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New Jersey employers like reopener claims about as much as homeowners like back-to-back blizzards.  The general view is that employers have virtually no defenses and have to pay more with each reopener. The truth is that employers can win reopener cases where the petitioner’s expert cannot really prove the petitioner’s condition has worsened since the prior award.  Garces v. Mid-State Lumber Corp, A-4199-15T4 (App. Div. April 10, 2018) provides a good example.

Petitioner suffered two compensable accidents on October 16, 2009 and December 11, 2009 leading to an order approving settlement for 66.67 percent partial permanent disability described as orthopedic and neurologic in nature for residuals of a herniated disc L3-4 and L4-5 status post lumbar laminectomy and fusion.  Respondent received a credit of 27.5% for previous disability.

On June 15, 2013, some fifteen months after entry of the award of 66.67% petitioner filed to reopen his case.  Petitioner testified in the reopener, and he produced two experts.  Dr. Becan was petitioner’s orthopedic expert, and Dr. Peter Crain was petitioner’s psychiatric expert.  The treating surgeon, Dr. Carl Giordano, saw petitioner and concluded petitioner needed no further treatment.

Dr. Becan saw petitioner twice, once in 2011 before the first award and again in 2014 for the reopener examination.  He raised his estimate to 90% of partial total.  On the reopener exam he wrote that petitioner’s disability had increased by 20% of partial total. When asked about the objective findings that supported the increase, he said petitioner “walked with a guarded and antalgic gait pattern,” “had a noticeable limp on the right,” and “was unable to heal or to walk on his right leg.”  He also found “right-sided sacroiliac joint tenderness.”  He noted restrictions when he put petitioner through various maneuvers like straight leg raising.

On cross examination, Dr. Becan conceded that many if not most of his restrictions were the same as they were in 2011.  The two reports were compared, and it turned out that petitioner’s range of motion tests were actually better in 2014 than in 2011.  Petitioner’s muscle strength testing of the quadriceps and hamstring was better.  The right ankle jerk reflex had improved.  Backward extension was the same, and straight leg raising improved.

The Judge of Compensation examined the two reports closely and concluded that Dr. Becan’s findings on the new 2014 examination were not worse at all.  He further noted that while Dr. Becan said petitioner could not return to work, the doctor did not know what petitioner’s job duties were.  The Judge concluded that Dr. Becan had simply offered a net opinion, which is an opinion not supported by any evidence.  The Judge also noted that petitioner’s psychiatric expert, Dr. Crain, had done the same thing.  He also failed to offer any objective evidence of worsening.

The Judge of Compensation dismissed petitioner’s reopener claim and petitioner appealed.  The Appellate Division made short work of the appeal and commented that there was sufficient credible evidence to support the dismissal of petitioner’s case.

The case illustrates an important point.  In valuing a reopener claim, practitioners often focus on the percentage increase that the expert for the claimant offers.  But the better way to value a reopener case is to look beyond the mere estimate of increased disability and compare the pre- and post- award reports side by side.  If the actual measurements, range of motion and findings are the same or better on reopener, it doesn’t matter that the claimant’s doctor raised his or her estimate.  The percentage of increase in an IME means nothing if the actual test results appear to be the same.   There are other ways to win reopeners as well, such as proving that a new non-work event or new employment has worsened the petitioner’s condition.  All of these approaches do give respondents a fighting chance in defending reopeners.

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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.

Gist v. Atlas Staffing, Inc., A17-0819 (Minn. Apr. 4, 2018)

In this case, the Employee worked for Atlas Staffing, and was consistently exposed to silica sand. After he left his employment, he began treating roughly one month later for kidney failure. He was diagnosed with end stage renal disease. He eventually filed a Claim Petition seeking benefits from the Employer and Insurer. Fresenius Medical Care, a clinic which provided medical care to the Employee, intervened seeking reimbursement for the difference between the treatment costs it had billed to Medicaid and Medicare and what it was actually paid. Approximately 1.5 million dollars in medical bills were at issue. The matter proceeded to a Hearing, where the compensation judge held that the silica exposure was a substantial contributing factor to the Employee’s condition and that the judge lacked jurisdiction to interpret Medicaid and Medicare laws. The Employer and Insurer were ordered to pay Fresenius in accordance with other state and federal laws.

The Employer and Insurer appealed the decision to the WCCA, which largely affirmed the compensation judge’s decisions. Notably, the WCCA concluded that the compensation judge properly rejected the Employer and Insurer’s argument that a medical provider that accepts payments from Medicaid and Medicare is barred from receiving workers’ compensation payments. 

The Employer and Insurer appealed the decision to the Minnesota Supreme Court on five separate issues. The Supreme Court affirmed the compensation judge’s decision regarding liability for the injury itself. They held that the compensation judge had adequate medical evidence to conclude that the silica had led to the Employee’s kidney failure. A large portion of the opinion was devoted to the Medicaid and Medicare issue. The Court ultimately rejected the contention offered by Fresenius that the “Spaeth-balance” rule be extended to the Medicaid context. Under the Spaeth rule, a treatment provider is still entitled to payment from a liable employer/insurer even if the provider has received partial payment from a third party, such as a private insurance company. Furthermore, the Supreme Court interpreted the plain language of 42 C.F.R. § 447.15, and concluded that when a medical provider bills services to Medicaid and accepts Medicaid payment for those services, it accepts the amount paid as “payment in full.” Therefore, by accepting those payments, the provider is then barred from recovering any additional amounts for those services from a liable employer.  

This decision will be important for employers and insurers to take note of, as it limits liability exposure when dealing with medical providers who have received partial payment from Medicaid or Medicare.

Summary by: Parker T. Olson

parker.olson@cwk-law.com

Graboksy v. ISD 720, No. WC17-6099 (W.C.C.A. Feb. 9, 2018)

In this case, an employee slipped on a staircase at work on February 8, 2016 and felt pain in her upper shoulder and upper neck. She also claimed that the incident caused headaches and numbness in her left hand. The employee had a significant history of pre-existing left shoulder, neck, and headache pain dating back many years. Notably, she treated for left shoulder pain two weeks prior to the alleged injury. She filed a Claim Petition, and the employer and insurer denied liability.

An Independent Medical Examination was completed by Dr. Howard Saylor on April 6, 2017. He concluded that the work injury did not significantly aggravate the pre-existing condition or need for treatment. He further concluded that, “in my opinion, the incident of February 8, 2016 caused a temporary aggravation of [the employee’s] pre-existing condition and left thoracic outlet syndrome complaints, which has not yet resolved.” The interpretation of this sentence was disputed between the parties. The matter went to a Hearing where Judge Grant Hartman concluded that the Employee’s work injury was a temporary aggravation of her pre-existing condition that it had resolved by March 1, 2016 (which was less than one month after the injury).

On appeal, the Employee argued that Judge Hartman’s conclusion was not supported by substantial evidence in the record. In its decision, the WCCA took note that the Employee admitted that she experienced the same symptoms both before and after the work injury. Also, the WCCA found that Judge Hartman properly concluded that the medical records did not provide confirmation for the Employee’s increased symptoms. Lastly, and perhaps most notably, the WCCA interpreted Dr. Saylor’s wording in his IME Report of “which has not yet resolved” to be referring to the Employee’s pre-existing condition rather than a temporary aggravation. The WCCA affirmed Judge Hartman’s findings. This decision goes to show how important it is for IME doctors to clearly articulate their expert opinions. 

Summary by: Parker T. Olson

Wilson v. Twin Town Logistics, No. WC17-6022 (W.C.C.A. Feb. 9, 2018)

This case involves the issue of Roraff attorney fees. Here, an employee suffered a work injury and benefits were paid by Freestone Insurance. The employee eventually filed a Claim Petition seeking attorney fees, however Freestone was subsequently declared insolvent, so the employee’s claims were submitted to Minnesota Insurance Guaranty Association (MIGA). The employee’s claim for attorney fees was for $30,572.00 as excess fees underIrwin. The employer and insurer contended that the claim was excessive and that some of the itemized time had already been paid.

A Hearing was held before Judge Stacy Bouman, who concluded that the employee’s attorney was entitled to $3,000 “as and for a combination ofRoraff/Heaton fees and excess fees.” The employee’s attorney appealed the decision.

The WCCA affirmed the award. They concluded that Judge Bouman properly concluded that the issues presented were not complex or technically difficult despite the arguments that the employee’s attorney presented. Further, the WCCA held that Judge Bouman properly analyzed the itemization of fees and concluded that some of the time was excessive and duplicative. The WCCA gave deference to Judge Bouman’s decision and upheld the award of $3,000 in attorney fees.

Judge Milun wrote a dissent contending that Judge Bouman did not provide adequate rationale to support her decision, and that the employee’s attorney should be entitled to additional fees. She noted that it took the employee’s attorney two and a half years to obtain benefits for the employee, which. She also wrote that the WCCA’s decision in this case would have a chilling effect on petitioner attorneys in the area of workers’ compensation.

Summary by: Parker T. Olson

Azuz v. Vescio’s, No. WC17-6086 (W.C.C.A. Feb. 1, 2018)

In this case, the employee slipped and fell causing low back pain while at work. Liability was admitted, and benefits were paid. Years prior to the injury, the employee underwent medical treatment for her lower back pain. A prior x-ray revealed that the employee had degenerative disc disease at the L3-5 levels. There were numerous medical records referencing lower back pain and treatment pre-dating the alleged work injury.

The employee eventually underwent surgery. She was then examined by Dr. Robert Wengler, who assigned a 37% permanent disability rating based on the findings in the medical records. The employee was also examined by Dr. William Simonet on behalf of the employer and insurer. Dr. Simonet found that the Employee had reached MMI and required no restrictions. He also found that the employee had a 10% PPD rating unrelated to the injury. The case proceeded to a Hearing where the compensation judge denied the employee’s claim for wage loss benefits and a 37% PPD. The employee appealed.

The WCCA affirmed the compensation judge’s decision. They noted that the compensation judge properly weighed the opinions of the experts and that Dr. Simonet’s report was supported by adequate foundation. While the WCCA did vacate two findings in the compensation judge’s decision for misstating a medical record entry, this did not affect the overall affirmation of the underlying decision.

Summary by: Parker T. Olson

Ahmed v. Loop Parking Co., No. WC17-6074 (W.C.C.A. Feb. 13, 2018):

Pro se employee appeals denial of the claim for right knee MRI and payment of medical expenses. The employee had suffered a right knee injury while working as a parking lot attendant in 2012. He underwent surgery in October 2012. His orthopedic surgeon opined that he had exhausted all treatment options and reached MMI in January 2014. He was released without restrictions. In 2015, the claims were settled on full, final, complete basis except for reasonable, necessary, and causally related medical for the right knee.

In 2016, he treated for pain in his right knee for the first time in 18 months and denied any new injury. A February 2016 MRI showed an oblique tear and a parameniscal cysts. An IME was done, and the IME doctor opined that the current symptoms were caused by the mass and meniscus tear on the 2016 MRI and were unrelated to the 2012 injury. He opined that the 2012 surgery had repaired the tear, and no tear was present on a 2013 MRI.

WCCA affirmed the decision as the compensation judge’s findings were supported by the opinions of the IME doctor.

Summary by: Bryan M. Wachter

Guyton v. Hennepin County Medical Center, No. WC17-6103 (W.C.C.A. Feb. 13, 2018):

The Employee in this case sustained an admitted low back injury on August 16, 2016. She worked as a dietary aid at HCMC, which is a .9 full time equivalent position, and she frequently works overtime. The Employer paid wage loss benefits based on an AWW calculated by the human resources staff ($627.87). A QRC prepared an R-2 Rehabilitation Form with the AWW listed as “704.70 (est.)”. The Employee contacted the Department of Labor and Industry, which indicated that the AWW calculation using a regular schedule method was $56.00 and irregular earnings method was $639.76. The Employee filed a claim petition. Following hearing, the compensation judge found the AWW was $627.87 and rejected proposed alternative calculations by the Employee as unsupported or exceeding the 26-week period set out in Minn. Stat. §176.011. The compensation judge also rejected late submission by the Employee following the hearing. The Employee appeals.

WCCA affirmed the wage calculation as being supported by substantial evidence in the record. The 26-week averaging method was appropriate as it was a fair approximation of her earning capacity.

WCCA also found that there was no abuse in discretion by the compensation judge by excluding exhibits filed post-hearing.

Summary by: Bryan M. Wachter

Dahl v. Rice County, No. WC17-6093 (W.C.C.A. March 5, 2018):

The Employee was a deputy sheriff in Rice County. He suffered four admitted work injuries that resulted in a permanent low back condition. His employment with Rice County ended because his work restrictions could not be accommodated. He was given permanent restrictions following a 2013 functional capacity evaluation. He began working with a QRC in 2006. He held multiple different jobs for varying periods of employment. The QRC developed a retraining proposal in 2016 that he obtain a 3-year teaching degree at University of Mankato with a goal of becoming a high school teacher. Employer and Insurer objected to this proposal. The plan was revised to obtain a master’s degree in law enforcement and later revised to become post-secondary criminal justice and law enforcement teacher. The initial proposal of bachelor’s degree in education was ultimately considered by the compensation judge. The QRC testified regarding the job search efforts by the employee throughout the eleven year period. Employer and Insurer retained an independent vocational examiner who opined that the plan was not viable because there were not an adequate number of positions open, was concerned that the employee expected to teach a law enforcement related subject, and it would not necessarily restore the employee’s economic status. She also opined that the employee’s job search was not diligent and did not fully cooperate with rehab. The compensation judge concluded he was a candidate for retraining as a high school teacher and approved the proposed retraining plan. Employer and Insurer appealed.

The Employer and Insurer argue that the employee’s eleven-year job search was deficient, and it cannot be said that retraining was preferable to continued job search as there were no job logs. WCCA held that there was substantial evidence based upon the testimony of the QRC that he had conducted a diligent job search.

The Employer and Insurer argue that the employee failed to establish a likelihood that he would succeed in the program. WCCA held that there was substantial evidence in the record that supported the finding that he had the ability to succeed based upon vocational testing, opinions of QRC, and testimony of the employee.

The Employer and Insurer argue that the employee did not establish that the proposed plan was likely to restore his economic status. WCCA held that there was substantial evidence to support the judge’s finding, given that the judge explicitly rejected arguments of proposed alternatives as unreasonable and irrelevant to analysis of whether proposed retraining will place the employee in an economic status as close as possible to what he would have enjoyed if not for his work injuries.

Employer and Insurer also contended that the judge committed procedural errors by admitting records of the QRC that were first disclosed at the hearing and consideration of the employer and insurer’s expert witness by deposition rather than life testimony. WCCA held that these evidentiary rulings were not an abuse of discretion.

Summary by: Bryan M. Wachter

Miller v. Valley Paving Inc., No. WC17-6098 (W.C.C.A. Mar. 6, 2018)

The primary dispute in this case was whether the employee’s work injury was a temporary aggravation of a pre-existing knee condition or a permanent injury substantially contributing to the Employee’s ongoing disability.  

The parties agreed the employee, a construction worker, sustained a personal injury to his right knee after stepping backwards into a hole on August 31, 2015, arising out of and in the course of his employment.

Medical records revealed the employee had right knee treatment in April and May of 2014 after an injury playing basketball. Among the treating providers was Dr. Joseph Nemanich at Twin Cities Orthopedics. Following an MRI, the employee was diagnosed with a medial meniscus tear and ACL laxity. He was recommended for a meniscectomy but did not pursue any treatment thereafter until the work injury.

Following the work injury, he was diagnosed with a tear of the medial meniscus and underwent an arthroscopy by Dr. Nemanich in October 2015. The Employee was eventually laid off by the Employer in July 2016.

Dr. Nemanich prepare a report attributing the right knee problems to the August 31, 2015 work injury and gave a 2% PPD rating. Dr. Thomas Nelson performed an independent medical examination and opined the torn meniscus was present before the August 31, 2015, work injury, the work injury was a temporary aggravation of the employee’s pre-existing condition and no permanency was related to the work injury.

The compensation judge found the work injury to be permanent in nature and awarded benefits to the Employee. The employer and insurer, who raised issues with both the credibility of the employee and the adoption of Dr. Nemanich’s report, appealed the matter.

As to the credibility determination, the WCCA noted the compensation judge had made a specific finding that he “found the hearing testimony of the employee to be credible.” The court reasoned that it has previously held that a compensation judge is in the best position to consider the credibility of witnesses and while different conclusions can be drawn from conflicting evidence, there was no basis to reverse the credibility determination of the compensation judge.

With respect to the adoption of Dr. Nemanich’s medical opinion, the court stated one of the central functions of a compensation judge is to weigh competing medical opinions and the WCCA will uphold the compensation judge’s choice of medical opinion where there was adequate foundation for the opinion. In support of the compensation judge’s adoption of Dr. Nemanich’s opinion, the court noted, “We think it is significant that Dr. Nemanich, who concluded that the work injury was a permanent injury, had treated the employee for his knee problems in 2014 and was undeniably qualified to provide an opinion on this question.”

Summary by: Emily L. Johnson

Karkanen v. Univ. of Minn., No. WC17-6117 (W.C.C.A. Mar. 14, 2018)

The employee in this matter submitted a petition to vacate an award based on a substantial and unanticipated change in medical condition under Minn. Stat. § 176.461.

The employee worked as a veterinary technician for the University of Minnesota. She had a claimed back injury on April 17, 2010, when she was assisting in surgery being performed on a horse and was pulling and lifting large bags of fluid. The employee had a significant history of prior back injuries and treatment. In June 2010, she underwent a posterior lumbar interbody fusion at L5-S1.

The employer and insurer denied the claimed injury and the parties eventually settled the matter in April 2012, pursuant to a stipulation for settlement wherein the employee accepted a sum in exchange for a full, final and complete settlement of all claims with the exception of future medical expenses and permanent total disability benefits after 15 years.

Prior to settlement, the employee was working full-time under restrictions. She continued to have pain, which she rated at a 7/10 in records just prior to her settlement and was on several pain medications. 

Following the issuance of an Award on April 19, 2012, the employee continued to treat for the back, including multiple additional surgeries, injections, pain medication and physical therapy.

In its analysis, the court outlined the multiple factors set out in Fodness v. Standard Café, 41 W.C.D. 1054 (W.C.C.A. 1989) for evaluation of whether there has been a substantial and unanticipated change in medical condition: a change in diagnosis; change in the employee’s ability to work; additional permanent partial disability; necessity for more costly and extensive medical care than originally anticipated, a causal relationship between the covered work injury and the worsened conditions and the contemplation of the parties at the time of settlement. 

The WCCA held the employee failed to provide evidence to demonstrate the work injury was causally related to her present condition. Therefore, the court did not go into an analysis of any otherFodness factors and denied the employee’s appeal for a vacation of the award. The court rejected the employee’s argument that whether a causal relationship exists is a factual determination that should be made by a compensation judge at a hearing after the WCCA vacates the award.

Summary by: Emily L. Johnson

Weiss v. St. Mary’s Med. Ctr., No. WC17-6097 (W.C.C.A. Mar. 15, 2018)

In this matter, the WCCA affirmed the compensation judge’s determination that the employee had sustainedGillette injuries to her cervical spine and right shoulder where substantial evidence supported the finding. The WCCA also affirmed the compensation judge’s ruling that the employee’s average weekly wage could be preserved for future determination.

The employee worked for Essentia Health St. Mary’s Medical Center cleaning and sterilizing IV poles and associated pumps and equipment. The work involved her pushing around a supply cart throughout the hospital, which she did for over 13 years. At the time of the alleged injuries, the employee had been working a second, part-time job for Walmart as a cashier. The employee claimedGillette injuries to her cervical spine, right shoulder and left knee, with a culmination date of August 8, 2016.

Medical records showed sporadic treatment for her shoulders, hands and cervical spine, including a 1991 cervical strain which she attributed to pulling a heavy cart and a 2007 right shoulder sprain after trying to pull IV poles into an elevator. Her treatment ramped up in 2016 and she reported having neck, upper back pain and bilateral arm tingling for years and that her jobs aggravated her pain.

One of the employee’s treating physicians provided an opinion letter diagnosing right shoulder rotator cuff impingement and tearing and multilevel degenerative changes to the cervical spine and concluded the findings were significantly aggravated by her work for Essentia.

Independent Medical Examiner Dr. Loren Vorlicky agreed with the diagnoses of a right shoulder rotator cuff tear and acromioclavicular joint arthritis as well as multilevel degenerative disc disease of the cervical spine. He opined all of these were chronic degenerative conditions and the employee’s work activities at Essentia did not constitute a substantial cause of their development, aggravation, or acceleration.

The WCCA held that substantial evidence supported the judge’s finding that the employee sustained Gilletteinjuries to her cervical spine and right shoulder culminating on or about August 8, 2016.

As to the average weekly wage issue, the employee’s wages from her second job at Walmart being included in her weekly wage was not raised at the hearing and the compensation judge ruled that any claim for those was preserved for future determination.

The employer and insurer argued that the compensation judge erred as a matter of law by leaving the question of the weekly wage open with respect to the wages from Walmart because they were included at the hearing. The WCCA held they could not conclude the compensation judge abused his discretion by failing to make a final determination on an issue which even the appellant agrees was not actually raised.

Summary by: Emily L. Johnson

Mellgren v. Minn. Dep’t of Corr., State of Minn., No. WC17-6110 (W.C.C.A. Mar. 21, 2018)

Employee Lynn M. Mellgren sustained a non-work-related injury in February of 2000. A tear of the ACL, a medial meniscus tear, and degenerative changes of the medial compartment in the right knee was indicated in an MRI scan. She underwent arthroscopic surgery, then returned to work without restriction. After having a pain in the right knee in 2006 that was treated with a cortisone injection, she experienced no symptoms and was given no restrictions or treatment for her right knee from 2006 until 2016.

In 2016, the Employee was involved in an inmate altercation. Following this incident, she experienced soreness and then severe pain in her right knee. A work-related injury was admitted and wage loss and medical expenses were paid.

A March 2016 x-ray showed significant arthritis in the right knee, and the symptoms were opined to be a flare-up of either arthritis or a minor knee sprain. Conservative care and a cortisone injection were recommended. A second opinion was that the pain was from a torn ACL graft.  A third opinion given in a July 2016 IME was that the Employee had suffered a temporary aggravation of a pre-existing condition. The same IME found the Employee to be at MMI with no PPD, need for further medical treatment, or restrictions.

In February 2017 the Employee sought treatment, claiming that her symptoms had gradually returned. A Synsvisc injection was recommended, but denied by work comp based on the findings of the IME report. In June 2017, the IME doctor added to his initial report that the Employee’s condition was likely due to “chronic failure of a non-healing previous graft,” and that any further treatment would be to treat the underlying condition, not a condition brought about by the work injury.

The compensation judge agreed with the Employer that the work injury was not a substantial contributing factor for the Employee’s condition or need for treatment. On appeal, the Employee argued that the aggravation of a pre-existing condition had never resolved, that the need for the Synsvisc injection was therefore related to her work injury, and that as she only required treatment because of the work injury, the compensation judge erred. She pointed out six factors the court had used to assess aggravations of pre-existing conditions: “1) the nature and severity of the preexisting condition and the extent of restrictions and disability resulting therefrom; 2) the nature of the symptoms and extent of medical treatment prior to the aggravating incident; 3) the nature and severity of the aggravating incident and the extent of restrictions and disability resulting therefrom; 4) the nature of the symptoms and extent of medical treatment following he aggravating incident; 5) the nature and extent of the employee’s work duties and non-work activities during the relevant period; and 6) medical opinions on the issue.”  Lynn M. Mellgren v. Minn. Dep’t of Corr., State of Minn., No. WC17-6110 (W.C.C.A. Mar. 21, 2018), seeWold v. Olinger Trucking, Inc. slip op. at 4 (W.C.C.A. Aug. 29, 1994).

The Employer argued that the compensation judge’s ruling was supported by the IME opinion that the Employee’s condition was a temporary aggravation of a pre-existing osteoarthritic condition. A judicial opinion that favors one of multiple differing medical opinions should be upheld unless it was found to lack adequate foundation. Nord. V. City of Cook, 360 N.W.2d 337, 342-43, W.C.D. 364, 372-73 (Minn. 1985). The Court found that the compensation judge did not error by relying on the IME doctor’s opinion, as the doctor’s opinion was “not based on speculation or conjecture…” Additionally, no medical opinions found the work injury to be a substantial contributing factor to the right knee condition or need for the Synvisc injection, and the Employee failed to prove this connection.

Although the Court also noted that the Employee’s arguments were supported by evidence, it was not the Court’s role to determine whether such substantial evidence exists. Rather, the Court was to determine only if the compensation judge’s findings were supported by substantial evidence. As they found such evidence to exist, they affirmed.

Summary by: Megan M. Oliver

Colton v. Bloomington Plating, No WC17-6090 (W.C.C.A. Mar. 26, 2018)

Employee Thomas Colton sustained an admitted work-related injury in his work with Federated Mutual Group (“Federated”) and entered into a stipulation for settlement that closed out everything but future medical expenses. He was subsequently hired by the State of Minnesota, Department of Corrections (“DOC”), sustained another admitted work-related injury, and entered into a second stipulation for settlement in which everything but future medical was closed out.  The stipulation specified that DOC would pay future medical expenses, and that Federated would reimburse DOC for 44% of them. The Special Compensation Fund (“Fund”) would then reimburse Federated for their expenses.

State agencies, including DOC (collectively, the “State”), have a system for handling WC claims. Specifically, the State has a contract with CorVel in which CorVel provides services to manage care and bill payment, and keeps a network of medical providers for injured employees as well as “pharmacy benefit management services.” The State paid for medical expenses of the Employee for an approximately 2-year period of time, and submitted a request to Federated for 44% of the amount. Federated paid, and submitted a request for reimbursement to the Fund.

The Fund refused to pay the full amount claimed, claiming that the total paid for some prescriptions exceeded the maximum amount allowed and citing Minn. R. 5221.4070 subp. 4. The matter was eventually before a compensation judge.

At the hearing, the Fund additionally claimed that the amount requested for reimbursement included management fees that were not medical expenses and, as such, that it was not responsible for and contribution for them. Federation maintained its claim that the Fund should reimburse it or, if the Fund was correct in its position, that Federation should not have paid the amount to the State and should itself be refunded. Federated additionally sought .191 fees and penalties. The State argued that the relationship it had with CorVel altered how Minn. R. 5221.4070 applied. Specifically, that it was bound by subp. 5, and that subps. 3 and 4 did not apply. As the maximum fee in dispute fell under subp. 4, it was not relevant to this matter.

The compensation judge found that: 1) the payments that had been made by the State to CorVel were for medical expenses; 2) that subp. 5 controlled the services provided by CorVel and its relationship with the State; 3 and 4) Federated was not entitled to .191 fees or penalties.

On appeal, the Court affirmed that CorVel met the definition that bound it to Minn. R. 5221.4070 subp 5. The Court also found that “administrative costs were ‘woven into the prescription drug costs’” (Finding 4 of the compensation judge). As such, the lower court was again affirmed.

Federated filed a notice of cross-appeal on this matter. However, as the filing was one day late, the Court lacked subject matter jurisdiction and dismissed the cross-appeal.

Summary by: Megan M. Oliver

Perez v. Swift Pork, Co./JBS USA LLC and Sedgwick Claims Mgmt. Servs., Inc. and Minn. Dep’t of Human Servs./BRS, Avera Med. Group Worthington, and Avera McKennan Hosp., No. WC17-6106 (W.C.C.A. Mar. 26, 2018)

The Employee in this case was a Spanish speaker. She had a small stature and need to reach up often in her line of work with the Insured. In so doing, she developed right shoulder pain. She saw the on-site nurse a dozen times in less than a month with complaints of right arm pain. At each examination, she was found to have full range of motion. She eventually saw a doctor for her right shoulder pain and shortly thereafter underwent an IME. Both physicians noted that the Employee had full range of motion of her right shoulder. Additionally, the IME physician found that the Employee had only sustained a temporary strain of a pre-existing condition, was at MMI, and required no restrictions.

The Employee sought benefits, and the matter came before a compensation judge. Following the hearing, the Employee told her attorney that she was concerned about the English and Spanish translations, that she had trouble understanding and hearing the interpreter, and that she believed that not everything had been interpreted. While the Employee’s attorney did mention this to the Employer’s attorney, he failed to bring this to the attention of the compensation judge.

After the compensation judge denied the Employee’s claim for benefits, she appealed on the basis that the “the services of the court-appointed interpreter were inadequate, insufficient, and resulted in incorrectly interpreted material testimony.” She claimed that the interpreter had discouraged her from asking for clarification, and that the misunderstanding of her testimony led to her claims being affected in a material way.

The Employee failed to raise any concern at the hearing. The Court has previously held that an issue not raised in the hearing cannot later be raised upon appeal.Troester v. Drapery Servs. Of Austin. 49 W.C.D. 74, 78 (W.C.C.A. 1993). However, the Court also noted that it was important for testimony to be correctly interpreted. The Court noted by review of the record that Employee was able to describe and demonstrate the gestures and positions involved in her work for the judge. Further, the Court found that the compensation judge’s opinion appeared to be based upon the finding of the medical examinations and other medical evidence, not on the mechanism of the injury. Finally, the Court found that the record and substantial evidence supported that the Employee had sustained merely a temporary injury that had resolved. As such, it affirmed the compensation judge’s denial of benefits.

Summary by: Megan M. Oliver

Cornelius v. Woods Landscaping, WC17-6109 (W.C.C.A. March 28, 2018)

The Employee was injured while working as a landscaper.  He underwent surgical repair of his knee on December 22, 2015 and received 15 weeks of temporary total disability (TTD).  He was subsequently released to work without restrictions starting February 11, 2016 and was incarcerated for about one month ending April 10, 2016.  The Employer hired a replacement while the Employee was incarcerated, and the Employee’s job ended.  He received unemployment benefits from April until August 2016 when he began working at a new employer.  He subsequently left the second employer and found a new job a few months later.  He did not restrict his job search during these times due to any physical restrictions related to his knee.

The Claim Petition alleged intermittent TTD and temporary partial disability (TPD) benefits, which the compensation judge denied at hearing, noting that the Employee reached maximum medical improvement (MMI) on April 18, 2016, failed to prove the alleged wage loss in the periods of TPD was due to the left lower extremity injury, failed to conduct a diligent job search, and was not under work restrictions during the periods he was unemployed.

The Employee appealed, contending the compensation judge erred in not awarding TPD by not presuming a loss of earning capacity based on the actual earnings in post injury employments.  The Workers’ Compensation Court of Appeals affirmed the denial of TPD based on the fact that the Employee was not under any work restrictions and failed to prove the wage loss was causally related to the original injury as required by Minn. Stat. § 176.101, subd. 2(b).

He also appealed the denial of TTD benefits, but failed to address the first period of TTD and the date of MMI in his brief, thus waiving the issue on appeal under Minn. R. 9800.0900, subps. 1 and 2.  The denial of the second period of TTD was affirmed as the Employee was released to work without restrictions and failed to show that he performed a diligent job search

Summary by: Scott G. Ferriss

Manning v. Flynn Dalco Roofing, WC17-6102 (W.C.C.A. March 28, 2018)

The Employer and Insurer appealed the compensation judge’s finding that the Employee sustained aGillette injury to his cervical spine and award of benefits.  The Employer and Insurer objected to the doctor’s report obtained by the Employee as lacking foundation, in part due to the doctor not reviewing prior imaging, lack of explanation of his opinion regarding causation, and a lack of understanding of the Employee’s work activities.

The W.C.C.A affirmed the compensation judge, reaffirming that a compensation judge has discretion to assess the weight and sufficiency of medical expert opinions.  In this case, the Court found the opinion of the Employee’s doctor more persuasive than the report obtained by the Employer and Insurer.

Summary by: Scott G. Ferriss

Loos v. White Bear Lake Superstore, WC17-6108 (W.C.C.A. March 28, 2018)

The Employer and Insurer appealed the compensation judge’s determination that the Employee was unable to maintain suitable gainful employment.  The Employee, working in car sales, sustained two injuries to his ankle that required him to be placed into sedentary work.  The Employer offered him a position that complied with his restrictions but changed his compensation from commission based to an hourly wage that would be taken out of any commission earned.  The Employee asked the Department of labor and Industry staff about the job offer due to his concerns with the compensation change.  DOLI staff told him the job offer was not viable and the Employee’s QRC was told by DOLI that there was a question as to whether the job offer was “meaningful work.”  He refused the job offer.

The Employer and Insurer appealed, arguing that the job offer was gainful employment that the Employee could perform.  Because a R-2 Rehabilitation Plan was not filed, the standard for discontinuance of benefits is whether the employee refuses an offer of gainful employment that he would be able to do within his restrictions.  In this case, the WCCA affirmed the compensation judge’s finding that the job offer was not gainful employment as he was unable to engage in traditional sales activities necessary for selling cars.  The Court also noted that “meaningful” and “gainful” have been used in identical context in their previous opinions, and thus the wrong legal standard was not applied, as argued by the Employer and Insurer.

Summary by: Scott G. Ferriss

On March 25, 2018, the General Assembly of the State of Indiana enacted Senate Bill 290.  Effective July 1, 2018, this bill enacts the following Workers’ Compensation changes:

1.       Provides that the following must be tendered to an employee not later than fifteen (15) days after the date of the physician’s statement (ref. § 22-3-3-10.5):

A.      A proposed permanent partial impairment agreement

B.      The associated physician’s statement required

C.      The employee waiver of examination

D.      A hand/foot chart, if necessary

2.       A permanent partial impairment agreement signed by the employee, along with the supporting documentation, must be submitted to the Workers’ Compensation Board for approval not later than fifteen (15) days after the date of receipt from the employee (ref. § 22-3-3-10.5).

3.       Not later than thirty (30) days after the date the Workers’ Compensation Board approves the permanent partial impairment agreement, one of the following amounts must be paid (ref. § 22-3-3-10.5):

A.      The first weekly installment of a compensation for permanent partial impairment

B.      The lump sum, if the compensation is to be paid in a lump sum

4.       Voluntary Settlement Agreements.  Provides that payment of compensation under a settlement agreement must be made not later than thirty (30) days after the date the Workers’ Compensation Board approves the agreement (ref. § 22-3-2-15).

5.       Notice; Workers’ Compensation Coverage.  Requires an employer that has mobile or remote employees to convey information about Workers’ Compensation coverage to the employer’s employees in an electronic format or in the same manner as the employer conveys other employment related information (ref. § 22-3-2-22).

6.       Payments; Total Disability; Waiting Period.  Allows the electronic filing of a temporary total or partial disability compensation agreement with the Board (ref. § 22-3-3-7).

7.       Payments; Second Injuries.  Provides that permanently, totally disabled worker must reapply to the second injury fund for wage replacement benefit every three (3) years instead of every 150 weeks (ref. § 22-3-3-13)

8.       Payments; Time of Payment.  Provides that an award of compensation ordered by a single hearing member of the Workers’ Compensation Board must be paid not later than thirty (30) days after the date of the award, or as the award provides, if the award is not appealed to the full Board (ref. § 22-3-3-24).

9.       Report of Injuries and Deaths.  Requires the reporting of workplace injuries needing medical attention beyond first aid instead of injuries causing an absence from work for more than one day.  Provides that reporting requirements for workplace injuries are intended to be consistent with the recording requirements set out in the United States Occupational Safety and Health Administration’s regulations (ref. § 22-3-4-13).

10.   Workers’ Occupational Disease Compensation; Reports of Disablements.  Requires the reporting of workplace injuries needing medical attention beyond first aid instead of injuries causing an absence from work for more than one day.  Provides that reporting requirements for workplace injuries are intended to be consistent with the recording requirements set out in the United States Occupational Safety and Health Administration’s regulations (ref. § 22-3-7-37).

EFFECTIVE DATE

July 1, 2018

Legislative Update by Attorney Kathryn Johnson

When an employee has been injured and is entitled to temporary or permanent workers’ compensation benefits, a calculation of the employee’s average weekly wage and rate is required. In order to calculate the rate of compensation, the “gross earnings” of the employee must be determined and then converted to a weekly benefit rate. Correctly calculating the weekly rate at the onset of a claim can save insurers time, money, and headaches later on down the road.

There are various methods to determine an employee’s gross weekly earnings, otherwise known as the “average weekly wage” or “AWW”. The method of determining AWW will depend upon how the employee is compensated. Generally speaking, the majority of employees will be compensated on an hourly basis. For employees who are paid on a daily or hourly basis, or by the output of the employee (i.e. truck drivers), the method of calculating the AWW is determined by Iowa Code section 85.36(6). For these employees, the basic procedure for correctly calculating the weekly rate is to start by looking at the employee’s earnings immediately prior to the injury date, and find the first 13 weeks of “representative” earnings. This process can be reduced to the following formula:

The total weekly earnings during 13 representative weeks prior to the work injury ÷ 13 = AWW

The average of those 13 representative weeks is then applied to the rate table put out by the Iowa Division of Workers’ Compensation. The rate tables are set up to take the AWW, and reveal the correct weekly rate based on whether the injured employee is married or single, and how many exemptions the employee is entitled to claim. Generally, the weekly rate of compensation is 80% of the employee’s average spendable earnings at the time of the injury.

While this process may seem fairly straight-forward, the miscalculation of the AWW can be the cause of significant rate disputes that may result in interest on underpayment of benefits, unnecessary litigation expenses, and penalty awards. To avoid getting trapped into unnecessary expenses associated with a miscalculation of rate, utilize the following tips and tricks.

TIPS 

• To correctly calculate the AWW you will need to know the following information about the injured employee:
  • Marital Status. An injured employee’s weekly rate will vary depending on whether the employee is married or single.
  • Number of Dependents. An injured employee is entitled to one exemption for themselves, one exemption for their spouse, and one exemption for each of their dependents. Generally, a child can be claimed as an exemption for weekly rate purposes if the employee could claim the child as an exemption on their tax return.
  • Length of time between pay periods.
    • Weekly pay period – gross weekly earnings equal the weekly gross amount.
    • Biweekly pay period – gross weekly earnings equal the biweekly gross amount divided by 2.
    • Semimonthly pay period – gross weekly earnings equal the semimonthly gross amount multiplied by 24 and divided by 52.
    • Monthly pay period – gross weekly earnings equal the monthly gross amount multiplied by 12 and divided by 52.
    • Yearly pay period (salaried employees) – gross weekly earnings equal the yearly gross amount divided by 52.
  • Method of Compensation. From the onset you will need to establish the amount and frequency of compensation (hourly rate, salary or other method of payment), as well as increases in compensation. 
  • In some cases, the classification of the employee. The classification of the employee may be necessary when calculating the rate of certain types of employees such as volunteer fire fighters, emergency medical providers and reserve peace officers. Special rate rules also apply to elected or appointed officials, proprietors, limited liability company members, partners, officers of a corporation, apprentices, trainees, and employees whose earnings have not been fixed or cannot be ascertained. 
• Representative Weeks. When calculating the AWW, do not use the week of injury, but instead start with the week immediately preceding. The primary objective when calculating an AWW is to reflect earnings that fairly represent the employee’s customary earnings loss due to injury. Frequently, an employee’s wages will vary from week to week.
• Types of Compensation Included in the Weekly Rate Calculation. Certain types of payments to the employee must be included in the employee’s gross earnings.
  • Regular Bonuses. Bonuses received on a regular basis are to be included in the employee’s gross earnings. For example, bonuses that are received by an employee on an annual basis or are a fixed amount per year, will likely be classified as a regular bonus, and should be included.
  • Shift Differential. Shift differential refers to extra pay received by employees for working a less-than desirable shift (i.e., late nights, weekends). Shift differentials are to be included in the employee’s gross earnings. Therefore, if an employee is compensated at different rates depending on the shift, the earnings will be determined at the shift differential rates.
• Types of Compensation Not Included in the Weekly Rate Calculation. Certain types of payments to the employee are not used in calculating the weekly rate.
  • Overtime pay. Overtime pay is not included in figuring the gross earnings of an employee. This means that the amount paid in excess of the rate the employee receives for straight time is not included. For example, the rate of an employee who is paid $10 per hour and works a 50 hour work week (with 10 of those hours being overtime at time and one-half) will be $500.
  • Irregular Bonuses. A bonus may be irregular if it is conditioned upon the happening of a certain event, varies in amount, or is not fixed in terms of entitlement or amount. Irregular bonuses are not included in the employee’s gross earnings. This determination is fact-based and will require additional investigation.
  • Other types of pay which are excluded include: fringe benefits, retroactive pay, reimbursement of expenses, expense allowances, and an employer’s contribution for welfare benefits.
• Non-Representative Weeks. When determining an AWW, count back until you have 13representative weeks of earnings. It is not uncommon for a non-salaried employee to find that there are weeks within the 13 consecutive weeks prior to the injury that contain absences due to illness, vacation or other causes.
  
  If the employee is gone for reasons personal to the employee (such as vacation, holiday, or sick leave) during part of the 13 calendar weeks preceding the injury, than the gross earnings are determined as the amount that the employee would have earned had the employee worked when work was available. For instance, if an employee customarily works 40 hours per week, but in one week has 32 hours worked and 8 hours of vacation time, the earnings are based on the 40 hour work week had work been available for the employee during that time. This week would not be thrown out, but rather included within the 13 week average.
  
  It is important to remember that it is the earnings that must be customary, not the weeks. If the week in question does not reflect customary wages earned by the employee, the week is thrown out and replaced with the next preceding fairly representative week. Always bear in mind that the determination of whether a week is included to arrive at rate is whether the weeks considered “fairly reflect the employee’s customary earnings.”
  
  
• Other Types of Employees. If the employee worked full-time at the time of the injury, earning the same amount each pay period, the method of computation depends on the length of time between pay periods. (See above.) Certain types of employees are subject to other rules of rate calculation.
  • Part-time Employees. If the employee either earns no wages, or less than the usual weekly earnings of a regular full-time adult laborer in the employee’s line of work, the earnings are determined by the total of ALL earnings of ALL employment the employee has engaged in during the 12 months preceding the injury divided by 50. (Generally an employee who works less than 30 hours per week is considered part-time.)
  • Employees who do not have 13 Weeks of Representative Earnings. In some instances an employee will be injured before he or she has accrued 13 weeks of wages prior to the injury. In addition to a careful analysis of causation, you must look to the earnings of “similarly situated employees” for the 13 weeks preceding the injury to determine the AWW.
    • To do so, request wage records of employees in the injured employee’s same position, averaging the hours worked by the similarly situated employees at the injured employee’s straight time rate.
    • If the earnings of other employees cannot be determined, the employee’s weekly earnings shall be the average computed for the number of weeks the employee has been in the employ of the employer.
• Convert the AWW to a Weekly Benefit Rate. Once you determine the employee’s gross weekly earnings, round to the nearest dollar, and apply the AWW to the rate table put out by the Iowa Division of Workers’ Compensation[1]. 

TRICKS 

• If the employee is paid on an hourly basis (regardless of interval at which payments are made; weekly, biweekly, monthly or semimonthly) you will need to know the hours worked each week, both regular and overtime, rate(s) of pay, whether regular bonuses were paid, and whether the employee had time off for vacation, sick, holiday, or other personal leave during any week. You may need to speak with the employer’s payroll department and the employee’s immediate supervisor to better understand the employee’s work and compensation.
• For hourly employees, since a 13 week average is needed, the pay periods need to be broken down weekly to help you decide which weeks are representative. Those which do not fairly reflect the employee's customary earnings need to be excluded.
• Be sure the employer provides information regarding any pay increases and their effective dates. The employee’s personnel file is a good place to start to ascertain this information, but you may need to request actual time cards as well.
• Marital status and entitlement to exemptions are determined at the time of the injury, not when the claim is presented. Therefore, if an injured employee is single on the date of injury and subsequently gets married or has a child, they are still considered single with one exemption for rate purposes. If you take an injured employee’s statement, be sure to ascertain this information.
• The test for dependent status is whether or not the dependent could be properly included on the employee’s tax return. To help determine the employee’s dependents, request a copy of the employee’s tax return for the year in which the employee was injured. However, keep in mind that the employee’s tax return, while good evidence of dependent status, is not necessarily determinative of the issue.
• Remember that, although, AWW seems like a moving target, "§85.36 is to be applied flexibly, rather than mechanically or technically, with the ultimate objective being to fairly reflect the employee's earning loss."Daniels v. T&L Cleaning Services, File 1283486 (2003).
• The Iowa Division of Workers’ Compensation puts out tables on their website which can be used to determine compensation rate, however the easiest thing to do is to determine AWW and then usePeddicord Wharton’s free rate calculator which calculates the rate for you!

These tips and tricks are by no means an exhaustive list of everything there is to know about calculating weekly benefit rates in Iowa. However, they serve to provide the basic framework for rate calculation so that you can avoid getting trapped into unnecessary expenses associated with improper rate calculation. If you require assistance in calculating an injured employee’s AWW and rate, feel free to contact one of our firm’s attorneys and we will be happy to help you. 

[1] Peddicord Wharton provides a free calculator to help quickly convert AWW to rate. Rate calculators can be found here .

In Silverti v. Ohio Valley Nursing Home, Inc. (No. 17-0746 April 11, 2018), the West Virginia Supreme Court ruled that a workers' compensation claimant who is ordered to attend a medical examination shall be reimbursed his or her reasonable travel expenses incurred in connection with attending the ordered medical examination. These travel expenses include, at a minimum, reasonable expenses for meals, lodging, and mileage. The case involved the denial of the cost of one meal incurred by the claimant who traveled 100 miles from his home for an IME scheduled on behalf of the employer. The claimant spent 6 hours for traveling to, attending and returning from the IME, during which time he ate one meal. He sought reimbursement for the meal expense he incurred while attending the medical examination. The employer argued the claim administrator did not have to reimburse the claimant for reasonable costs of meals because his travel did not require overnight lodging. The employer's argument relied on workers' compensation regulation W. Va. C.S.R. §85-1-15.1 which used as a guide a regulation for state employee travel limiting the meal reimbursement. The Court determined the state employee travel regulations requiring an overnight stay before reimbursing meal expenses conflict with the statutory requirement in the workers' compensation statute governing medical examinations (W.Va. Code §23-4-8), and may not contravene the statute.  

The Court addressed in a footnote the employer's assertion allowing such reimbursement would lead to meal expense requests for a medical examination even if in a claimant's neighborhood.  The Court explained “[t]his case should not be read to require a party who orders a medical examination of a workers’ compensation claimant to reimburse the claimant for ‘travel expenses’ when the claimant did not travel outside the area in which he or she resides to attend the medical examination.” Silverti, n. 15. The Court further states that the “Insurance Commissioner can curtail a claimant’s reasonable (i.e., reimbursable) travel expenses by requiring claims administrators to comply with W.Va. Code St. R. §85-1-15.6 [2009], which provides: ‘The responsible party shall arrange for examination as near as practicable to the claimant’s residence.”Id.

The primary directive from the case is a claim administrator must reimburse for reasonable travel expenses including meals when the claimant travels outside the area in which he or she resides to attend a medical examination or IME. Justice Walker dissented and reserved the right to file a dissenting opinion, so she may provide more insight on reasonable travel expenses.  

Article by Dill Battle

If you have questions or need more information, please call or e-mail Dill Battle at 304.340.3823 orhdbattle@spilmanlaw.com

H. Dill Battle III, Esq.

Spilman Thomas & Battle, PLLC
300 Kanawha Boulevard, East
Charleston, WV 25301
304.340.3823 - office
304.340.3801 - fax
hdbattle@spilmanlaw.com

“All great changes are preceded by chaos.” – Deepak Chopra

The Chaos

On May 8, 2017, a Jefferson County Circuit Court Judge issued an Order declaring the Alabama Workers’ Compensation Act to be unconstitutional.  It was the Judge’s opinion that the statute placing a $220 weekly cap on permanent partial disability awards and the statute that places a 15% contingency fee cap on legal fees are both unconstitutional.  Since the Judge found 2 statutes to be unconstitutional, it had the effect of declaring the entire Act unconstitutional due to a non-severability (all or none) statute.  The issue was not appealed and so the constitutionality of the Act was never addressed by an appellate court.  While chaos was avoided, the threat of having the entire system scrapped as unconstitutional was enough to put the wheels of change in motion.

The Change

In November of 2017, the Alabama State Bar appointed a Workers’ Compensation Task Force comprised of more than 20 attorneys representing the interests of employees, employers, insurers, self-insured employers, self-insurance funds, and the medical community.  A state representative, a state senator, and a circuit judge also participated.  Since its inception, the Task Force has been working diligently towards proposed changes that all parties can live with.  The following is a list of some of the items that are currently being considered:

1.      Regarding medical benefits, there would be presumption that the treatment is not related if no treatment for a fixed period.  After a longer fixed period of no treatment, there would be a conclusive presumption it is not related.  Except for catastrophic injuries, medical benefits would be closed after a set period in all cases.  After adequate time for assessment from the accident date, there would be a presumption that the injury is not catastrophic.

2.      Permanent and total weekly benefits would be terminated at a fixed age.

3.      Employer would likely get the right to choose the pharmacy.

4.      There would be more restrictive standards for pain management involving opioids.

5.      Medications would not be sold by prescribing doctors.

6.      The $220 cap would be adjusted to be a % of the state average weekly wage.

7.      The 15% contingency fee would be raised, but modestly.

8.      The possible use of a standardized medical form.

9.      E-mail communications for claim filing would be allowed.

The goal is for all parties to agree on a proposed bill prior to the 2019 legislative session.  We will continue to report as new information is learned. 

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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.

Skilled practitioners know they must keep an eye on potential employment litigation stemming from workers’ compensation claims.  The case of Dallefeld v. The Clubs at River City, Inc., 2017 AD Cases 244151 (D. Illinois 2017) provides a good illustration.

Jason Dallefeld was the Director of Membership Sales, providing tours, selling memberships, and making sure other employees showed up for work at The Clubs.  He injured his right knee in 2009 at his previous job but continued to treat while working at The Clubs beginning in 2012.  Dallefeld informed the business manager, Ms. Robinson, and the president, Mr. O’Connell, of his knee injury.  He sometimes walked with a limp at his job. He told Robinson and O’Connell that he reinjured his knee on the job on four occasions in 2013 and 2014 at The Clubs.  The incidents involved slips on water and climbing stairs. Dallefeld did not lose time from work immediately after these incidents.

On March 26, 2014, Dallefeld’s doctor placed him off duty.  The physician said that Dallefeld aggravated his prior knee condition while working at The Clubs and would need surgery. On April 1, 2014, Dallefeld traveled to Florida with his girlfriend.  Dallefeld’s doctor approved light duty work in May 2014 before a planned knee surgery.  The light duty work issue was not resolved until June 2, 2014, when Dallefeld met with Robinson and O’Connell.  Dallefeld claimed that O’Connell told him to go have his surgery.  However, a termination letter had already been sent to Dallefeld on June 1, 2014.  That was never mentioned in the meeting on June 2, 2014.  O’Connell testified that the reason for the termination was that Dallefeld was never specific about when he was going to have his knee surgery and that Dallefeld’s job duties needed to be reassigned to two other employees at a busy time for The Clubs.

There was a dispute whether Dallefeld requested leave under the FMLA.  At least one other employee had been given FMLA leave.  Dallefeld claimed that he had never gotten a handbook, although he had been in meetings where the FMLA was discussed.  He essentially argued that he provided enough information to The Clubs that they should have notified him of his rights under the FMLA.

Dallefeld sued under the FMLA and ADA.  Regarding the FMLA, The Clubs argued that Dallefeld drove to Florida with his girlfriend during the period that his doctor took him out of work, and he continued to lift weights at The Clubs while out of work.  The employer also noted that Dallefeld did not schedule the surgery that his doctor wanted to perform.  However, the Court commented that driving and lifting weights did not prove that Dallefeld could give tours, which was one of the essential job functions.  The Court also observed that O’Connell claimed that he did not receive the May 21, 2014 work status note from Dallefeld.  That was an important issue of fact.  Under these circumstance, the Court said that a sufficient amount of disputed fact existed regarding notice by Dallefeld to take FMLA leave to survive summary judgment.

The work status note from May 21, 2014 also became a big issue in the ADA claim.  His doctor said in that note that Dallefeld was released to light work modified duty, and that he could not lift or carry more than 20 pounds and was limited to frequent lifting of ten pounds or less.  His doctor said that Dallefeld could have worked within these restrictions if The Clubs had given him an accommodation of not walking around and doing tours.  Dallefeld argued that this note was a request for accommodation. For his part, Dallefeld said that he could perform duties such as sitting at his desk, answering the phone and using the computer.

The Court concluded that a fact finder could find that Dallefeld’s May 21, 2014 note was in effect a request for reasonable accommodation.  For this reason, the Court allowed Dallefeld to proceed to a jury on this issue and denied The Clubs’ motion for summary judgment.

The case shows how problematic it is to terminate employment soon after the employee provides a note suggesting imminent surgery or a need for modified duty.  These facts should have alerted the employer to the potential for both FMLA and ADA application, and in the end the Court found potential violations of both laws.

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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

January 2018 – March 2018

Court Affirms Commission Decision that Claimant’s Injury Compensable Because Claimant’s Work Was an Unusual Strain, Despite the Fact They Were Her Normal Job Duties That She Performed Every Day

Clark vs. Dairy Farmers of America, Case No. SD34826 (Mo. App. 2018)

FACTS:  The claimant worked in cheese production, and her job duties primarily involved leaning against the edge of a large vat and using a shovel to turn the cheese.  This involved leaning her chest against the vat and repeatedly pushing the shovel in and out of the cheese to stir the mixture, which could weigh up to 40 pounds.  On her date of injury, the claimant was attempting to lift the shovel back out of the cheese mixture when she sustained a rib fracture.  At the hospital, she was also noted to have a lytic lesion close to the fracture spot, which was later revealed to be a rare malignancy that can weaken a bone “to the point that it can fail under a force that is less than normal”.  Therefore, the employer argued that her job duties were not the cause of her fracture.  However, the claimant’s doctor opined that her job duties were the prevailing factor and were sufficient to cause a rib fracture even without the lesion.

At a Hearing, the ALJ held that the injury was not compensable.  On Appeal, the Commission reversed the ALJ’s decision and found that the claimant did suffer a compensable accident. 

HELD:  The employer appealed and argued that there was not a compensable accident.  First, it argued that the pop, or fracture, could not be both the “accident” and the “injury.” The employer also argued that the act of performing her normal job duties could not have been the “accident” because she did this every day, and therefore, it was not an unusual strain under the statute.  The Court agreed with the Commission and held that the claimant’s normal job duties that she performs eight hours per day can still constitute an unusual strain under the statute, and an accident does not require “something distinguishable from and in addition to routine work, such as a precursor event.”  Therefore, the Court affirmed the Commission’s decision and award.

Court Affirmed Summary Judgment for Defendant in Negligence Claim Because Using Fork Truck in Unsafe Manner was Breach of Employer’s Non-Delegable Duty to Provide a Safe Workplace

Fogerty vs. Armstrong & Meyer, Case No. SC96030 (Mo. Sup. Ct. 2018)

FACTS:  The claimant and Meyer (the defendant) were working for a construction company and were assigned to install a fountain, but the employer did not provide detailed instructions on how to do so.  They were required to move large stones and decided to use a front loader by using a strap as a sling to carry the stones beneath the front loader’s forks.  Meyer asked the claimant to walk beside the stone to keep it from swinging as he drove the front loader.  While the claimant did so, one of the forks unexpectedly hit the claimant in the back.  He settled a workers’ compensation claim against the employer and subsequently filed suit against Meyer for negligence.

Meyer moved for summary judgment, arguing that the suit was barred because the claimant failed to show that he breached a duty that was separate and distinct from the employer’s non-delegable duty to provide a safe workplace.  The Circuit Court agreed and granted summary judgment in Meyer’s favor.  The claimant appealed.

HOLDING:  The Missouri Supreme Court held that in order to maintain a negligence action against a co-employee, the claimant must show that the co-employee breached a duty that was separate and distinct from the employer’s non-delegable duty to provide a safe workplace.  Here, the employer failed to provide a safe manner and means for constructing the fountain and using the front loader to move large stones.  Therefore, Meyer’s negligence in deciding how to install the fountain and move the stones was reasonably foreseeable by the employer, and it was a breach of the employer’s non-delegable duty to provide a safe workplace.  The Court affirmed the Circuit Court’s decision, and the claimant was barred from pursuing a third-party action against Meyer.

Court Affirmed Summary Judgement for Defendant in Negligence Claim Because Decision to Have Claimant Drive in Icy Conditions was Breach of Employer’s Non-Delegable Duty to Provide a Safe Workplace

McComb vs. Norfus & Cheese, Case No. SC96042 (Mo. Sup. Ct. 2018)

FACTS:  The claimant worked as a courier and was scheduled to work on a day when there was a severe winter storm warning.  He was advised by his supervisors to complete his route despite the winter storm but to drive slowly and carefully.  Before the end of his shift, his vehicle slid off the road and flipped several times, and he died as a result.  The claimant’s widow (plaintiff) sued the co-employees, his supervisors, alleging that they were negligent in sending the claimant on his route despite weather conditions.

Co-employees moved for summary judgment, claiming that the suit was barred by the exclusivity provision.  The trial Court initially granted summary judgment in favor of the co-employees.  The plaintiff appealed, and the Court of Appeals reversed the decision.

HOLDING:  The co-employees appealed to the Missouri Supreme Court, which reversed the Appellate Court’s decision and held that the decision to have the claimant drive in inclement weather was a breach of the employer’s non-delegable duty to provide a safe work place.  Therefore, the plaintiff could not file a wrongful death action against the co-employees.

Claimant Injured in Course and Scope After Falling From the Top of a Truck Because He Was Climbing Down from the Roof in Order to Leave the Premises After He was Locked in, and He Was Not Equally Exposed to Risk of Falling Off a Truck Outside of Work

Brown vs. Superior Linen Supply Company, Injury No. 14-093366

The claimant sustained an injury on October 31, 2014 after he became locked inside the employer’s courtyard at the end of his shift and was attempting to escape the premises by climbing a fire escape ladder to the roof, walking across the roof to the other side of the building where delivery trucks were parked, and climbing down onto the top of a delivery truck.  As he attempted to climb from the truck to the ground, he fell and sustained an injury to his right ankle, for which he underwent two surgeries.

At a Hearing, the claimant testified that he believed he needed to climb down from the roof onto the truck in order to escape the courtyard area and catch his bus.  The employer argued that the injury did not arise out of and in the course and scope of employment because he was doing something that was not a normal work activity.  The ALJ found that the claimant’s injury arose out of and in the course and scope of his employment because climbing down from the roof was incidental to his work because he was attempting to clock out and leave for the day.

The employer appealed to the Commission, which affirmed the ALJ’s decision and Award with a supplemental opinion.  The Commission noted that compensation is not limited to workers who are injured while actively engaged in their job duties.  Instead, when considering unequal exposure, the focus should be on whether the employee was injuredbecause they were at work rather than simply while they were at work.  The Commission reasoned that the claimant was injured because he became locked inside the courtyard as the direct result of a normal work-related activity, i.e. gathering his things before clocking out and heading home.  Also, the risk of becoming locked inside the employer’s courtyard was not a risk or hazard to which he would be equally exposed outside of his employment.  Therefore, his injury arose out of and in the course and scope of his employment.

Employer Liable for Future Medical, Despite Fact that Future Medical Would Also Provide Treatment for Non-Work-Related Injuries

Morris vs. Captain D’s and Treasurer of the State of Missouri as Custodian of the Second Injury Fund, Case Nos. SD34835 and SD34836 (Mo. App. 2018).

The claimant was injured in two work-related accidents in January 2007.  He had several pre-existing injuries and disabilities.  He was initially evaluated by Dr. Volarich in January 2008, at which time the doctor opined he was PTD as a result of his primary injuries in combination with his pre-existing medical conditions and recommended ongoing pain management.  The claimant proceeded to undergo multiple surgeries with his personal doctor, including cervical and lumbar fusions.  Dr. Volarich again recommended ongoing pain management in December 2012 and testified that the need for future medical was due to a mixture of his work injuries, pre-existing back problems, and his subsequent neck and low back problems.  The employer presented medical testimony that the claimant did not require additional medical treatment for either work injury.

At a Hearing, the ALJ found the claimant PTD and the Fund responsible for the same.  The ALJ also found Dr. Volarich persuasive and held that the employer was liable for future medical treatment with respect to the two primary injuries.  The ALJ noted that although Dr. Volarich was not clear as to which treatments were for which disabilities/injuries, the doctor had not changed his mind that the claimant required some treatment for pain as a result of his work injuries.  On Appeal, the Commission affirmed the ALJ’s decision and Award.

The employer appealed the award of future medical treatment and argued it was not supported by substantial evidence on the record because Dr. Volarich testified that treatment would be related to a “mixture” of work and non-work-related problems and the “lack of clarity of specificity from Dr. Volarich… does not support a finding that the claimant is in need of future medical treatment related to the injuries of January 3, 2007 and January 14, 2007”.  The Court agreed with the Commission and affirmed its Decision and Award.  The Court noted that an employer may be ordered to provide future medical care that will also treat non-work-related injuries if evidence establishes that the need for treatment is caused by the work injury.  The Court reasoned that the claimant established a reasonable probability that future treatment was needed for his neck and back due to the January 2007 work accidents.

Claimant PTD Due to Occupational Disease From Exposure to Biological Particulates Created By Construction Project in Building Where He Worked As Janitor

Cooper vs. Mid-Missouri Mental Help Center and Treasurer of Missouri as Custodian of Second Injury Fund, Injury No. 07-130828

The claimant, a 50-year-old janitor, was working for the employer in the same building where a couple of construction/demolition projects were occurring, which produced a large amount of white dust that the claimant cleaned daily for approximately two months. He was not given a dust mask or any type of protective gear.  He soon after developed multiple symptoms, including shortness of breath, headaches, dizziness, blurred vision, and memory issues.  He was ultimately diagnosed with hyper-sensitivity pneumonitis and developed various other conditions as a result of his treatment for the same.

The claimant’s medical expert, Dr. Parmet testified that environmental sampling of the area where the claimant was working showed that 20% of the dust he was exposed to was comprised of fungi and biological particles, and in his medical opinion, exposure to a large amount of particles in the air can overwhelm the body’s natural defenses and result in hyper-sensitivity pneumonitis.  Dr. Parmet opined that this exposure was the prevailing cause of the claimant’s conditions.

At a Hearing, the ALJ found Dr. Parmet’s testimony persuasive regarding medical causation.  The ALJ noted that the claimant does not need to establish the exact cause of the occupational disease if he can show that the disease is one that the general public is not exposed to, and that there is a probability his occupational activities caused the disease.  The ALJ held that the claimant met his burden to establish injury by occupational disease that was medically causally related to work and ordered the employer to pay PTD benefits, past medical expenses, and future medical.  The ALJ also ordered a 15% penalty against the employer because it did not use any methods for the prevention of occupational diseases caused by exposure to the dust.  The ALJ reasoned that if the employer had provided effective devices or a means/method of prevention, such as dust masks, the occupational disease could have been prevented.  On appeal, the Commission modified the ALJ’s decision and Award with respect to the 15% safety penalty and noted that there was no evidence on the record showing that there were effective devices, means, or methods that existed for the prevention of the employee’s injury or that the employer failed to provide the same.

Muscle Tear and Hematoma Compensable Because Claimant Was Squatting in Order to Perform a Job Duty, and Hematoma Prevailing Cause of Subsequent Staph Infection

Wilkins vs. Piramal Glass USA, Inc., Case No. ED105683 (Mo. App. 2018)

FACTS:  The claimant was squatting in an awkward position while changing a spool at work, and when he stood up, he tore his left calf muscle.  He was also diagnosed with a hematoma in his left calf and developed a staph infection in his left leg.  He underwent authorized treatment and was placed at MMI.  Notably, the claimant was also diabetic and had a sore on his left ankle a few days prior to his injury.  He also treated for cellulitis less than two months prior to his date of injury.

Dr. Woiteshek evaluated the claimant at his attorney’s request and opined that the work accident was the prevailing cause of the claimant’s muscle tear, hematoma, and the subsequent infection.  Dr. Burns testified on behalf of the employer that the claimant’s uncontrolled diabetes and the sore on his left ankle were the prevailing causes of his infection.  Dr. Burns opined that although a hematoma can become infected, the infection must enter the body another way, such as the ankle sore, and would not spontaneously develop from a hematoma.  At a Hearing, the ALJ awarded compensation referable to the muscle tear and hematoma, but not the staph infection, and held that the infection was not medically casually related to the accident.  On appeal, the Commission reversed the ALJ’s decision and held that the claimant’s work accident was the prevailing cause of the torn muscle and hematoma, which in turn caused the staph infection.  The employer was ordered to pay PPD for all three conditions.

HOLDING:  The employer appealed and argued that the Commission erred in finding the injury arose out of and in the course and scope of employment because rising out of a squatting position is something people do outside of their employment, and therefore he would have been equally exposed to that risk in his normal non-employment life.  However, the Court noted that the claimant was squatting at work in order to replace a spool on the employer’s machine, which was a function of his job, and according to Dr. Burns’ testimony, rising from this awkward position caused the muscle tear.  Therefore, the claimant was injured because he was at work and not simply while he was at work.  The employer also argued that the staph infection was not medically causally related to the torn calf muscle, but the Court found the opinion of Dr. Woiteshek persuasive on the issue of medical causation.  Therefore, the Court affirmed the Commission’s decision and Award.

Claimant Not PTD Because Testimony Regarding His Complaints Not Credible When Compared to Other Evidence on The Record, Including Surveillance Video

Page vs. OCCI, Inc. and Treasurer of Missouri as Custodian of Second Injury Fund, Injury No. 08-096549

The claimant, a 43-year-old heavy equipment operator and general contractor, sustained an injury to his left ankle and right knee at work on October 3, 2008.  The claimant underwent multiple surgeries to the same, ultimately undergoing a complete left ankle fusion in March 2011.  He only briefly returned to work in January 2011 before he “rolled” his ankle on January 12, 2011, but none of the doctors who treated or evaluated the claimant believed the 2011 incident was the prevailing cause of his left ankle condition or need for surgery.  He did not have any significant pre-existing disabilities.

Mr. Weimholt, the claimant’s vocational expert, opined the claimant was unemployable as a result of his 2008 injury.  This opinion was based in large part on the claimant’s subjective reports that he could not perform any interior or exterior maintenance and had to use a cane to enter and exit vehicles.  However, video surveillance of the claimant obtained in 2009, 2013, and 2014 documented him pushing his motorcycle, walking on the roof of a carport, loading lumber into a van, hooking a trailer to a vehicle, operating digging equipment, entering and exiting a van without the assistance of a cane, and helping lift a jackhammer, among other things.

At a Hearing before an ALJ, the claimant admitted to performing all of the activities documented in the surveillance video.  However, he continued to testify that he had severe left ankle pain which made him unemployable.  The ALJ did not find the claimant’s testimony credible in light of the surveillance video and also noted that despite testifying he had to take 5-10 pills of narcotic medication per week, he had not filled a prescription for narcotic medication for two years.  The ALJ found that the January 12, 2011 injury was not compensable because it did not result in a separate injury.  The ALJ did find that the claimant sustained 70% PPD of the left ankle and 35% PPD of the right knee as a result of the October 3, 2008 accident, but he was not PTD.  On appeal, the Commission affirmed the ALJ’s decision and Award.

Employer Liable for PTD Benefits Due to Permanent Work Restrictions for Last Injury, Despite Fact Claimant’s Back Was Treated Conservatively and She Had Significant Pre-Existing Disabilities

Carty vs. Southeast Missouri Mental Health Center – State of Missouri and Treasurer of Missouri as Custodian of Second Injury Fund, Injury No. 11-089630

The 66-year-old claimant sustained an injury to her low back when she lost her balance on November 8, 2011, fell to the ground, and sustained an L2 burst fracture with a 5-millimeter fragment retropulsion into the spinal canal.  She was given a back brace and pain medication and briefly underwent physical therapy.  She did not undergo surgery.  The claimant also had pre-existing conditions, including ongoing discomfort and stiffness in her left knee after a torn meniscus in 2005 and a disc bulge at L4-5 for which she underwent injections in 2008 and continued to miss 2-4 days of work per month.  However, she did not have any permanent work restrictions for either injury.

Dr. Volarich evaluated the claimant at her attorney’s request and assessed 35% PPD of the lumbar spine due to her primary work injury as well as significant pre-existing PPD to the lumbar spine and left knee.  However, Dr. Volarich recommended permanent restrictions of changing positions frequently and resting as needed during the day, which were necessary as a result of the last injury alone.  Vocational expert, Ms. Gonzalez, opined that the claimant was unemployable as a result of Dr. Volarich’s permanent restrictions.  The employer presented expert medical evidence that contradicted Ms’ Gonzalez’s opinion.

At a Hearing, the ALJ found the claimant’s testimony credible regarding her complaints and the need to rest up to two hours during the work day.  The ALJ also found the opinion of Dr. Volarich persuasive and noted that the permanent restrictions recommended by the doctor were referable to the primary injury alone.  Therefore, the ALJ ordered the employer to pay PTD benefits and future medical care.  On appeal, the Commission affirmed the ALJ’s decision and Award.

Employer Responsible for PTD Due to Claimant’s Physical Injuries, Psychiatric Injury, and Opiate Dependency, Despite Fact Medical Evidence and Surveillance Video Showed Claimant Was Exaggerating Her Complaints and Disability

Houchen vs. Trimmasters, Injury No. 06-022626

The claimant, a 57-year-old high school graduate, sustained an injury to her neck and bilateral shoulders on January 13, 2006.  Dr. Rosenberg performed a cervical fusion at C5-6 on March 15, 2006.  Dr. Frevert performed surgery to repair a rotator cuff tear on the left shoulder on June 16, 2006, and on the right shoulder on August 7, 2006 and a re-tear on February 22, 2007.  The claimant developed depression as a result of her injury and chronic pain and was prescribed Xanax but did not receive any other treatment for the same.  Medical records also suggest that she developed an opiate dependency as a result of her injury.

The doctors on both sides agreed that the claimant’s neck and shoulder injuries and need for surgery resulted from the work injury.  Dr. Poppa testified on behalf of the claimant’s attorney that the claimant was PTD as a result of a combination of her physical injuries, mental condition, and use of medications.  Dr. Caffrey provided the only vocational evaluation, on behalf of the employer, wherein he noted that she was significantly exaggerating her level of disability but still opined she was unemployable due to her physical limits and lack of transferable skills.  Pain management specialists and the treating doctor opined the claimant was exaggerating her complaints and noted she was also seeking opioid medication from other physicians.  Surveillance video showed the claimant engaging in activities that were inconsistent with her testimony regarding her level of disability.  In particular, one video showed her single-handedly pushing a stalled pick-up truck on a grassy parking area.

At a Hearing, the ALJ agreed that evidence showed the claimant was significantly exaggerating her pain complaints.  However, the ALJ also noted that she underwent four surgeries and suffered from depression and likely opioid dependence as a result of her work injury.  Also, Dr. Caffrey’s was the only vocational opinion presented at the Hearing.  Therefore, the ALJ found the claimant to be PTD as a result of her primary work injury and found the employer responsible for the same.  On Appeal, the Commission affirmed the ALJ’s decision and Award.

Employer Responsible for PTD Benefits After Primary Injury Caused Low Back Injury and Psychological Condition, Which Required Claimant to Take Narcotic Pain Medications and Take Frequent Breaks

Kittrell vs. Townsend Tree Service, Injury No. 12-085091

The claimant, a 40-year-old high school graduate, sustained an injury to his low back on October 30, 2012.  Dr. Wayne recommended lumbar ESIs and a TENS unit.  Dr. Coyle subsequently performed a lumbar fusion at L4-S1.  He underwent additional injections with Dr. Wayne and continued to complain of back and lower extremity symptoms.  Dr. Coyle had the claimant undergo an FCE in January 2014, and after the claimant refused to cooperate with the evaluator, Dr. Coyle placed him at MMI.  The claimant proceeded to treat on his own with Dr. Harness.  At a Hearing, the claimant testified that he is limited by his back pain and also developed major depression as a result of his injury.  He testified that he is unable to sleep more than two or three hours at a time and takes naps during the day. 

The claimant’s attorney had the claimant evaluated by Dr. Woiteshek, a psychiatrist Dr. Sky, and Mr. England, a vocational rehabilitation specialist.  Dr. Woiteshek opined he was PTD as a result of the work injury and recommended ongoing pain management.  Mr. England opined the claimant was unemployable in light of his lack of transferable skills below the medium physical demand level, his poor math and reading levels, and his need to take frequent breaks throughout the day.  Mr. Patsavas provided a vocational report on behalf of the employer and opined the claimant was capable of working in the sedentary to light physical demand category.  However, Mr. Patsavas did not consider the effect that being on medication would have on the claimant’s ability to perform these jobs and that taking narcotic medication could prevent him from being hired by employers.

At a Hearing, the ALJ found the opinions of Dr. Woiteshek and Mr. England persuasive and the claimant’s testimony credible regarding his disability.  The ALJ held that the claimant was PTD as a result of the work injury alone and noted his need to take frequent breaks and also his psychiatric problems.  The employer was ordered to pay PTD benefits and provide past and future medical treatment for the claimant’s physical and psychological complaints.  On Appeal, the Commission relied upon the ALJ’s credibility determinations and affirmed the ALJ’s decision and Award with a supplemental opinion.

35-Year-Old Claimant with GED PTD After Spinal Fusion, Despite Surveillance Video, Because Claimant Can Be Unemployable Without Being Completely Inactive

Jackson County Missouri vs. Earnest, Case No. WD81083 (Mo. App. 2018)

FACTS:  On March 11, 2014, the 35-year-old claimant sustained a compression fracture at T7 when a tree fell on him.  He underwent an authorized ORIF and fusion of the thoracic spine along with an associated rib resection for bone graft and additional procedures.  He also underwent pain management with Dr. Pang, who placed him at MMI, assessed 15% PPD of the body referable to the thoracic spine, and recommended follow up with his personal doctor for continued pain management.

Dr. Stuckmeyer evaluated the claimant at his attorney’s request and recommended several permanent restrictions, including no prolonged standing or walking and the ability to change positions frequently throughout the day.  Dr. Stuckmeyer recommended evaluation by a vocational expert, who opined the claimant was unemployable because, although positions might be available within the claimant’s work restrictions, these would be for a highly skilled individual in an office setting, and the claimant would not qualify.

At a Hearing, the claimant testified that on good days he could perform some chores and yardwork, but he also testified that he had difficulty sleeping and took up to five naps per day, and he had trouble concentrating due to pain and had no experience using computers. The employer presented surveillance video of the claimant performing various household chores, including mowing his lawn, pushing a broom, and hosing down his driveway.  The ALJ found the claimant’s testimony credible and held that he was PTD as a result of his last injury alone.  The ALJ reasoned that the claimant could still be PTD despite being able to perform some type of work on an ongoing basis, and the activities shown on the video did not translate to the ability to perform sustained employment as they were “mere snapshots in time.”  The ALJ also noted that even Dr. Pang, the employer’s doctor, reviewed the video and opined that “a one-time surveillance video of one activity is not always reflective of one’s capability to hold a full-time job.”  On Appeal, the Commission affirmed the ALJ’s decision and Award.

HOLDING:  The Court affirmed the Commission’s decision and Award and found the employer responsible for PTD benefits.  The employer argued that the Commission’s finding was against the weight of the evidence because the claimant’s testimony was inconsistent regarding his ability to do yardwork.  However, the Court found that the ALJ and Commission found the claimant’s testimony regarding his capabilities to be credible, and his testimony was supported by medical evidence.

Fund Liable For PTD Because Claimant Unemployable Due To Combination of Primary Injury, Prior Injuries, Learning Disability, and Functional Illiteracy

Potts vs. State of Missouri, Fulton State Hospital and Treasurer of Missouri as Custodian of Second Injury Fund, Injury No. 11-063860

The claimant, a 54-year-old laborer, was working for the employer on August 10, 2011 when he fell and sustained injuries to his low back and neck.  He underwent physical therapy and multiple injections but did not undergo surgery.  He returned to work with accommodations for 17 months before ultimately retiring.  The claimant also had significant pre-existing disabilities, including frostbite injuries to both feet, Type II diabetes with neuropathy, right knee pain, cervical DDD, and prior low back complaints.  He also had a significant pre-existing learning disability and was functionally illiterate.  He had the equivalent of a fourth-grade education and was admitted to Fulton State Hospital as a child for severe behavioral problems.

At a Hearing, the ALJ found the employer was responsible for 25% PPD of the body, 5% of which was referable to the neck and 20% was referable to the low back.  However, the ALJ found the claimant was not PTD. 

The claimant appealed, and the Fund argued that it was not responsible for PTD benefits because the claimant’s pre-existing conditions were not a hindrance or obstacle to his employment because he had successful worked with those conditions for over 30 years.  The Commission held that the claimant’s learning disabilities and functional illiteracy qualified as a pre-existing permanent disability, and it also held that the claimant’s preexisting physical and psychological conditions were a hindrance or obstacle to his employment because they had the potential to combine with a future work injury to result in worse disability than would have resulted in the absence of the pre-existing conditions. The Commission also held that the claimant was PTD as a result of his primary work injury combined with his preexisting conditions because, although he could physically perform some jobs, his prior academic history and illiteracy would significantly limit his ability to obtain and perform those jobs.  It also reasoned that the claimant was only able to continue working for 17 months after his injury due to an informal arrangement with his long-time employer, and a new employer would be unlikely to provide the same accommodations to a newly hired employee.  Therefore, the Commission held that the Fund was responsible for paying PTD benefits.

Fund Liable for PTD Benefits Due to Combination Claimant’s Pre-Existing Physical and Psychiatric Disabilities and Primary Injury

Kalajdzic vs. St. Louis Children’s Hospital and Treasurer of Missouri as Custodian of Second Injury Fund, Injury No. 12-063341

The claimant, a 47-year-old nurse’s aide, was changing the sheets on a bed that was awkwardly positioned, which required her to reach across the bed to lift the mattress, when she sustained an injury to her low back.  Dr. Robson performed a three-level lumbar fusion, and the claimant also required mental health treatment after her work injury because she became depressed and heard voices.  The claimant had a history of prior low back issues and lumbar injections, most recently in December 2011, two months prior to her date of injury.  She also had a history of depression and anxiety and had previously been prescribed Xanax.

Dr. Volarich evaluated the claimant on behalf of her attorney and recommended permanent restrictions, including changing positions frequently to maximize comfort and resting as needed, and he opined she was PTD as a result of a combination of the primary injury and her pre-existing medical conditions.  Mr. England, a vocational expert, opined the claimant was unemployable as a result of Dr. Volarich’s permanent restrictions, her anxiety and sleep deprivation, and her need to lie down throughout the day.

At a Hearing, the ALJ denied compensation and held that the injury did not arise out of and in the course and scope of employment, because the claimant failed to show a causal connection between her injury and work.

On appeal, the Commission reversed the ALJ’s decision and Award.  The Commission found the claimant’s testimony credible and held that she sustained an injury by accident when she attempted to lift a mattress on a hospital bed that was in an awkward position.  The Commission found that the claimant sustained 25% PPD of the body referable to her low back and 10% PPD of the body referable to a psychiatric disability as a result of her primary injury and was PTD as a result of the combination of her primary injury and pre-existing disabilities.  Therefore, the Fund was responsible for PTD benefits, and the employer was ordered to pay past medical expenses and provide future medical treatment.

Written by: Matt Flammia

The Court of Appeals recently held that Plaintiff’s lay testimony was insufficient to establish increased risk in an occupational disease claim.

In Briggs v. Debbie’s Staffing, Inc., Plaintiff worked as a Ceramic Technician, which required him to work a portion of his time on a Voeller machine.  The Voeller machine mixes water with various dry ingredients and creates an alleged dusty environment. Following Plaintiff’s termination for attendance related issues, Plaintiff filed a Form 18, alleging he developed COPD and asthma as a result of working as a Voeller technician.  During post-hearing medical depositions, Plaintiff’s medical expert initially opined that Plaintiff’s asthma was likely caused by substances he was exposed to at the employer’s facility.  However, Plaintiff’s medical expert conceded that he was unaware that Plaintiff frequently smoked cigarettes, had a history of marijuana use, had prior complaints of wheezing, previously treated for allergies with albuterol, and was provided a respirator mask that filtered 95% of air born particles. Defendants’ medical expert opined that Plaintiff’s asthma likely pre-dated his employment, but opined that his asthma was likely aggravated during his employment.

The Deputy Commissioner determined that Plaintiff met his burden to prove a compensable occupational disease, but the Full Commission reversed, holding that Plaintiff had failed to present medical evidence that the conditions of his employment placed him at a greater risk of contracting asthma than members of the general public.

Plaintiff argued that medical expert evidence was not necessary because a determination that an individual contracted asthma due to working in a dusty environment could be deduced by common sense and is one that a lay person could make.  However, the Court disagreed and found that questions regarding the root cause of a diagnosed disease could only be answered by medical experts.  Regardless of how a plaintiff proves causation or aggravation of an occupation disease, he must also establish that the employment placed him at a greater risk for contracting the condition than the general public. Applying the Rutledge test, the Court determined that Plaintiff merely demonstrated that the dusty environment aggravated the pre-existing asthma condition, which established a causal connection between the disease and Plaintiff’s employment.  However, Plaintiff failed to show that his employment exposed him to a greater risk of contracting the asthma than the general public since he failed to provide expert medical evidence to establish this element of his claim.

Practice Tip:  Briggs is a reminder of the importance of obtaining expert evidence when complicated medical issues are in question.  In most occupational disease claims, the plaintiff must establish both a causal relationship between the plaintiff’s employment and the subject disease as well as that plaintiff was at an increased risk of contracting the disease due to the employment compared to the general public.  Contact our Workers’ Compensation team if you have any questions or to discuss this case further.