“If you require it, you buy it.”  So said the Honorable Ray A. Farrington, former Supervising Judge of Compensation in Hackensack in reference to situations where an employer required an employee to perform a task that would otherwise be clearly not work related.  The concept of compulsion is an important one to understand in the law.  This concept must be contrasted with mere permission granted by an employer to perform some task or activity.

One of the best examples of compulsion comes from McCarthy v. Quest Intern. Co.,285 N.J. Super. 469 (App. Div. 1995), certif. denied, 134 N.J. 518 (1996).  In that case the petitioner was a bookkeeper for Quest International Corporation.  Her company purchased Unilever and scheduled a joint company picnic, sending out a memorandum stating that attendance was required.  The purpose of the picnic was to help employees in both companies get to know one another.

Ms. McCarthy advised the head of personnel that she did not wish to attend.  She was told that a salary deduction could be taken in that case.  She was also advised that she should set an example for other employees and attend.  The president of the company encouraged employees to socialize with other employees.

Based on this advice, McCarthy attended the joint company picnic.  Once there she was asked by the president if she was going to participate in the tug-of-war.  McCarthy took this as a mandate and then injured herself during the activity.  She filed a workers’ compensation claim and won.  Her employer appealed to the Appellate Division, arguing that McCarthy was just engaging in a recreational activity whose purpose was nothing more than promoting morale.   The Appellate Division agreed with the Judge of Compensation that the injury was compensable, relying on reasoning of Professor Arthur Larson for the principle that an employer has the power to enlarge one’s job duties by assigning tasks outside the usual scope of employment.  By directing the petitioner to perform these duties, the employer in effect bought the injury.

Years later the New Jersey Supreme Court expanded on this principle in Lozano v. Frank DeLuca Const., 178 N.J. 513 (2004).   In that case the petitioner, Mr. Lozano, was a skilled mason who could not drive.  After a long day of work on a large private property, the owner of the property asked Mr. Deluca, who was Mr. Lozano’s boss, if he wanted to take a ride with him on his large go-cart track.  Mr. DeLuca and the owner drove around the go-cart track.  Then Mr. DeLuca asked Mr. Lozano if he wanted to take a ride.  Mr. Lozano declined because he could not drive.  Mr. DeLuca repeated that Mr. Lozano should get in the go-cart and take it for a drive.  At this point Mr. Lozano got into the cart, and he proceeded to seriously injure himself by driving into a parked truck.  The Supreme Court said “that when an employer compels an employee to participate in an activity that ordinarily would be considered recreational or social in nature, the employer thereby renders that activity a work-related task as a matter of law.”

This principle make sense, but what if the employer is aware of the activity taking place and allows it, and the permitted activity leads to injury?  Is that compensable?  The Supreme Court said no in Jumpp v. City of Ventnor, 177 N.J. 470 (2003).   In that case the petitioner was a pumping station operator who drove around the city inspecting stations.  He would pass the town post-office during his drives from one station to the next.  He asked the city administrator for permission to pull off the main road and get his personal mail during his route.  The city administrator gave him that permission.  While walking in the post office parking lot, petitioner fell and fractured his pelvis.

Mr. Jumpp argued that he had permission to make a slight deviation from his route to get his mail.  The Supreme Court acknowledged that petitioner had permission to do what he did but felt that this activity constituted a major deviation from work.  It said it made no difference whether the employer allowed the activity to take place:  the act of getting one’s personal mail constituted a major deviation from work.  Permission was not the same as direction.

So too in Sarzillo v. Turner Const. Co., 101 N.J. 114 (1985), a petitioner had permission to play a paddle ball game every day on the construction site during breaks.  Mr. Sarzillo was injured while playing the game.  The Court said that permission did not change the fact that the activity promoted nothing more than morale.  Under N.J.S.A. 34:15-7, activities whose primary purpose is to promote morale or health are not compensable.

Employers must be careful to consider whether they have directed or required an activity or whether they have merely permitted something to occur.  If an employer does not want to expand the job duties, the employer should make it clear in memoranda that the activity – whether it is a holiday party, picnic or bowling night — is not required.

This lesson emerged in Rose v. Joey Sinopoli’s Haircutters, No. A-0049-05T1 (App. Div. August 14, 2006), certif. denied, 189 N.J. 426 (2007).  The petitioner suffered a serious injury leaving a coffee shop on the way to work.  She always stopped to purchase coffee for co-employees and understood that this was part of her job.  She was reimbursed for the cost.   Her employer testified that if she did not do this, someone else would have had to do so.   Again, the decision makes sense because the employee felt a sense of compulsion and employer direction in purchasing coffee each morning.   Had the employer not made this a requirement, the injury would not have been held compensable.

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John H. Geaney, Esq., is an Executive Committee Member and a Shareholder in Capehart Scatchard's Workers’ Compensation Group.  Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at jgeaney@capehart.com. 

The NWCDN and Thomas A Robinson of LexisNexis recently partnered as Co-editors-in-chief to prepare the 2017 edition of “Workers’ Compensation Emerging Issues Analysis.”  This is an excellent book which is an essential tool for attorneys, risk managers, and insurance professionals. The book is a reference guide to issues and cases as well as a 50 state survey of trends and developments.  Approximately 40 NWCDN members contributed as authors.  The book can be purchased athttp://www.lexisnexis.com/wcrisk or by calling 1-800-223-1940 (mention WCRisk to receive a discount).

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About the Author

This 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.

In the past few years there has been a rise in the number of cases where injured workers have been loaned money in advance of their workers’ compensation settlements by private pre-settlement companies.  This practice is more common in other states like Pennsylvania, but it is now creeping into New Jersey.  Companies which make private advances or loans to injured workers then attempt to appear at settlement and seek judicial enforcement of the amount due their company by placing their company’s loan on the settlement sheet.  In that way, the lending company can obtain a court order for direct payment by the employer, carrier or third party administrator.

In our office’s opinion, this recognition on the order approving settlement is improper.  We believe that pre-settlement companies have no right to be listed as an expense or payee on a court order, whether on a Section 20 or an Order Approving Settlement.  One of my partners has a case now involving a Pennsylvania resident injured in New Jersey who was advanced a large sum of money by a pre-settlement company unknown to any party other than petitioner and his attorney.  The claim petition was filed in New Jersey, and the parties have reached a substantial settlement on an order approving settlement under Section 22 (petitioner retains reopener rights).  The lawyer for the pre-settlement company appeared in court, asking the Judge of Compensation to include the loan as an expense to be paid by respondent on the order approving settlement.  We opposed this request.

N.J.S.A. 34:15-29 states, “Claims or payments due under this Chapter shall not be assignable, and shall be exempt for all claims of creditors from levy, execution or attachments.”   Child support liens and TDB liens are recognized as valid obligations in New Jersey.  Medical providers by statute also have a right to file a claim for reimbursement in New Jersey.  However, there is nothing in the statute or the rules of the Division that permit pre-settlement companies from appearing in court as a represented party to protect their loans or seek enforcement from a Judge of Compensation.

The Division of Workers’ Compensation has an interest in preventing such companies from expanding in New Jersey.  These companies do not make such loans out of charity:  they do so for reasons of financial gain at the expense of the injured worker.  One could argue that the whole practice of advancing a settlement with an injured worker in exchange for subsequent repayment violates the New Jersey Workers’ Compensation Act because under our law, only a Judge of Compensation can approve a settlement.  These are in essence private partial settlements between a lending company and petitioner as to future rights of compensation. They really constitute an end around the statute.

Another argument against placing a loan on an OAS is that it contravenes the rules against commutations.  An employer cannot make a commutation in New Jersey without filing a motion and obtaining court permission.  Paying a lending company in advance on unaccrued monies would be an illegal commutation without a motion for a commutation being first filed by the petitioner.  In New Jersey, most settlement are under Section 22.  Payments are made in weekly amounts, sometimes over several years, with claimants retaining reopener rights.  Pre-settlement lending companies have no right to step in and alter the statutory rules of payment.   Settlements in Pennsylvania and many other states involve lump sums, often rather large, but that is not how most settlements in New Jersey resolve.

Our office takes the view that all payments go to the petitioner under the Order Approving Settlement or Section 20 order.  This is prescribed under N.J.S.A. 34:15-64. The pre-settlement company has its contract with the petitioner and the petitioner only, and it must negotiate its terms of repayment directly with the petitioner without involving employers, carriers, third party administrators or Judges of Compensation.

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John H. Geaney, Esq., is an Executive Committee Member and a Shareholder in Capehart Scatchard's Workers’ Compensation Group.  Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at jgeaney@capehart.com. 

The case of Billups v. Emerald Coast Utilities Authority, 33 AD Cases 1312 (11^th Cir. October 26, 2017) presented a challenge by an injured employee to his company’s six month limitation of leave.

Mr. Billups injured his shoulder on December 18, 2013 doing his work as a Utility Service Technician II. He felt a pop in his shoulder while opening an air-release valve.  The case was accepted by the workers’ compensation carrier.  Billups’ job was a very physical one, requiring use of heavy tools such as a jackhammer.  He began FMLA leave on December 19, 2013.

After several months of physical therapy, Billups was referred on February 11, 2014 to an orthopedic surgeon, who scheduled Billups for a shoulder procedure.  That surgery had to be postponed due to Billups’ reaction to anesthesia.  The surgery finally took place on April 16, 2014.  Billups’ 12 weeks of FMLA expired on March 14, 2014, but the company policy granted 26 weeks of leave for work injuries.

Following surgery, Billups was informed by his doctor that it would likely take six months for his shoulder to recover to the degree that he could perform the essential functions of the job.  The need for Billups to return to work became more acute on April 30, 2014 when the county was struck by severe flooding damage to the water and sewer infrastructure.  Personnel were stretched trying to cope with the flooding.

On May 27, 2014, the surgeon signed a workers’ compensation form stating Billups was restricted to sedentary duty alone.  The company sent Billups a notice in early June 2014 that he would be terminated if he could not return to full duty by June 18, 2014, which was the end of his six month period of leave.  Billups was offered a predetermination hearing, which he attended.  Billups argued at the hearing that his surgery was delayed due to an uncontrollable health reaction to anesthesia.  Emerald Coast gave Billups one day to obtain a more definitive statement from his doctor regarding his full-duty return to work date.

The very next day Billups produced a note from his physical therapist stating that he could return to work full duty after he completed physical therapy.   But the anticipated discharge from PT was not until July 21, 2014.  Billups was not able to get a doctor’s note saying he could return to full duty on July 21, 2014.  On June 23, 2014, the company notified Billups that he was fired.  The company noted that his continued absence from work was creating a hardship on the company.

It turned out that Billups did not get discharged from PT until August 13, 2014.  He was not cleared by his doctor to return to work full duty until October 23, 2014.  Even when the doctor cleared Billups to return to work, it was with a limitation of no lifting more than 20 pounds overhead and working with his arms close to his body.

Billups filed a law suit against his employer for failing to provide a reasonable accommodation.  The district court ruled for the employer and dismissed the case.  The court said that “Billups had not identified a reasonable accommodation that would allow Billups to perform the essential functions of the job.”

Billups appealed to the United States Court of Appeals, 11^th Circuit, and argued that a short period of leave would have been a reasonable accommodation under the ADA.   The Court said, “Billlups has not shown his requested accommodation would have allowed him to return to work ‘in the present or in the immediate future.’” The Court added,  “But an accommodation is unreasonable if it would only allow an employee to ‘work at some uncertain point in the future.’”  The Court added:

As Billups foreshadowed at the hearing, his physician in mid-July 2014 limited him to lifting no more than twenty pounds overhead and advised him to complete all work with his arms close to his body.  According to Dawson (Department Director), those limitations would have prevented Billups from performing the essential functions of the UST-2 position.  Although Billups believed he could perform the job with those limitations, his testimony reflects that he could only perform ‘most’ of the work, but not all of it.  And even a ‘relatively infrequent inability to perform a job’s essential functions is enough to render a plaintiff not a ‘qualified individual’ under the ADA.

The Court interpreted Billups’ request for additional leave under the ADA as a request for indefinite leave.  Virtually all courts have held that requests for indefinite leave are not reasonable.

The Court also rejected Billups’ argument that Emerald Coast’s six-month leave policy for work-related injuries violates the ADA because, according to Billups, it does not consider individual circumstances.  The Court commented, “While Emerald Coast’s policy provides, as a general rule, six months for an employee who suffered an on-the-job injury to return to employment, it also expressly incorporates an individual assessment of the employee’s ability to work.”  The Court noted that the Department Head in consultation with HR may extend time past six months in certain circumstances.

This case is helpful because it focuses on a situation where the request for additional leave was actually for a rather short period of time, perhaps a month or two, just until PT finished. Yet, the employer correctly considered this as a request for indefinite leave because there was no expectation that the employee would be able to return to full duty even with the additional leave being granted.  The Court of Appeals concluded that just because the request for leave was short in duration, that fact alone does not make it reasonable if the employee cannot show he or she would be able to return to work and perform all the essential job functions.

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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. 

It is challenging for a petitioner to relate an increase in disability or need for treatment to a relatively modest award that has remained unchanged for over a decade.  That was the situation in Batts v. Flag House, A-5616-15T4 (App. Div. January 16, 2018).   The case involved an award of 50% disability of the right foot and 10% psychiatric disability going back to 2003.  Petitioner was originally injured on April 2, 1998 when a forklift ran over his right ankle in the course of employment.

Petitioner reopened the case several times – but only with respect to the foot.  In 2007 his foot award was increased to 57.5%.  Five years later, his foot award was increased again to 60%.  But the psychiatric aspect was not increased.  It remained at 10%.

The same day petitioner received an increase to 60% of his foot, he filed a modification application along with a motion for medical and temporary disability benefits seeking psychiatric treatment.

At trial, petitioner testified that his increased level of depression was due to his foot injury.  He said that he developed intimacy issues with his wife leading to his divorce nine years earlier.  He also alleged that he gained 50 pounds and was diagnosed with depression following the accident.

Petitioner presented Dr. Devendra Kurani as an expert in psychiatry.  Dr. Kurani stated that petitioner’s divorce, lack of mobility, weight gain, hypertension, diabetes, unemployment, financial concerns, inability to socialize, and depression were all due to his 1998 accident.  Dr. Kurani said petitioner needed psychotherapy and medication.  Up to that point in time, petitioner had never been prescribed any psychiatric medication.

Respondent produced Dr. David Gallina, who agreed that petitioner had depression.  However, Dr. Gallina testified that the depression was not due to the work accident in 1998.  He felt that his obesity and loneliness were due to his divorce.   Respondent pointed out that petitioner had not had any psychiatric treatment throughout the life of his case and had not been prescribed psychiatric medications.

The Judge of Compensation ruled against petitioner.  The Judge noted that petitioner had never sought psychiatric treatment from 1998 to 2016.   Although his awards had been increased for the foot, his underlying foot condition had not changed all that much.  The Judge felt petitioner failed to link his divorce to the ankle injury in 1998.  According to the Judge, Dr. Gallina’s testimony made more sense in that petitioner made certain lifestyle choices which could account for his obesity.

Petitioner appealed and argued that res judicata principles applied and the Judge was bound by the prior acceptance of the psychiatric aspect of the case.  The Appellate Division disagreed:  “Thus, there is no basis for the assertion that petitioner had a right to have his psychiatric disability award increased because of a prior court order.”  The Appellate Division stated that petitioner simply failed to prove that his current depression was caused by his 1998 accident.

The case illustrates that employers can win reopener claims at trial.  The case was extraordinary in that petitioner was seeking psychiatric treatment after an accident going back to 1998 with no intervening psychiatric treatment.

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John H. Geaney, Esq., is an Executive Committee Member and a Shareholder in Capehart Scatchard's Workers’ Compensation Group.  Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at jgeaney@capehart.com. 

Simon Law Group, P.C.

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

314-621-2828

MISSOURI WORKERS’ COMPENSATION CASE LAW UPDATE

October 2017 – December 2017

Injury Not Compensable Because Claimant Made Multiple Inconsistent Statements of How and When Injury Occurred and Failed to Establish Injury Was Caused by a Compensable Accident

Saine vs. Pepsi Beverages Company, Injury No. 15-069886

The claimant alleged he sustained an injury to his neck and right arm while driving a tractor trailer in August 2015.  His first Claim for Compensation alleged an injury to his right shoulder and arm that occurred on August 31, 2015.  He subsequently amended the claim three times to allege injury to his neck, changed the date of injury to August 25, 2015, and then changed the date of injury back to August 31, 2015.  The claimant testified at a Hearing that the injury actually occurred on August 15, 2015. 

The claimant also made inconsistent statements regarding how the injury occurred.  He told a nurse at work that his right shoulder pain was caused by tight steering in his work truck.  He went on his own on September 10, 2015 to the hospital and reported right shoulder pain following a lifting injury.  On May 3, 2016, he reported to Dr. Rutz that he sustained an injury by repeatedly backing into loading docks and twisting his body when unloading products off of his truck and then his symptoms became irritated when a car cut in front of him and he tried to avoid the collision.

At a Hearing, the ALJ found that the claimant failed to establish that his complaints were a result of an injury that he sustained as a result of an accident arising out of and in the course of his employment.  The Judge noted that an accident is an unexpected traumatic event or unusual strain identifiable by time and place of occurrence and producing at the time objective symptoms of an injury caused by aspecific event during a single work shift.  The ALJ noted that the claimant made multiple inconsistent statements regarding how and when the injury occurred and there was no relevant objective evidence of an issue with his work truck.  Also, the employer’s experts testified that none of the three possible versions given by the claimant of how his injury occurred would have caused his injury.  Therefore, the ALJ found there was no single identifiable traumatic event or unusual strain that occurred during single work shift, and the claimant failed to show that his injury was caused by a compensable accident.  On appeal, the Commission affirmed the ALJ’s decision and Award denying benefits. 

Appeal Transferred to Missouri Supreme Court to Determine Whether Applying Mesothelioma Statute to Claim with Last Exposure in 1990 Violates Missouri Constitution

E.J. Cody Company, Inc. vs. Casey, Case No. WD80470 consolidated with WD80481 and WD80525 (Mo. App. 2017)

FACTS:  The claimant worked as a flooring installer applying vinyl asbestos tile from 1984 until April 1990, when he retired.  He was diagnosed with mesothelioma on October 14, 2014 and died from the same on October 11, 2015.  His diagnosis and the fact that mesothelioma was the prevailing cause of the claimant’s death was not at issue.  The insurer provided the employer with workers’ compensation insurance with a mesothelioma endorsement, which was in effect as of the date the claimant was diagnosed with mesothelioma. 

At a Hearing, the insurer argued that it was not responsible for paying benefits because the claimant was exposed to asbestos prior to the beginning of its insurance coverage and the responsible party was the insurer in 1990.  However, the ALJ found that under the statute dealing with mesothelioma benefits, the date of diagnosis determines what insurer is liable for benefits under the statute, and reasoned that the provision in the insurance policy stating that the exposure must occur during the policy period is essentially voided by the endorsement, which provided coverage for mesothelioma benefits.  On Appeal, the Commission modified the Award but ultimately agreed that the insurer was responsible for paying benefits. The Commission agreed with the ALJ that the insurer’s mesothelioma endorsement applied to this claim because the date of diagnosis was after the amendments, which went into effect on January 1, 2014, and the claimant was diagnosed with mesothelioma during the insurer’s policy.

On Appeal, both the insurer and employer argued that application of the new mesothelioma statute to the present case violated the Missouri Constitution’s prohibition against retrospective laws because the employee’s last exposure to the hazard predated the statute’s effective date of January 1, 2014. 

HOLDING:  The Missouri Court of Appeals held that the Missouri Supreme Court had exclusive jurisdiction over this appeal in light of the constitutional issues raised, and it transferred the appeal to the Missouri Supreme Court. 

Boatright is the Employer Because He Had Authority to Hire/Fire, Assign Driving Routes, and Determine Payment, and FFE is a For Hire Motor Carrier

Parr vs. Bobby Boatright and Frozen Food Express a/k/a FFE Transportation Services, Inc., Injury No. 08-124297

Boatright was a sole proprietor who owned trucks that he leased to FFE to transport frozen or refrigerated food between Chicago and Dallas.  The contract provided that Boatright would supply drivers at his own expense who met requirements imposed by FFE’s liability insurance carrier and Federal Law.  Boatright did the hiring and firing and paid the drivers.  FFE did not control the routes the drivers took to deliver or pick up loads, did not determine which driver was assigned to the route, and did not control the amount or frequency of payment to any driver.  On February 16, 2008, the claimant was driving his assigned route as an OTR truck driver when he was involved in a motor vehicle accident in Missouri.

At the Hearing, the issue was the claimant’s employer.  The ALJ found that Boatright was the employer, not FFE, and noted that Boatright had the right to hire and fire, determine the amount and frequency of payment, assign routes, provide the trucks and maintain the same.  Additionally, because FFE was a for-hire motor carrier operating within a commercial zone, it was not a statutory employer of claimant under workers’ compensation law.  With respect to permanency, the ALJ did not find Boatright responsible for the same because the claimant did not hit his head or lose consciousness in the accident and did not seek treatment for three weeks after the accident, the damage to the vehicle was minimal, and there was no evidence suggesting that the work accident was the prevailing factor in causing any medical condition related to his current complaints.  The ALJ denied payment of PTD, TTD, PPD, or future medical.  On Appeal, the Commission affirmed the ALJ’s Decision and Award.

Editor’s Note: At the Hearing, the ALJ also found that under strict construction, 287.210.3 and 287.210.7 only apply to physician testimony.  Therefore, certified treatment records that are not offered as a substitute for an expert’s testimony would still be admissible, even if not provided to all parties at least seven days in advance of a Hearing.

Court Affirms Commission’s Decision and Award Finding that Claimant’s Work Conditions Were Not the Prevailing Cause of His Heart Attack and Death

White vs. ConAgra Packaged Foods LLC, Case No. SC96041 (Mo. Sup. Ct. 2017)

FACTS:  The claimant worked as a machinist before he died on June 30, 2012 while at work.  His autopsy showed severe coronary artery disease, and his death certificate listed his cause of death as acute myocardial infarction and heart failure.  His surviving spouse filed for death benefits under workers’ compensation.  Testimony established that the claimant operated a lathe in a machine shop on the day of his death and the weather was extremely hot.  Dr. Schuman testified on behalf of the surviving spouse and opined that the claimant’s work was the prevailing factor in causing his death because the extreme heat combined with the claimant’s physically demanding work duties and leg brace placed added stress on his already strained heart.  Dr. Farrar testified on behalf of the employer that the claimant’s death was caused by his coronary artery disease and other heart conditions and was not related to his work activities.

At a Hearing, the ALJ found that the claimant’s surviving spouse failed to sustain her burden of proof that the claimant sustained an accident or occupational disease, and the claim was therefore not compensable.  On Appeal, the Commission affirmed the ALJ’s Award with a supplemental opinion.  The Commission found that the claimant did suffer an accident because his death at work was an unexpected traumatic event.  However, the Commission found there was no persuasive expert testimony on the issue of medical causation and ruled that the claimant’s work was not the prevailing factor in causing his heart attack or death.

HOLDING:  The claimant’s surviving spouse appealed.  The Court first held that the claimant suffered an accident, which was the unusual strain placed on him due to the extraordinary heat, and this accident resulted in an injury, which was his death.  The Court held that the next step was to determine whether the unusual strain was theprevailing factor in causing the claimant’s heart attack and death.  The Court held that the Commission properly applied the prevailing factor standard, deferred to the Commission’s findings of fact with respect to the persuasiveness of expert medical testimony, and affirmed the Commission’s decision and Award.

Employer Responsible for Unauthorized Treatment Claimant Underwent During the Four Weeks Between the Date She Filed a Claim Demanding Additional Treatment and the Date She Was Evaluated by Employer’s Doctor

Boykins-Walls vs. Normandy School District, Injury No. 13-098181

The claimant, a substitute teacher, sustained an injury to her bilateral knees on December 6, 2013, when she slipped and fell on ice while walking between buildings.  She treated conservatively for contusions and underwent physical therapy and was released from care on December 26, 2013.  She proceeded to treat on her own with Dr. Droege and then filed a Claim for Compensation demanding additional treatment on January 15, 2014.  The employer directed her to Dr. Milne, and she was seen on February 10, 2014, just four weeks later.  She was placed at MMI on April 1, 2014. 

At a Hearing, the ALJ found that although the claimant sustained an accident, she did not sustain any permanent disability from the same.  The ALJ denied all benefits.

On appeal, the Commission modified the ALJ’s Award and decision with respect to unpaid past medical expenses.  The Commission found that the claimant was not entitled to reimbursement for medical bills for any treatment she received after the employer directed her to Dr. Milne for additional treatment.  However, the Commission did award past medical expenses for the treatment she underwent between the time she filed her Claim on January 15, 2014 and when she was seen by Dr. Milne on February 10, 2014.  The Commission reasoned that the employer was notified of the claimant’s need for additional medical treatment when she filed a Claim demanding the same.  It also reasoned that the treatment provided by Dr. Droege during that period was reasonable and necessary and was consistent with the type of treatment that both of the authorized treating physicians recommended and ultimately provided.  Therefore, the claimant was entitled to compensation in the amount of $783.00, referable to past medical expenses.  Notably, the Commission opined that brief delays in scheduling appointments, other than in emergency situations, do not render an employer/insurer liable for unauthorized care. 

Editor’s Note:  Therefore, it appears the Commission is suggesting that four weeks was too long to wait to schedule the claimant for a follow up evaluation.

Employer Liable for PTD Because Claimant Was Sleep Deprived Due to Pain and Had to Nap Several Times Per Day, Despite Fact that He Slept At Least Eight Hours Per Night and Did Not Take Any Medications to Attempt to Alleviate His Sleep Issues

Wann vs. The Lawrence Group, Injury No. 12-090608

The claimant, a 59-year-old carpenter and high school graduate, developed bilateral upper extremity pain, numbness, and tingling in November 2012.  He underwent an arthroscopic surgery on the right shoulder on July 22, 2013, which was performed by Dr. Ritchie, who placed him at MMI, issued permanent lifting restrictions, and assessed 20% PPD of the right shoulder.  The claimant never returned to work after surgery.  Two years later, the employer directed the claimant back to Dr. Ritchie, who also diagnosed work-related chronic left shoulder impingement and probable labral pathology, bilateral carpal tunnel syndrome, and left elbow mild ulnar nerve neuropathy and opined the claimant would require carpal tunnel releases in the future.

The claimant was evaluated by Dr. Volarich, who noted that he awakened several times per night due to shoulder pain, although he was not taking any pain medications to alleviate the same, and the doctor recommended a vocational evaluation and opined that if the claimant were PTD, it was due to the primary injury alone.  The claimant’s vocational expert, Mr. England, opined that he was PTD as a result of his primary injury alone.  He noted that if claimant got an adequate full night’s sleep, he would be a candidate for some jobs, but he noted the claimant has sleep disturbance and takes no medication to help him sleep.  The employer’s vocational expert, Ms. Abrams, opined the claimant was able to work in the open labor market, but she admitted that if he did have to take several naps during the day, he may not be able to find and maintain a job.

At a Hearing, the claimant testified that he had sleep difficulties, although he slept over eight hours per night.  He testified that he takes Ibuprofen a few times per month but no other pain medication.  He had not worked since January 2013 and had not looked for other employment besides one position at a family member’s company.  The ALJ awarded PPD at the level of the bilateral shoulders and wrists but found that the claimant was not PTD.  The ALJ noted that although he was not able to return to his former job as a carpenter, he had no ambulation problems, no need for narcotic pain medication, and was able to perform self-care.  Although he had sleep deficits, he was making no attempt to alleviate the same, and his sleep issues were not noted in his treatment records, only in the expert reports.  The ALJ also noted that the claimant was articulate and had transferable skills and no memory problems.

On appeal, the Commission opined it was plausible that someone with bilateral shoulder injuries may have difficulty sleeping comfortably, and this was noted in Dr. Volarich’s report.  It found Dr. Volarich’s opinion most persuasive and disagreed with the ALJ regarding the claimant’s credibility in light of the opinions of Dr. Volarich and Mr. England.  The Commission held that the claimant’s sleep difficulties rendered him PTD as a result of his primary injury alone and found the employer responsible for PTD and future medical.

Editor’s Note:  It does not appear that the Commission addressed the ALJ’s rationale that the claimant made no efforts to alleviate his sleep issues.

Employer Responsible for PTD After Claimant Sustained Multiple Fractures to Bilateral Lower Extremities After Falling 25 feet, Which Required Him to Spontaneously Recline Throughout the Day and Caused Sleep and Concentration Difficulties

Sanchez-Rivera vs. Jorge Calderon Construction and Treasurer of Missouri as Custodian of Second Injury Fund, Injury No. 10-059076

The claimant, a 34-year-old construction worker, was working for employer on July 16, 2010, at which time he fell 25 feet from a ladder.  Dr. Horton performed an ORIF of the bilateral tibial fractures on August 9, 2010 and two subsequent surgeries.  The claimant’s lumbar injuries were treated non-operatively.  He was placed at MMI on August 18, 2011 but was restricted to seated work only.  The claimant continues to undergo regular pain management.  He did not return to work after his accident.  He testified that he has to lie down throughout the day due to his pain and is unable to support his weight on his feet, sleep overnight, or concentrate due to his lack of sleep.  He also now uses a cane. 

At a Hearing, the claimant testified that he completed the seventh grade in Mexico and never returned to school, and he understands and speaks only a little English.  He did not have a driver’s license or any computer or typing skills.

The claimant was evaluated by Dr. Koprivica, who opined he was PTD as a result of his last injury alone. He recommended permanent restrictions of no working on uneven surfaces, climbing activities, standing and walking for less than 20 minutes only, sitting when necessary, and the ability to change positions frequently when needed.  Mr. Dreiling, a vocational rehabilitation specialist, evaluated the claimant at the claimant’s attorney’s request, and he opined the claimant was not a candidate for any type of formal academic or vocational retraining because English was his second language and he did not have a high school degree or GED and no transferable job skills.  He also opined that he would find the claimant PTD as a result of his last injury alone due to his need to spontaneously lie down throughout the day, even if his primary language was English.

At a Hearing, the ALJ found that the claimant was PTD because he testified credibly regarding his need to lie down throughout the day, his use of narcotic pain medication, and his lack of concentration and sleep. On appeal, the Commission affirmed the ALJ’s decision and Award.

Fund Liable for PTD Because Prior Low Back Injury Caused Primary Low Back Injury to be More Severe Than Otherwise Would Have Been

Branham vs. Schrimpf Landscaping, Inc. and Treasurer of Missouri as Custodian of Second Injury Fund, Injury Number 06-077118

The claimant, a man of unspecified age with a GED, was working for the employer driving a tanker truck and operating a seed sprayer when he sustained an injury to his low back on July 17, 2006.  He underwent surgery to repair an annular tear on May 10, 2007.  He subsequently underwent two additional low back surgeries, including a three-level fusion on January 24, 2011 as well as a surgery to remove bone graft material from the stomach wall on February 1, 2012.  The claimant has not worked since 2010. 

The claimant previously sustained a low back injury in 2000 while working for a roofing company, after which he underwent surgery at L5-S1 and resolved his claim for 16.1% PPD of the body referable to the low back.  He was unable to continue working as a roofer following his injury due to lifting limits and ongoing back and leg pain. 

Dr. Volarich evaluated the claimant and opined that his prior low back injury was a hindrance to his employment and he was more disabled as a result of a combination of his two injuries because his lumbar spine was weakened after the first injury, which caused his 2006 injury to be more severe than it otherwise would have been.  Dr. Volarich opined the claimant was PTD as a result of a combination of his 2000 and 2006 injuries.  Vocational experts Mr. Weimholt and Mr. Cordray agreed that the claimant was unemployable as a result of a combination of both low back injuries.  Mr. Hughes was the only rehabilitation counselor to opine that the claimant was able to continue working, although he noted that if the claimant were found PTD it would be as a result of both of his low back injuries.

At a hearing, the ALJ found the employer responsible for 45% PPD of the body referable to the low back as a result of the 2006 work injury as well as future medical.  The ALJ also found the claimant was PTD as a result of a combination of both his low back injuries.  On Appeal, the Commission affirmed the ALJ’s decision and Award with respect to permanency and future medical, but they modified the Award with respect to the claimant’s TTD and PTD rate.

Sanderson vs. Dolgen Corp., Inc. and Treasurer of Missouri as Custodian of Second Injury Fund, Injury No. 09-108286

The claimant, a 65-year-old warehouse worker, sustained an injury to his back on October 27, 2009 while working for the employer.  He treated on his own and underwent physical therapy and an injection. 

The claimant sustained a prior low back injury in 1998, which was settled for 11% PPD of the body referable to the lumbar spine.  Dr. Levy evaluated the claimant and opined that he had 30% PPD to the body in 1998.  It is not clear whether the claimant underwent surgery for the 1998 injury, but he testified he was forced to leave his job in security because he could no longer perform the physically demanding job duties.  He also testified that he was unable to return to work for two years and continued to have intermittent low back pain leading up to his primary injury.

The claimant was evaluated by Dr. Volarich, who testified that he sustained 35% PPD to the body as a result of his primary injury and was PTD as a result of a combination of his 1998 and 2009 back injuries.  Vocational experts Mr. Weimholt and Mr. Cordray agreed with Dr. Volarich.  Mr. England testified on behalf of the Fund and opined that he was employable, although he agreed that the 1998 injury was a hindrance to his employment.

At a hearing, the ALJ found the claimant PTD as a result of a combination of his pre-existing low back injury and his primary injury and ordered the Fund to pay PTD benefits.  The ALJ also found the employer responsible for 20% PPD of the body, past medical expenses, and future medical care.  On Appeal, the Commission affirmed the ALJ’s decision and Award.

Fund Not Liable for PTD Benefits Because Claimant PTD As a Result of Her Pre-Existing, Non-Work-Related Low Back Condition Considered Alone

Glasco vs. Treasurer of the State of Missouri Custodian of the Second Injury Fund, Case No. WD80186 (Mo. App. 2017)

FACTS:  On April 27, 2011, the claimant fell at work and injured her left knee and was diagnosed with a strain.  She treated with the employer’s doctors and ultimately resolved her claim against the employer for 15% PPD of the knee. 

The claimant had a significant pre-existing and non-work-related condition in her low back, for which she treated with Dr. Drisko.  She underwent multiple back surgeries prior to 2008 and then a fusion.  She was diagnosed with failed back syndrome and was referred to a pain specialist and psychiatrist.  She was subsequently diagnosed with “Transition Syndrome” after she developed stenosis over the site of her prior surgery.  She underwent additional injections.  Dr. Drisko took her off work in May 2010 for her low back condition, and she did not return to work until April 12, 2011, at which time she returned to work with restrictions.  She then only worked two weeks for the employer prior to sustaining her primary injury.

The claimant filed against the Fund for PTD benefits.  Dr. Zimmerman, the claimant’s expert, opined she was PTD as a result of a combination of her primary injury and pre-existing conditions.  However, he did not review all of the claimant’s prior medical records and did not have a complete history of her prior treatment and disability.  Mr. Dreiling also testified on behalf of the claimant, and on cross-examination, he admitted that even assuming that her left knee was fine, she would be virtually unemployable due to her back condition.  Dr. Drisko testified that she was PTD due to her progressive back problems alone.

At a Hearing, the ALJ found the Fund liable for PTD based on the combination of the claimant’s primary injury and pre-existing disabilities.  On Appeal, the Commission reversed and found that the Fund was not liable because the claimant was PTD as a result of her pre-existing low back condition, considered alone.

HOLDING:  The claimant appealed to the Court, which affirmed the Commission’s Award and Decision to deny benefits against the Fund.  It held that questions of employability and when a claimant becomes permanently and totally disabled are issues of fact within the province of the Commission, and it deferred to the Commission’s factual findings in this case.

Fund Liable for PTD Because Claimant Unemployable Due to Primary Injury Combined with Pre-Existing Right Leg Injury, Anxiety/Depression, and Need to Lie Down Throughout Day

Johnson vs. Direct TV Home Services and Treasurer of Missouri As Custodian of Second Injury Fund, Injury No. 12-100647

The claimant, a 48-year-old satellite technician, did not graduate high school or obtain a GED.  On December 19, 2012, he fell in a customer’s yard and sustained injuries to his right foot, right buttock, and low back.  He underwent injections, and Dr. Rahman ultimately performed a microdiscectomy at L5-S1.  He was released from treatment on December 17, 2013.

The claimant had pre-existing injuries.  When he was two years old, he severed the muscles in his right leg below his buttocks, which required surgery.  However, a nerve was nicked and resulted in paralysis of the right leg, which necessitated multiple additional surgeries and additional medical treatment over the next 10-12 years.  Due to this condition, he developed anxiety and began taking Xanax when he was 35.  His right leg never regained full function and mobility and he could not rotate his right ankle.  His pre-existing conditions affected his employment prior to 2012.  He was fired from a construction job because he was unable to climb on a roof without decking.  He also had to stand on cardboard or mats while working as a welder, worked slower, and took more breaks as a result of his pre-existing injuries.  He was not able to continue working as a truck driver after he began taking anti-anxiety medications.  He also had difficulty keeping his right foot on the gas pedal for extended periods of time due to his right leg and foot injury.  Even while working for the employer, he had trouble climbing on roofs and balancing on ladder rungs prior to his 2012 accident. 

The claimant’s attorney had him evaluated by Dr. Paul, who recommended permanent work restrictions, including no significant climbing, balancing, stooping, bending, kneeling, crouching, or crawling and that the claimant be able to lie down during the day.  He opined the claimant was PTD as a result of his work accident in combination with his pre-existing conditions.  Mr. Eldred, a vocational rehabilitation specialist, also opined that he was unemployable as a result of his work accident and pre-existing conditions.  He believed that the claimant’s need to lie down during the day would negate employment. 

At a Hearing, the ALJ found the clamant to be PTD as a result of his work accident in combination with his pre-existing disabilities and ordered the Fund to pay PTD.  The ALJ noted prior accommodations and limitations the claimant had as a result of his pre-existing disabilities for his 2012 work accident and also found the testimony of Dr. Paul and Mr. Eldred to be persuasive on the question of PTD.  On Appeal, the Commission affirmed the ALJ’s decision and Award.

Commission Decision Finding Fund Liable for PTD Benefits Supported by the Record Because Claimant’s Expert Testified He Was PTD and Employer’s Expert Testified He Had a Pre-Existing Disability

Barnes vs. Treasurer of Missouri as Custodian of Second Injury Fund and Park Express LLC, Case No. ED105508 (Mo. App. 2017)

FACTS:  The claimant worked for the employer, an airport parking and shuttle company, and on November 11, 2009, while changing a tire on his shuttle bus, he sustained an injury to his lower back.  He underwent injections and physical therapy and was released from care by Dr. Doll without restrictions.  The claimant subsequently treated on his own with Dr. Wilkey, who performed a two-level lumbar fusion at L4-5 and L5-S1.  He recommended permanent restrictions that included taking a break to recline for 15 minutes every two hours, ongoing narcotic pain medication, and possibly missing work up to twice a month.  The claimant had not returned to work since his 2011 surgery and was terminated by the employer when he was unable to return to work full duty.

The claimant suffered a prior low back injury in May 2000 and underwent surgery at L5-S1 in September 2000, including a right-sided laminectomy and discectomy.  He returned to work without permanent restrictions and settled that claim for 25% of the body referable to the lower back.

The claimant’s experts, Dr. Wilkey and Mr. Kaver, testified that the claimant was unemployable and PTD as a result of his 2009 work injury alone.  The employer’s expert, Dr. Lange, assessed 15% PPD of the body due to the 2009 injury and 25% PPD of the body from his prior injury in 2000.  Dr. Lange concluded that the claimant’s 2009 work accident was not the prevailing factor in causing his disability at L5-S1.  Rather, his prior injury in 2000 was the prevailing factor in causing his disability.

At a Hearing, the ALJ found the claimant PTD as a result of his last work injury alone.  On Appeal, the Commission modified the Award and found the Fund liable for PTD benefits as the claimant was PTD as a result of his last work injury in combination with his pre-existing low back injury.

HOLDING:  The Fund appealed and argued that the Commission substituted its own determination of medical causation, which was unsupported by medical expert testimony because there was no single medical expert that testified that the claimant was PTD as a result of a combination of primary injury and pre-existing disabilities.  The Court found that the Commission’s decision was supported by the record because the claimant’s experts testified that the claimant was permanently and totally disabled, and the employer’s expert testified that there was pre-existing permanent disability to the claimant’s low back.  It held that there is no requirement that a single expert’s testimony wholly support the Commission’s determinations of both causation and the nature and extent of disability.  The Court deferred to the Commission’s factual findings and affirmed the Commission’s decision and Award.

Claimant Not Entitled to Enhanced Benefits Under 287.200.4(3), Because Employer Went Out of Business More Than Fifteen Years Prior to When the Statute Became Effective on January 1, 2014 and Could Not Have Elected to Accept Mesothelioma Liability

Hegger (Deceased) vs. Valley Farm Dairy Co., Injury No. 14-103079

The claimant worked for the employer from 1968 until 1984, during which time he was exposed to asbestos.  The employer went out of business in 1998.  The claimant worked for subsequent employers, but he credibly testified he was not exposed to asbestos during that employment.  The claimant was diagnosed with mesothelioma in 2014 and died as a result on June 7, 2015.

At a Hearing, the ALJ addressed the sole issue of enhanced benefits under Section 287.200.4(3).  The ALJ found that the claimant was last exposed to asbestos while working for the employer, and his exposure was the prevailing factor for his diagnosis of mesothelioma which resulted in his death.  However, neither of the insurers who insured the employer during the claimant’s dates of employment were liable for paying enhanced benefits because the enhanced benefits provision did not go into effect until January 1, 2014.  The employer could not possibly have elected to be held liable for the same, because it went out of business in 1998.  Also, insuring its liability for occupational diseases in 1984 did not qualify as electing to be liable for enhanced benefits, which are separate and in addition to benefits otherwise payable for an occupational disease.  Therefore, the claimant was not entitled to enhanced benefits.  On Appeal, the Commission affirmed and adopted the ALJ’s decision and Award.

By: Jeffrey D. Snyder  Valenta v. WCAB (Abington Manor Nursing Home and Rehab and Liberty Insurance Company), 1302 C.D. 2016 – Filed December 7, 2017, Pennsylvania Commonwealth Court

            In this case of first impression, the Commonwealth Court affirmed the Decision of a Workers’ Compensation Judge which modified benefits based on an Earning Capacity Assessment.

            The work injury in question was sustained on October 2, 2010 in the nature of aggravation of a pre-existing calcific tendonitis with chronic tendopathy of the left shoulder, disc herniations at C5-6 and C6-7 with radiculopathy, a left trapezius strain, left medial scapula strain, and a left posterior shoulder strain. 

           The noted Earning Capacity Assessment identified six jobs and via the Assessment provided notice of those jobs to the claimant/attorney. The Court described the jobs in some detail, noting that per the Claimant, she attempted to apply for all six (6) positions but was not offered any of them.  The claimant took issue as well regarding the suitability of the jobs – there was expert medical and expert vocational testimony on both sides.

         The Workers’ Compensation Judge made credibility determinations that accepted the testimony of the defense medical expert as well as that of the defense vocational expert.  The Claimant appealed to the Workers’ Compensation Appeal Board, arguing that the six (6) jobs should not be considered actually open and available if the Claimant tried to apply for them and was unsuccessful in receiving a job offer.  The Appeal Board rejected that argument, pursuant toPhoenixville Hospital v. WCAB (Shoap), 81 A.3d 830 (Pa., 2013) which essentially requires that identified jobs be open and available at the time of the issuance of an Earning Capacity Assessment.  The Claimant argued on Appeal to the Commonwealth Court that the jobs were not actually open to her, the Claimant, when she applied for the jobs and therefore the Workers’ Compensation Judge should not have used the standard set-forth in Phoenixville Hospital.

            The Commonwealth Court considered this  a case of first impression regarding the rights of Claimants and Employers under §306(b) of the Act after the Pennsylvania Supreme Court’s Decision inPhoenixville Hospital.  The Claimant was argued that if she applied for a position listed on the Earning Capacity Assessment but did not get the job, the Employer had not proven earning capacity and so modification must be denied.  The Employer argued that a Claimant’s testimony that she applied unsuccessfully to the position is relevant but not dispositive, that is that the Workers’ Compensation Judge could accept evidence of the Claimant’s unsuccessful application but was not bound by such evidence to reject the earning capacity found in the Earning Capacity Assessment. 

            The Commonwealth Court noted that §306(b) of the Act does not require that the Claimant be offered a job, merely that the Employer prove the existence of meaningful employment opportunities and not a simple identification of jobs found in want ads or employment listings.  The Court viewed this matter as one of credibility, not sufficiency of the evidence.  The Court noted that one possible exception to the credibility process might be such where a job was filled before notice of it was given to a Claimant via an Earning Capacity Assessment - in that case it would not “exist”.  In other words, the jobs must be open and available at the time of the issuance of the Labor Market Survey/Earning Capacity Assessment to the Claimant/counsel: “We reject Claimant’s argument that the mere presentation of evidence of unsuccessful application to jobs listed in a LMS/EPA mandated a finding that the positions were not open and available and that she lacked any earning capacity.  Rather, as our Supreme Court stated inPhoenixville Hospital, such evidence from Claimant was ‘relevant’ but not ‘dispositive’ with regard to the earning power inquiry, 81 A.3^rd at 846.” 

            The take away from this case of  “first impression” is that the Claimant’s application and failure to secure employment relative to jobs identified in the Earning Capacity Assessment is simply one facet of multi-faceted litigation that includes broad discretion as to findings of credibility in Earning Capacity Assessment cases.

The first decision of 2018 involves a permanent total disability claim heard by Judge Thronson. This is the first decision we have seen from Judge Thronson following a hearing. There were a number of issues presented at hearing and the Department found in Claimant’s favor on all of them.

The first issue was whether the work injury was a major contributing cause of Claimant’s condition. Frankly, this part of the opinion is difficult to understand. The opinion starts by stating the Insurer argued that Claimant could not prove that the accident, and not some other unrelated medical condition, was responsible for her condition. There is then some discussion of cervical stenosis and the Department of Labor states the injury need only be a major contributing cause, not the major contributing cause. Despite that, the Department then states that Dr. Cederberg, the IME doctor, provided the medical opinion that the work injury was a major contributing cause to the disability. If the IME doctor relates the injury to work, it is not at all clear why it would have been an issue at hearing. Regardless, the Department found the injury was a major contributing cause of the condition complained of.

The next question was whether Claimant was permanently and totally disabled. Claimant had a $691.00 per week comp rate. She was 61 years old with a high school diploma, and her vocational expert, Tom Audet, testified she would be unable to work within her restrictions and make at least her workers’ compensation rate. The Employer and Insurer did not have their own expert at the hearing. The Department of Labor accepted Audet’s testimony that Claimant was in the odd-lot category. The most interesting part of this opinion was in the Department’s analysis of whether Claimant conducted a good faith job search. Claimant looked for 26 jobs between December of 2014 and May of 2015. It appears she did not make any other job search and the hearing was in August of 2017. If that is correct, Claimant would have gone more than two (2) years without looking for work. The Department held that “no case law in South Dakota specifies that a job search need be made in any particular timeframe.” What constitutes a reasonable job search depends on the facts, but it’s curious that the Department of Labor found the job search to be reasonable as it focused only on the 26 job contacts over a five-month period and did not make any mention that Claimant failed to look for work for more than two (2) years, or attempt to address why the Department was not concerned with this seemingly relevant fact. The Employer and Insurer’s lack of an expert may have been the determining factor here as there was no evidence that a job search would have made a difference.

The final claim was that Claimant refused medical care, and thus, aggravated her condition. Claimant was prescribed a second round of physical therapy but did not proceed forward with it. The IME doctor indicated the failure to complete the second round of physical therapy aggravated Claimant’s shoulder. The Department of Labor stated the evidence was insufficient to establish that the physical therapy would have helped Claimant’s condition as the first round of physical therapy did not provide much benefit. Moreover, the Department of Labor did not find Claimant at fault for failing to attend physical therapy as Claimant had difficulties in obtaining authorization from the Insurer on getting therapy. The Department stated, “Claimant cannot be penalized for failing to attend physical therapy sessions which are not available to her.”

If you have questions regarding this decision or any other South Dakota questions, please contact the Boyce Law Firm at 605-336-2424 or contact Charles Larson at calarson@boycelaw.com

Written by: Scott Farwell

After practicing law in the field of workers’ compensation for eleven years, I decided to return to school. Not business school; not for an LMS or other decorative degree which would typically boost the resume of a partner within a larger firm. Instead, I enrolled in Johnston Community College’s Truck Driver Training program, in Smithfield, North Carolina, and it was one of the best opportunities I have experienced in my career to date. Humbly, that is saying something given my eight year military experience as an interrogator both at home and abroad, time in the public high school system as a teacher, and as a traveling Russian linguist.

First, some relevant background on the Truck Driver Training Program at Johnston Community College itself.  It is the most seasoned truck driver program in the nation (and, by all accounts, the world), having been founded in 1939. Over 50,000 truck drivers have graduated from the school in its 79 years; with over 343 drivers graduating per year (on average). With night, daytime, and weekend course options, it stands significantly above so many other programs with both its stringent and respected testing requirements and behind-the-wheel drive times for its students. Recruiters were, very literally, asking for time to present the merits of their companies to the students throughout the 12 week course – detailing starting salaries for first year drivers which far exceeded dollar figures that any of the students, myself included, had seen in our initial years with other jobs.

Why am I waxing eloquent about the history and merits of this program? Two reasons (at least): First, the nation needs this profession to excel – a statement that intentionally carries multiple meanings. The nation needs truckers in order to excel as a nation; and the nation needs the truckers who drive within the profession to be better than simple bodies holding steering wheels. You can only imagine why this is true. While consumerism and community growth explode across the nation, the only means by which the latest and greatest materials and goods reach our doorsteps, is through this industry; and the only way that industry can accomplish the weighty task with which it has been burdened, is through its drivers. Perhaps more importantly (to you as you drive down the road alongside these monsters of the highway), the only way those drivers can actually reach their assigned destinations, is by being the safe, considerate and consummate professionals that each of us expect to be driving alongside us on the roads.

So I attended night and weekend classes, for 32 hours per week over the course of the 12 week program. I logged over 80 hours of drive time as a student, and ultimately obtained, not only my ‘class A’ driver’s license (CDL) but, an intense appreciation for the profession and art of driving multi-axle vehicles.

Recall, I indicated there were at least two reasons why I am splashing these pages with praise about my experience and the school I attended – first, because the profession must excel, and this school is absolutely providing the quality necessary to accomplish that. The second reason touches on why, as a workers’ compensation attorney, I would spend so much time, energy and effort to learn the hands-on level skills of driving a big-rig.  In a word, ‘closing claims.’

If you are reading this, your interest suggests your familiarity with the cross road within a workers’ compensation claim where the claimant is out of work, has attained MMI, but is an extremely difficult vocational rehabilitation candidate (difficult permanent restrictions involving no lifting, limited education, limited/focused past work experience, a resides in a smaller town 50 miles from any metropolitan area). In those situations, the carrier, the insured, and the attorney all publish to the claimant an expectation that a return to work is just around the corner, even while setting reserves within the file which reflect a long and expensive out of work experience. At mediation, I assure you those elements of exposure are not lost on opposing counsel, who consistently and confidently holds out for a ‘show me the money’ moment in claims where settlement is preferred to often-times fruitless vocational rehabilitation efforts.

Enter, my knowledge of just how badly this nation wants and needs truck drivers. Have no education or work experience in trucking? No problem! Inside of a four to eight week day course, they will have you behind the wheel of a big rig. No other education or experience required. Live in a rural area? No problem!  As a truck driver, your workplace travels home with you, and the 50 mile post MMI ‘area of residence’ limitation set out in N.C. Gen. Stat. §97-2(22) is met. Have a high pre-MMI average weekly wage, implicating exorbitantly high temporary partial exposure? No problem! With starting salaries north of $50,000.00, and second/third year salaries potentially exceeding $70,000.00, Defendants’ 500 week temp-partial headache is resolved. What about those pesky permanent restrictions, though? No problem. Virtually every inter or intra state trucking company is now offering no-touch/lift driver positions with vehicles using automatic transmissions. That means, by and large, even strict permanent restrictions can be met without modification. Ah yes, but what about a claimant with a criminal record? No problem! With notable exceptions having to do with drug trafficking and a select few other crimes (as per federal motor carrier safety regulations), in order to meet the growing deficit of needed drivers (greater than 50,000 as per 2017 publications on the topic), trucking companies are publicly taking the position that a driver’s past is in the past, and are hiring, nay recruiting, prior felons.

These elements impacting the more acute moments within a claim beyond the point of MMI, but prior to a claimant’s return to work do translate into literally hundreds of thousands of dollars of reduced claim exposure. I am living breathing proof of that fact. Since my attendance began in September of 2017, I have applied my knowledge and personal experience of and with the industry to resolve multiple long standing workers’ compensation claims. I have laughed across the table with claimants during opening statements at mediation (much to the chagrin of opposing counsel) about how everyone at the table knows their inactive CDL can be renewed, and their return to work into a no-touch/no-lift driver position is immediately assured; I have gained the respect and cooperation of pro se claimants who were non-communicative prior to my involvement, but who share ‘war-stories’ of their driving past once they realize I, too, carry my class-A license; I have rebutted the lay misstatements and misunderstandings of opposing counsel regarding the mechanics of a big-rig. In sum, I have closed claims.

While it may not always be the answer to closing a difficult claim, I am certain the need for truck drivers, in combination with the industry’s importance to the nation and our daily lives, causes it to be an excellent avenue to consider when faced with a difficult return to work scenario.