by Jessie Zaylia, Partner

On April 26, 2017, the Third District Court of Appeal issued its decision in City of Jackson v. Workers’ Compensation Appeals Board (Rice) resolving the question whether “heritability and genetics” may be properly considered to apportion causation for a disability caused by a degenerative disease. (No. C078706, publication pending).  The court answered the question in the affirmative.

In City of Jackson (Rice), the applicant police officer filed a claim for his disability caused by a cervical degenerative disc disease.  The qualified medical examiner found the applicant suffered a cumulative neck injury and initially apportioned 25% causation to “heritability and genetics.”  In a supplemental report, however, the QME changed the apportionment to 49%.  In support, the QME cited three medical studies that found genetics to be “a significant causative factor in cervical spine disability [. . .].”  In response to the applicant’s petition for reconsideration, the Workers’ Compensation Appeals Board’s disregarded the QME’s apportionment and ordered an unapportioned disability award for the applicant.  The Third District granted the City of Jackson’s petition for writ of review and annulled the Board’s decision.

The court’s ruling in City of Jackson (Rice) is notable in two respects.  First, the court held that Labor Code section 4663 permits consideration of an applicant’s genetics when apportioning causation in a degenerative disease case.  The court dismissed the Board’s concern that “apportioning causation to genetics opens the door” to apportioning causation to “impermissible immutable factors.”  It cited two previous rulings where the Board permitted such apportionment “though it may not have used the term ‘genetics.’”

Second, the court did not require an inquiry into the applicant’s familial medical history to justify the apportionment.  Rather, the published medical studies that the QME relied on were substantial medical evidence in and of their own right to justify apportionment at 49%. The medical studies “indicated that genetics or heredity was a majority factor in all cases of degenerative disc disease,” “unless there [wa]s a clear traumatic injury.”  In light of this, the court found that an inquiry into the applicant’s familial medical history was “unnecessary.”

City of Jackson (Rice) will undoubtedly assist defendants in developing non-industrial apportionment for their claims.  The case highlights the importance of raising the issue of genetics when presenting an apportionment defense.  It also underscores the importance of using peer-reviewed medical journal articles during med-legal cross-examinations as well as within requests for reporting so that doctors can render conclusions based on substantial, industry-established grounds for apportionment.

Written by: Elizabeth Ligon and Bruce Hamilton

The North Carolina Court of Appeals left the Industrial Commission scrambling when it issued its September 20, 2016 Opinion in Bentley v. Jonathan Piner Construction, holding the plain language of N.C. Gen. Stat. § 97-84 was violated when the Commission based its opinion and award on an opinion issued by a deputy commissioner who was not present at the original hearing and did not hear the evidence. The defendants in Bentley petitioned the Court for a rehearing, which was granted. On July 18, 2017, the Court of Appeals issued a new decision that superseded and replaced their prior decision. In its new Opinion, the Court held that Plaintiff was barred from raising this issue as a defense because he failed to raise the issue before the Commission.

Following the release of the new Bentley decision, Senate Bill 489 was signed into law by Governor Roy Cooper on July 20, 2017. As part of the new legislation, § 97-84 was revised to allow the Commission to assign another deputy to decide a case and issue an award if the deputy that appeared at the hearing and heard the evidence was no longer available. The new § 97-84 reads as follows:

“§ 97‑84.  Determination of disputes by Commission or deputy.

     The Commission or any of its members or deputies shall hear the parties at issue and their representatives and witnesses, and shall determine the dispute in a summary manner. The Commission shall decide the case shall be decided and issue findings of fact issued based upon the preponderance of the evidence in view of the entire record. The award, together with a statement of the findings of fact, rulings of law, and other matters pertinent to the questions at issue shall be filed with the record of the proceedings, within 180 days of the close of the hearing record unless time is extended for good cause by the Commission, and a copy of the award shall immediately be sent to the parties in dispute. The parties may be heard by a deputy, in which event the hearing shall be conducted in the same way and manner prescribed for hearings which are conducted by a member of the Industrial Commission, and said deputy shall proceed to a complete determination of the matters in dispute, file his written opinion within 180 days of the close of the hearing record unless time is extended for good cause by the Commission, and the deputy shall cause to be issued an award pursuant to such determination. If the deputy or member of the Commission that heard the parties at issue and their representatives and witnesses is unable to determine the matters in dispute and issue an award, the Commission may assign another deputy or member to decide the case and issue an award.“

RISK HANDLING HINT: The new legislation is effective and applies to claims pending on or after the effective date of the act. The legislative fix is intended to resolve any potential dispute over the Commission’s ability to reassign a file to a different Deputy when the hearing Deputy is unable to issue an opinion and award. This is an important legislative fix, since it will eliminate the need to retry cases before a second Deputy when the case had previously been tried before the original Deputy Commissioner. Retrying cases in this manner would have created significant additional litigation costs, created significant confusion between which transcript (the first hearing, the second hearing or both hearings) would be used during any appeal to the Full Commission or Court of Appeals and was not necessary given that the Full Commission is the ultimate finder of fact in Workers Compensation claims.

Simon Law Group, P.C.

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

314-621-2828

MISSOURI WORKERS’ COMPENSATION CASE LAW UPDATE

April 2017 – June 2017

Parties Could Not Commute Award Under 287.530 Because Statute Requires Unusual Circumstances and Commission Lacked Authority Under 287.390

Dickemann vs. Costco Wholesale Corporation, Case No. ED105266 (Mo. App. 2017)

FACTS:  The claimant was injured at work in July 2010, and an Award of PTD benefits became final in April 2014.  In November 2016, the claimant and employer filed a joint motion with the Commission to commute the Award to a lump sum, which the Commission denied because it found that 287.530 only allows commutation under unusual circumstances, and no unusual circumstances were alleged in the parties’ motion. Also, the Commission found it did not have authority to commute the Award under 287.390 because there was no longer an open Claim in light of the fact that the Award was already finalized.

On appeal by both parties, the claimant argued the Commission was required to approve the motion to commute because it met the requirements of 287.390.1 and the Western District previously held that 287.530’s requirements only apply tocontested commutations.

HOLDING:  The Missouri Court of Appeals Eastern District affirmed the Commission’s decision to deny the motion and held that the Western District failed to correctly interpret Sections 287.390 and 287.530 using strict construction and 287.530 should actually be applied even where both parties voluntarily agreed to commute an Award.

Claimant Awarded PPD For Hearing Loss Due to Industrial Noise Exposure Despite Wearing Hearing Protection at Work and Exposure to Firearms Outside of Work

Abt vs. Mississippi Lime Company, Injury No. 13-074707

The claimant worked for 40 years in the plant, which was extremely noisy.  He testified that he religiously wore hearing protection while working until the late 1980’s, at which time they started using radios while operating cranes.  He subsequently stopped wearing hearing protection all the time in order to hear the radio, and he always kept the left side of the crane door open due to the extreme heat.  The employer performed annual hearing tests, which showed the claimant had mild to moderate hearing loss.  He retired on January 7, 2013 and testified he has been in a quiet environment ever since.  He testified he began having problems with his hearing 12 years prior to retiring and experienced humming/ringing in his ears and had difficulty understanding people when they talked to him. The claimant also testified he goes deer hunting once a year, previously went turkey hunting with a 12-gage shotgun until four years earlier, and also participates in 20 shooting matches per year using a 12-gage shotgun. He testified he has worn noise canceling headphones while shooting since the 1970’s and has always worn some type of hearing protection since he was in high school.

The claimant treated on his own with Dr. Mason, who diagnosed mild to moderate hearing loss in the left ear and bilateral Tinnitus, which he opined were both work related. Dr. Mason found it unsurprising that he had hearing loss only in the left ear in light of the fact that the right side of his head was in the interior of a crane away from the noise.

The employer sent the claimant to Dr. Mikulec, who noted that his hearing loss in his left ear did not significantly change until after he retired in 2013 and opined that his left-sided hearing loss was age-related or due to an underlying medical condition, and his Tinnitus was causally related to his non-occupational hearing loss.

At a Hearing, the ALJ held that the claimant’s left-sided hearing loss was work related, although his bilateral Tinnitus was not work related, and found that he sustained 3% PPD of the left ear due to exposure to occupational noise. On appeal, the Commission affirmed the ALJ’s decision and Award.

Injury Compensable When Claimant Re-Tore Rotator Cuff While Performing Mandatory Physical Capability Evaluation Prior to Returning to Work

Duncan vs. Allied Aviation, LLC, Injury No. 15-072795

After undergoing surgery to repair a non-work related right rotator cuff tear, the claimant presented to work for a physical capability evaluation (PCE) prior to returning to work. The PCE was mandatory before a worker could return to work, and it was scheduled and paid for by the employer. The claimant performed PCE on May 12, 2015, at which time he felt a pop in his right shoulder followed by immediate pain. An MRI of the right shoulder showed a large full thickness rotator cuff tear, which the claimant’s prior treating doctor, Dr. Lingenfelter, opined was a new injury.

At a Hearing, the claimant testified that he was ready to return to work prior to the PCE and had no limitations with respect to his right shoulder, was pain free, and was not taking any medications. He testified that following the PCE, he experiences significant pain and limited range of motion in his right shoulder.

Dr. Gilliam, who works for the company that performs the PCE, testified on behalf of the employer/insurer that the PCE testing machines are not capable of producing an injury. Also, the employer/insurer argued that the claimant=s injury did not arise out of and in the course and scope of his employment because he had not yet returned to work.

The ALJ found that the claimant=s injury arose out of and in the course of his employment because the test was mandatory under company policy, and declining to undergo the same could be grounds for termination. Also, the employer scheduled the PCE, instructed where and when to attend, and paid for the test. Also, the risk of injury sustained by the claimant during the PCE was not one to which he would have been equally exposed outside of employment in his normal nonemployment life. Therefore, the employer/insurer was ordered to provide medical care, including surgery. On appeal, the commission affirmed the ALJ=s decision and award.

Right Shoulder Injury Sustained While Wrestling Co-Worker Not-Compensable

Grayson vs. Thorne & Son Asphalt Paving Co., Injury No. 15-089660

The claimant sustained a right rotator cuff tear while wrestling a coworker at work, which required surgical repair. According to written statements from witnesses, the two employees voluntarily agreed to wrestle, and although workers would occasionally play around by knocking off hard hats or throwing water or pebbles at each other, such behavior was not permitted at work, and no one had wrestled at work prior to the date of injury.

At a Hearing, the ALJ noted that injuries that occur as a result of horseplay are generally not compensable unless the horseplay is so pervasive in the workplace that it becomes an incident of employment. Factors considered by the courts include the frequency of horseplay, the employer’s awareness of the activity, and whether or not the employer took affirmative steps to discourage the activity. The ALJ found that horseplay was clearly in violation of company policy in light of the fact that all employees were aware it was not allowed. Also, wrestling was substantially different than the types of horseplay usually engaged in by employees. Therefore, the claimant’s right shoulder injury was not compensable.

On appeal, the Commission affirmed the ALJs decision and Award with a supplemental opinion. The Commission found the claimant’s injury was not compensable because the risk source of the claimant’s injury was his own voluntary consent to horseplay, which was unrelated to his employment and to which he would have been equally exposed outside of work in his normal life.

Claimant’s Testimony Credible and Injury Compensable Despite Inconsistent Statements Regarding How Injury Occurred

Brown vs. Christian County, Missouri, Injury No. 14-063533

The claimant sustained injuries to the right wrist/hand and right shoulder when she fell. She was standing next to a rolling file cabinet immediately prior to her injury. At the hospital, the claimant advised that she thought she fell after she lost her footing and also that it felt like her ankle gave out. In a subsequent recorded statement, she stated that she lost her footing, did not believe she caught her foot on anything, and did not really know what happened. At the Hearing, the claimant testified that her foot became caught underneath the rolling filing cabinet in the gap between the cabinet and the floor, against the wheel, which caused her to fall when she turned.

The employer pointed out the claimant’s inconsistent statements regarding how she was injured. However, the ALJ found the claimant’s testimony credible and found that she fell after her foot became caught under the filing cabinet. The ALJ also found that the injury was in the course and scope of employment because the risk source of injury was not merely standing, walking, or turning, but was instead placing her left foot underneath the filing cabinet. Therefore, the injury was compensable. The ALJ also opined it was understandable that the claimant’s initial account of her accident was inaccurate or incomplete in light of the fact that she was in distress, taking pain medications, and was not sleeping well. The employer was responsible for PPD benefits with respect to the claimant’s right hand/wrist and right shoulder.

On appeal, the Commission affirmed the ALJ’s decision and Award and noted that the claimant’s Hearing testimony need not be discredited simply because she previously gave different, less detailed, or incomplete accounts of her accident.

Court Cannot Dismiss Wrongful Death Petition Based On Exclusivity Doctrine Until the Commission Determines the Injury is Compensable

Channel vs. Cintas Corporation No. 2, et al., Case No. WD79673 (Mo. App. 2017)

FACTS:  The claimant was employed as a delivery driver when he died of heat stroke.  His spouse filed a Claim for Compensation on his behalf and also filed a wrongful death petition against the claimant’s supervisor and the employer (Defendants).  The Defendants filed a Motion for Summary Judgment, arguing that under the exclusivity doctrine, Workers’ Compensation is the exclusive remedy for a work-related death or injury.  The Circuit Court agreed and granted summary judgment, finding the claimant’s death was the result of an accidental injury that could only be addressed by the Commission.

The claimant’s spouse appealed and argued that the Circuit Court did not have authority to determine whether his death was due to an accident under Workers’ Compensation law while the Workers’ Compensation Claim was still pending.

HOLDING:  The Appeals Court held that the Commission has exclusive jurisdiction to determine whether an employee’s injury resulted from an accident under Workers’ Compensation law and reversed the Circuit Court’s Decision and remanded the case with an Order to Stay Proceedings until the Claim was resolved.  The Commission held that it would be inappropriate for a court to enter summary judgment based on the exclusivity doctrine before the Commission decides the question of accidental injury, because granting summary judgment would prevent the claimant’s spouse from refiling her civil law suit if the Commission subsequently found that it was not an accidental injury.

Flu Vaccine Not Prevailing Cause of Claimant’s Congestive Heart Failure

Johnson vs. Barnes-Jewish West County Hospital, Injury No. 09-112063

The claimant’s doctor gave her a permanent exemption from receiving the flu vaccine.  However, the claimant was subsequently advised that the H1N1 vaccination was mandatory and underwent the same on December 7, 2009. She testified that she developed immediate numbness, tingling, and burning in her hands, and she developed flulike symptoms within one week after her shot. She testified that she had flare-ups of those symptoms, and in June 2010, a flare-up caused her to go to the emergency room, where she was diagnosed with cardiomegaly. Her condition progressively worsened, and she was ultimately diagnosed with congestive heart failure. She treated on her own and continues to take medications for her heart condition. She alleged that she developed her heart condition as a result of the mandatory H1N1 flu vaccination she received from the employer.

Both medical experts diagnosed the claimant with congestive heart failure. The claimant’s expert, Dr. Wolfson, testified that the H1N1 vaccine caused her cardiomyopathy and permanent disability. The employer’s expert, Dr. Schuman, testified that the claimant did not sustain a work injury and there is no known correlation between the vaccination and myocarditis. He also noted that the claimant did not seek medical treatment until six months after her vaccination.

At a Hearing, the ALJ found the claimant’s condition was not compensable because she failed to prove that the flu vaccine was the prevailing factor in causing her congestive heart failure. The ALJ found Dr. Schuman’s opinion more persuasive with respect to causation and noted the extensive gap between when the claimant received the vaccination and when she first sought treatment.  On appeal, the commission affirmed the ALJs decision and Award.

Driving School Bus Was Prevailing Factor Causing Bilateral Carpal Tunnel Syndrome

Lammert vs. Festus R-VI School District, Injury No. 16-006646

The claimant worked as a school bus driver for 11 years. Before 2015, she drove older buses, which required flipping a switch with her left hand, engaging an emergency break, and operating a manual door with her right hand at each stop. The steering wheels on the older buses vibrated continuously. In May 2015, the claimant began driving newer buses, which did not require her to manually engage an emergency break or open the door, were much easier to steer, and had much less vibration. She first developed symptoms in her hands/wrists in August or September 2015, months after she switched to the newer buses and after she was off work for approximately three months for summer break.

The claimant’s expert, Dr. Schlafly, testified that driving a school bus was the prevailing factor causing her bilateral carpal tunnel syndrome, which he believed developed over years of driving the older buses, although it did not manifest until after the change to newer buses in 2015. Dr. Crandall testified for the employer and opined her job duties were not hand intensive enough to cause carpal tunnel syndrome and noted there were no studies to suggest that carpal tunnel syndrome could be caused by driving a bus. Both doctors agreed that the claimant required bilateral carpal tunnel releases.

At a Hearing, the ALJ found Dr. Crandall’s testimony more persuasive and noted that although operating the old buses was hand intensive, her complaints did not begin until months after she started operating newer buses, and she developed carpal tunnel syndrome in her left hand, although she only operated the manual door on the older buses using her right hand. The ALJ also noted that Dr. Schlafly could not identify any scientific studies relating bilateral carpal tunnel syndrome to driving a bus. Instead, the ALJ opined that the claimant’s age, gender, obesity, hypertension, and menopause all predisposed her to carpal tunnel syndrome, and her condition was therefore not compensable.

On appeal, the Commission reversed the ALJs opinion and Award and found that Dr. Schlafly’s medical opinion was more persuasive than Dr. Crandall’s opinion. The Commission ordered the employer to pay past medical expenses and provide future medical care, including bilateral carpal tunnel releases.

Employer Responsible for PTD Benefits After Left Shoulder Injury

Maryville R-2 School District vs. Paydon and Treasurer of the State of Missouri Custodian of the Second Injury Fund, Case No. WD80070 (Mo. App. 2017)

On March 10, 2014, the claimant, a fifty-eight-year-old employee, helped a co-worker lift a soccer goal that weighed 200 pounds, at which time he injured his left shoulder.  He treated on his own with Dr. Atteberry, who diagnosed a rotator cuff tear and performed left shoulder surgery on May 12, 2014.  He subsequently filed a Claim against the employer for PTD benefits.

At a Hearing, the claimant testified that his left shoulder pain interrupts his sleep and he now has to lie down or recline multiple times during the day and sometimes has difficulty concentrating due to sleep deprivation.  Dr. Koprivica evaluated the claimant and issued permanent work restrictions as a result of the work injury alone, including the need to recline and take naps on an unpredictable basis during the work day. Both parties’ vocational experts agreed that, assuming Dr. Koprivica’s restrictions, the claimant would be unemployable in the open labor market.

The ALJ found the claimant’s testimony and Dr. Koprivica’s opinion credible, held that the claimant was PTD due to the 2014 work injury alone, and ordered the employer to pay PTD benefits and provide future medical treatment.  The Commission affirmed the ALJ’s decision.  On appeal, the Court of Appeals affirmed the Commission’s decision and Award.

Claimant PTD from Last Injury Alone Due to Combination of Left Upper Extremity Injury and Psychiatric Condition.

Bass vs. Board of Police Commissioners of Kansas City, Missouri, Injury No. 08-006183

On January 23, 2008, the claimant was exiting a police vehicle when she slipped and fell on ice and sustained an injury to her left elbow and shoulder. She underwent left shoulder surgery with Dr. Hood in 2008 followed by two more left shoulder surgeries performed by Dr. Satterlee in 2009 and 2011. Dr. Satterlee released her from care on December 22, 2011 with permanent restrictions.

The claimant also treated on her own with Dr. Logan for depression, which the doctor opined she developed as a result of her left upper extremity injury and was exacerbated by a significant degree of preexisting panic disorder. Mr. Cordray, a vocational expert, testified that the combination of her physical pain and psychological issues would prevent her from presenting to work on a consistent basis, which made her unemployable in the open labor market.

Dr. Hughes examined the claimant on the employer’s behalf and opined 80% of her psychological condition was unrelated to her work injury. Vocational expert Ms. Sprecker opined she was able to perform low stress jobs with minimal repetitive use of the left upper extremity and was not PTD.

At a Hearing, the ALJ found that the claimant was not PTD and assessed 45% PPD of the left shoulder, 10% of the left elbow, and 10% of the body referable to her psychiatric condition. The employer was not responsible for future medical care.

On appeal, the Commission found Dr. Logan and Mr. Cordray’s opinions most credible and held that the claimant was PTD due to a combination of her left upper extremity injury and psychiatric condition, which was associated with the left upper extremity condition. The employer was ordered to provide future medical care as well as PTD benefits.

Employer Responsible for PTD Benefits for Combination of Back Injury and Psychological Condition, Both Caused by Primary Injury

Pulliam vs. RPCS, Inc. and Treasurer of Missouri as Custodian of Second Injury Fund, Injury No. 11-056403

The claimant sustained a back injury when lifting a 70-pound box and ultimately underwent a spinal fusion from T7 – T9 and was given permanent work restrictions.  He alleged that he could not sit, walk, or stand longer than 15 minutes after his work injury and had difficulty sleeping and concentrating due to pain.  A surveillance video showed him driving, shopping, going up and down steps, walking without a cane, carrying bags, reaching, and bending.

Dr. Koprivica evaluated the claimant, recommended permanent restrictions including the ability to frequently change positions and use of a cane, and opined he was PTD as a result of his last injury alone.  Mr. Eldred performed a vocational evaluation, noted he had to alternate between sitting and standing, lie down during the day, and use a cane, and he opined the claimant was unemployable in the open labor market as a result of his last injury alone.

Dr. Halfaker performed a psychological evaluation at the claimant’s attorney’s request and noted symptom magnification, which he opined was the result of somatoform disorder associated with chronic pain syndrome rather than malingering. 

The treating physician, Dr. Corsolini, opined the claimant was not PTD.

At a Hearing, the ALJ found that the claimant sustained a herniated disc of the thoracic spine and a psychological injury as a result of his work accident. The ALJ reviewed the surveillance video and agreed that he was likely magnifying his symptoms, but the ALJ agreed with Dr. Halfaker that it was likely due to a psychological condition that resulted from his work injury. Therefore, the ALJ found the claimant was PTD as a result of his last injury alone and ordered the employer to pay PTD benefits. On appeal, the Commission affirmed the ALJs decision and Award.

Employer Responsible for PTD Benefits After Shoulder, Hip, and Back Injury

Gwin vs. Southeast Missouri Mental Health Center, Injury No. 10-011144

On February 17, 2010, the claimant was working for the employer as a Psych Aide and was helping to carry a resident on a litter/stretcher when the resident kicked her, causing her to fall to the floor, at which time she sustained injuries to her right shoulder, left hip, and lumbar spine. She treated through the employer with Dr. Wayne and Dr. Collard, who performed a right rotator cuff repair. She also received lumbar and hip injections.  After she was released from care, the claimant had continued shoulder, lumbar spine, and left hip pain and sought treatment on her own.  She continued to miss significant time from work and felt she could no longer work as a Psych Aide.  She applied for a sedentary position with the employer as a receptionist, but her application was denied and she was fired.

Dr. Wayne and Dr. Collard believed the claimant was not PTD, as did her treating doctor, Dr. Krause, and medical expert, Dr. Robson.  Dr. Musich evaluated the claimant at her attorney’s request and opined she was PTD as a result of her work injury.  Mr. Weimholt performed a vocational evaluation and also opined she was unemployeable due to her level of education and lack of transferable skills.  Mr. England performed a vocational evaluation and noted she did not exhibit observable pain behaviors and would make a good impression at an interview.  He believed she was employable given the permanent restrictions from Dr. Wayne, Dr. Collard, and Dr. Krause.

At a Hearing, the ALJ noted that the claimant attended some college and completed a program at Metro Business College, her employment history included supervisory duties, and she did not appear to have any problems with reading or math. The ALJ also noted she did not appear to be in a lot of pain during the Hearing, found the opinions of Dr. Wayne, Dr. Collard, Dr. Krause, and Dr. Robson more persuasive, and held that she was not PTD. The employer was responsible for PPD at the level of the body and right shoulder as well as future medical treatment.

On appeal, the Commission found the opinions of Dr. Musich and Mr. Weimholt more persuasive and noted that she missed a significant amount of work due to her injuries after being released from care and the employer terminated her employment rather than hiring her for a light-duty position as a receptionist. The Commission modified the ALJs decision and Award to include PTD benefits to be paid by the employer.

Fund Responsible for PTD Benefits After Primary Low Back Injury Combined With Pre-Existing Low Back Condition

Davis vs. Ozarks Coca-Cola/Dr. Pepper Bottling Company and Treasurer of Missouri as Custodian of Second Injury Fund, Injury No. 07-050555

The claimant worked for the employer for 27 years delivering vending machines, which required a lot of heavy lifting, pushing, and pulling. He sustained an injury to his low back on June 6, 2007 when a 600-pound vending machine tipped backward onto him. He treated conservatively with multiple doctors both through the employer and on his own. He was diagnosed with lumbar pain with radiculopathy and aggravation of pre-existing lumbar DDD. Dr. Woodward, the authorized treating physician, placed him at MMI on May 26, 2009 with permanent restrictions. He did not undergo surgery. The employer subsequently fired the claimant because they could not accommodate his permanent restrictions, and he did not work thereafter.

With respect to the claimant’s pre-existing conditions, he had a prior back injury in June 2001, for which he underwent physical therapy. He also had a low back injury in June 2006 and testified he had ongoing low back pain but was able to continue working. The claimant also had a prior right shoulder injury and experienced ongoing shoulder pain and popping prior to his primary injury, and he had a prior left shoulder injury as a result of a motor vehicle accident.

The claimant’s experts, Dr. Bennoch and Dr. Mullins, opined he was PTD as a result of a combination of his primary injury and pre-existing degeneration in his lumbar spine. The claimant’s vocational expert, Mr. Swearingin, noted his 11^th grade education and age and opined he was not a candidate for vocational rehabilitation. He also noted the claimant’s extensive history working manual labor positions and opined he was unemployable as a result of pre-existing degeneration and the primary work injury.

The employer’s medical and vocational experts opined the claimant was not PTD.

At a Hearing, the ALJ found the claimant was PTD as a result of the combination of his pre-existing injuries, low back degeneration, and the primary injury. The ALJ found Dr. Bennoch’s opinion most persuasive with respect to permanency and assessed 20% PPD of the body referable to the primary injury. The Fund was liable for PTD benefits, and the employer was ordered to provide future medical care referable to the primary injury.  On appeal, the Commission affirmed the ALJ’s decision and Award.

2017 Changes to the Workers’ Compensation Statute

Please note this Bill has been signed by Gov. Greitens and goes into effect on August 28, 2017

Below is a description of the additions/changes to the Statute:

MMI

MMI is the point at which the claimant’s medical condition has stabilized and can no longer reasonably improve with additional medical care.

TTD/PTD

TTD/PTD benefits shall be paid throughout the rehabilitative process until the claimant reaches MMI unless benefits are terminated by the claimant’s return to work or as otherwise specified in the statute.

If a claimant voluntarily separates from employment with an employer and the employer had work available for the claimant that was within his or her medical restrictions imposed by the treating physician, neither TTD nor TPD benefits shall be payable

Drug Testing

If a claimant tests positive for a nonprescribed controlled drug or the metabolites of such drug there is a rebuttable presumption which may be rebutted by a preponderance of the evidence, that the tested drug was in the claimant’s system at the time of the accident or injury and that the injury was sustained in conjunction with the use of the drug if:

·         the initial testing was administered within 24 hours of the accident or injury;

·         notice was given to the claimant of the test results within 14 calendar days of the insurer receiving actual notice of the positive test results;

·         the claimant was given an opportunity to perform a second test upon the original sample;AND

·         the positive test was confirmed by mass spectrometry using generally accepted medical

or forensic testing procedures

Settlements/Rating Reports

With respect to compromised settlements, after a claimant has reached MMI and the employer/insurer has received a rating from the authorized treating physician, a claimant shall have a period of 12 months from such date to obtain a rating from a physician of his or her own choosing.

Absent a finding of extenuating circumstances by an ALJ or the Commission, if after 12 months the claimant has not obtained a rating from a second physician, any compromise settlement entered into under this section shall be based upon the initial rating.

A finding of extenuating circumstances by an ALJ or the Commission shall require more than failure of the claimant to timely obtain a rating from a second physician.

The provisions of this subsection may be waived by the employer with or without stating a cause.

PTD

With respect to injuries resulting in the death of a claimant, the statute has been changed with respect to dependents. The statute previously stated that the employer shall pay to the “total” dependents of the claimant a death benefit. However, “total” has been removed from the statute.

The definition of dependent now also includes a stepchild claimable by the deceased on his or her federal tax return at the time of the injury.

Termination

No employer or agent shall discharge or discriminate against a claimant for exercising any of his or her rights under this chapter when the exercising of such rights is the motivating factor in the discharge or discrimination.

For the purposes of this section “motivating factor” shall mean that the claimant’s exercise of his or her rights under this chapter actually played a role in the discharge or discrimination and had a determinative influence on the discharge or discrimination.

Hardship Hearings

With respect to a claimant’s request for a Hardship Hearing the statute previously allowed the Division 60 days to set a case for Hearing but the statute has now been changed to allow only 30 days.

Coverage for Shareholders of an S Corporation

Beginning on January 1, 2018 a shareholder of an S corporation with at least 40% or greater interest in it may individually elect to reject coverage by providing written notice of such rejection to the corporation and its insurer.

Written by: Lindsay A. Underwood and Tracey L. Jones

As opioid use continues to plague the community, as part of the workers’ compensation system and otherwise, North Carolina is one of many states working to take steps to reduce availability and use of prescription pain killers. Per the North Carolina Opioid Action Plan (2017-2021), prepared by the Prescription Drug Abuse Advisory Committee (PDAAC), unintentional opioid-related deaths totaled 1,194 in 2016. Drug overdoses have become the leading cause of death among Americans under the age of 50. Further, it is estimated that more than two million people are dependent on opioids. In light of this epidemic, North Carolina Governor Roy Cooper has released an action plan to reduce the number of opioids being prescribed, increase community awareness and prevention, and expand other treatment and recovery systems.

As part of this policy overhaul, Governor Cooper recently signed into law a bill that regulates pain medication prescriptions. The bill, titled the STOP, or Strengthen Opioid Misuse Prevention, Act, limits physicians from prescribing more than a five-day supply of opioids during an initial visit. Though this provision does not apply to people receiving treatment for chronic pain, or a life-threatening condition like cancer, it does significantly limit immediate access to pain medications in the emergency department, where many individuals, including workers’ compensation claimants, seek initial treatment.

In an effort to reduce opioid-related deaths, the Food and Drug Administration (“FDA”) recently recommended that Endo International, P.L.C., withdraw its long-lasting opioid painkiller, Opana ER, from the market. This request is the first time an agency has called for the removal of an opioid painkiller for public health reasons, and could mark a turning point in how the FDA views painkillers. It should be noted that an FDA panel of advisors made this recommendation after determining the risks of Opana simply did not outweigh its benefits.

It is clear that policymakers across the board are recognizing opioid use as an epidemic. Notably, the North Carolina Industrial Commission recently appointed an Opioid Task Force to study and recommend solutions for the problems arising from the intersection of the opioid epidemic and related issues in workers’ compensation claims. In the workers’ compensation setting, medication use and costs are often a barrier to facilitating a return to work, and to claim closure. Further, the cost of opioids makes it extremely difficult to obtain a reasonable Medicare Set-Aside, where Medicare issues are at play. Ideally, these new limitations on medications will help reduce claim costs and facilitate rehabilitation and return to work.

Workers’ compensation claims often lead to complex disability discrimination law suits, and the recent New Jersey Supreme Court case of Grande v. Saint Clare’s Health System (A-67-15) (July 12, 2017) provides a good example of this.   The case concerned the termination of a registered nurse by the hospital following a series of work-related injuries involving the nurse.

Maryanne Grande was employed by St. Clare’s from 2000 to July 2010.  Her job tending to stroke victims involved maintaining charts, administering medications, providing general care, assisting patients with daily living activities such as washing, bathing, dressing, walking, repositioning patients in bed, and guarding them against falls.

In August 2008, St. Clare’s performed a job system analysis for various nursing positions, resulting in a description of the frequency that nurses performed certain tasks.  In the year prior to the job analysis, Grande injured her left shoulder while repositioning a patient in bed.  This led to surgery with a three month recovery period at home before returning on a light-duty basis, followed by full duty status in a month.

In May 2008, Grande was repositioning a patient in bed and felt pain in her right shoulder this time.  An MRI showed no serious abnormality.   But in November 2008, Grande reinjured her left shoulder again while lifting the legs of a 300-pound patient.  She underwent a second surgery and returned to full duty approximately six months after the accident.

In February 2010, Grande was caring for an overweight patient.  The patient began to fall, and Grande grabbed the patient’s shoulders from behind, injuring her neck.  She had surgery on her neck and was out of work four months.  On her first day back to work, she left after four hours due to pain.  Two weeks later she returned to full-time, light-duty work.

In early July 2010, Grande’s physician, Dr. Joel Spielman, cleared her to return to full-duty work, but the hospital required her to attend an FCE.  The FCE professionals understood that her job required her to push, pull and lift from waist to chest frequently (34-66% of the time).  She was able to perform these functions occasionally (1-33% of the time).  The report documented “mild residual functional issues” but concluded that “it is improbable that this will significantly affect job performance ability.” Given the recent neck surgery, the FCE report suggested that Grande be permitted changes in activities during periods of prolonged or repetitive neck movements.  Finally, the report suggested that Grande “seek appropriate assistance with heavier physical activities such as patient transfers, guarding ambulatory patients or handling loads” greater than 50 pounds.  She was cleared for medium category work (occasional lift and work up to 50 pounds).  The FCE report also deferred to Grande’s treating physician, Dr. Spielman.

Dr. Spielman took contradictory positions in the case.  As noted above, his first note approved full-duty return to work before any FCE was done.  On July 21, 2010, following the FCE, Dr. Spielman approved Grande to return to work with restrictions as outlined in the FCE.  He advised that Grande needed permanent restrictions of lifting up to 50 pounds occasionally and should transfer patients with assistance only.

The hospital proceeded to terminate Grande’s employment because the hospital concluded that she could not perform the essential functions safely.  Grande then saw Dr. Spielman again, and this time Dr. Spielman pivoted back to his original note, stating that Grande had no restrictions any longer.  St. Clare’s had already terminated Grande and refused to rehire her.  The Court ignored Dr. Spielman’s last note because it was issued after Grande had been fired.

Grande sued alleging discrimination based on disability under the New Jersey Law Against Discrimination.  The trial court granted St. Clare’s motion for summary judgement.   A divided Appellate Division panel reversed.  The New Jersey Supreme Court ultimately agreed with the Appellate Division.  The Court examined the two main reasons that the hospital terminated Grande.  First, the hospital argued that Grande had chronic and excessive absenteeism.  In the prior three years, Grande had been out of work for about a year.  But the Supreme Court noted that there were issues of fact whether Grande’s absences were sufficiently “chronic and excessive.”

The second reason advanced by St. Clare’s was that the FCE supported its position that Grande could not safely perform the essential job functions.  The Court rejected this as well, stating that there was no consistent understanding of the essential job functions.  The 2008 St. Clare’s Job Analysis showed that RNs must lift fifty pounds from waist to chest frequently (34% to 66% of the day).  It also reflected that there was no activity that is performed at a frequency greater than 66% of the time.

The Court examined the FCE results carefully. It became apparent to the Court that there was an inconsistency between the 2008 Job Analysis and the testing standards of the FCE.  The 2008 Job Analysis required lifting 50 pounds from waist to chest frequently. The FCE understood that a nurse must lift 20 pounds constantly, 67% to 100% of the time.   There was no requirement for constant lifting in the Job Analysis.  Additionally, the FCE understood that there was an occasional requirement of lifting of up to 100 pounds, which did not appear in the Job Analysis at all.  In essence, the FCE assumed almost constant lifting, and sometimes at much higher weights, than the 2008 Job Analysis.  The FCE referred to a job analysis received from the hospital, but it did not appear to be the 2008 Job Analysis.  For her part, Grande said both the 2008 Job Analysis and the FCE criteria were wrong:  she contended that the actual physical aspects of her job were less onerous and that she could do the job.

The Supreme Court also noted that the FCE cautioned that the results “may be compatible with mild residual functional issues,” but “it is improbable that this will significantly affect job performance ability.”  This language did not support the termination of Grande at all.  The FCE deferred to Dr. Spielman, who wrote his second report incorporating the conclusions of the FCE.  In essence, Dr. Spielman embraced the FCE recommendations.

Finally, the Court noted that the hospital was concerned about Grande’s potential to injure patients.  She had never actually injured any patient when she was injured on the job previously, and the FCE report only recommended that Grande be assisted in lifting more than 50 pounds, notwithstanding that she was able to lift over 100 pounds during testing.  St. Clare’s produced no expert indicating that there was a material risk of harm to herself or patients if she returned to work.

The Supreme Court affirmed the dismissal of summary judgment for the hospital and remanded the case for trial.  The case is of great importance because the use of FCEs is widespread in New Jersey in helping employers determine whether to return employees to work following work injuries or non-work medical conditions.  The issue in this case arises quite often, namely a disagreement over the essential job functions.  In this case the hospital did have a good job analysis, but somehow that requirements in the 2008 Job Analysis did not coincide with the requirements of the FCE.  Further, the hospital seemed to have reached too far in concluding from the FCE that the employee could not do her job.

What should employers and FCE companies do when an employee disagrees with the essential functions?  One idea is to have a document that clearly records the essential functions which has been signed off by the employer and the employee.  Getting all parties on the same page would eliminate the main objection in countless situations over what is and what is not an essential job function.  FCEs are extremely helpful because they provide scientific data on what an employee can physically do, but if the test does not replicate the job duties, then the test if invalid.  More time should be put into confirming the essential functions and then confirming with the employee that he or she agrees with those functions.  Creating a sound list of essential functions is critical, and there are companies who can visit work sites and document the essential 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. 

On July 21, 2017, The Alabama Court of Civil Appeals released its opinion in Laura Wyatt v. Baptist Health System, Inc.  In Wyatt, the employee was a patient-care tech that experienced a sharp pain in her back when she was lifting and twisting.  The pain was followed by a burning sensation and pain down into her legs and toes.  She was diagnosed with transverse myelitis and continues to experience weakness in her legs, trouble with walking and balance, and has issues with her bladder and bowels.

The employee filed a workers’ compensation lawsuit in Jefferson County and it subsequently transferred to Shelby County upon motion of the employer.

At trial, the testimony of three doctors was received into evidence.  Dr. Meador, who examined the employee, was of the opinion that the employee likely impinged an artery in her lower back during the act of lifting and twisting which resulted in a spinal cord stroke which, in turn, lead to her condition.  Drs. Kirschberg and Counce conducted record reviews and offered testimony that rebutted the opinions of Dr. Meador.  Dr. Kirschberg testified that a twisting motion would not cause the employee’s condition.  Dr. Counce, who testified live in court, opined that the employee’s condition was not caused by trauma of by work activities.  She further testified that the employee did not suffer from an impingement.  Rather, it was her opinion that the condition and symptoms were more likely related to a severe vitamin B-12 deficiency.

Based on the evidence at trial, the trial judge was of the opinion that the testimony of Drs. Kirschberg and Counce was more well-reasoned, medically sound, and persuasive.  As such, judgment was rendered in favor of the employer.  The employee timely appealed the decision.

Among the reasons for appeal, the employee noted that the trial court erred in failing to resolve reasonable doubts in the evidence in favor of the employee.  The Court of Civil Appeals noted that the requirement of liberally construing the construction of the Workers’ Compensation Act to effectuate its beneficent purposes had nothing to do with the assignment of weight to the evidence.  Rather, judges in workers’ compensation matters should consider the evidence and assign weight as they would in any other civil matter.  Since the trial judge obviously assigned much more weight to the testimony of Drs. Kirschberg and Counce, it was clear that substantial evidence supported the judge’s ruling in favor of the employer.  As such, the judgment was affirmed.

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About the Author

This blog submission was prepared by Mike Fish, an attorney with Fish Nelson & Holden, LLC, a law firm dedicated to representing self-insured employers, insurance carriers, and third party administrators in all matters related to workers’ compensation. Fish Nelson & Holden is a member of the National Workers’ Compensation Defense Network. If you have any questions about this submission or Alabama workers’ compensation in general, please contact Fish by e-mailing him at mfish@fishnelson.com or by calling him directly at 205-332-1448.