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Until 1979 New Jersey had a doctrine known as the “going and coming rule,” and that rule basically said that employees were not covered for workers’ compensation when they were going to work or coming from work. Scores of exceptions emerged over the years, creating a patchwork of inconsistency, thus prompting the New Jersey Legislature to adopt a more uniform doctrine known as the “premises rule.”
There is one basic principle for the premises rule as well as one main exception: 1) An employee is covered when he or she is injured on work premises if those premises are owned or controlled by the employer; and 2) An employee is covered when he or she is required by the employer to be away from the employer’s place of employment when performing duties authorized by the employer.
Think of the premises rule as a protective blanket covering the employee when situated on any area owned or controlled by the employer, including parking lots owned or controlled by the employer, walkways owned or controlled by the employer, cafeterias, restrooms or offices owned or controlled by the employer. It makes no difference where on the premises the injury takes place: one is just as protected for workers’ compensation purposes in a company cafeteria, coffee station, restroom or company parking lot as in one’s own office.
The old adage in real estate applies: location, location, location. The premises rule focuses literally on where the accident or injury takes place, and a few feet off-premises can make all the difference in the world. In one case, a Harrah’s casino dealer finished her shift and proceeded to her car. As the claimant’s vehicle pulled out of the lot, it collided with another vehicle. The impact occurred on MGM Mirage Boulevard, but a portion of the rear of claimant’s vehicle was positioned over the Harrah’s driveway apron. The Judge of Compensation measured the area of the injury and determined that one foot of claimant’s vehicle was still in the area of the parking lot controlled by Harrah’s. Therefore the case was found compensable. Burdette v. Harrah’s Atlantic City, No. A-4797-12T1 (App. Div. January 17, 2014).
It is important to appreciate that it doesn’t matter in New Jersey whether the employee has clocked in or clocked out. That makes a difference under the Fair Labor Standards Act but not for purposes of workers’ compensation. One could clock out of work but linger for 30 minutes talking to a co-worker about the latest Netflix series and then slip and fall in an employer parking lot. The Judge of Compensation will focus on whether the employee was on the work premises for work purposes and whether there was any deviation from employment, such as playing soccer in the parking lot with friends. Lingering after work to chat with co-workers is not a deviation from employment, and it happens all the time, as does arriving at work early before the employee’s technical start time.
For coverage under the premises rule, the employee must be on the premises for purposes of doing work. If an employee visits the office on a Sunday when the office is closed to pick up papers for the Fantasy Football team, only to slip and fall in the building, that injury would not be covered for workers’ compensation purposes because it did not occur during the course of employment.
But what about parking lots that are not owned or controlled by the employer? Where does the work premise begin when someone arrives at a parking lot adjacent to an office where the employer is just a tenant on the third floor? The premises rule in that situation does not protect an employee injured in that parking lot because the employer is just a tenant and generally would not own or control the lot. Reading the lease agreement is essential, of course. The same is true of injuries in the entrance way of the office building, or even the elevator in most situations. In the third floor tenant situation, the premises are only reached when the employee gets to the third floor because that is the area controlled or owned by the employer. Exceptions exist where the employer has a lease that requires the employer to pay for maintenance, snow removal or there is other evidence of control by the employer of the parking areas.
The last point to remember about the premises rule is that the injury must always arise from the employment to be compensable. Injuries frequently occur at work that are not caused by work. Example: an employee with arthritis is walking to the manager’s office and feels sudden pain in her knee. She does not fall but some damage definitely occurs in the process of walking. Judges will generally find that such an injury did not arise from work because the work conditions or premises did not cause it. That type of injury could have happened anywhere, and the employee’s injury was not caused by a fall on a hard surface of the premises (which would change the result). The same is true of an employee who has shoulder problems from playing basketball but who feels sudden pain at work while putting on his coat. That sort of injury happens at work but it is not compensable because work conditions did not cause it.
In the last analysis, the premises rule is a huge improvement over the former “going and coming rule.” In the 40 years since the 1979 Amendments, there has been a great deal of predictability in court decisions. New Jersey judges and practitioners know the case and statutory law extremely well. As a result, employers and adjusters have been able to make consistent and well-informed decisions on whether to accept or deny such cases. But there will always be new and interesting fact patterns under the premises rule. For one, more and more employees work from home, presenting new and challenging fact patterns for judges to consider. As these home injuries occur in different parts of the home or driveways outside the home, cases will be tried, fundamental principles will be applied, and fairly predictable rules will emerge.
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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.
Simon Law Group, P.C.
720 Olive Street, Suite 1720, St. Louis, MO 63101
314-621-2828
MISSOURI WORKERS’ COMPENSATION CASE LAW UPDATE
October 2018 – December 2018
Injury Compensable, Despite Pre-Existing Condition and Back Problems, Because Work Accident Caused Condition to Become Symptomatic
Haag vs. Terry Snelling Construction, Injury No. 17-041850
The claimant sustained a low back injury while working as a concrete finisher in March 2017. He reported his injury to his supervisor, but no treatment was provided. He initially sought chiropractic treatment on his own, and when his symptoms persisted, he sought medical treatment from the employer. The claimant admitted to treating with a chiropractor in the past due to aches and pains that he related to his labor-intensive work. However, he testified that these symptoms resolved with treatment and did not interfere with his ability to work, and he denied having pain into his right leg prior to his date of injury.
Dr. Hess evaluated the claimant at his attorney’s request and diagnosed lumbar radiculopathy secondary to a broad-based disc protrusion at L4-5, a central L5-S1 disc herniation, and a L5-S1 annular tear, and concluded the work accident was the prevailing factor in causing his condition. Dr. Ebelke evaluated the claimant at the employer’s request and diagnosed DDD at L4-S1 with facet joint arthritis and other degenerative changes, none of which he believed were the result of a work injury, and he opined that the claimant’s strain should have resolved within a few months.
At a Hearing for a temporary Award on the issues of TTD and medical treatment, the ALJ found Dr. Ebelke’s opinion unpersuasive and noted that even if the claimant had a pre-existing degenerative condition, it was asymptomatic until the date of injury, and although he had some prior chiropractic treatment, his symptoms resolved with minimal treatment and did not affect his ability to work prior to his date of injury. Therefore, the ALJ found that the claimant’s current complaints were related back to the work injury and ordered the employer/insurer to pay TTD and provide medical treatment.
Injury Sustained in Doctor’s Office While Treating for Work Injury Not Compensable Because Not Direct Result of Any Medical Treatment Necessary for Primary Injury
Schoen vs. Mid Missouri Mental Health Center and Treasurer of Missouri as Custodian of Second Injury Fund.,Injury No. 09-034298
The claimant initially complained of throat and eye irritation after exposure to Cypermethrin on May 8, 2009, when that substance was sprayed on air conditioning units at work to control for ants. 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 the doctor’s office, a person with a small dog was sitting in the waiting room. While attempting to divert the dog, Dr. Runde accidentally tripped the claimant and caused her to fall to her knees. She alleged injuries to her cervical and lumbar spine, left shoulder, and left knee as a result of her fall.
Dr. Volarich evaluated the claimant at her attorney’s request and opined she had 5% PPD of the body due to pulmonary exposure to Cypermethrin. Dr. Runde opined the claimant had no permanent disability relating to her exposure. The treating doctor, Dr. Hyers, diagnosed transient bronchitis and opined the exposure at work was a temporary irritation that would resolve within a matter of days after initial exposure.
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 chemical exposure. The ALJ also found the claimant PTD as a result of her work-related injuries alone, including the injuries sustained at Dr. Runde’s office. On appeal, the Commission reversed the ALJ’s decision and Award. The Commission found the opinions of Dr. Runde and Dr. Hyers more persuasive than Dr. Volarich with respect to her pulmonary complaints. With respect to the injuries allegedly sustained during the claimant’s fall, the Commission disagreed with the ALJ and held that they were not compensable, because even though the claimant was seeking authorized treatment, those injuries were not the direct result of any necessary medical treatment for her primary injury, the Cypermethrin exposure. Therefore, Commission declined to award any PPD benefits and found that the claimant was not PTD.
No Benefits Awarded Because Claimant was Independent Contractor and Not Statutory Employee
Lane vs. Treasurer of Missouri as Custodian of Second Injury Fund, Injury No. 09-029009
The claimant was injured on January 29, 2009 when she was working as a delivery driver and was in a motor vehicle accident. She sustained injuries to her back and neck, which were treated conservatively. The claimant signed an employment contract with Via Bancourier (VB) that acknowledged she was an independent contractor and not an employee. She settled her claim with VB on a compromise basis, and her status as an employee was disputed in the Stipulations.
The claimant then filed a claim against the Fund alleging that she was a statutory employee of VB and was PTD as a result of her primary injury and pre-existing conditions. At a Hearing, she testified that she controlled the means and method of her work and the routes that she delivered. She could choose to work when she wanted and could refuse assignments. She used her own vehicle to make deliveries and was responsible for all maintenance and insurance. She received a 1099 at the end of every year without taxes withheld, and VB gave her the option of obtaining her own workers’ compensation coverage, which she declined to do. The ALJ found that the claimant failed to show that she was an employee of VB and declined to award any benefits.
On Appeal, the Commission found that the claimant was performing work under contract with VB that was in the usual course of VB’s business. However, it found that she was not injured on or about the premises of VB. The claimant argued that because the general public did not have the right to use her personal vehicle or access the items she delivered, her vehicle should be considered to be VB’s premises. The Commission rejected this argument, held that an employer’s premises does not include public highways for the purposes of the statutory employment provision, and affirmed the ALJ’s Decision and Award denying benefits.
Claimant Not Employee Under Workers’ Compensation Law, and Ginger C Not Employer Under Workers’ Compensation Law
Hayes vs. Ginger C, LLC and Treasurer of Missouri as Custodian of Second Injury Fund, Injury No. 13-104894
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.
Employer Responsible for Future Medical, Despite Pre-Existing Chronic Pain and Psychiatric Issues, Because Need for Treatment Flowed from the Work Injury
Null vs. Albany Meical Center, a/k/a Northwest Medical Center Association and Treasurer of Missouri as Custodian of the Second Injury Fund, Injury No. 12-100528
The claimant slipped on ice on December 24, 2012 and sustained compensable injuries to her left lower extremity and right knee. Dr. Trease diagnosed a bimalleolar ankle fracture and performed an ORIF in December 2012. The claimant continued to have significant pain complaints in her left lower extremity, and Dr. Horton subsequently removed the hardware in her ankle, and she had a spinal cord stimulator placed, which did not resolve her complaints. The claimant also alleged psychological injury as a result of her work accident due to chronic pain. She was referred to a psychologist and treated through workers’ compensation through July 2016, after which she was also hospitalized in March 2017. Notably, she did take antidepressants prior to her work injury and had prior trauma in her past, including an abduction and assault. She was previously diagnosed with stress, anxiety, and depression as well as fibromyalgia and did have prior issues with chronic pain. However, she testified that her prior psychiatric issues and pain complaints never prevented her from working before the work injury.
Dr. Koprivica evaluated the claimant at her attorney’s request, placed her at MMI, and recommended ongoing mental health treatment as a result of her primary injury. Dr. Pronko and Dr. Rosenthal testified on behalf of the employer that the claimant had long-standing pre-existing psychiatric issues and chronic pain and that she did not have any additional permanent chronic pain as a result of this injury. Dr. Rosenthal opined the claimant did not require any additional pain management as a result of this injury. Dr. Pronko opined the claimant would require additional psychiatric treatment for her “lifelong difficulties.”
At a Hearing, the ALJ found the claimant’s testimony credible and held that she did sustain a psychological injury as a result of chronic pain due to the work injury. The ALJ ordered the employer to provide future medical treatment for pain management and psychological care. However, the ALJ found the Fund liable for PTD benefits. On appeal, the employer argued that the ALJ erred by awarding future medical without requiring the claimant to show that the work injury was the “prevailing factor” causing the need for future treatment for her depression, psychological injury, and chronic pain management. The Commission affirmed the ALJ’s decision and Award with a supplemental opinion, wherein it noted that it is immaterial that the treatment may be required because the primary injury complicated the claimant’s pre-existing conditions, or that the treatment will benefit both the compensable injury and the claimant’s pre-existing conditions. The claimant need only show a reasonable probability that future treatment is necessary because of her work injury and that the need for future medical treatment flows from the injury.
Employer Responsible for PTD After Claimant Fractured Wrist at Work
Thompson vs. Fulton State Hospital and Treasurer of Missouri as Custodian of Second Injury Fund, Injury No. 13-087133
On November 7, 2013, the claimant, a 62-year-old employee with a Masters in Psychology, was participating in self-defense training at work when the trainer hit the defensive bat she was holding, causing her to fall backwards striking her head on the concrete wall. She was diagnosed with a distal radial fracture and underwent an ORIF, followed by a second surgery for hardware removal. Dr. Wall subsequently diagnosed chronic regional pain syndrome and ulnar neuropathy in the left upper extremity. With respect to her head, Dr. Peeples diagnosed a concussion without loss of consciousness and placed her at MMI, although the claimant reported ongoing headaches. A neuropsychological/neurocognitive evaluation showed multiple invalidity indicators and evidence of malingering.
The claimant’s attorney had the claimant evaluated by Dr. Volarich, who opined she was PTD as a result of her current wrist injury in combination with prior disabilities, including a prior total knee replacement, and he recommended lifting restrictions of no more than two pounds with her left arm. Ms. Skahan performed a vocational evaluation at the claimant’s attorney’s request and opined that based on Dr. Volarich’s restrictions, the claimant was unemployable as a result of her left upper extremity injury alone. With respect to the claimant’s psychiatric disability, the experts disagreed as to whether she was malingering. Dr. Daniel opined the claimant was PTD as a result of her current psychiatric disability in combination with her pre-existing disabilities, but the psychiatrist who evaluated the claimant at the employer’s request placed her at MMI and assessed 0% PPD.
At a Hearing, the claimant testified that she had continued problems with her left wrist as well as headaches, depression, and problems with concentration. The ALJ noted the experts’ differing opinions regarding the claimant’s alleged psychiatric injury and also as to whether she had CRPS in her left upper extremity. Ultimately, the ALJ did find the claimant PTD as a result of her left upper extremity injury alone, with or without a diagnosis of CRPS. The ALJ found Ms. Skahan’s opinion that the claimant would be limited to below sedentary work as a result of her left upper extremity injury regardless of whether she was working in an office setting to be persuasive, and the ALJ noted the two-pound lifting restriction from Dr. Volarich and the fact that the claimant was left hand dominant. Therefore, the employer was responsible for PTD benefits and future medical care. On Appeal, the Commission affirmed the ALJ’s decision and Award.
Claimant Not PTD After Lumbar Fusion Because He Was Walking Five Miles a Day, Had Good Range of Motion, and Not Taking Narcotics
Manshava Johnson vs. Value St. Louis Properties, Inc., Injury No. 07-059414
The claimant, a 59-year-old maintenance technician, sustained an injury to his low back on June 11, 2017 while lifting a refrigerator at work. The claimant also had prior low back pain in 2007. Dr. Kennedy opined that he could not state with certainty whether the claimant’s herniated disc at L5-S1 was related back to the work accident, and Dr. Chabot opined the date of injury was not the prevailing factor in causing the claimant’s condition. The claimant proceeded to treat on his own with Dr. Kennedy, who performed a discectomy on April 2, 2008 and subsequently diagnosed post-laminectomy syndrome and recommended a lumbar fusion. The claimant remained off work and was awarded SSD. In a Temporary Award, the employer was ordered to provide medical treatment, and it sent the claimant to Dr. Coyle, who did perform a lumbar fusion in January 2014. The claimant began walking five miles per day, and Dr. Coyle noted he had stopped taking narcotics, placed him at MMI with a permanent 25-pound lifting restriction, and assessed 25% PPD of the body.
Dr. Volarich evaluated the claimant at his attorney’s request and also noted that the claimant was not taking any prescription medication, although he opined the claimant had 50% PPD of the body and was PTD as a result of the work injury alone. Vocational expert Stephen Dolan opined the claimant was not employable considering Dr. Coyle’s restrictions and the claimant’s own description of his limitations. The employer’s vocational expert James England opined the claimant had experience in supervisory positions and sales and was a good candidate for vocational rehabilitation. He testified that the claimant did not mention any sleep problems to him.
At a Hearing, the claimant testified that he was only sleeping 2-3 hours at night due to pain and had to nap throughout the day due to taking multiple Oxycodone, which made him light-headed and confused. He testified that he could not sit or stand for long periods and was depressed due to his condition. The ALJ noted the claimant was waking five miles per day while treating with Dr. Coyle, and both Dr. Coyle and Dr. Volarich noted he was not taking narcotics when evaluated by them. The ALJ opined that Dr. Coyle’s opinion was more persuasive than Dr. Volarich’s opinion and found that the claimant sustained 50% PPD of the body, was not PTD, and would not require any additional medical treatment. On Appeal, the Commission affirmed the ALJ’s decision and Award.
Claimant PTD, Even Though Doctor Did Not Specifically State He Was Unable to Work
Moss vs. Treasurer of the State of Missouri-Custodian of the Second Injury Fund.,Case No. WD81467 (Mo. App. 2018)
FACTS: The claimant, a 61-year-old high school graduate, sustained a right shoulder injury at work in 2012. He underwent a right shoulder arthroscopy followed by a right shoulder replacement and resolved that claim with the employer for 30% PPD of the right shoulder. The claimant had pre-existing conditions including a prior right wrist surgery that affected his grip strength, a prior right elbow injury that affected his ability to lift heavy objects, and a prior lumbar surgery that caused him to need to frequently change positions.
Dr. Hopkins examined the claimant at his attorney’s request and opined that he was very limited in his work capabilities and would be limited to a sedentary occupation that requires mostly sitting and the ability to change positions as needed. Dr. Hopkins also provided permanent restrictions of no repetitive use of the right upper extremity, the claimant’s dominant arm, but did not specifically state that he was PTD. However, Ms. Skahan evaluated the claimant and opined he was unemployable because his inability to use his right arm repetitively and the need to change positions frequently excluded him from sedentary work. A vocational expert retained by the employer agreed the claimant was unemployable due to a combination of his pre-existing conditions and primary work injury, his age, education, and lack of transferrable skills.
At a Hearing, the ALJ found that the Fund was responsible for PTD benefits. On appeal, the Commission affirmed the ALJ’s decision and award and held that Dr. Hopkins did not need to specifically address the question of PTD in his report for the Commission to find that the claimant was, in fact, PTD.
HOLDING: The Fund appealed, and the Court affirmed the Commission’s decision and Award. The Court held that statute requires that a physician certify the claimant’s medical condition and resulting work-related restrictions post injury, which Dr. Hopkins did. With respect to the question of PTD, the Court noted that the Commission may rely on evidence provided by both a physician and other non-medical experts when assessing whether the claimant is employable. Here, the Commission properly relied on expert testimony provided by Dr. Hopkins as well as the testimony of two vocational experts, and the Commission did not error in finding that the claimant is PTD.
Claimant Not PTD After Lumbar Fusion, Failed Back Syndrome, and Bilateral Carpal Tunnel Releases Because She Had Almost No Permanent Work Restrictions and Was Not Limited in Activities of Daily Living
Ford vs. Pauwels Transformers and Treasurer of Missouri as Custodian of Second Injury Fund, Injury No. 06-061036
On June 6, 2006, the claimant developed bilateral carpal tunnel syndrome while working for the employer. Dr. Brown diagnosed bilateral carpal tunnel syndrome and performed staged bilateral carpal tunnel releases in 2006. She subsequently developed trigger fingers in both hands and underwent injections in 2007. The claimant settled this claim with the employer for 17% of each wrist and a 10% loading factor plus two weeks of disfigurement.
The claimant also had a prior low back injury that she sustained on May 5, 2005. Dr. Mirkin diagnosed DDD and small disc protrusions and ultimately performed a lumbar fusion on October 20, 2005. The claimant underwent work hardening and an FCE, and Dr. Mirkin placed her at MMI on May 1, 2006 without restrictions except that she was not to push heavy transformers by herself. The claimant complained of ongoing low back pain and sought treatment on her own. Dr. Taylor diagnosed failed back syndrome and recommended pain management. Dr. Lee diagnosed a non-union at L4-5 and also recommended conservative treatment. The employer sent the claimant to Dr. Coyle in 2009 for an updated evaluation, at which time the doctor recommended a revision surgery. However, the claimant subsequently declined to undergo surgery, and Dr. Coyle provided no additional medical treatment. The low back claim was ultimately resolved with the employer for 35% PPD of the body.
The claimant filed a claim against the Fund for PTD benefits. Dr. Woiteshek evaluated the claimant at her attorney’s request and opined she was PTD as a result of a combination of her back injury and subsequent carpal tunnel injury. The claimant’s vocational expert also believed she was unemployable due to a combination of those conditions. Mr. Weimholt evaluated the claimant at the employer/insurer’s request and opined that she was employable.
At a Hearing, the ALJ noted that the claimant testified her wrist complaints bother her less now and do not wake her up at night, she was uncertain of any changes in her grip strength, and she could not think of any activities she had stopped doing because of problems or issues with her hands. The claimant actually testified that she was PTD as a result of her back injury alone, which the ALJ noted was inconsistent with both vocational experts’ opinions. The ALJ also noted that the claimant had taken several trips which involved flying and driving for long periods of time, had no permanent work restrictions except not to push large transformers by herself, and was able to perform activities of daily living without issue or limitation. Although the claimant testified that she had to lie down or recline during the day due to her back condition, the ALJ noted that none of the medical experts had recommended that she do so. Therefore, the ALJ found that the claimant was not PTD. On Appeal, the Commission affirmed the ALJ’s decision and Award.
No PTD Liability for Fund Because Claimant PTD Prior to Primary Injury
Wurth vs. Commercial Electronics, Inc and Treasurer of Missouri as Custodian of Second Injury Fund, Injury No. 08-100667
The claimant, a 49-year-old manager with a high school degree, sustained a low back injury at work on November 4, 2008. Dr. Lange diagnosed a herniated disc and performed a right-sided laminectomy and discectomy at L5-S1 in 2009. The claimant settled this claim with the employer for 25% PPD of the low back. He was subsequently dismissed from work in 2012, and he testified that he frequently missed work in the months leading up to his termination, had to alternate between sitting and standing throughout the day, could not climb, could not sit for longer than an hour, and could not drive long distances. He subsequently received Social Security Disability benefits and then filed a claim against the Fund for PTD benefits.
The claimant did have significant prior injuries to his low back and neck. He initially injured his low back in 1999, underwent a left L4-5 microdiscectomy, and was given permanent lifting restrictions. The claimant reinjured his low back in January 2001, and he underwent a microdiscectomy at L4-5 and L5-S1 and a discectomy and fusion at C6-7. When he was released, he could not drive or sleep as well as before, and he was discharged from his job as a machinist at his prior employer. The claimant then began working for his father’s company in 2002 or 2003. In 2006, Dr. Coyle diagnosed multi-level DDD in the lumbar spine and performed a revision decompression and fusion at L4-5.
The claimant testified at a hearing that after his 2006 surgery, he had difficulty walking, standing, and lifting. He continued to work 10-hour days, but he would sit in a recliner in his office at times. As a salaried employee and a supervisor, he was allowed to come and go as needed for his low back, neck, and foot pain. Dr. Volarich previously evaluated the claimant in January 2008, before his primary injury, and opined he was unemployable in the open labor market at that time. After the primary injury, Dr. Volarich and Mr. England evaluated the claimant at his attorney’s request and opined he was PTD as a result of the combination of his primary injury and prior injuries. Mr. Weimholt evaluated the claimant at the employer/insurer’s request and opined that he had been unemployable since December 26, 2001.
At a Hearing, the ALJ found that the claimant was already PTD and unemployable in the open labor market prior to his primary injury in 2008. The ALJ found the claimant’s reports to Dr. Volarich in January 2008 to be more credible than his contrary testimony at the hearing several years later and also held that the claimant’s position at his father’s company prior to the primary work injury was already highly accommodated. Therefore, the Fund was not liable for PTD benefits, because the claimant was already PTD prior to the primary work injury. On appeal, the Commission affirmed the ALJ’s decision and Award.
2019 West Virginia Legislative Session
Legislation Introduced Impacting Workers' Compensation
By: Karin L. Weingart
January 18, 2019
Spilman Thomas & Battle, PLLC
Senate Bill 74: Establishes that unpaid volunteers for ski area operator or for ski area sponsored programs would be exempt from workers’ compensation benefits.
Senate Bill 114 and House Bill 2321: To recognize post-traumatic stress disorder without physical injury for First Responders as an exception to the law that mental injuries without physical injuries are not compensable (so-called mental-mental claims).
House Bill 2365: To amend the definition of employee to conform to Internal Revenue code provisions, with specific reference to the 20-factor test used by the IRS.
Senate Bill 144: Establishes a West Virginia State Black Lung Program to award benefits for pain and suffering for occupational pneumoconiosis. Ten years of exposure and a chronic respiratory disability (disability does not need to be total) provides a conclusive presumption of entitlement to pain and suffering benefits. Benefits are paid at a base rate of $300 per month, with an increase of $20 for each year beyond the initial 10 years. Recipients will also be permitted to claim the benefits as a credit against state income tax. A separate fund is to be established for payment of the benefits through an additional severance tax imposed on coal, natural gas or oil, and generation of electricity by wind or solar device.
Senate Bill 260: Reinstates 5% award for a diagnosis of occupational pneumoconiosis without measureable impairment. Adds a new provision granting a 25% PPD award for a diagnosis of massive fibrosis or complicated pneumoconiosis without impairment. This provision includes an offset from any future PPD award recommended by OP Board. (No such offset for the 5% award.)
Senate Bill 2: Establishes an Intermediate Court of Appeals and eliminates the Workers' Compensation Board of Review.
One of the most difficult issues for employers to deal with is the work injury which leaves an employee with lasting difficulties in performing job duties. Employers encounter this frequently with occupational claims such as carpal tunnel or epicondylitis where the employer settles the compensable workers’ compensation claim and then places the employee back in the same job that caused the medical problem, sometimes with reasonable accommodations and sometimes not.
An interesting case on this theme is Exby-Stolley v. Board of County Commissioners, Weld County, Colorado, 906 F.3d 900 (10th Cir. 2018). In that case, the plaintiff was a health inspector for the County and broke her right arm on the job, leading to two surgeries. To compensate for her injury, she used makeshift devices for lifting, moving, and opening objects. She even learned how to write using her non-dominant hand. Inspections took her much longer than before, and she got fewer done in a day.
Plaintiff received a poor performance evaluation in March 2012 for a variety of reasons, partly because she was behind in her work. She met with supervisors and HR to discuss job modifications. Her workers’ compensation doctor prepared a report setting forth her job restrictions. The County decided to offer her a part-time office job. Plaintiff did not like the work. She was paid the same as she had been making pre-injury by a combination of workers’ compensation benefits and salary.
Plaintiff returned to her workers’ compensation physician on June 6, 2012, and the doctor set permanent restrictions. She met again with HR and supervisors. Plaintiff suggested various accommodations, including piecing together various job functions from several jobs into one job. All of her requests were rejected. There was a dispute over whether the County asked her to submit a letter of resignation or not, but plaintiff did submit one effective June 29, 2012. She wrote, “After a final evaluation with the physician and meeting with management it is apparent I am no longer able to perform the duties in my job description.”
The County disputed some of the allegations in the ensuing law suit. The County said that plaintiff had been complaining about pain she was suffering in doing her job in March 2012 even before she saw her workers’ compensation doctor. The County said it considered first reducing her time in the field on tasks which caused her pain. Ultimately the County proposed the part-time office job. The County also claimed that plaintiff requested a new position be created for her, which the County refused to do. The County witnesses said they were rather surprised when plaintiff submitted the letter of resignation because they considered that they were still deep in the interactive process.
In plaintiff’s law suit, she alleged that the County violated the ADA because if failed to reasonably accommodate her disability and failed to engage in the interactive process. The jury found that the County should prevail because plaintiff had not proven that she was discharged from employment or suffered other adverse action. The jury accepted the County’s position that placing plaintiff in a temporary half-time office job with full pay supplemented by workers’ compensation was reasonable, noting that plaintiff agreed with the change; further, the County took no adverse action against plaintiff because she voluntarily resigned.
The plaintiff argued that all failures to accommodate are adverse employment actions. Plaintiff’s counsel cited some case law for the proposition that an adverse employment action occurs when an employer refuses to make reasonable accommodations. The Tenth Circuit Court of Appeals disagreed:
In this case the County argued to the jury that Plaintiff suffered no adverse employment action because it did not do anything negative to her. Because of her physical limitations, it had given her a part-time office job with the same pay (when workers’-compensation benefits are included). When she asked for the County to create a new position for her, it denied her request but, according to testimony it presented, it did not fire her or make any other changes in her employment status. And County employees testified that they were planning to continue to look for ways to accommodate her. We are not willing to say in these circumstances that an employer’s failure to immediately accommodate a request by a disabled employee is in itself an adverse employment action.
The case illustrates how difficult it is for an employer to deal with the problem that arises when an employee has a work-related condition that makes it difficult to perform essential job functions. This employer did not do an FCE or perform a fitness-for-duty examination with analysis of the job functions. That is often very helpful in similar situations. But the employer in this case did try to make a reasonable accommodation for months. The fact that damaged the plaintiff’s case the most in this case was her writing of the resignation letter when the requested accommodation of a new position was not granted by the employer. That ended the interactive process summarily, and the general rule is that the party who ends the interactive process is the one that most often loses the law suit.
On December 18, 2018, a petition for rehearing en banc was granted in this matter, so we may be hearing more on this case in the near future.
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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.
Under current Michigan law this is an interesting question without a clear-cut answer at the present time – ultimately, I think that sexual harassment claims could potentially fall under the Workers’ Compensation Act, though there are lots of caveats. We have case law precedent in Michigan regarding physical assaults that are non-sexual in nature, where the holding has been that if the assault is connected to the employment in some manner, the victim could recover workers’ compensation benefits, but if the assault is “motivated by personal reasons” (Devault v GMC, 149 Mich App 765, 386 NW2d 671 (1986)), it would not be considered to be a workers’ compensation claim due to the fact that the activity would not be considered to “arise out of employment,” as required by the Michigan Workers’ Disability Compensation Act. I suspect that the facts would vary on a case-by-case basis to determine whether the requirement of “arising out of employment” is met, but that sexual assault/harassment cases would be analyzed the same way. The harassment would also have to cause disability to the general labor market, since Michigan is a wage-loss state, in order to be fully compensable – in other words, the individual would have to be restricted from working in ALL labor settings, and not just with restrictions to avoid a certain boss or co-workers who fostered and/or caused the harassment.
There could also be a potential issue with the exclusive remedy provision of the Act – if it’s not a workers’ compensation case, obviously the employer is opened up to general tort liability – previous cases involving allegations of false imprisonment and intentional infliction of emotional distress have proceeded in civil courts outside of the WC system on the basis that there are (were – cases were from 1971 and 1984) no remedies for those specific claims under the WDCA. In the latter case, Schutt v Lado, 138 Mich App 433, 360 NW2d 214 (1984), there were other alleged torts of assault and battery dismissed from the civil suit on the basis that those aspects of the claim WERE covered by WC. So, it looks like it could go either way based on the specific facts of a specific case according to those holdings as well.
Keep Tuned!
Newsline No.: 2018-105 Date: December 18, 2018
Mileage Rate for Medical and Medical-Legal Travel Expenses Increases Effective January 1, 2019
The Division of Workers’ Compensation (DWC) is announcing the increase of the mileage rate for medical and medical-legal travel expenses by 3.5 cents to 58 cents per mile effective January 1, 2019.
This rate must be paid for travel on or after January 1, 2019 regardless of the date of injury. Labor Code Section 4600, in conjunction with Government Code Section 19820 and the Department of Personnel Administration regulations, establishes the rate payable for mileage reimbursement for medical and medical-legal expenses and ties it to the Internal Revenue Service (IRS).
IRS bulletin Number IR-2018-251 dated December 14, 2018 announced the rate increase. The updated mileagereimbursement form is posted on the DWC website.
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In November of 2017, the Alabama State Bar appointed a task force to review the Alabama Workers’ Compensation Act and make recommendations for improvement. On October 17, 2018,the task force unanimously approved a proposed bill that contained substantial changes to the Act. Recently, the Alabama Council of Association Workers’ Compensation Self Insurance Funds (Council) voted to oppose the proposed bill. The Council, which represents self-insurance funds providing workers' compensation coverage for 16,200 Alabama businesses employing 375,000 people, primarily objects to the proposal because it would raise legal fees for plaintiff attorneys by one-third and do nothing in the short run to reign in hospital, doctor, and other medical costs. It also more than doubles the cap on certain disability payments to injured workers and adds an inflationary adjustment.
"While the Council is always willing to work with any group to make meaningful and fair improvements to Alabama workers' compensation law, any such negotiation must include all parties", the statement said. The Council was not included in the ABA appointed committee that drafted and approved the proposed bill.
My Two Cents
Although the Alabama Legislature could consider changes to the law when its Regular Session begins in March, it is unlikely that anything will get passed committee in light of the recent Council opposition and the fact that the neither Alabama Bar Association or the Workers’ Compensation Division of the Alabama Department of Labor are in a position to recommend the proposed bill or otherwise voice support. According to the ADOL, it is a state regulatory agency tasked with the responsibility of following and enforcing the laws put in place by the legislature. As the regulator, it typically does not comment on proposed legislation. However, it acknowledges that the current workers’ compensation laws are not ideal and that amendments are needed that benefit both injured workers and employers. It will follow and enforce any changes that are made, if any.
If changes of this magnitude are to have any chance of success in committee, there must be a consensus of all interested parties. That is not to say that it cannot get done. It is just a little optimistic to think it can get done in the next few months.
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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.
On January 4, 2019, the Alabama Supreme Court released its opinion in Ace American Insurance Company v. Rouse’s Enterprises, LLC d/b/a Rouses Markets wherein it reversed a trial court’s order dismissing the lawsuit for failure to prosecute. At the trial court level, Ace American Insurance successfully intervened in the lawsuit in order to protect its sizable subrogation lien. When the plaintiff failed to prosecute the case, the judge issued an order giving a set amount of time in which the plaintiff was to respond or the case would be dismissed. Although the plaintiff failed to respond, Ace American Insurance did respond seeking to keep the case pending so that it could take the necessary steps to protect its subrogation interest. Despite the response from Ace, the trial court dismissed the entire case. Ace appealed.
On appeal, the Alabama Supreme Court noted that Ace fully complied with the trial court’s order and set forth its intention to proceed against the defendant on its own. Since dismissals with prejudice are considered drastic sanctions that are only to be applied in extreme situations, the Court carefully scrutinized the trial court’s order and determined that judgment was due to be reversed.
My Two Cents
Interestingly, Ace’s subrogation lien concerned workers’ compensation benefits paid pursuant to a Louisiana claim. The Complaint for Intervention was filed in an Alabama Circuit Court by a Mississippi lawyer. Since the subject accident occurred in Alabama, the laws of Alabama apply to the lien recovery rights. Alabama Code Section 25-5-11(d) states that an employer or insurance carrier may bring a civil action directly against the alleged third party tortfeasor but only if the injured party (claimant) fails to file a civil action within the time allowed by law. In that event, the employer or insurance carrier is afforded an additional 6 months in which to bring a direct civil action against the third party. In this case, the claimant did bring a civil action within the 2 year statute of limitations. This begs the question, was the carrier’s right to proceed directly ever triggered? If not, this is definitely a loophole that needs to be corrected during the next major revision of the Alabama Workers’ Compensation Act.
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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.
Alabama Appellate Court Determines that Using the Same Standard for the Left and the Right Made a Wrong
On January 4, 2018, the Alabama Court of Civil Appeals released its opinion inEnterprise Leasing Company –South Central, LLC v. Benson Drake. At trial, the employee claimed an initial left leg injury due to an accident and a subsequent right leg injury due to issues related to an altered gait. The trial court concluded that both legs were compensable but applied the lower substantial evidence standard to both. The Employer appealed.
On appeal, the Court of Civil Appeals reversed and remanded the trial court’s order with instructions to apply the higher “clear and convincing” standard to the subsequent right leg injury. Specifically, the Court instructed the trial court to review the evidence adduced at trial and determine whether or not the employee proved, by clear and convincing evidence, that his right leg injury was the direct and natural consequence of the left knee injury.
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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.
Effective January 1, 2019, the mileage reimbursement rate for Alabama is 58 cents per mile, a 3.5 cent increase from 2018.