State News

NWCDN is a network of law firms dedicated to protecting employers in workers’ compensation claims.


NWCDN Members regularly post articles and summary judgements in workers’ compensations law in your state.  


Select a state from the dropdown menu below to scroll through the state specific archives for updates and opinions on various workers’ compensation laws in your state.


Contact information for NWCDN members is also located on the state specific links in the event you have additional questions or your company is seeking a workers’ compensation lawyer in your state.


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The California Insurance Commissioner has approved the admission of Golden Bear Insurance Company to sell “cannabis business insurance” in the state. The insurance is intended to provide coverage to the cannabis industry, including coverage for workers in the industry. The filing, the first of its kind nationwide, raises a number of questions including: will “cannabis business insurance” cover the “gaps” provided by workers’ who are intoxicated on marijuana? Will it cover slow-downs in productivity from using the product? Will it cover vending machine abuse by workers with the munchies? Inquiring minds want answers to these questions and we look forward to California providing them. HT:Insurance Journal.

The work day begins once the employee arrives at the office and thereafter any travel home which furthers the affairs of the employer is within the “course and scope” of employment. Recently, the Appeals Panel addressed this situation where an employee arrived at work, but left shortly after to return home to retrieve a work laptop he had forgotten. While on the way home, the employee was killed in a motor vehicle accident. The Appeals Panel determined the work day started when the employee arrived at his office and that his travel to and from his residence to retrieve the work laptop (which was necessary for the performance of his duties) was within the course and scope of employment. Unlike in a “coming and going” situation, the travel in this case was not simply transportation to and from the workplace, but rather was travel that both furthered the employer’s business andoriginated in the business. – Appeal No. 171936, decided October 5, 2017.

The general rule in Texas is that a Carrier is not liable for workers’ compensation benefits when a worker is injured while traveling to or from work. The “coming and going” rule, as it is known, was recently applied by the San Antonio Court of Appeal to uphold the Division’s denial of death benefits to the widow of Robert Estrada, a worker who was killed while traveling from his home to work to drop off his weekly timesheets while on his way to a jobsite.

In its decision, the appellate court explained that an activity is in the “course and scope” of employment, if itoriginates in the employer’s business and furthers the employer’s affairs. The court focused on the “origination component” and found that Mr. Estrada’s travel to his office did not originate in the employer’s business. The employer did not require its employees to start or end their day at the office, but rather, their work day began at the jobsite. Additionally, the employer exerted no influence on Mr. Estrada’s route to work, and Mr. Estrada could have delivered his timesheets in some other manner, including using a fax machine at the job site or sending them with another employee. Moreover, Mr. Estrada was not on a “special mission” in delivering the timesheet. Finally, the employer did not furnish Mr. Estrada with transportation or reimburse him for his travel. While it did provide a stipend for gas, the stipend was an “accommodation,” not a “necessity,” and there was no evidence that Mr. Estrada was required to use the stipend for gas or for any other specific purpose.

Ultimately the appeals court upheld the Division and trial court’s ruling that Mr. Estrada’s travel was not in the course and scope of his employment, stating that the risks to which he was exposed while traveling to and from work were shared by society as a whole and did not arise as a result of the work of his employer.  – Fuentes v. Texas Mutual Ins. Co., No.04-16-00662-CV, 2017 WL 4942859 (Tex. App.—San Antonio Nov. 1, 2017).

The American public is aware of the rapidly escalating opioid crisis sweeping the country. According to the Center for Disease Control, fifty-three thousand Americans died from opioid overdoses in 2016, which is more than people who died in car crashes or from gun violence in 2015. Bringing attention to the issue, New Jersey Governor Chris Christie reports that opioids kill roughly 142 Americans every day, which he describes as “September 11th every three weeks.” In late October, President Trump declared the opioid crisis a Public Health Emergency and vowed to alleviate the scourge of drug addiction that has affected every demographic. But what does this actually mean?

By acting through the Public Health Services Act, President Trump directed the Acting-Secretary of Health and Human Services to declare a nationwide health emergency, a designation that will not automatically be followed by additional federal funding. Instead, the order will expand access to tele-medicine in rural areas, instruct agencies to curb bureaucratic delays in dispensing grant money, and shift some federal grants toward combating the opioid crisis. 

The order allows Congress to fund the Public Health Emergency Fund and to increase federal funding in year-end budget deals currently being negotiated on Capitol Hill. The biggest concerns remain whether President Trump will follow through on a nationwide health emergency declaration and how many toes he is willing to step on to do it.

“Copy and paste” reports are not just for college kids on tight deadlines anymore. Recently, we have noticed that some medical providers are copying and pasting, word-for-word, their causation opinions from unreliable web sources. One such instance was identified by our own attorneys, Robert Greenlaw and Amanda Schwertner, while preparing for a hearing in Weslaco. The “Letter of Causation” provided by an Edinburg chiropractor lifted several large blocks of text—verbatim—from several webpages, two of which were written by two different personal injury attorneys in California. (Both of the lawyers’ websites urge the reader to call their offices for a free consult regarding their claim – Call Now!) This particular chiropractor also lifted several text blocks—verbatim—from the websites www.shimspine.com and www.patient.info. These latter websites warn that the information provided is not medical advice and should not be used for diagnosis or treatment of medical conditions. Moreover, the information fromwww.patient.info is based on UK and European Guidelines, not the US or accepted worker’s compensation guidelines.

 

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Everything Old is New Again: Board Releases “Revised” SLU Impairment Guidelines on 11/22/17 for Public Comment

 

On 11/22/17, hours before the start of the Thanksgiving holiday, the Board issued itsrevised Impairment Guidelines for schedule loss of use and proposed regulations viaSubject Number 046-1005. In a complete departure from the draft proposed guidelines that the Board issued on 9/1/17 (to which the Board has removed access to from its website), as well as the statutory mandate contained in WCL §15(3)(x), the new revised guidelines are nothing more than the current guidelines that have been in place since 1996 in a new package with a few minor tweaks that will do little to control schedule loss of use (SLU) costs. The regulations that the Board proposed on 9/1/17 that addressed changes to the SLU process, IMEs, and other things have been eliminated and replaced with a new Section 325-1.26 which incorporates the proposed 11/22/17 Impairment Guidelines by reference and requires their use in all evaluations for schedule loss of use. Our summary comments are below; for a more detailed analysis, please read our Summary and Analysis of the 11/22/17 Proposed SLU Guidelineshere.

In April 2017, the Workers’ Compensation Law was revised to include a new WCL §15(3)(x), which required the Board to adopt new permanency guidelines by 1/1/18 for calculation of schedule loss of use that are “reflective of advances in modern medicine that enhance healing and result in better outcomes.” Arguably, the draft guidelines released on 9/1/17 addressed this statutory requirement in providing SLU guidelines that, in general, resulted in markedly lower SLU awards. Rather than relying primarily on loss of range of motion, the 9/1/17 Guidelines ranked injuries according to their severity into A, B, and C groupings to establish a baseline schedule loss. After the initial grouping, the examiner would then be required to analyze loss of range of motion, loss of function, and pain. This analysis would then be combined with the Board’s determination of the claimant’s loss of earning power to determine the final schedule loss of use award. This multi-factored analysis was designed to be reflective of “better outcomes” in healing that one might expect in the 20 years of medical advances since the publication of the 1996 Guidelines. The 9/1/17 draft Guidelines rejected the simple range-of-motion analysis from the 1996 Guidelines and emphasized that determination of SLU was a legal determination based in part on medical evidence and in part on an analysis of the claimant’s “loss of earning power.” The 9/1/17 draft guidelines were met with vociferous opposition from labor and the claimants’ bar.  

Rejecting the new system envisioned by the 9/1/17 draft guidelines, the 11/22/17 revised guidelines return to the 1996 Guidelines, but in a somewhat easier to understand package that attempts to clarify a few ambiguities. As noted above, the 11/22/17 proposed guidelines will result in largely the same awards for SLU as under the current 1996 Guidelines. The primary calculation is based on loss of range of motion. The proposed guidelines contain helpful diagrams illustrating the various motions used in evaluating schedule loss of use. Each section of the proposed guidelines states that the examiner should first assess whether any special considerations apply. If so, then the schedule loss of use enumerated in the special consideration should apply without any addition for loss of range of motion unless the special consideration requires it. If the special consideration is silent on schedule loss of use value, then the examiner can consider loss of range of motion. If no special consideration applies, then the SLU analysis is based solely on loss of range of motion, using the chart provided in each section. Again, the percentage SLU values for loss of range of motion are basically unchanged from the 1996 Guidelines. 

These proposed guidelines present little more than the current 20-plus year old SLU guidelines in a new package. They contain some minor tweaks and provide clarification regarding some issues but do very little to address the enormous cost of schedule awards for major extremities in cases with little or no lost time. Despite its flaws, the 9/1/17 Guidelines would have attempted to address this with the “loss of earning power” analysis.

We recommend that our clients strongly oppose the 11/22/17 proposed guidelines. We suggest that the Board return to the 9/1/17 draft impairment guidelines but eliminate the regulations regarding cooperation with IMEs objected to by labor and the regulations restricting the employer's right to cross-examine the claimant objected to by business. The 9/1/17 draft at least appeared to consider "advances in modern medicine" by tying the SLU evaluation to a claimant's medical outcome, rather than a mere loss of range of motion analysis. The 11/22/17 proposed guidelines do not address the statutory requirements of WCL Section 15(3)(x) because they are virtually the same as the 1996 Guidelines and thus cannot be said to be “reflective of advances in modern medicine that enhance healing and result in better outcomes.”

The proposed guidelines only state that examiners “should consider” the limitation in range of motion in the claimant’s uninjured contralateral limb, which indicate that the loss of range of motion in the contralateral limb should be deducted from the calculation of loss of range of motion in the injured limb. Such comparison was not part of the 1996 or 2012 Guidelines but was included in the initial 9/1/17 draft guidelines. The inclusion of this suggestion in both the 9/1/17 and 11/22/17 proposals highlights its apparent importance. At the very least, when submitting comments to the Board, we would urge our clients to recommendrequiring examiners to compare a claimant’s injured limb with the baseline normal range of motion on the claimant’s contralateral limb andmandate that the loss of range of motion in the injured limb be calculated from the baseline range of motion in the contralateral uninjured limb.
 
Additionally, the award for defects in range of motion should never equal ankylosis or amputation of the relevant joint.  To award a person with reduced range of motion, even if it is marked, benefits equal to a person with no movement in the joint or with an amputation, is inequitable and does not accurately represent the functional loss.  For example, range of motion deficits in the hand may not exceed 55% as ankylosis is 60%.  The same result should apply to all joints.  Placing a maximum of 90% of the value of the ankylosed or amputated member would recognize that some movement is better than none, while at the same time, compensating for significant reduction in function.
 
We recommend that our readers take time to provide commentsvia the Board’s online survey, accessible through this link. The Board will close the public comment period on 12/22/17. Although we expect little more than technical changes from the Board when it finalizes these proposed guidelines, there will be no change at all unless Board hears comments from its stakeholders. 

 

Appellate Division Split Decision Creates New Standard for Permanent Total Disability

 

On 11/16/17, the Appellate Division, Third Department, decided Wohlfeil v. Sharel Ventures, LLC. This split 3-2 decision represents a marked departure from previous practice and precedent on how non-statutory permanent total disabilities are determined. Because it is a 3-2 split decision, the employer and carrier have an appeal as of right to New York State’s highest appellate court, the New York Court of Appeals. It is unknown at this time if the carrier/employer will pursue such an appeal.

At issue was a claim for permanent total disability versus permanent partial disability.  Claimant’s treating physician issued a report with a Class 5F permanent partial disability ranking under the 2012 Guidelines. He also opined a "less than sedentary" work capacity. The carrier’s IME consultant opined a Class 4G permanent partial disability under the 2012 Guidelines.  During deposition testimony, the treating physician said that he gave the claimant, “rather significant restrictions” and that the claimant was “not…capable of performing any type of gainful employment at this time.” The carrier’s IME consultant testified during his deposition that “It was unlikely claimant would ever be able to return to meaningful employment.”

The WCLJ classified claimant with a permanent partial disability and a 75% loss of wage earning capacity. A three-member Board Panel affirmed on appeal. 

The Appellate Division majority reversed, relying on the above statements from the physicians. The Court stated, “Since the Board’s findings as to claimant’s ability to perform some type of sedentary work are contrary to the consistent medical proof presented, the Board’s finding of a permanent partial disability and a 75% loss of wage earning capacity is not supported by substantial evidence….”  Had the Court stopped there and remanded the case for further proceedings regarding claimant’s exertional capacity, this decision would be arguably consistent with previous precedent. However, the Court went a step further and classified claimant with a permanent total disability, stating, “The operative standard here isgainful employment, not some undefined type of limited sedentary work.” (emphasis added). The Court did not define the term “gainful employment.” This statement departs from past precedent, because a claimant has always been considered partially disabled if there is any form of work he or she can do, however limited.  The “gainful employment” standard described by the Court here represents a re-definition of the standard for finding total disability.

Both physicians opined permanent partial disabilities under the Board’s 2012 Guidelines in their reports and only opined total disabilities off-the-cuff during their depositions. The Board's decision finding a 75% loss of wage earning capacity was based on the 2012 Guidelines. The Board is entitled to apply the Guidelines it has promulgated to ensure consistency in disability assessments. The Court’s decision conflicts with previous precedent holding that the Board, in its role as fact finder, is entitled to selectively adopt and reject portions of medical opinions and testimony so long as the final result is based on substantial evidence. In this case, the Board rejected the total disability statements from the treating physician and IME consultant and credited the permanent partial disability assessment from the treating physician based on the 2012 Impairment Guidelines. If previous precedent were applied here, this decision should have been affirmed as a legitimate exercise of the Board’s fact-finding powers to selectively adopt and reject portions of an expert’s medical opinion.

The Court’s decision is further inconsistent with its previous holding inBurgos v. Citywide Insurance Program, which held that a claimant’s exertional ability is irrelevant to the degree of medical impairment.  In that case, the Court rejected a claimant’s argument that a less than sedentary exertional capacity represents a de facto permanent total disability.  Ironically, the New York Court of Appeals, affirmed the Appellate Division’sBurgos holding the very day the Appellate Division issued this decision.  The Court’s decision here appears to rely heavily on the treating physician’s testimony that claimant has a less than sedentary exertional capacity.  In this vein, the “gainful employment rather than some undefined type of limited sedentary work” standard appears to establish ade facto permanent total disability in cases where a claimant has a less than sedentary exertional capacity in direct contravention to the Court’s holding inBurgos.

The Court’s holding also blurs the distinction between the medical issue of permanent total disability and the functional/vocational issue of total industrial disability.  Permanent total disability is purely a question of medical impairment whereas total industrial disability applies to permanently partially disabled claimants who meet various requirements for functional and vocational limitations.

 

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On July 26, 2012, Stephanie Nichols applied for a job as a Senior Radiology Technologist with OhioHealth Corp at the Riverside Breast Health Center.  She had worked in similar positions for over 30 years.  Nichols received the job offer contingent on passing a medical examination.  In the health assessment form that Nichols completed, she was asked “Do you have any limitations that would keep you from performing the duties of your job?”   Her answer was, “Cannot stoop or work standing on my knees.”

Nichols indicated that her limitations stemmed from a prior meniscus tear that had been repaired one year before she applied for the job.  She added that she has poor balance and that if she needs to go down to the floor that she usually “hangs onto something.”

The next step was a meeting with the Riverside Hospital nurse, Charissa Cattrell.  In that meeting Nichols clarified that kneeling caused her knee pain.  She said she could do the job but that performing some of her duties would cause her more knee pain.

Cattrell referred Nichols to an accommodation specialist, Nancy Miller, at the hospital.  Nichols spoke with the accommodation specialist but said that did not ask for accommodations because she felt she did not need any.  Miller had a different recollection of the phone call and recalled that Nichols requested accommodations by potentially leaving the door to the mammography suite open or having another person to be available to assist her.  Miller said that there was also a discussion about grab bars being installed to help Nichols with any balance issues.

Miller then spoke with the manager of Radiology about the possible accommodations.  The manager said that leaving the door open would violate hospital rules, and installation of grab bars was not possible because of the size of the rooms.

Miller next discussed with Nichols the importance of getting a note from her own doctor stating that Nichols had no limitations.  Nichols offered to come to the hospital and demonstrate that she could do the job, but that offer was declined.  Plaintiff’s physician, Dr. Barker, then faxed a note to OhioHealth stating, “Patient was last seen 9/7/11.  The patient was released without restrictions at that appointment.”   He faxed a second note stating, “Nichols has not required physical therapy at this point in time but certainly she will give us a phone call if she stalls with progress and perceives the need for some reconditioning, which would be nicely accomplished by therapy if necessary.”

The next day Nichols advised hospital personnel that she was ready for orientation.  She was informed that the job offer had been rescinded and the position would not be filled.  Plaintiff sued alleging that the hospital discriminated against her based on her disability or her perceived disability in withdrawing the job offer.

The hospital moved to dismiss the case on the ground that Nichols did not have a covered disability under the ADA.  In her deposition, Nichols admitted that she is not disabled; she just has pain sometimes.   The hospital also argued that Nichols’ own doctor said she has no restrictions whatsoever. “The Court agrees with Plaintiff that Dr. Barker’s return to work without restrictions is not dispositive of whether or not she has a disability, but it is a significant blow to her claim that the knee injury substantially limited a major life activity.”  The Court added, “Further, that her doctor released her without restrictions and that she never sought medical help for her knee between the surgery and the events in this lawsuit is evidence that her knee injury did not substantially limit a major life activity.”

Nichols also argued that even if she did not have a disability, the hospital perceived her as having one and therefore regarded her as being disabled in violation of the ADA.  The Court also dismissed this argument:  “Although this evidence certainly suggests that OhioHealth knew of a possible impairment, the Court agrees with the Defendant that receipt of a doctor’s report showing no restrictions has a preclusive effect on a regarded-as-claim.”

This case illustrates the difficulty a plaintiff may have in proving an ADA claim where, on the one hand, the plaintiff asserts that she can do her job without accommodation and her doctor finds no restrictions, but on the other hand the plaintiff asserts that she has a covered ADA disability.  It is difficult to square those two positions, and the court in this case clearly made the right decision to dismiss this case.  The case can be found at Nichols v. OhioHealth Corp., 2017 U.S. Dist. LEXIS 131146 (S.D. Ohio August 17, 2017).

 

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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. 

 

As many of you know, an Alabama Circuit Judge recently issued an Order declaring the entire Alabama Workers’ Compensation Act unconstitutional.  As a result, there have been many questions as to whether the constitutional issue would be appealed and what effect, if any; the ruling would have on other Alabama cases.  The case in which the Order was issued recently settled which nullifies any chance of the constitutional issue reaching a higher court, at least in that case.  As a result of this recent constitutional attack, the Alabama State Bar Association has appointed a task force to research the workers’ compensation laws of surrounding states in an effort to try to revise or amend certain provisions of the Alabama Workers’ Compensation Act. While we can expect that a focus will be put on the $220.00 cap on permanent partial disability and the 15% contingency fee, other parts of the Act will be examined as well.

We will continue to report as this issue progresses or stalls.

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ABOUT THE AUTHOR

This article was written by Joshua G. Holden, Esq., a member of Fish, Nelson & Holden, LLC, a law firm dedicated to representing employers, self-insured employers and insurance carriers in workers’ compensation and related liability matters. Mr. Holden is AV rated by Martindale-Hubbell, which is the highest rating an attorney can receive. Holden and his firm are members of the National Worker’s Compensation Defense Network (NWCDN). The NWCDN is a national network of reputable law firms organized to provide employers and insurers access to the highest quality of representation in workers’ compensation and related employer liability fields. If you have any questions about this submission or Alabama workers’ compensation in general, please contact Mr. Holden by emailing him at jholden@fishnelson.com or calling him directly at 205-332-1428.

The Mississippi Workers’ Compensation Commission has published Guidelines for the Prescription of Opiates, which were effective as of June 14, 2017. The Commission directed that all clinicians who prescribe opioids should follow the guidelines, but noted that failure to do so would not warrant denial of a service, except in limited instances identified in the guidelines. Among the contraindications to prescribing opioids beyond three months, the guidelines state that opioids should be discontinued if the medication has not reduced the injured worker’s subjective pain complaints by a minimum of 30 % or if he or she cannot function secondary to the medication’s side effects. The guidelines also instruct that clinicians should conduct random drug screens at least two times a year and note that monthly drug screens, which are not random, are not indicated.

The guidelines include recommendations to help clinicians detect injured workers who may be at risk for addiction and to ensure that injured workers are informed about the risks and benefits of opioids before beginning use. For example, the guidelines state that injured workers should undergo psychosocial evaluation, to include formal psychological testing, if they are placed on opioids for more than three months. The guidelines also instruct that, before beginning opioid therapy for chronic pain, clinicians should establish treatment goals with the injured worker, educate the injured worker about the potential risks and benefits of opioid therapy, and discuss how the opioid therapy will be discontinued when risks outweigh benefits.;

In addition, the guidelines make clear that treatment for addiction will be considered compensable where an opioid abuse disorder is directly related to the use of controlled substances that were prescribed for a workers’ compensation injury. The guidelines note that formal detoxification programs will not be required in all such cases, but would be appropriate where the injured workers would experience withdrawal symptoms.



About the Author

This article was written by Jennifer H. Scott, Esq. of Wise Carter Child & Caraway, P.A., a law firm with offices in Jackson, Hattiesburg, and Gulfport, Mississippi. Wise Carter offers legal solutions for a wide array of corporate, litigation, regulatory, administrative, and governmental matters, including representing employers, self-insured employers, and insurance carriers in workers’ compensation cases and related employment law and liability matters. Scott and her firm are members of The National Workers’ Compensation Defense Network (NWCDN). The NWCDN is a national and Canadian network of reputable law firms organized to provide employers and insurers access to the highest quality representation in workers’ compensation and related employer liability fields. If you have questions about this article or Mississippi workers’ compensation issues in general, please feel free to contact the author at jhs@wisecarter.com or (601) 944-7722.


Rarely does the Appellate Division reverse a Judge of Compensation when the only issue is the extent of permanent partial disability.   The case of Van Artsdalen v. Fred M. Schiavone Construction, No. A-3392-15T1, 2017 N.J. Super. Unpub. LEXIS 2516 (Oct. 5, 2017) is that rare example.

The petitioner, Mr. Van Artsdalen, was injured on January 26, 2012 in a fall at work while carrying 60-70 pounds of plywood.  He saw a doctor after work and then again two days later.  He attempted to return to work the next day but was unable to do so because there were no work assignments available.  He did go back to work on January 30, 2012 but could not finish his shift on account of severe back pain.  Petitioner obtained an MRI and received physical therapy and pain management.  He was cleared to return to work on May 5, 2012.  He did not return to work initially because there were no assignments.  Finally, he returned to work on July 12, 2012 and continued through September 2012 when he retired.  He testified that he could no longer take the pain and therefore retired at the age of 53.  He did admit to having chiropractic treatment in 1992 and symptoms of low back treatment in 2008.

In 2013 petitioner had another MRI and then filed a petition in the Division of Workers’ Compensation.  He received more pain management and an epidural injection.  He never treated again after September 2014. He never had any surgery to his spine.  Petitioner testified at trial that he had difficulty lifting things, bending over while getting dressed and performing household chores.  He was subject to sudden onset of sharp pain, particularly in the groin area.  He used over-the-counter medications and ice.  Sometimes the pain interfered with his sleep and often prevented him from doing heavy lifting of objects.  He did admit that he was able to perform most daily activities including household chores and driving his grandchild to and from school.

The parties agreed to submit the expert reports into evidence without having the experts testify.  Dr. Gaffney for petitioner estimated 52.5% based on petitioner’s lack of relief from epidural injections.  He diagnosed “chronic pain and lumbar fibromyositis syndrome” and noted “restriction of function.” The Judge stated that “it was understood that surgery could not be wisely undertaken in Van Artsdalen’s condition to obtain an optimum result bettering his condition.”  However, there was apparently no testimony to the effect that surgery could not be performed, and Dr. Gaffney’s report did not spell this out.   The Judge also stated that the petitioner’s condition “simply was inoperable due to his condition of multiple levels impeded in his lumbar spine.  Therefore, his disability rating is construed as worse than one who could obtain relief from a procedure or operation.”

Dr. Maletsky’s report was also admitted into evidence without testimony by the doctor on behalf of respondent.  Dr. Maletsky found 2% permanent partial disability.  Dr. Maletsky noted that petitioner had x-rays of his spine in 2008, four years before the accident, but the Judge of Compensation found Dr. Maletsky’s report was not as credible as that of Dr. Gaffney because in part he did not address the fact that petitioner had multiple levels of discs which were impaired.  She found that Dr. Maletsky did not “adequately address petitioner’s increased symptomology as being related to the last work incident.”

The Judge awarded 47.5% permanent partial disability or $153,900.  Schiavone appealed and argued principally that the judge’s conclusions were not supported by the record.  The Appellate Division first acknowledged the expertise of the Judge of Compensation in awarding disability.  However, in this case the Appellate Division found two areas where the Judge of Compensation drew conclusions that were not supported by the record.  “[W]e are constrained to vacate the judgement and remand for reconsideration as we conclude there was no evidence to support the findings that Van Artsdalen’s injury was inoperable or that he took few days off during his years of employment.”   The Court added that “neither Van Artsdalen nor the experts stated these facts or opinions, nor was there any other evidence presented from which the judge could have logically inferred them.”  For these reasons the award was reversed.

This case would not have been reversed had there been evidence in the record that petitioner did not take time off in the past and had been advised that his condition was inoperable.  Both petitioner’s attorney and respondent’s attorney took risks when they did not produce the live testimony of their experts.  Through live testimony petitioner’s attorney could have focused on whether the back condition was inoperable, thereby giving the Judge of Compensation support in the record for her conclusion.  Respondent’s expert could have cross examined effectively on petitioner’s prior condition and alternative explanations for why petitioner was never advised to have surgery on his spine.  This was simply a case where the sparse record did not support some of the conclusions of the Judge of Compensation, and that was mainly due to the failure to bring in the experts.  Without that testimony, 47.5% seemed extremely high for an unoperated back condition.

The lessons learned are to bring in experts when trying cases and only try cases on reports where there is very little money at stake and there are no real issues of causation.

 

 

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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. 

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