded. Therefore, the Court upheld the Commission’s decision and concluded that the claimant was not entitled to any PPD benefits from the Fund.
Reopener petitions abound in New Jersey, but seldom does an injured worker seek on reopener to move an award of 30% permanent partial disability to total and permanent disability benefits. That was the issue in Camarena v. Sprint PCS, A-2205-17T2 (App. Div. June 24, 2019).
Ms. Camarena obtained an award of 30% permanent partial disability in 2003 arising from a work-related motor vehicle accident dating back to 1999. The award was for a bulging disc at C6-7 and disc protrusions at L4-5 and L5-S1. Camarena later reopened the award and sought total and permanent disability benefits with the Second Injury Fund. Capehart and Scatchard partner, Michelle Duffield, argued successfully that petitioner’s subsequent increased disability was not related to the 1999 work accident but to subsequent non-work injuries.
There was no dispute that petitioner’s condition clearly worsened in the years following the 2003 award. The dispute centered on what caused the worsening. Petitioner admitted to having a car accident in July 2002 but claimed that she only injured her knee at that time. Respondent obtained medical records from that accident and proved that petitioner treated for her neck and back after the 2002 accident.
In 2004 petitioner suffered a serious fall from her knee giving out. She obtained a new cervical MRI, which showed a new herniation in the neck, leading to a discectomy and fusion surgery at C5-6. She fell again in 2007 and reinjured her low back. A new MRI showed an L4-5 disc herniation and an L5-S1 disc herniation. In 2007, she had a revision surgery on her neck. In 2008, she fell again, leading to another cervical MRI. At the time of trial, she needed a health aide 40 hours per week during the day and 12 hours a week at night.
The petitioner’s expert testified that he knew about the right knee injury from the 2002 car accident, but he was unaware that petitioner complained about her neck and back from that accident and had a 2004 MRI showing a new disc herniation in her neck. Respondent’s expert testified that petitioner’s worsening condition related to the subsequent car accident and subsequent falls from her knee injury sustained in the 2002 car accident.
The Hon. George H. Gangloff, Jr. dismissed petitioner’s claim against Sprint PCS and against the Second Injury Fund. Judge Gangloff found that there was a contradiction between petitioner’s description that she only injured her knee in the 2002 car accident when compared with the actual medical records documenting spine complaints. The judge reviewed the medical records carefully and noted that the petitioner had several non-work injuries after the 1999 workers’ compensation injury.
Petitioner appealed and argued that she was totally disabled from a worsening of the 30% award entered in 2003. However, the Appellate Division pointed out that petitioner’s own orthopedic expert had mistakenly believed that the 2002 car accident only involved the petitioner’s knee. Nor did the petitioner’s expert know much about the subsequent 2004 fall. The Court held, “The 2002 motor vehicle accident was an independent intervening cause. As a result of that injury in 2004, her knee later gave out causing her to fall and again worsen her injuries – for reasons unrelated to the 1999 incident. The 2002 motor vehicle accident and her numerous falls were clearly intervening independent causes which broke the chain of causation from the 1999 accident to the present.”
This case underscores why it is so important for employers, carriers, third party administrators and self-insured entities to focus on subsequent health records in reopener cases. Even in serious reopener cases, there is sometimes a rush to arrange a reexam in order to reach closure without spending the time and effort on discovery and investigation into interval activities and injuries. In this case, the subsequent investigation saved the employer a great deal of money. Respondents are well advised to order a new ISO and ask on reopener interrogatories about subsequent work and non-work injuries as well as subsequent surgeries. This case points out that the medical records are often more accurate than a petitioner’s recollection of an old injury. While petitioner stressed that the 2002 car accident was a knee injury, — and it primarily was — the records showed treatment to other parts of the body as well.
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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.
Beginning July 1, 2019, the maximum workers’ compensation payable will be raised to $892.00 per week and the minimum will be raised to $245.00 per week. https://labor.alabama.gov/docs/guides/wc_weeklywage.pdf
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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.
