State News

MISSOURI WORKERS’ COMPENSATION 

CASE LAW UPDATE 

JULY 2014 – SEPTEMBER 2014 

Absent a Showing of Fraud, Undue Influence, or Violation of a Party’s Rights, the Commission Must Approve a Voluntary Settlement

Hinkle v. A.B. Dick Company, Case No. WD76952 (Mo. App. Ct. 2014)

FACTS: The claimant died in a motor vehicle accident while in the course and scope of his employment. His widow subsequently filed a Claim. An ALJ approved weekly death benefits for the widow in March 2007. In September 2013, the widow and the employer/insurer voluntarily entered into a lump sum settlement for commutation of the March 2007 Award. However, the Commission refused to approve the settlement because: 1) settlement was not reached to resolve any pending claim or dispute between the parties; 2) the widow would waive her rights under the Missouri Workers’ Compensation Statute because she would only receive 49% of the present value of the death benefits awarded; 3) the settlement was not in accordance with the widow’s rights; and 4) the proposed lump sum did not equal the present value of the death benefit installments under the Award and the parties showed no unusual circumstances warranting departure from the normal method of payment. The widow appealed.

HOLDING: On Appeal, the Appellate Court reversed the Commission and noted that the Missouri Workers’ Compensation Statute required the Commission to approve a voluntary settlement absent a showing that that settlement violated the rights of any party or was the result of undue influence or fraud. The Court noted that in this instance, the widow understood her rights and benefits, and the settlement was not the product of undue influence or fraud. Therefore, the Commission erred as a matter of law in not approving the settlement.

Returning to Work Post-Injury Does Not Preclude Finding of PTD

Brashers v. Treasury of the State of Missouri, Case No. SD32872 (Mo. App. Ct. 2014)

FACTS: The claimant was injured as a result of a fall at work. However, she also had extensive pre-existing injuries including Moyamoya (a condition which causes strokes, seizures, and balance problems), a neck surgery and fusion, surgically treated bilateral carpal tunnel, a rotator cuff repair, arthroscopic surgeries on both knees, one knee replacement, depression, fibromyalgia, bilateral ulnar neuropathy, and osteoarthritis. Prior to this injury she was incapable of anything other than sedentary work. Following the claimant’s work injury, she returned to work on light duty working about 5 hours a day, which was similar to her pre-injury work hours. However, she was terminated 10 months later after her employer received a report from Dr. Koprivica who stated that the claimant was not employable and should not be employed. At a hearing, an ALJ determined that the claimant was not PTD before the injury because she had maintained employment for 2 ½ years prior to her injury and held that the claimant was PTD as a combination of the work injury and her prior injuries. On appeal, the Commission affirmed and noted that the claimant sustained new permanent disabilities as a result of her work injury. Additionally, the Commission noted that it was consistent with the purposes of the Fund to award compensation to an employee who, until her work injury, was tenacious enough to compete on the open labor market. On appeal from the Commission’s decision, the Fund argued that the claimant was already PTD at the time of her work injury. Alternatively, the Fund argued that if the claimant was not PTD before the work injury, she could not have been rendered PTD by a combination of the work injury and her pre-existing disabilities because she returned to her regular job following the work injury. 

In Christy v. Missouri Department of Higher Education/Southwest Missouri State University and Treasurer of Missouri, Injury No. 06-004801, the claimant worked for the employer from 1995 through her retirement in 2008. Evidence showed that she was a good employee for many years. In 2006, she suffered carpal tunnel syndrome. She underwent releases and then returned to work. Upon returning to work, the claimant’s job performance ratings indicated that her performance had decreased but was still satisfactory to her employer. She also had two pre-existing conditions which did not interfere with her ability to perform her work duties. At a hearing, the ALJ determined she was not PTD and awarded 17.5% PPD of each upper extremity at the 200-week level and a 10% load. The ALJ found that the claimant was not PTD because her return to work after her surgeries showed that she competed in the open labor market.

On Appeal, the Commission affirmed the ALJ’s ruling that the claimant was not PTD but disagreed with the ALJ’s logic. The Commission found that an employee’s return to work for her employer did not necessarily mean that the employee is not PTD or that the employer would have hired her after she recovered from her injury given her resulting disabilities.Specifically, the Commission noted that the claimant returned to a position she already had and did not compete on theopen labor market. They went on to state that several considerations, such as loyalty, could have persuaded the employer to re-hire the claimant and those considerations may not be shared by other employers.

Despite Claimant’s Expert’s Testimony That He Was PTD as a Result of Prior Injuries and His Work Injury, Commission Can Still Find Him PTD as a Result of Work Injury Alone

Hembree v. Treasurer of the State of Missouri, Case No. SD32982 (Mo. App. Ct. 2014)

FACTS: In 2003 the claimant fell from a scaffolding, sustaining injuries to his back, head and ribs, and received a settlement. He was again injured in 2006 after falling off scaffolding, when he sustained injuries to his ribs, right lung and right arm. Following his 2006 injury, the claimant was left with virtually no use of his right arm and was forced to rely almost exclusively on his left arm to perform his job duties. Mr. Lala, the claimant’s vocational expert, issued a May 2008 report finding that the claimant was PTD. Later, the claimant sustained a third injury in October 2008 when he developed a cyst in his left hand. Shortly thereafter, the claimant left his job and never worked thereafter. The claimant settled his 2006 and 2008 claims with the employer, and proceeded to trial against the Fund on both his 2006 and 2008 injuries. In 2011, Mr. Lala issued an addendum to his May 2008 report, finding that the claimant was PTD as a “combination of all of his disabilities.” At a hearing, an ALJ determined that the claimant was PTD as a result of a combination of his 2008 injury and previous injuries. The Fund appealed. 

On Appeal, the Commission reversed the ALJ’s finding and held that the claimant was PTD before his 2008 injury. While the Commission noted that the claimant did return to work following his 2006 injury, he returned as a tuck pointer, which was a position created for him. Additionally, it noted that this tuck pointing work would basically consist of clean up work that amounted to light duty. Therefore, the Commission found that the Fund was not liable for PTD benefits. The claimant appealed.

HOLDING: On Appeal, the claimant argued that the Fund provided no vocational expert opinion to support its decision that the claimant was PTD prior to the 2008 injury. The Court noted that the credibility of experts is within the province of the Commission, and the Fund is not required to present its own vocational expert. In light of Mr. Lala’s conflicting opinions, the Court found that there was competent and substantial evidence on which the Commission could base its opinion. 

Poor Academic Record Does Not Create Permanent Learning Disability to Establish Pre-Existing Condition

In Curbow v. Hillhouse Services, Inc. and Treasurer of Missouri, Injury No. 10-006952, the claimant had pre-existing injuries to his low back. Additionally, the claimant was poorly educated due to his lack of interest in school. The claimant sustained an injury in the course and scope of his employment to his low back. The day after his injury, he saw his chiropractor, who he had been seeing for his prior low back condition, at which time he reported he was not getting better, but denied any trauma. At trial, the claimant denied the history recorded in the chiropractor’s record and explained that he was perhaps confused by what the word “trauma” meant. An ALJ determined that the claimant was injured in the course and scope of his employment and assessed 12.5% PPD of the body referable to the work injury. Regarding the claimant’s argument that he was PTD as a result of the combination of his work injury and his learning disability, the ALJ determined that the claimant was not completely illiterate and his problems with reading and writing were not permanent in nature. Specifically, the ALJ noted that the claimant voluntarily dropped out in the 9^th grade, never attempted to obtain a GED, and had a very poor attendance rate while in the 8^th grade. Therefore, the ALJ found that the claimant did not show any initiative towards bettering his education and his mental deficiency was not permanent. Moreover, it was noted that the claimant had never been diagnosed with an actual learning disability. On Appeal, the Commission summarily affirmed. 

The First Question is Whether the Claimant is PTD From the Last Injury Alone

In Peek v. Treasurer of Missouri, Injury No. 10-090162, the claimant sustained an injury to her neck in the course and scope of her employment. The claimant also had a pre-existing rotator cuff tear although she was able to continue with her employment without any restrictions or accommodations. Following her work injury she was placed on light duty and had problems even doing that work due to the pain in her neck as she had to look at the computer screen. Additionally, she had to lay down intermittently during the day because her pain in her neck was so bad. She settled her claim against her employer and proceeded to trial against the Fund alleging PTD. At a hearing, the ALJ noted that the first question is whether the claimant is PTD from the last injury alone. The ALJ found that the claimant, due to her difficulty working light duty and need to intermittently lie down, was PTD as a result of the work injury alone. Consequently, the ALJ refused to impose liability on the Fund. On appeal, the Commission summarily affirmed.

Beatrice v. Curators of the University of Missouri, Case No. WD76807 (Mo. App. Ct. 2014)

FACTS: The claimant was injured while assisting a struggling patient. She underwent surgery and was post-operatively diagnosed with a bulging disc and annular tears at L4-5 and L5-S1. The employer’s experts, Drs. Conway, Coyle, Bridwell, Carr and Chabot testified at a hearing that the claimant sustained only a back strain as a result of the accident. Conversely, the claimant’s primary expert, Dr. Highland, who performed her surgery, believed she sustained lumbar disc bulges and associated annular tears as a result of the accident. The ALJ found that the claimant sustained an L4-5 disc bulge and an L5-S1 annular tear, and that the work accident was the prevailing factor in causing those injuries, and awarded 23% PPD of the body as a whole. The employer appealed to the Commission who affirmed. The employer again appealed essentially arguing that the Commission’s ruling was not supported by substantial and competent evidence as it sided with Dr. Highland’s sole report finding the claimant’s injury was work-related whereas the employer provided testimony from five credible medical experts.

HOLDING: On Appeal, the Appellate Court stated that this was a dispute between the claimant’s and employer’s experts. It noted that the credibility afforded to experts is for the Commission to decide. It was further noted that the Commission’s decision was supported by substantial and competent evidence.

Unless Squarely Contradicted, Expert Testimony will be Found Credible

In Chambers v. Sunnen Products Company and Treasurer of Missouri, Injury No. 02-002046, the claimant was injured while at work. At a hearing, her medical experts, Dr. deGrange and Dr. Volarich opined that future medical treatment was necessary. Specifically, Dr. deGrange recommended a third surgery to address the claimant’s condition, while Dr. Volarich stated that additional surgery was not indicated but recommended ongoing conservative treatment. The employer’s expert, Dr. Coyle, opined that no future medical treatment would be needed. At a hearing, an ALJ found that the claimant was 50% PPD referable to the work injury, but did not award any future medical treatment. The claimant appealed.

On Appeal, the Commission noted that Dr. Coyle did not specifically address the issue of whether conservative treatment might relieve the claimant’s ongoing back pain and symptoms, and therefore, his opinion did not contradict Dr. Volarich’s opinion that non-surgical conservative treatment may be needed. Therefore, the Commission felt that Dr. Volarich was the most persuasive and ordered the employer to furnish non-surgical future medical treatment that may be reasonably required to cure and relieve the effects of the work injury.

Surgical Physician More Credible on Causation

In Dierks v. Kraft Foods and Treasurer of Missouri, Injury No. 09-040114, the claimant’s feet became entangled in an air hose that had been left on her employer’s floor, causing her to trip and fall, sustaining injury to her left knee. At trial, the employer and its experts argued that the work injury only caused a knee contusion, given that the MRI film showed a degenerative torn meniscus. Conversely, the claimant’s expert, Dr. Buchert, acknowledged that the MRI film suggested a degenerative tear, but stated that while he was performing surgery on the claimant’s knee and personally examined the medial meniscus, he found the tears to be acute and not degenerative. The ALJ determined Dr. Buchert was the most credible, as he had the benefit of personally examining the meniscal tears and the ALJ found that those tears were caused by the work accident. The Commission summarily affirmed.

Expert’s Revision of Their Report Does Not Impair Credibility if Based on New Records

In Yelverton v. Kuna Foods Service and the Treasurer of Missouri, Injury No. 02-101407, the claimant was driving a pallet jack when his right leg was impaled on the blades of a fork lift. He also had pre-existing injuries including a fracture of his left tibia, for which he underwent surgery and compression fractures of L1, L2 and L3 as a result of a bicycle accident. While these prior injuries did not cause the claimant to miss any work, he did have difficulty maintaining a fixed position for over two hours, as well as chronic back pain that radiated down the back of his left leg, which was ongoing and lasted up to and through his work injury.

The employer’s vocational expert, Mr. England, initially issued a report finding that the claimant could pursue entry level service employment or acquire additional skills through the help of the State Division of Vocational Rehabilitation and did not feel the claimant was totally disabled from all forms of employment. Subsequent to Mr. England’s report, the claimant saw Dr. Volarich, the only doctor who examined the claimant’s back, who noted that the claimant had lumbar radicular syndrome and therefore was unable to tolerate standing for more than 20 or 30 minutes, and would possibly need to lie down periodically. After review of Dr. Volarich’s IME, Mr. England issued a second report wherein he stated that if one assumes that the claimant needs to lie down periodically due to his low back pain, as Dr. Volarich indicated, then that could preclude his ability to work and he could be totally disabled as a combination of the prior back problems and the work injury.

The claimant’s vocational expert, Ms. Browning, initially issued a report finding that the claimant could potentially work in a limited number of security guard and entry level customer service positions that include on the top training, and also did not feel that the claimant was PTD. However, Ms. Browning had no records relating to the claimant’s back when she provided her initial report. Subsequent to Ms. Browning’s initial report, she reviewed additional records regarding the claimant’s pre-existing back injury referable to the bicycle incident, and then issued a second report wherein she did find the claimant PTD as a result of his pre-existing back condition and his work injury. At a hearing, an ALJ found that the claimant sustained 85% PPD of the right knee as a result of the work injury, but did not find he was PTD. Specifically, the ALJ found Mr. England more credible than Ms. Browning because Ms. Browning originally wrote in her report that the claimant was employable and the additional back records she reviewed consisted only of five pages from one medical visit.

On Appeal, the Commission reversed the ALJ’s finding and found that the claimant was PTD as a result of his pre-existing and work injury together. Specifically, the Commission noted that Ms. Browning’s change of opinion due to newly obtained information was no reason to find the witness less credible and that as Dr. Volarich was the only doctor to physically examine the claimant’s back, he was believed the most qualified expert to speak on his back disability.

Claimant’s Constantly Changing Story Impaired Credibility and Prevented Him From Satisfying His Burden of Proof

In Pounds v. Gilster-Mary Lee Corp., Injury No. 10-073936, the claimant testified at trial that he slipped off of a fork lift and sustained immediate pain and injury to his back. He then stated on direct that he never gave different information regarding the incident to anyone. However, medical records showed inconsistent histories: 1) his injury was not a work injury; 2) he injured himself while lifting boxes over a period of time; 3) his symptoms had gradually increased for one year prior to his date of injury; 4) he was unsure what his mechanism of injury was; and 5) he gave several different histories regarding the alleged fork lift incident. Additionally, the claimant gave conflicting testimony at his hearing and his deposition regarding how his fork lift incident occurred. Ultimately, the ALJ found that the claimant failed to meet his burden and show his injury was work related and therefore, denied compensability. On appeal, the Commission affirmed.

Determination of Whether Claimant Was Injured In Scope and Course of Employment is Whether She Was InjuredBecause She Was at Work Not Merely While She Was at Work

Randolph County, Missouri v. Moore-Ransdell, Case No. WD76709 (Mo. App. Ct. 2014)

FACTS: While at work, the claimant squatted down, reached in the back of a file drawer, and twisted her body in an attempt to remove a file, sustaining injury to her low back. She treated with Dr. Highland, who diagnosed her with an acute lumbar strain and internal disc disruption to L3-4, L4-5 and L5-S1 secondary to the work injury. He subsequently performed surgery. At trial, Dr. Highland testified on direct that the work injury caused the claimant’s injury and need for surgery. On cross-examination, Dr. Highland admitted that the claimant had increasing stenosis and continuing degeneration of the aforementioned discs which were the source of her pain, and that without her pre-existing disc degeneration the lumbar strain that she suffered as a result of the work injury would not have necessarily required the three level fusion procedure he performed. An ALJ found that the work injury caused the claimant’s low back pain, subsequent surgery, and related medical treatment. Consequently, the ALJ awarded medical expenses, TTD benefits and 25% PPD of the body as a whole. The employer appealed and the Commission affirmed.

HOLDING: In its first point on appeal, the employer argued that the claimant’s injury did not arise out of her employment because her injury came from a hazard or risk to which she was equally exposed in normal non-employment life. Specifically, the employer argued that the risk was bending over which was not unique to the claimant’s job. The Court disagreed with this argument and stated that the claimant was injured when squatting down, reaching into the back of a file drawer and twisting, which was a risk she would not have been equally exposed to in her normal non-employment life, and noted that the claimant was injured because she was at work, not merely while she was at work. In its second point on appeal, the employer argued that the Commission’s determination was not supported by competent and substantial evidence because the medical evidence showed that her work accident was merely a triggering or precipitating factor and not the prevailing factor in causing her medical condition and disability. The Court also disagreed with this point, because the Commission relied on Dr. Highland’s direct testimony, which the Court found constituted competent and substantial evidence. Therefore, the court affirmed.

Following Termination, Employee is Allowed a “Reasonable Time” to Leave Employer’s Premises Before Employment Relationship is Severed

In Hartman v. DJSCMS, Inc., Injury No.: 12-003592, the claimant worked as a car salesman and on his date of injury, was scheduled to work from 9:00 A.M. - 9:00 P.M. However, he was fired sometime around 4:00 P.M. Almost immediately after he was fired, the claimant slipped and fell in the employer’s parking lot. According to the claimant, after being fired he drove to the finance department to get credit for the deals that he had in process, but upon arrival he discovered that the office door was closed. He then returned to his car to get his paperwork and it was at that time that he fell. According to the employer’s GM, he had never known of a salesman who finished deals after being terminated and also believed it was unlikely that the claimant was finishing deals because he was not selling cars due to the winding down of the business. The undisputed facts were that following his termination the claimant had not closed out any deals, emptied his desk, or cleaned out/turned over the demo car he was given for personal use.

At trial, the employer argued that the claimant’s accident did not arise out of and in the course of his employment because he was fired immediately before his accident. However, an ALJ disagreed and stated that following termination the employee is entitled a “reasonable time” to leave the premises of his employer before it can be said that the relationship of the employer and employee is completely severed. Therefore, the ALJ determined that the claimant was within the course and scope of his employment when injured. Additionally, the ALJ determined that the claimant’s average weekly wage could not be fairly and justly determined by the standard calculation of his 13 weeks prior to the termination. Specifically, the ALJ noted that his sales location was in the process of being shut down, the inventory was low, the mark ups were cut and his sales were atypical. Therefore, the ALJ ordered his average weekly wage to be calculated based on all of his earnings in the 39 weeks of his employment. The ALJ further noted that the claimant’s use of the demo vehicle should be included in his gross wages because it was an economic gain received in consideration for work. Finally, the ALJ noted that Dr. Volarich was the only medical expert to opine on PPD and, therefore, he adopted Dr. Volarich’s assessment of 60% PPD of the body as a whole. On Appeal, the Commission summarily affirmed.

Fall on Icy Parking Lot Found Compensable

In Whorton v. Silgan Container, Injury No. 07-125897, the claimant arrived at work and then checked on her assigned duties for the day. As she was assigned cleaning tasks, she returned to her car to obtain gloves, which she used for her cleaning tasks. Additionally, on her way to the car, the claimant had with her a fix-a-flat to address one of the flat tires on her personal vehicle. While walking to her vehicle she slipped on ice in her employer’s parking lot and fell, sustaining injury. At a hearing, an ALJ noted that when an employee is performing an act for the mutual benefit of both themselves and the employer, an injury arising out of that activity is usually compensable even though the advantage to the employer is slight. The ALJ further noted that in instances of mutual benefit, the injury will not be deemed to have arisen out of the course and scope of employment when the indirect benefit to the employer “becomes so tenuous as to be impercetible.” In this case however, the ALJ found that the claimant was injured in the course and scope of her employment because she was not traveling to her car merely for personal business but was also acting in the employer’s interests by getting gloves from her car to perform her assigned duties. The ALJ found that the claimant sustained 40% PPD of her right ankle, 30% PPD of the right knee and 20% of the lumbosacral spine.

Finding of Employer-Employee Relationship Requires the Employee to Be in the Service and Control of the Employer

In Marty Warren (Deceased) v. David Warren, Injury No. 02-148212, the claimant was working with his father applying siding to the home of the father’s friend. The claimant was instructed by his father to remove a nail, but in the process of doing so he lost his balance and fell to the ground, sustaining fatal injuries. The sole issue in this case was whether the claimant was an employee of his father at the time of the injury. At trial, the claimant’s sister testified that he was living with her on the date of injury and he had issues with alcohol and substance abuse. She further stated that on the date of injury, she asked her father to take the claimant with him because she was going out-of-town and did not want the claimant to be alone in her home given his alcohol and substance issues.  Similarly, the father testified that he was doing his daughter a favor and allowed the claimant to tag along on the siding job. The claimant’s widow testified he had told her prior to the date of injury that he would be working on a siding job and making between $600.00 - $1,000.00. Additionally, she testified that the claimant had worked 6 - 8 jobs for his father in the past. At a hearing, an ALJ believed the testimony of the father and sister more credible and found that the father was simply helping his daughter by taking the claimant to work. The ALJ did not find the widow credible because she was a poor historian and the claimant was not living with her at the time of his injury.

On Appeal, the Commission affirmed, noting that in order to find an employment relationship, it must be shown that 1) the claimant was in the service of the alleged employer and 2) the services were controllable by the employer. Ultimately, it found that the father did not control the services of the claimant.

Eight Factors Determine Whether Worker is an Employee or Independent Contractor

In Parks v. Independent Living Center of Southeast Missouri, Injury No. 10-069477, the claimant was injured while working, but it was disputed whether or not she was an employee or an independent contractor at the time of her injury. Evidence showed that she was hired as a caregiver to administer Medicaid and home health services to disabled senior citizens know as “consumers.” At a hearing, testimony demonstrated that the alleged employer acted as a “vendor” who provided services such as orientation and training, assisting consumers by performing background checks on their caregivers, receiving Applications for Employment and necessary tax documents, and administering the payroll. Essentially, the testimony demonstrated that the alleged employer assisted caregivers in finding consumers and receiving payment but was thereafter uninvolved in the relationship between the caregiver and consumer. An ALJ found that the claimant was an independent contractor at the time of her injury, and therefore, her injury was not compensable.

On Appeal, the Commission noted that the definition of “employee” is a factual question which depends on several factors. The Court listed out eight factors, including: 1) The extent of control; 2) The actual exercise of control; 3) The duration of the employment; 4) The right to discharge; 5) The method of payment; 6) The degree to which the alleged employer furnished equipment; 7) The extent of which the work is the regular business of the alleged employer; and 8) The employment contract. The Commission found that only two of the eight factors had been satisfied and therefore, the claimant was not an employee but an independent contractor.

Claimant Bears the Burden of Proof

In Welty v. Mississippi Lime Co., Injury No. 12-040559, the claimant developed tinnitus and binaural hearing loss, which he claimed was due to repeated exposure to loud noise at his employer’s facility. The claimant’s expert, Dr. Mason, testified at a hearing that the claimant’s hearing loss could be the result of the noise or it could be the result of the claimant’s family history of hearing loss. Therefore, the ALJ determined that the claimant failed to meet his burden on the issue of medical causation. On appeal, the Commission summarily affirmed.

Job Duties Need Not Be Strenuous to Meet Burden of Proving Occupational Disease

In Szigeti v. Metropolitan St. Louis Sewer Dist., Injury No. 10-044815,the claimant worked as a file clerk full-time from 1996 through 2011. When the customers finished with the files or drawings, they placed them in a basket for the claimant to re-file. The drawings were stored in three foot tubes, and the claimant rolled them up to return them to the tube. When she was not waiting on customers, she manually moved all inappropriately stored information out of the database and put it in to the correct spot in the new database. In addition, she worked on a project to scan drawings into a digital format, which required slowly feeding the drawings into a scanner, similar to copying a piece of paper. The claimant eventually developed symptoms in her bilateral wrists and was diagnosed with bilateral carpal tunnel syndrome. At a hearing, the employer’s experts testified that her job duties were not hand intensive enough to cause her work injury. Conversely, her experts testified her injuries were due to her repetitive job duties. The ALJ found the claimant’s experts were more credible and held her injuries were compensable. On appeal, the Commission summarily affirmed.                   

Statute of Limitations Begins to Run When the Employer-Insurer Make the Last Payment on the Claim

In Tracy v. Glazders Wholesale Drug Company, Injury No. 09-013530, the claimant sustained an injury to his back on February 20, 2009. The employer initially authorized medical treatment which the claimant underwent. Dr. Kitchens, a treating physician, stated on March 31, 2009 that the claimant’s work injury was the primary factor in aggravating her spondylolisthesis. However, on June 3, 2009 the employer abruptly notified Dr. Kitchens that the claim was now being denied and no further treatment would be authorized. Although it is not specified why treatment was abruptly stopped, it appears the employer-insurer discovered a statute of limitations issue. Thereafter, he treated on his own. At a hearing, the employer argued that the claim was barred by the statute of limitations, as the report of injury was timely filed and the claimant did not bring his claim within you two year period. The claimant argued that the two year period did not begin to run until August 2010, the date that Dr. Volarich, his expert, opined he was at MMI. Additionally, the claimant argued that the period did not begin to run until the last payment was madeby his private insurer. Specifically, the claimant argued that the statute was silent as to who made the last payment on the claim and therefore, pursuant to strict construction, the period should not begin to run until the last payment was made on that claim by any entity. The ALJ disagreed with the claimant’s latter argument and found that payments made by a private insurer do not toll the statute of limitations. Additionally, the ALJ was not persuaded by the claimant’s former argument that the period for bringing his claim did not begin to run until August 2010. Consequently, the ALJ found that the Claim was time-barred by the statute of limitations because the period for bringing his claim began to run in June 2009, when the employer-insurer made its last payment on the claim. On appeal, the Commission affirmed.

Losing at a Hearing on an Accident Claim Does Not Bar Claimant From Bringing an Occupational Disease Claim For the Same Injury

In Trimmer v. Johnson Controls, Inc., Injury No. 03-147616, the claimant worked a strenuous job which required constant heavy lifting and caused aches and pains as a result. In 2003, he fell at work and sustained an injury to his shoulder. At the first hearing on this claim, testimony of Dr. Fretz was introduced by the employer which noted that the claimant did work in a strenuous position but the claimant had no specific event that caused the beginning of his shoulder pain. Based on that testimony, the ALJ found that the claimant failed to prove he suffered an accident but the ALJ went on to note that she felt the matter should be found compensable based on the claimant’s repetitive strenuous job duties.

The claimant subsequently re-filed his claim as an occupational disease and a second hearing was held. At the second hearing, the employer-insurer argued that the claim had already been adjudicated and could not be re-litigated. However, the ALJ found that the second claim was not barred by the initial claim in that it alleged an occupational disease as opposed to an accident and therefore, the evidence necessary to sustain these two claims differed. The ALJ further noted that in the initial hearing the ALJ did not make any findings regarding the occupational disease claim and as such, the second claim was not barred. Finding that the claim was not barred, the ALJ went on to find that the claimant did sustain an occupational disease as a result of his job duties and awarded benefits. On appeal, the Commission affirmed.

Minor Subsequent Injury Can Expose Employer to PTD Liability

In Gray v. Jack Cooper Transport Company and Treasurer of Missouri, Injury No.: 05-015019, the claimant had multiple pre-existing conditions. He had scarring and deformities which affected the thumb and fingers of his left hand. Additionally, the claimant had pre-existing issues with depression and anxiety, for which he had been receiving medical care since the 1980s. Finally, in the early 1990s the claimant suffered a hyperextension of his left elbow.

On June 26, 2003 the claimant suffered his first work injury to his low back for which he underwent a fusion. While still treating for his 2003 injury, he sustained another injury to his low back on January 31, 2005, which is the primary injury in this case. The claimant continued to treat with Dr. Robson, his treating physician for the 2003 injury, until he was placed at MMI in 2006. He settled his 2003 injury against his employer for 44% PPD of the body as a whole.

At a hearing for the 2005 claim, the claimant testified that he was still in pain from his 2003 injury until his 2005 injury but stated that following his 2005 injury, his symptoms were much worse. The employer-insurer argued that the claimant’s symptoms stemmed from his prior conditions, most notably, his 2003 back injury. The ALJ noted that Dr. Robson’s 2006 report, wherein he placed the claimant at MMI, made no reference to his 2005 injury or any resulting disability from that injury. The ALJ also noted that Dr. Poetz, the claimant’s expert, believed that the claimant was PTD as a combination of his work injury and his pre-existing conditions. Ultimately, the ALJ found Dr. Robson more credible and determined that the claimant’s ongoing disabilities were a result of his 2003 accident and not the result of his 2005 injury. Moreover, the ALJ found that the claimant did not suffer a new injury in 2005 because his alleged strain was merely the product of the on and off exacerbations of his 2003 injury. Therefore, the ALJ determined that the 2005 work injury was not compensable.

The Commission overturned the ALJ’s finding and determined that the claimant and his experts were more credible. Moreover, the Commission determined that the claimant was PTD as a result of the 2005 work accident and his pre-existing disabilities. The Commission stated that the 2005 work accident caused a 20% PPD to the body. Additionally, the Commission imposed liability on the Second Injury Fund finding that each of the claimant’s aforementioned pre-existing conditions were serious enough to constitute hindrances or obstacles to employment.

To Impose Liability Against the Fund, Claimant’s Prior Injuries Need Not Be at MMI at Time of Primary Injury if Claimant Seeks PTD Benefits

Lewis v. Treasurer of the State of Missouri, Case No. ED100657 (Mo. App. Ct. 2014)

FACTS: The claimant sustained a work injury in 2007. He also had several prior injuries, one of which was a 2004 injury to his left shoulder and another was for a 2006 carpal tunnel syndrome. The claimant was not placed at MMI for his 2004 or 2006 injuries until after his primary injury, which was the 2007 injury. At a hearing, the claimant testified regarding his injuries and stated that the symptoms caused by his 2004 shoulder injury never improved with treatment and had never completely resolved. An ALJ found that the claimant was PTD as a result of his primary injury and his pre-existing conditions, and imposed liability against the Fund. The Fund appealed to the Commission. On Appeal, the Commission affirmed. The Fund’s primary argument on appeal was that the Commission erred in its analysis because it included pre-existing disabilities from the claimant’s 2004 left shoulder injury and his 2006 carpal tunnel injury, which could not be considered because those injuries had not reached MMI at the time of the primary injury.

HOLDING: Addressing the Fund’s first point, the Appellate Court noted that pre-existing disabilities need not be at MMI in order to be considered for PTD benefits. Specifically, the Appellate Court noted that determining the specific amount of disability from pre-existing injuries is relevant for the calculation of PPD benefits, but not PTD benefits. In order to establish liability against the Fund for PTD, the claimant need only show the extent or percentage of the PPD resulting from the primary injury and then prove that a combination of the primary injury and the pre-existing disability resulted in PTD.                                                         

Test For Fund Liability is the Potential That the Pre-Existing Condition May Combine with the Work Injury to Result in Greater Disability

In Broekhoven v. Treasurer of Missouri, Injury No. 07-012863, the claimant sustained a work injury involving his lumbar spine in early 2007. Prior to his work injury, the claimant had been diagnosed with degeneration and a herniated disc in the lumbar spine for which surgery had been recommended but the claimant declined to undergo. He settled his claim against the employer and proceeded to a hearing against the Fund. At a hearing, the ALJ determined that the claimant was PTD solely as a result of the January 2007 work injury. The claimant appealed, arguing that he was PTD, but not as a result of the work injury alone, rather, as a result of a combination of the work injury and his pre-existing disabilities.

On Appeal, the Commission stated that the test for Fund liability is the potential that the pre-existing condition may combine with a work-related injury in the future so as to cause a greater degree of disability then would have resulted in the absence of the pre-existing condition. The Commission stated that the claimant had serious medical conditions prior to his work injury, and noted that all of the testifying experts agreed that the claimant did have some pre-existing disability. Therefore, the Commission reversed the ALJ’s Award, and found that the claimant was PTD as a result of the work injury and his pre-existing disabilities.

Exclusivity of Division’s Jurisdiction Should Be Raised as an Affirmative Defense

Pierce v. Zurich American Insurance Company, Case No. WD77095 (Mo. App. Ct. 2014)

FACTS: In 2009 the claimant sustained a knee injury while working for his employer. The employer/insurer’s treating physician opined that the claimant would ultimately need a total knee replacement, but it would not be due to his work injury. Conversely, the claimant’s treating physician opined that he would need a total knee replacement which would be related to his work injury. Ultimately, in May 2012 the parties entered into a settlement for 26% of the knee with supplemental language agreeing to leave any medical treatment provided in Section 287.140.8 open for one year after settlement. For reference, Section 287.140.8 is the prosthetics clause commonly referred to as the Reactivation Provision. In June 2012, one month after settlement, the claimant requested a knee replacement. When this treatment was denied, the claimant filed a civil suit requesting that the trial court compel the insurer to provide knee replacement surgery. In response, the insurer filed a motion to dismiss arguing that the trial court lacked subject matter jurisdiction because the Division had exclusive jurisdiction. The trial court granted the claimant’s motion finding that the Division did have exclusive jurisdiction.

HOLDING: On Appeal, the Court found error in the trial court’s decision to dismiss for lack of subject matter jurisdiction noting that the issue was not whether subject matter jurisdiction existed but whether the claimant had a statutory right to proceed in civil court. The Court looked to the stipulation language noting that the claimant requested a knee replacement, a prosthetic device, which would be covered under the Reactivation Provision. Therefore, the Court found that the Reactivation Provision applied and the exclusive remedy for the claimant is through workers’ compensation. The Court also noted that the proper way to contest the claimant’s civil suit would have been for the insurer to file, as an affirmative defense, a motion to dismiss for failure to state a claim upon which relief could be granted. 

Civil Claim For Co-Employee Negligence Requires “Something More”

Peters v. Wady Industries Inc. and Terrio, Case No. ED100699 (Mo. App. Ct. 2014) 

FACTS: On September 24, 2008, the claimant was injured when a stack of dowel baskets fell on him while he was unloading them at a construction site. He pursued a workers’ compensation claim and filed a civil action against his supervisor, Mr. Terrio, alleging that Mr. Terrio ignored multiple warnings from employees concerning safety hazards posed by the stacked dowel baskets.Specifically, the claimant argued that his injury was caused by Mr. Terrio’s failure to deliver the dowel baskets in a safe manner. Mr. Terrio filed a Motion to Dismiss for Failure to state a claim upon which relief could be granted, on the basis that the claimant’s exclusive remedy lied in Missouri Workers’ Compensation Law. Specifically, Mr. Terrio argued that the claimant’s petition failed to allege any conduct by Mr. Terrio outside the scope of his employer’s non-delegable duty to provide a safe work place. In other words, Mr. Terrio argued that the claimant failed to show that Mr. Terrio was personally liable because he had not engaged in any improper conduct that the employer did not have a duty to prevent. The trial Court agreed and granted the Motion to Dismiss. The claimant appealed.

HOLDING: The Court began by noting the historical changes this area of the law has recently undergone. Prior to 2005, co-workers were liable to one another for mere negligence. However, in 2012, the legislature amended that approach and codified the “something more” doctrine. Under that doctrine, for a co-worker to be personally liable to another worker, that co-worker must have engaged in some affirmative, purposeful, and dangerous act outside the scope of the employer’s normal duties to keep the workplace safe. Worded differently, the co-worker/defendant’s conduct must be independent of his employer’s duties. The Court stated that since Mr. Terrio was a supervisor, he was the employee chosen to implement the employer’s duty to provide a reasonably safe workplace and general failure to fulfill that duty results in no actionable negligence. Therefore, the Appellate Court held that the trial court did not err in dismissing the plaintiff’s petition for failure to state a claim on which relief could be granted.

Grace Hwang worked as an assistant Professor at Kansas State University.  Before the fall term began, she found out she had cancer and needed treatment.  She requested a six month leave of absence, which Kansas State granted.  As the spring term approached, Hwang’s doctor indicated that she would need additional leave time.  She requested another extension through the end of spring and projected that she would be able to teach by summer term.  The University refused, stating that its police had a six-month limit on disability-related leaves of absence. 

Hwang brought suit under the Rehabilitation Act of 1973, which is interpreted in the same manner as the ADA.  The Court said the following:

It perhaps goes without saying that an employee who isn’t capable of working for so long isn’t an employee capable of performing a job’s essential functions -- and that requiring an employer to keep a job open for so long doesn’t qualify as a reasonable accommodation.  After all, reasonable accommodations -- typically things like adding ramps or allowing more flexible working hours -- are all about enabling employees to work, not to not work.

The Court approved the practice of employers in granting leaves of absence as a reasonable accommodation, but it cautioned:

Still, it’s difficult to conceive how an employee’s absence for six months -- an absence in which she could not work from home, part-time, or in any way in any place -- could be consistent with discharging the essential functions of most any job in the national economy today.  Even if it were, it is difficult to conceive when requiring so much latitude form an employer might qualify as a reasonable accommodation.

Hwang argued that any inflexible leave policy which has a set period of time violates the law.  She relied on language from the EEOC guidance manual.  She argued that an employer must always modify a leave policy unless one of two enumerated conditions is met -- unless an alternative accommodation would be effective or the requested leave modification would constitute  undue hardship.  The Court disagreed:  “In the first place, the EEOC manual commands our deference only to the extent its reasoning actually proves persuasive.”  The Court found other language in the EEOC Manual which seemed to endorse a six month period as reasonable.  It did acknowledge that if the inflexible leave policy is really a sham, and some people are granted more than six months, then there would be merit to a discrimination claim.  In this case, Hwang was not able to prove that the University’s six-month leave policy was not uniformly enforced.

This case can be found at Hwang v. Kansas State University, 753 F.3d 1159 (10^th Cir. 2014).  Readers should bear in mind that this is just one Circuit Court of Appeals decision, and employers should consult with counsel on the case law in their own Circuit before making a decision to enforce an inflexible leave policy. 

http://cousineaulaw.com/wp-content/uploads/2014/03/News-And-Notations-Spring-2014.pdf

Today the Alabama Workers’ Comp Blawg celebrates another birthday. We would like to take this time to thank all of our readers who have helped to makehttp://www.alabamaworkerscompblawg.com a go to reference for Alabama workers’ compensation over the last 7 years!

Lawyers Representing Injured Workers in West Virginia Oppose Proposed Rule Changes

The work of the Workers’ Compensation Subcommittee of the West Virginia Supreme Court’s Access to Justice Commission resulted in a proposed change to Rule 1 (85 W. Va. CSR 1) dealing with claim administration practices by carriers and third party administrators.  The West Virginia Insurance Commissioner issued a proposed revision to Rule 1 regarding a claim administrator’s acknowledgment of counsel and providing access to claim file materials.  On September 4, there was a public hearing on the proposed rule at the scheduled Workers’ Compensation Industrial Council meeting.  The filed and proposed Rule 1 can be found at the Insurance Commissioner’s website.

http://www.wvinsurance.gov/PolicyLegislation/WorkersCompRules.aspx

Union and claimant representatives challenged the Rule because it would allow the carrier to charge for copies of the claim file making it more difficult for injured workers to get copies, and would allow carriers to send checks to claimants and not the lawyers that represent them. 

At the Public Hearing, the Insurance Commissioner’s proposed Rule 1 amendment was challenged.  Opposition was expressed to a portion of 19.2.a. related to acknowledgment of counsel, and it was expressed that one section should be removed allowing the carrier to reserve the right to make determinations about where to send checks.  The opposition expressed that proper receipt of indemnity checks by the claimant’s attorney can help claimants report to Social Security on indemnity payments and so that offsets can be properly administered. With respect to the proposed subdivision 19.2.b., there was opposition to the rule that places the burden of the cost of producing a copy of a claim file on injured workers and their attorneys.  The Access to Justice Workers’ Compensation Committee proposed a revision to Rule 1 where the claim administrator would provide the claim file at no cost.  Additional comments expressed no opposition to the language in the proposed amendment whereby the claim administrator can resist overly burdensome, repetitive or abusive claim file requests.

The next meeting of the Industrial Council is November 6, where it may make a determination on the proposed changes to Rule 1.           

Dill Battle

Spilman Thomas & Battle, PLLC

hdbattle@spilmanlaw.com

Eric Hanisko worked as a superintendent of a 120-acre golf course in West Windsor, N.J.  He accepted a written offer of employment in February 2008 on behalf of BCGM, a corporation  specializing in golf course management, and CGC, the owner of the golf club.  His employment package included housing at the club. 

            On April 11, 2009, Hanisko fractured his ankle slipping and falling on what he described was a defectly-constructed wooden step in his residence.  The accident occurred in the early morning hours in the second-floor bathroom of Hanisko’s residence on the golf course. He filed a civil complaint against CGC for negligence.  Initially, CGC did not raise the workers’ compensation bar as a defense. 

            Two months later, Hanisko filed a claim petition in the Division of Workers’ Compensation against BCGM, which opposed the claim petition, arguing that the injury did not arise from work.

            After discovery concluded in the civil case, CGC moved for summary judgment, contending that the law suit was barred by the exclusive remedy rule.  Essentially, CGC and BCGM argued that they were joint employers of Hanisko, and he could sue neither company civilly.  Hanisko argued that this defense had been waived by CGC because it was not raised until summary judgment.   Plaintiff also argued that the two employers took differing positions in the workers’ compensation case and the civil case and should be estopped from denying responsibility under the civil law suit.  The trial judge disagreed and granted summary judgment to CGC.

            The Appellate Division noted that it was not inconsistent for CGC to argue in the civil case that it was petitioner’s employer and for BCGM to argue in the workers’ compensation case that the injury did not arise from work.  However, the Court reviewed the “bunkhouse rule,” which states that when residence is provided to an employee, generally an injury sustained by an employee while using such residence is incidental to employment.  The Court noted that although Hanisko was not required to live on the golf course property, his living there was of mutual benefit to the parties.  He paid no rent or utilities, except cable, and his full-time presence there was of benefit to his employer.  “That the lodging was meant to make the prospect of employment at the club more attractive is supported by the written offer of employment, which featured this benefit.”

            The Court also stated that an employer cannot waive assertion of the workers’ compensation bar because jurisdiction is always an issue.  “Subject matter jurisdiction, as the Act’s exclusivity provisions implicate, is a non-waivable defense, which can be raised at any time.”

            The Court concluded that Hanisko had two employers:  CGC and BCGM.  CGC paid his salary of $1,730 biweekly, and BCGM provided his benefits.  CGC provided significant control over Hanisko’s activities because he had to report directly to a CGC manager on a day-to-day basis. The manager, Ms. Suozzo, would walk the golf course with Hanisko and others and check on course conditions.  She would ensure that Hanisko and others were doing their job correctly.  Even though Hanisko would report also to BCGM’s regional manager, he would only meet with him monthly.  Suozzo met with Hanisko more often than the BCGM regional manager, and Suozzo extended the offer to Hanisko to “join the team at BCGM and CGC.” 

            This case has been reported and can be found at Hanisko v. Billy Casper Golf Management, Inc. and Cranbury Golf Club, LLC, A-5053-12T4 (App. Div. September 8, 2014).

New York Workers’ Compensation Basics

Presented By: Joseph P. DeCoursey

Introduction: The workers’ compensation system in New York is designed to provide wage replacement benefits and medical care to injured workers. Physical injuries, mental injuries, and occupational diseases are all covered by the statute.  The basic features of the New York workers’ compensation system are:

• The employee is entitled to workers compensation benefits so long as the employee suffers a personal injury “arising out of and in the course of employment” (or contracts an occupational disease);

• The employee’s contributory negligence does not lessen his or her rights;

• There must be an employer-employee relationship between the claimant and the employer. Independent contractors do not qualify for benefits if they are injured and cannot seek benefits from the employer with whom they were working;

• Workers’ Compensation benefits include wage replacement benefits of two-thirds of the employee’s average weekly wage, subject to maximum and minimum compensation limits set by the Law and medical expenses causally related to the injury suffered by the claimant.

• The employee gives up his or her right to sue the employer for damages for any injury covered by the workers’ compensation system. The employee still has the right to sue third-parties whose negligence caused the injury subject to the employer and carrier’s subrogation rights.

• Claims adjudication is the responsibility of the Workers’ Compensation Board, an administrative agency, which operates with relaxed rules of evidence and procedure.

1.0 Exclusive Remedy

There is a special bargain that defines the relationship between the employee and the employer in workers’ compensation. The employee gives up his or her right to sue the employer. The employer gives up its right to contest fault. Although simple in theory, in practice there is much more than fault for both employer and employee to argue about.

1.1 WCL §11 - This section of the law prevents the employee from suing the employer for personal injuries sustained or occupational diseases contracted out of and in the course of employment. The legislative intent in WCL §11 is very clear. It states that the employer’s liability under the Workers’ Compensation Law “shall be exclusive” and “in place of any other liability.” Despite the legislative intent, the burden is still on the employer to plead and prove the exclusive remedy defense by a preponderance of the evidence. Unlike other affirmative defenses in the law, the exclusive remedy defense is waived only if ignored until final disposition of the case. Even if the employee never makes any application for compensation benefits, his or her right to sue is still barred by the exclusive remedy doctrine.

1.2 Employer-Employee Relationship - In order for the NY Workers’ Compensation Law to apply, there must be an employer-employee relationship between the parties. Independent contractors are not entitled to workers’ compensation benefits unless covered by their own insurance policy. The traditional tests for determining whether an employer-employee relationship exist include: substantial control over the work, the method of payment, the right to hire or fire, provision of tools and equipment, and the nature of the work.

The initial investigation of any workers’ compensation claim should include confirmation that there is indeed an employer-employee relationship between your insured and the claimant. Employers sometimes label employees as independent contractors to avoid workers’ compensation issues but New York has never recognized the mere labeling of an employee as an independent contractor to be sufficient to avoid a finding of employer-employee relationship.

1.3 Third Party Actions – Although an injured worker may not sue his or her employer for personal injuries sustained or occupational diseases contracted out of and in the course of employment, he or she may sue third-parties responsible for those injuries. Any recoveries in a third-party action are subject to the insurance carrier’s or employer’s lien rights under WCL §29. This allows responsibility for the injury to be paid by the ultimate wrongdoer—the third party—and allows the employer to come out even. This scheme also prevents the claimant from receiving a double recovery. 

2.0 Establishment of a Workers’ Compensation Claim

There are three basic elements, in addition to the existence of an employer-employee relationship between the claimant and employer, needed to establish a workers’ compensation claim. These elements are:

1) An accident or occupational disease arising out of and in the course of employment;

2) Timely notice and claim filing; and

3) Causal relationship between the injury alleged and the occupational accident or disease.

2.1 Accidental Injuries - Liability under the workers’ compensation law requires a showing that the claimant’s accidental injury both arose out of and occurred in the course of the claimant’s employment. What this means is that the injury must be one of the risks connected with the claimant’s employment and must flow from the claimant’s employment as a natural consequence. This is more than mere “but for” causation—not every injury that occurs at work can become an established workers’ compensation injury.

2.1.1 WCL §2(7) - “‘Injury’ and ‘personal injury’ mean only accidental injuries arising out of and in the course of employment and such disease or infection as may naturally and unavoidably result therefrom.”

Analysis of whether a claim arose out of and in the course of employment requires determining whether there is a sufficient nexus between the circumstances of the injury and the claimant’s employment.

2.1.2 Mental Injuries - “The terms “injury” and “personal injury” shall not include an injury which is solely mental and is based work-related stress if such mental injury is a direct consequence of a lawful personnel decision involving a disciplinary action, work evaluation, job transfer, demotion, or termination taken in good faith by the employer.” WCL §2(7)

Solely mental injuries (that is, psychic traumas that cause psychological injury) are compensable in New York. InWolfe v. Sibley, 36 N.Y.2d 505 (1975), the claimant found her boss lying in a pool of blood caused by a self-inflicted gunshot wound. This caused the claimant to have severe psychological depression. The Court of Appeals inWolfe ruled—for the first time—that psychological trauma precipitated by psychological stress was compensable just as physical injuries. This case directed led to the 1990 amendment of WCL §2(7) to provide the limitation on mental injuries caused by lawful personnel decisions.

2.1.3 What the statute excludes: WCL §10(1) - “ . . . except that there shall be no liability for compensation under [the Workers’ Compensation Law] when the injury has been solely occasioned by intoxication from alcohol or a controlled substance of the injured employee while on duty; or by willful intention of the injured employee to bring about the injury or death of himself or another; or where the injury was sustained in or caused by voluntary participation in an off-duty athletic activity not constituting part of the employee’s work related duties unless the employer (a) requires the employee to participate in such activity, (b) compensates the employee for participating in such activity, or (c) otherwise sponsors the activity.

2.1.4 Presumption of compensability - WCL §21 - once the claimant has produced evidence to support a claim for a workers’ compensation injury, it shall be presumed compensable until the employer rebuts the presumption with substantial evidence to the contrary. This is why employers have such difficulty in winning controverted workers’ compensation claims.

Keevins v. Farmingdale UFSD, 304 A.D.2d 1013 (3d Dep’t 2003) - this case presents an excellent example of the §21 presumptions in action. The claimant, a schoolteacher, twisted her knee while walking around her desk. The employer did not present any medical evidence to rebut the claim but instead argued that the claimant had an idiopathic injury. The Board disallowed the claim but the Appellate Division reversed, citing §21 and noting  that accidents that occur “in the course of employment” are presumed to have arisen “out of” such employment in the absence of substantial evidence to the contrary.

The presumption is even stronger in unwitnessed death cases. In an unwitnessed death case, it is presumed that the death arose out of in the course of employment.Holmes v. Kelly Farm and Garden,Inc., 1 A.D.3d 743 (3d Dep’t 2003). The insurance carrier can shift the burden back to the claimant by producing a consultant’s report indicating that the death was not causally related to the employment.

2.2 Occupational Disease - The other compensable category of events under the workers’ compensation law are occupational diseases. An occupational disease develops over time as a result of repetitive actions or exposures, without a single trauma. An accident is typically identifiable in time and place as a single, traumatic event resulting in injury. In an occupational disease claim, the exposure or repetitive action must arise from adistinctive feature of or the nature of the claimant’s employment.

When you are dealing with an occupational disease claim, do not simply accept from the claimant or the claimant’s physicians a history that the injury arose from repetitive work tasks as adequate for establishing the claim. There needs to be a determination as to what those tasks were and whether those tasks were a distinctive feature of the claimant’s class of employment.

2.2.1 Distinctive Feature - Occupational diseases are not merely conditions related to the claimant’s job but arise from the inherent nature or adistinctive feature of the claimant’s class of employment. Occupational disease claims require careful consideration because of the unique defenses inherent in these types of claims. The fact that the claimant developed an occupational disease at work is not enough; the claimant must have developed that disease due to a distinctive feature of the claimant’s job.

For example, in Engler v. United States Parcel Service, 1 A.D.3d 854 (3d Dep’t 2003), the Appellate Division reversed the Board’s establishment of the claimant’s lung condition as an occupational disease because there was no distinctive feature of the claimant’s job as a delivery truck driver that caused the condition. Rather, the specific environments in which he made deliveries and a defect in the door of his vehicle created a vacuum which caused the claimant’s lung disease. Thus, there was no distinctive feature of the claimant’s job as a delivery truck driver that caused the claimant’s condition.

2.2.2 Ergonomics - Because the key issue in an occupational disease claim is whether the resulting occupation disease occurred from a distinctive feature of the claimant’s employment, claims based on injury resulting from the way in which an employee does his or job or sets up his or her work station are not compensable.

In Bates v. Marine Midland Bank, 256 A.D.2d 948 (3d Dep’t 1998), the Appellate Division found that a bank recovery adjuster who developed a herniated disc from cradling a telephone with his neck while working did not have a compensable occupational disease because the claimant's condition was caused by the configuration of his work space and the manner in which he used the equipment provided, rather than some unique feature of his particular employment.

2.2.3 Date of Disablement - Because occupational diseases do not involve a single, identifiable event, one of the challenges in these types of claims is to determine thedate of disablement. The Appellate Division has given the Board much discretion in determining date of disablement. The Board can consider a number of factors in setting the date of disablement such as: date of first treatment, date of first lost time, and the date that the claimant knew his or her condition was related to work. The date of disablement is a key consideration in determining whether the claim is timely, which insurance carrier has coverage, and even the rate at which the claimant will be paid lost wage benefits.

2.3 Consequential Injuries - injuries consequential to an originally established workers’ compensation injury are compensable. The carrier on the risk is the carrier that covered the original injury. Whether a consequential injury is in fact due to an original injury is a question of fact for the Board to determine.

2.4 Timely Notice and Claim Filing - There are two important timelines to keep in mind in any accidental workers compensation injury. The first is timelynotice under §18 of the statute. The other is timelyclaim filing under §28 of the statute.

2.4.1 Timely Notice - Timely notice under §18 requires the claimant to give his or her employer written notice of an injury within 30 days of an injury. Exceptions to the 30 day notice requirement exist when an employer has actual knowledge of the accident or when the employer is not prejudiced by the delay in claimant’s giving notice. It is the claimant’s burden to prove that the employer is not prejudiced by untimely notice. “Prejudice” refers to prejudice in the employer’s defense of the claim. An example of prejudice would be the unavailability of evidence or witnesses due to the claimant’s failure to provide timely notice. Both the Board and the Courts have stated in many cases that oral notice will suffice.  A different section of the statute covers timely notice for occupational disease claims. Under WCL §45, the claimant has two years from the date of disablement or the date the claimant knew or should have known that the disease was due to the nature of his or her employment, whichever is later. Failure to give written notice is frequently ignored by the Board and the failure to give timely notice is ignored just as often.

2.4.2 Timely Claim Filing (statute of limitations) - The claimant must file his or her workers’ compensation claim within two years of the date of accident or disablement. This statute of limitations may be waived if the defense is not raised at the first hearing in which all parties are present or if the employer made an “advanced payment of compensation.” Keep in mind that a medical report from a claimant’s doctor can be considered the filing of a claim.

Whenever a claim appears to have been filed more than two years after the date of injury, you should pursue the statute of limitations defense. This issue should be noted on the Notice of Controversy (FROI-04 or SROI-04) and your attorney must also raise this issue on the record at the first hearing at which all parties are present. You should closely investigate a claimant’s contention you waived a §28 defense because of an advanced payment of compensation. Any advance payment of compensation must carry with it recognition by the employer that there was a compensable injury. A payment that is “compensation neutral,” such as a payment due to a sick-leave policy, will not qualify as an advanced payment of compensation.

2.5 Causal Relationship - The claimant’s main burden is any workers’ compensation claim is to establish the existence of causal relationship or a causal nexus between the claimant’s accident and employment. Causal relationship is proven by medical evidence. Generally this comes from a physician in the form of a narrative report that has a history of the claimant’s injury, a diagnosis, and a statement on causal relationship tying the diagnosis to the claimant’s injury.

The issue of causal relationship usually involves a battle between medical experts. Once the claimant has produced a medical report with the requisite history, diagnosis, and opinion on causal relationship, the burden shifts to the employer to produce contrary medical evidence, usually in the form of an independent medical exam.

In order for awards of temporary disability to continue, the claimant must produce medical evidence of causally related disability on a periodic basis. That time period is every 90 days as of this writing.

2.6 Multiple Injuries and Apportionment - Where a claimant has a work-related injury but has pre-existing or subsequent injuries, the issue of apportionment, that is, how to divide liability between multiple injuries arises. There are three scenarios that come into play when dealing with multiple injuries.

The first is a single accident involving multiple body parts. This is the most frequent situation. A typical example of such an accident would be a work-related motor vehicle accident (MVA) where the claimant injured multiple body parts. Here, the primary concern is avoiding an improper overlap of awards when the claim reaches permanency.

The second situation involves multiple body parts injured in separate accidents either while working for the same or different employers. Here, concurrent awards are permissible, so long as the combined award doesn’t exceed the statutory compensation maximum for the most recent accident. Care must be taken to assign the appropriate compensation amount to each accident.  

The third situation involves successive accidents or injuries to the same body part. This is the most problematic and the source of most apportionment litigation in NY Workers’ Compensation. The general rule is that apportionment does not apply during the acute phase of temporary disability but apportionment may apply during permanency.

Apportionment to a prior non-work related injury is very difficult to obtain. There needs to be a showing that the claimant remained disabled from work “in a compensation sense” due to the prior injury in order for apportionment to apply. If the claimant is able to work following the first injury, then apportionment is probably not going to apply. That said, there is a special class of cases where apportionment can apply to a prior non-work related condition if the claimant had a permanent pre-existing loss of use that can be reasonably quantified. Scally v. Ravena Coeymans Selkirk Cent. School District, 31 A.D.3d 836 (3d Dep’t 2006).

The same rule applies in situations where the prior injury was the subject of a NY workers’ compensation claim, although WCLJs are a bit more willing to consider apportionment in this situation because there will be another insurance carrier available to pay the apportioned share of benefits. In these cases, one should not expect any successful outcome on an apportionment claim until the claimant reaches permanency and is either classified or given a schedule loss of use award.

2.7 Jurisdiction - Any claim arising from an injury that occurred in the State of New York is subject to New York jurisdiction. Cases involving out-of-state injuries may be subject to New York State jurisdiction if there are sufficient significant contacts between the parties and New York State. Examples of significant contacts can include (but are not limited to): home office location, place of employment contract, residence, and any contract between the parties indicating which workers’ compensation law they wish to apply.

3.0 Average Weekly Wage

The claimant’s awards for wage replacement (indemnity) benefits are equal to 2/3rds of the injured workers’ average weekly wage (“AWW”). Because all awards for wage replacement benefits are calculated based on the claimant’s average weekly wage, it is critical that an accurate average weekly wage be set at the inception of the case.

3.1 C-240 and Records of Wages - An accurate calculation of the claimant’s average weekly wage starts with good records. The Board provides a form from the employer to complete, called a C-240, which provides space for the employer to indicate a record of the claimant’s wages for the year prior to the injury and the number of days the claimant worked over the course of that year.  The underlying principle in calculating the claimant’s AWW is to determine as closely as possible the claimant’s actual AWW at the time of the injury.

3.2 Methods of Calculation

Claimant employed in same industry for Full Year: This is the most common situation. It applies where the claimant has worked for the same employer, or other employers doing the same kind of work, for substantially the entire year prior to the injury. For a claimant working five days per week, the total wages for the year prior to the injury is divided by the actual days worked to determine the claimant’s average daily wage. The average daily wage is then multiplied by 260 and then divided by 52 to yield the AWW. Different multiples apply for six and seven day workers. In these cases, the Board will generally use a 300 multiple.

Claimant not employed in same industry for Full Year: Use of the claimant’s actual payroll in this situation may be unfair. In these situations, the statute requires the employer to produce whatever wage information is available for the claimant and the wages of a similar worker for substantially the whole year prior to the injury. A similar worker is an employee of the same class as the claimant.

Claimant whose AWW not Otherwise Calculable:  If the claimant’s AWW cannot be “reasonably and fairly” applied by either of the above methods, then the Board will determine the claimant’s AWW using other sources, including the claimant’s actual earnings for the entire year prior to the injury.

Wage Expectancy for Employees under age 25 at the time of injury: When someone is injured before their 25th birthday, a special rule exists for calculating the claimant’s earning capacity. This is called the “minor’s wage expectancy.” Under minor’s wage expectancy, the AWW is increased at the time of permanency to more accurately reflect the future wage loss suffered by young workers. This increase in the AWW only applies to permanent wage loss benefits and not to temporary disability awards.

3.3 Maximum and Minimum Rates of Compensation – The statutory maximum and minimum rates of compensation payable to the claimant are set by the statute. The maximum rate is reset every July and is based on the average weekly wage for all workers in the State.

DOI on or After          Max Total       Max Partial     Min Rate

7/1/14                          $808.65           $808.65           $150

7/1/13*                        $803.21           $803.21           $150

5/1/13                          --                     --                     $150

7/1/12*                        $792.07           $792.07           $100

7/1/11*                        $772.96           $772.96           $100

7/1/10*                        $739.83           $739.83           $100

7/1/09                          $600                $600                $100

7/1/08                          $550                $550                $100

7/1/07                          $500                $500                $100

7/1/92                          $400                $400                $40

7/1/91                          $350                $350                $40

7/1/90                          $340                $280                $30/$20

*Adjusted annually to 2/3 of State AWW

4.0 Temporary vs. Permanent Disability

Lost wage benefits paid to an employee immediately after an injury during his or her period of convalescence are called temporary disability benefits. Lost wage benefits paid to the claimant after he or she has reached maximum medical improvement and legally found by the Board to have a permanent disability are called permanent disability benefits.

4.1 Temporary disability benefits remain payable so long as the claimant’s condition is “unsettled,” such as when pain and swelling persist or so long as the claimant condition can be improved with additional medical treatment. In order to continue to be entitled to ongoing lost wage benefits during the period of temporary disability, the claimant must present periodic medical evidence of a continuing medical disability related to the injury. If a claimant needs additional medical attention after the period of initial healing—such as further surgery—the employee may again be considered temporarily disabled. The determination of the claimant’s temporary disability benefits is dependent on periodic medical evidence showing that the claimant remains disabled due to the injuries suffered in the workers’ compensation accident or occupational disease.

4.1.1 Calculation of Award - Compensation for temporary partial disability is two-thirds of the difference between the claimant’s average weekly wage and his wage earning capacity after the accident. WCL §15(5)

4.1.2 Wage Earning Capacity is determined either by the claimant’s actual earnings, if working, or if the claimant has no earnings, the Board “shall fix such wage earning capacity as shall be reasonable, but not in excess of [75%] of his actual earnings,having due regard to the nature of his injury and his physical impairment.” WCL §15(5-a)

Typically, the non-working claimant’s benefit rate will be based on a physician’s opinion of the claimant’s degree of disability. This is often characterized on a percentage basis or by using the terms “mild” (25%), “moderate” (50%), “marked” (75%) or “total” (100%). In New York, the “total disability” refers not to the claimant’s at-injury job but to all jobs in the labor market.  

4.2 Permanent disability benefits are appropriate when the claimant has reached maximum medical improvement from his or her injuries. Permanent disability awards are divided into two types: classification and schedule loss of use. Reaching permanency is a significant legal turning point in a workers’ compensation case. Permanent disability benefits carry with them the presumption that the claimant has a continuing disability. Thus, the claimant is relieved of the requirement to present periodic medical evidence of a continuing disability. The level of permanent impairment is based on medical opinion provided in consultation with the Board’s 2012 Guidelines for Determining Permanent Impairment and Loss of Wage Earning Capacity.

4.2.1 Maximum Medical Improvement (“MMI”)- Consideration of permanency is premature until the claimant has reached MMI from the injuries suffered in the workers’ compensation accident. A finding of MMI is based on a medical judgement that the claimant: 1) has recovered from the work injury to the greatest extent that is expected and 2) no further improvement in the claimant’s condition is reasonably expected. The need for palliative or symptomatic treatment does not preclude a finding of MMI. In cases that do not involve surgery or fractures, MMI cannot be determined prior to 6 months from the date of injury or disablement, unless otherwise agreed to by the parties.

4.2.2 Schedule Loss of Use (“SLU”) Awards - These are awarded for a permanent impairment of an extremity, permanent loss of vision or hearing, or permanent facial disfigurement.

4.2.2.1 Prerequisites for SLU award:

            1) Permanent impairment of extremity, loss of vision, or loss of hearing.

2) Impairment must involve anatomical or functional loss such as soft tissue, bone, sensation, atrophy, scarring, deformity, mobility defects, loss of power, shortening, impaired dexterity, or coordination.

3) Treatment terminated and no further improvement is expected or no residual impairment in systemic area (e.g., head, neck, or back).

4) Certain time periods must have elapsed, generally one year from the date of injury or date of surgery to repair the injured body part.

4.2.2.2 Evaluation and award of SLU

1) Loss of use is a medical determination made by a physician with reference to the Workers’ Compensation Board Medical Guidelines. Generally, for extremities, the doctor measures the loss of range of motion of the affected body part and then compares those findings with the Medical Guidelines to determine his or her opinion on the claimant’s percentage loss of use. In many cases, the claimant’s physician will submit an opinion on SLU and the insurance carrier will also have the claimant examined by its consultant for another opinion on SLU. If there is a dispute between the opinions, the parties can compromise or the WCLJ can direct development of the record and decide which opinion he or she finds more credible.

2) Percentage loss of use is then translated into the appropriate number of weeks of compensation payable to the claimant by reference to the table in WCL §15(3). The table indicates the maximum number of weeks of disability payable for each body part. To determine the number of weeks payable for a certain percentage loss of use, multiply the maximum number of weeks for the body part by the percentage calculated by the physician. For example, if the physician determines that the claimant has a 25% SLU of the right arm, the number of weeks payable is 78 weeks (312 weeks total for an arm x 0.25 = 78 weeks).

3) The number of weeks of compensation payable is then multiplied by two-thirds of the claimant’s average weekly wage to determine lump sum award payable to the claimant. Although the statute provides for the SLU award to be paid out over time into the future, a statutory amendment permits payment in a lump sum upon claimant’s request. The carrier will deduct prior payments made during the period of temporary disability from this lump sum.

4) Protracted Healing - In some cases the time required to heal an injury is greater than average, resulting in a longer period of temporary disability. Because the statute provides that the carrier can deduct prior payments from the final SLU award, injured workers with unusually long healing periods may receive little or no additional benefits under a SLU award. To avoid this, the statute provides an additional award for protracted healing.

4.2.2.3 - Payment of a SLU award is a credit for future lost wage awards that the injured worker may require in the case. In the event of future lost time related to the workers’ compensation injury, the carrier does not need to initiate fresh payments of wage loss benefits to the claimant but instead may credit the lost time payment against that amount of the SLU award not for claimant’s actual lost time.  

4.2.3 Classification awards are payable for permanent conditions not otherwise amenable to disposition by SLU award. In fact, the statute refers to classification cases as “other cases.” WCL §15(3)(w). Classification cases generally involve continuing or progressive impairments resulting in permanent disability to the head, neck, spine, lungs, and other body parts not otherwise addressed by WCL §15(3)(a)-(u). Rather than the SLU’s payment of a limited, but certain period of benefits to the claimant, a classification award is potentially unlimited and the amount of the benefits can fluctuate over time.

4.2.3.1 Evaluation - Like SLU awards, the ultimate determination of permanent disability is a medical determination made by a physician with reference to the Board’s Impairment Guidelines. Determining a claimant’s permanent partial disability award requires a determination of the claimant’s level of medical impairment and loss of wage earning capacity.

4.2.3.2 Medical Impairment - Under the  2012 Guidelines permanent medical impairment is assigned a severity ranking from “A” to “Z,” with “A” being the least severe and “Z” being the most severe. The Board has also included a “Medical Impairment Severity Crosswalk” in Chapter 18 of the 2012 Guidelines to allow for some degree of comparison between the severity rankings of different body parts. This is because, for example, a “D” severity ranking for the soft-tissue lumbar spine injury would not necessarily be the same level of impairment as a “D” severity ranking for a respiratory condition. The Severity Crosswalk ranks relative severity across injury classes from “0” to “6” with a “0” representing no disability and a “6” representing a total disability. Recent Board Panel Decisions have translated the A-to-Z rankings of the Guidelines into percentage degree of disability for determining the appropriate benefits rate.

The Guidelines criteria for the most commonly injured body sites are very detailed and focus on objective measurement and clinically verifiable information. Most of the time, there should be very little difference between the impairment rankings from two examinations of the same claimant by different physicians.

4.2.3.3 Loss of Wage Earning Capacity (“LWEC”) - the durational cap on the claimant’s weekly indemnity benefit is dependent on the Board’s determination of the worker’s loss of earning capacity which is a different calculation than the level of medical impairment. Although the claimant’s medical impairment may coincidentally be the same as the percentage loss of wage earning capacity, medical impairment may not be directly translated into loss of wage earning capacity.

Definition - a “determination at the time of classification of the decrease in earning power that an injured claimant has experienced due to the permanent impairments suffered.”Buffalo Auto Recovery, 2009 WL 5177881.

Loss of earning capacity is to be determined by a WCLJ upon a preponderance of the evidence in the record concerning the claimant’s nature and degree of the work-related permanent physical and/or mental impairment, work restrictions, claimant’s age, and any other relevant factors. Buffalo Auto Recovery, Id. This loss of earning capacity will determine the maximum number of weeks of compensation available to the claimant and the weekly benefit amount may fluctuate over time. There is no formula for the determination of LWEC. The determination of same is left to negotiation and/or litigation.

A recent Appellate Division decision, Canales v. Pinnacle Foods Group LLC, 117 A.D.3d 1271 (3d Dep’t 2014) indicates that the claimant’s weekly benefit rate is determined solely by a claimant’swage earning capacityunder WCL §15(5-a)rather thanloss of wage earning capacity. This means that the weekly benefit rate of a classified claimant should be based on the claimant’s actual earnings or medical degree of disability. As this is a new decision and a departure from Board practice, this interpretation is subject to some dispute.

4.2.4 SLU versus Classification - Sometimes injuries to a body part that normally would qualify for a SLU are more appropriately disposed of with a classification award due to the nature of the claimant’s permanent impairment. An award for a continuing disability award, as opposed to a schedule award, is indicated where the claimant’s medical condition remains “unsettled.”Clifford v. Larkin, 31 A.D.2d 866 (3d Dep’t 1969). Physical evidence of a condition that is unsettled include a continuing condition of pain or swelling, a continuing need for medical treatment, or other conditions listed in the Board Medical guidelines.

4.2.5 Permanent Total Disability - classification with a permanent total disability qualifies the claimant for lifetime receipt of two-thirds of his or her AWW for the rest of his or her life.

4.2.5.1 Upon the facts of the case - A claimant may be found permanently totally disabled based on substantial medical and vocational evidence in the record. This is a factual issue for the Board’s determination.

4.2.5.2 Statutory Permanent Total Disability - Certain serious injuries automatically qualify the claimant for a permanent total disability. These injuries include: the loss of both hands; both arms; both feet; both legs; both eyes; or any combination of loss of one member of two or more of these categories. Actual physical loss of the body part is not required; a finding of total loss of use is sufficient.

4.3 Aggregate Trust Fund – This trust fund was created to ensure that long-term benefits for permanent disability or death were protected and guaranteed. (See WCL §27).Private insurance carriers that were responsible for long-term awards were required to pay the present value of the award, computed by the Board, into the Aggregate Trust Fund (“ATF”). Self-Insured employers and the State Insurance Fund (which manages the ATF) are not required to make ATF deposits. Cases in which a mandatory ATF deposit is required include:permanent partial disability cases where there is no §15(8)(d) concession from the Special Funds and certain permanent total disability cases. Permanent total disability cases that are not of the type requiring an ATF deposit are known as discretionary cases and the ATF deposit in such cases is only directed by the Board at its discretion.

4.4 Attachment to the Labor Market - This is a defense to ongoing payment of a claimant’s partial (either temporary or total) disability benefits created by the Courts in cases dating back almost to the inception of the Workers’ Compensation Law. A claimant who has a partial disability and who has not been found to have involuntarily retired due to his or her workers’ compensation injury must demonstrate an attachment to the labor market by seeking employment within his or her medical restrictions in order to maintain entitlement to continuing compensation benefits.

4.5 Death Benefits – If a work-related injury causes death, bi-weekly benefits may be payable to the decedent’s surviving spouse and, depending on the circumstances, to the decedent’s surviving child or children, subject to the maximum rates listed in the Table on page 8 above and a $30.00 per week minimum.WCL §16. Status as a surviving spouse or child is determined on the date of death, not the date of the injury. “Child” also includes posthumous children. If is no surviving spouse and no children, dependent parents, grandparents, grandchildren, and siblings under the age of 18 may be eligible for benefits. If there are no surviving dependents entitled to receive death benefits under the statute, then §16(4-b) provides that the sum of $50,000 must be paid to the decedent’s surviving parents (even if they were not dependent on the decedent for support) or if no surviving parents, to the decedent’s estate.

4.6 Special Funds Conservation Committee – Responsible for managing and defending liability of the Special Fund for Second Injuries (§15(8)) and the Special Fund for Reopened Cases (§25-a). The §15(8) Fund permits reimbursement of the carrier in certain cases of permanent disability and death after the retention period of either 260  or 104 weeks. The §25-a Fund assumes liability for the claim after passage of seven years from the date of injury and three years since last payment of compensation in “truly closed” issues. Both of these Special Funds are in the process of being phased out. The §15(8) fund was closed to claims with dates of injury on or after 7/1/07. The §25-a fund was closed to new applications for transfer on 1/1/14. Whether §15(8) has been established on a claim is of relevance to private insurance carriers in determining whether there will be a mandatory ATF deposit in permanent partial disability cases.

5.0 Medical Care and Choice of Provider

The most important benefit to most injured workers are the hospital and medical expenses provided under the Workers’ Compensation Law in connection with an injury or compensable occupational condition. The statute provides that a claimant will be provided with virtually any medical care needed for the treatment of his or her injury without cost and without limitation to duration or amount for the remainder of the claimant’s life. This is of concern to insurance carriers and employers given the marked increase in the cost of medical care over the last several years. In many claims, the cost of medical benefits will far exceed the cost of indemnity benefits.

5.1 WCL §13(a) - the employer (or its insurance carrier) must provide to the injured worker “ . . . such medical, surgical, optometric, or other attendance or treatment, nurse and hospital service, medicine, optometric services, crutches, eye-glasses, false teeth, artificial eyes, orthotics, functional assistive and adaptive devices and apparatus for such period as the nature of the injury or the process may require.”

5.2 Choice of Provider - The injured worker has virtually unfettered right to treat with the authorized health provider of his or her choice. The only real limitation to the claimant’s choice of physician lies in those employers that choose to use a preferred provider organization to treat injured workers under N.Y. Work. Comp. Law Article 10-a.

5.3 Medical Treatment Guidelines - Claims involving the neck, back, shoulder, knee, and carpal tunnel are subject to the Board’s medical treatment guidelines. Additional Medical Treatment Guidelines regarding the treatment of chronic pain are forthcoming. These guidelines impose a mandatory standard of care for these body sites. The Guidelines are supposed to provide an evidence-based approach toward the medical care of claimants in the workers’ compensation system.

The Guidelines are focused on the premise that medical care should be designed to restore functional ability. A positive patient response is, under the Guidelines, generally one that results in increased functional ability that can be objectively measured.

Medical treatment that is pre-approved by the Board is detailed in the Guidelines. Should a claimant’s physician wish to provide treatment that is outside of that detailed in the Guidelines, the burden of proof is on the physician to demonstrate the appropriateness and medical necessity of the treatment. Additionally, the physician must state that the claimant agrees to the proposed care and why alternate care under the Guidelines is not appropriate or sufficient.

5.4 Independent Medical Examinations - The other source of medical opinions in a workers’ compensation claim come from physicians who are hired by employers and carriers to provide an independent medical examination. The use of independent medical examiners (“IMEs”) is highly regulated. Some of the major provisions concerning IMEs are as follows:

1) A copy of the IME report must by submitted on the same day and in the same manner to the Board, the carrier, the claimant, the claimant’s attorney, and the claimant’s treating physician. If the IME received a request for information from a party, a copy of that request along with any answer to the request must be sent to the Board within 10 days of such request or reply.

2) If the carrier is under a direction to continue indemnity payments at a certain rate, an IME report cannot be the used to automatically suspend or reduce continuing compensation benefits, but may be used as the basis for an application to the Board to reduce or suspend benefits.

3) A physician must be authorized by the Board to perform IMEs.

4) The facilities where IMEs take place must be suitable for the examination as well as accessible, safe, and located a reasonable distance from the claimant’s residence.

5) No one may cause a report to be filed that differs substantially from the professional opinion of the physician who performs the IME.

6) The claimant shall have notice by mail at least 7 business days prior to the examination of the date of the examination.

7) A physician may not perform an IME of the claimant if that physician has treated that claimant for the same disability or if someone if the physician’s practice, managed care provider, or preferred provider organization has treated the claimant for the same disorder.

5.5 Communication With Healthcare Professionals - Any written communication with a health care provider must be served on the opposing parties and their legal representatives. The failure to provide such notice of a party’s contact with a healthcare provider may result in the Board precluding any information obtained through that communication.

6.0 Section 32 Settlement Agreements - A settlement agreement under Section 32 of the Workers’ Compensation Law allows the parties to settle on a final basis all issues or specific issues at any stage of the proceedings. Typically, most settlements close out both medical and indemnity on a final and conclusive basis; this waiver of benefits is the most significant feature of the Section 32 settlement. The actual agreement is generally prepared by the attorney for one of the parties and circulated to the other parties for review. Once there is agreement on the final form, all parties will sign the agreement and it is sent to the Board, which will schedule a hearing to review the agreement. At the hearing, the WCLJ will review the agreement with the claimant to make sure that the agreement is not unconscionable and to make sure that the claimant understands the agreement. Once the WCLJ approves the agreement at the hearing, the parties have 10 additional days to withdraw from the agreement if they wish. Once the 10 days elapses without objection, the agreement is final and payment (if any) is due. Certain Federal laws concerning the Social Security program and Medicare have complicated the parties rights and obligations with respect to Section 32 settlements.

The Medicare Secondary Payer statute, 42 U.S.C. §1395y and its corresponding regulations at 42 C.F.R. §411.11 et. seq., state that workers’ compensation is a primary benefit payer and the Medicare is a secondary payer. What this means is that Medicare does not want to pay for any medical care that is properly the responsibility of the workers’ compensation carrier.

Claimants who are Medicare eligible and settling the medical portion of their claim should apply for approval of a Medicare Set-Aside with the Centers for Medicare and Medicaid Services (“CMS”). A Medicare Set-Aside is a calculation of the expected future medical treatment that the claimant will require in the future as a result of the workers’ compensation injury. Only that treatment that would be covered by Medicare is included in the calculation.

For further information, please contact Ronald Weiss at 585-262-6390 or rweiss@hwcomp.com

Employers continue to deal with federal intrusions in workers’ compensation:  the Medicare Secondary Payer Statute and now new rules being considered by OSHA.  On November 8, 2013, OSHA published a notice of proposed rulemaking to amend the agency’s regulations on reporting injuries and illnesses. 

            OSHA is concerned that injury reporting may be inaccurate because employers may have policies that discourage employees from reporting injuries.  Therefore, OSHA is considering three provisions:

            1) A requirement that employers inform their employees of their right to report injuries and illnesses free from discrimination or retaliation;

            2) A provision requiring that any injury and illness reporting requirements established by the employer be reasonable and not unduly burdensome; and,

            3) A prohibition against disciplining employees for reporting injuries or illnesses.

            OSHA is asking the following questions:

            * Do you or does your employer currently inform employees of their right to report injuries and illnesses?  If so, please describe how and when this information is provided.

            * Are there any difficulties or barriers an employer might face in trying to provide such information to its employees?  If so, please describe them.

            * How might an employer best provide this information:  orally to the employee, through a written notice, posting or in some other manner?

            Adverse actions mentioned by participants in public meetings with OSHA include automatically disciplining those who seek medical attention and requiring an employee who reported an injury to undergo drug testing where there was no reason to suspect drug use.

            There are already rules prohibiting discrimination against an employee for reporting a work-related injury or illness, but OSHA is not satisfied with existing rules.  It feels additional explicitness is needed because stakeholders were concerned that new requirements to publicize recordkeeping data might provide employers new motivation for disciplining employees for reporting. 

            The comment period for the proposed rule runs on October 14, 2014. 

MEDICAL TREATMENT GUIDELINES UPDATE AND THE NARCOTIC PRESCRIPTION DILEMMA

Presented by

Renee E. Heitger,  Esq.

Kigin v. State of NY WCB, 109A.D.3d 299 (3d Dept. 2013)

2 Big Questions:

Answer to Question 1

Yes, the Board has Regulatory Authority to promote the overall Statutory framework of WCL Section 13, and to decrease bill disputes and delays in providing effective and necessary treatment.

Therefore, the MTG and 12 NYCRR 324 were lawfully promulgated.

Answer to Question 2

MTG comport with the spirit and intent of, and are not contrary to Section 13(a), in providing appropriate and medically necessary treatment.

Additional Questions Addressed by the Court:

MTG do not deprive claimants of due process as the Board authorizes an expedited procedure.

MTG and variance process do not exclude any particular care, just changes the process in determining medical necessity.

Application of the MTG to all prospective treatment on or after 12/1/10 does not constitute retroactive application.

Additional Questions Addressed by the Court:  (cont’d)

Proposed Non-Acute Pain Treatment Guidelines will only supplement current MTG so the current MTG can apply to chronic cases.

Court of Appeals accepted claimant’s motion for leave to appeal.   . . . . to be continued . . . .

Practice Tips Re:  Variances

If you believe there is a Burden of Proof issue, specifically raise it on the MG-2 denial:  there is now a specific box for that denial.

If you only raise a Burden of Proof issue, and the Medical Arbitrator or ALJ disagrees and finds the TMP met his or her burden, then the treatment will be authorized. 

Therefore, if you want to preserve your right to submit a contrary medical opinion, you cannot wait and it must be submitted with the denial.  Include Burden of Proof and the contrary medical opinion as the basis for denial.

The contrary medical can be from an IME, a records review with an IME or authorized provider, or from your medical professional.   Watch the deadlines!!

If you obtain a contrary medical opinion, make certain your consultant comments on more than just the maximum amount of treatment permitted under the Guidelines and focuses on the substance of what TMP has provided to support his variance request, as TMPs are getting more proficient in supporting their MG-2 requests.

Partial granting of variance is now permitted.

If there is no evidence of a re-examination by the TMP within the first   2-3 weeks after initiating treatment, TMP really cannot meet Burden of Proof.

The Narcotic Prescription Dilemma

Board Subject No. 046-457 states:

  “The Medical Treatment Guidelines do not require, and are not intended to recommend,  the immediate cessation of prescription narcotics … for claimants who have been using such medication long term.

   There are very significant health risks associated with the sudden withdrawal of narcotics and other pain medications.  The MTG allow for the use of pain medication beyond the maximum duration.

  Therefore, carriers should continue to pay for these medications without a variance request.”

Practice Tips

Before a claimant begins using medication “long term”, notify the prescribing doctor from the very beginning that the Medical Treatment Guidelines apply and inform TMP that those Guidelines generally state “narcotic medications should be prescribed with strict time, quantity and duration guidelines and with definitive cessation parameters . . . “  Then refer the TMP to the Guidelines for specific details.

Consider C-8.1(B) and (A) if TMP does not provide this treatment plan for prescriptions.

Consider C-8.1(B) and early IME if medications continue beyond the maximum.

If a claimant is already on medication long term, obtain an IME on the various prescription medications being utilized, request review of those prescription medications and any tox screens, and have the doctor comment on the medical necessity and appropriateness of those ongoing medications.  If not medically necessary and appropriate, have the doctor outline a weaning program which you are willing to authorize.  Then request a hearing to address the issue.

Board Decisions

Strong Independent Medical Examination from pain management specialist, and contrary opinion from TMP pain management specialist resulted in litigation and affirmation of discontinuation of narcotics with proper weaning. NYS Dept. of Corrections, 2013 WL 6512422 (12/10/13)

TMP, not pain management specialist, and SFCC’s consultant, pain management specialist performed record review without exam gave contrary opinions on medications.  The Judge found the consultant lacked credence and authorized the medications.  Board Panel held that decision in abeyance pending referral to an impartial specialist.  Quality Engine Dist. Inc., 2013 WL 6512423 (12/10/13)

Impartial specialist reviewed and noted one narcotic moot (claimant stopped), and one could “possibly be tapered”.  Board relied on that and opinion of new pain management TMP to continue the one narcotic. Tomkins Metal Finishing, 2013 WL 3287889 (6/24/13).

TMP pain management specialist and SFCC’s medical record review by specialist in physical medicine and rehabilitation gave conflicting opinions on MG-2 for prescription narcotics.  Board Panel rescinded granting of the variance since no variance required and rescinded direction that TMP formulate transition plan to non-opioid.  Narcotics were continued. Elderwood Affiliates, Inc. 2013 WL 1853849 (4/25/13).

Practice Tips (cont’d)

Request that the prescribing doctor conduct regular tox screens to ensure compliance.  They should provide the results.

If abnormal, consider IME for medical necessity,  appropriateness, and treatment plan.

If multiple providers prescribing medication, advise each what else is being prescribed and ask if still medically necessary and appropriate.  Consider IME.

NON-ACUTE PAIN TREATMENT GUIDELINES:  STILL IN DRAFT

No clear indication or time frame with regard to when a claimant’s pain goes from acute to “Non-Acute”, and when the Non-Acute Pain Medical Treatment Guidelines would be applied.

The Board has characterized the Non-Acute Pain Treatment Guidelines as a supplement to the current recommendations on chronic pain, which are reflected in each of the Medical Treatment Guidelines.

Provide a strong focus and restrictions on the use of opioid medications, and alternatives should they not work.

Additional focus is on decreased pain levels and objective increase in function with treatment, as well as self-management.

No evidence to support increased efficacy of brand name meds, yet proposed MTG do not specifically recommend generics.

Proposed MTG state that Urine Drug Testing results are not to be shared with the Board, carriers, or employers, yet they are subject to interpretation and that interpretation can be “challenging” at times.

Comments were to be submitted by 6/10/13.  To be continued  . . . . .

QUESTIONS?

}SECTION 29 LIENS:  CRITICAL DRAFTING OF CONSENT LETTERS, BURNS ISSUES and LOSS TRANSFER }Presented by } }F. Daniel Bowers, Esq. }SECTION 29

  Section 29 of WCL permits an injured worker to collect WC benefits and sue a negligent 3rd party.

A.  Consent

  Claimant must obtain your consent prior to settling, compromising or discontinuing a third party action, unless the settlement amount exceeds the potential amount of the WC benefits over a claimant’s lifetime.

  ∙Consent is required even if you don’t     have a current lien or right of offset.

Note:

  Obtain SFCC consent in established 15-8 and 14(6) claims.

  Matter of Catapano v. Jow, Inc., 91 A.D.3d 1018    (3d Dept. 2012). 

∙  If claimant fails to obtain your prior consent or obtain a judicial compromise order, claimant is barred from further benefits pursuant to Section 29(5) of WCL.

  Exceptions: 

  1)  Settlement amount is greater than                       WCL provides

  2)  Nunc pro tunc order is granted by the trial        court.

B.  Lien  

  Section 29 grants the employer/carrier a lien for all payments of medical and indemnity in connection with the WC claim, subject to certain limitations.

  1.  Medical malpractice:  Lien and credit           only apply to increased liability caused        by the malpractice

2.  Motor Vehicle Accidents

  No lien for payments made in lieu of “first party benefits” when the MVA involves a covered person vs. covered person.  (Section 5102 of the New York Insurance Law)

  a.  First party benefits under Insurance Law Section 5102(B) are defined as payments to reimburse a person for basic economic loss on account of personal injury arising out of the use or operation of a motor vehicle, less 20% of lost earnings, amounts recovered under workers’ compensation and amounts deductible under the applicable insurance policy. 

  b.  Basic economic loss has a ceiling of up to $50,000 per person and generally includes:

   (1) medical expenses without limitation as to time, provided that within one year after the date of accident it is ascertainable that further expenses may be incurred, and

  (2) lost wages up to $2,000 per month for not more than three years from the date of accident causing the injury.  (N.Y. Ins. Law Section 5102(a)(2). 

  Note:  Keep in mind that even though an employer/carrier has not paid out more than $50,000 in benefits, there is a valid lien if you pay for lost time occurring more than three years after the original date of injury or lost wages in excess of $2,000 per month.

c.  Payments deemed outside First Party Benefits 

∙  It is generally accepted that carriers have valid liens and rights of offset against recoveries pursuant to Section 5104(a) for:

  1.    Medical expenses after the first anniversary date   where it was not ascertainable that ongoing   medical care would be required. (Rarely applies)

  2.    Loss of earnings beyond the third anniversary   date of the accident.

  3.    Any indemnity compensation benefits in   excess of $2,000 per month for actual lost time   occurring within three years from the date of   accident. 

4.  Payment in excess of the $50,000 combined medical and loss of earnings ceiling.

  Note:  Must add up workers’ compensation indemnity + no-fault+medical payments to determine when you hit $50,000.  Workers’ compensation does not always have to pay the full $50,000 before first party benefits are exceeded.  Add no-fault payments to WC indemnity payments.

5.  Payments made on account of death under the Workers’ Compensation Law above the amount of $2,000.

  Note:  When a workers’ compensation carrier has paid out benefits in lieu of first party benefits, it does not have a lien against the third party proceeds for such payments.  Instead, the compensation carrier only has a lien for payments that are made in excess of first party benefits.

  In the situation where the carrier does not have a lien for payments made in lieu of first party benefits, it may be able to recover those benefits in a claim for LOSS TRANSFER pursuant to Section 5105 of the Insurance Law.

  3.  Immediate Lien & Offset Rights

  a.  A compensation carrier may claim a lien for all benefits paid when one of the parties  isnot a covered person as defined under Section 5102(j) of the Insurance Law. Covered persons include pedestrians injured through the use of a motor vehicle or any owner, operator or occupant of a motor vehicle that has in effect the financial security required by the New York Vehicle & Traffic Law.

  Keep in mind that when a municipality is sued and the municipality was not an owner of a vehicle, the municipality is not covered by no-fault and, therefore, the compensation carrier can claim a lien for all benefits paid. There is no carve out for first party benefits in this situation, since the municipality is not a “covered person.”Stedman v. City of New York, 107 A.D.2d 600 (1st Dept. 1985). The city was sued because a traffic light malfunctioned resulting in accident.

  b.  A compensation carrier may claim a lien for all benefits paid when the accident giving rise to the injuryoccurred outside of New York. McHenry v. State Ins. Fund, 236 A.D.2d 89 (3d Dept. 1997).

  4.  Uninsured/Underinsured motorist provision. 

  No consent, lien or credit rights.  The recovery is not against a 3d party so no rights.

  Shutter v. Philips Display Components Co.,  90 N.Y.2d 703 (1997)

  c.  OFFSET/CREDIT/HOLIDAY

  You have an offset for the net settlement proceeds from third party actions.   Also known as a “holiday or credit”.  If the claimant proves the offset is exhausted, he/she can claim entitlement to future medical and indemnity benefits.  (Deficiency compensation)

  The failure to expressly reserve your right to a credit/offset in writing at the time you grant written consent results in a waiver of your right of credit offset. Robinette v. Arnold Meyer Sign Co., 43 A.D.2d 458 (3d Dept. 1974).

 1. Contribution to attorney’s fees

A.  Kelly v. State Insurance Fund, 60 N.Y.2d 131 (1983)

  In order to receive lien and credit/offset benefits, carrier must pay its share of attorney’s costs and fees for receiving each benefit.

  ∙ It is now well settled that the Kelly case applies only to permanent total classifications, schedule loss of use and death benefits.

1.  If your lien amount is higher than your share of the cost of litigation, you receive a portion of your lien back under theKelly case.

2.  If your lien was smaller than your share of the cost of litigation (COL), you owe money.  This is called “fresh money”.

B.  Burns v. Varriale, 9 N.Y.3d 207 (2007) 

    “Pay as you go”

∙ Pursuant to Burns, future indemnity benefits are speculative.

∙ Your lien is reduced by the cost of litigation percentage, approximately 33-1/3% off the top.

∙ There is no further reduction of your lien beyond the approximate 1/3 off the top.

∙ Future medical is speculative.  Bissell v. Town of Amherst, 18 N.Y.3d 697 (2012).

∙ As a carrier utilizes its right of offset against further indemnity and medical payments, it is responsible to pay its share of the cost of litigation for using its offset.

∙ No more lien reduction beyond the initial 1/3.

∙ No more “fresh money” on PPD cases.

∙ Pay roughly 1/3 of ongoing indemnity awards.

∙ Pay roughly 1/3 of ongoing medical.

C.  Consent Letter Controls

∙ WCB has the authority to determine Burns payments. 

∙ A carrier must “plainly and unambiguously express” its intent or the WCB will imposeBurns payments.  Stenson v. N.Y.S. Dept of Transp.,   96 A.D.3d 1125 (3d Dept. 2012)

∙ Any ambiguity will be resolved against the carrier.  A carrier needs to draft the consent letterexpressly waiving Burns in the letter if that was the intention of the parties. Richter v. Ramistain, Sys., 57 A.D.3d 1186 (3d Dept. 2008)   

∙ Where a consent letter clearly stated that the lien reduction was in full satisfaction ofKelly obligation and that there would be no additional attorney fees paid, a statement thatBurns is reserved was found meaningless.   MATSOS CONTRACTING CORP., 2013 WL 5670364

∙ Pursuant to Burns, a carrier was directed to pay 37% of an ongoing award and to reimburse a claimant for 37% of medical bills that werepaid directly by the claimant.  DeFOE-RICE JOINT VENTURE, 2013 WL 4497417

∙ Carrier had a lien of $193,946.38.  The consent letter stated that employer would accept $100,000.00 in full satisfaction of its lien and that it would be “entitled to offset any compensation due, or which becomes due, against claimant’s net recovery, prior to the resumption of any indemnity and/or medical payments.”  Despite reducing its lien beyond the initial 1/3 amount perBurns, the Board stated that the employer did not “plainly and unambiguously” release it from paying any further litigation expenses soBurns applies.  EMPLOYER: DEPT. OF HOMELESS, 2014 WL 344825.

∙ Employer reduced its entire lien of $13,179.29 to $0.  Consent letter stated “said amount represents amount paid less equitable apportionment pursuant to Section 29, subd. 1, (WCL) and will not be further reduced.”  The Board stated that this letter unambiguously set forth the carrier’s intent that it would not make any further contribution.” Burns did not apply while using offset.  EMPLOYER:  NYS POLICE, 2014 WL 628768.

∙ A WCB decision that stated a carrier should resume payments on a certain date was found to be a guideline only.  There is no automatic resumption of benefits until entitlement is determined.  The carrier raised VRLM and the case was continued to develop the record on that issue.   JANON GENERAL CONTRACTING, 2013 WL 1942749.

  Section 5105 of the NY Insurance Law allows for recovery of First Party Benefits from the negligent party’s automobile insurer if one of the vehicles weighsmore than 6,500 pounds unloaded or is primarily used for transportation of persons or property for hire.  (taxis, buses and other delivery vehicles)

∙  An employer/carrier’s right of lien in auto accident cases is separate and distinctfrom its claim for loss transfer under Section 5105 of the Insurance Law.

∙ Under Section 5105, the carrier can look to the auto carrier of a negligent party for recovery of benefits that are considered within the definition of first party benefits.

∙  Can only recover from an insurer that would have been liable to pay damages in an action at law.

● This section of the law affords relief to the employer who has paid workers' compensation benefits in lieu of first party benefits which another covered person would have been liable to pay in an action at law.  Accordingly, we can recover first party benefits from the automobile insurer for a negligent party.

Note:

  We can determine the weight of the vehicle from    the VIN information from DMV.

∙ Loss transfer can apply even though there is only one motor vehicle involved.  This is because a pedestrian is considered a covered person.

  When an employer/carrier wishes to pursue Section 5105 loss transfer, it must first try to amicably negotiate its loss transfer claim against the other party and utilize the intercompany reimbursement notification forms.  This is a condition precedent to the commencement of formal arbitration. 

∙  Arbitrations Forums, Inc. is the entity that arranges for the arbitration. 

 ∙  Formal application

∙  Evidence is submitted with the application and hearings are held before an arbitrator. 

∙  There are no formal rules of evidence.

∙  Hearings are similar to workers' compensation hearings.

 ∙  Prior to the arbitration, all evidence must be submitted  electronically to Arbitration Forums, Inc. on its website, www.arbfile.org. 

∙  There is a contentions sheet that must be completed. It must detail all evidence and the theory of the case.

  The statute of limitations for commencement of the arbitration for loss transfer is limited to the same statute that would apply to the claimant's underlying third party action.  The statute of limitations for tort actions is generally 3 years, though there is a 2 ½ year statute of limitations for claims against the Thruway Authority. Since payments are often ongoing in the workers' compensation setting, the three year statute of limitations, applies from the dateeach payment is made.  In Re Arbitration Between Liberty Mutual Ins. Co. and Hanover Ins. Co., 307 A.D.2d 40 (4th Dept. 2003).

  The success or failure of the compensation carrier in a claim for loss transfer is contingent upon the issue of the liability of the other covered person.  New York is a comparative negligence state.  Therefore, the recovery of payments made in lieu of first party benefits may be reduced if there is comparative negligence on the part of the requestor’s insured.

  Note: 

  A claimant who settles his/her liability claim against the tortfeasor cannot waive the workers' compensation carrier’s loss transfer rights.

  Example:

  Tortfeasor’s liability limit is $100,000.00.  The liability carrier pays the claimant the policy limit.  The workers' compensation carrier can still pursue its loss transfer claim against the $50,000.00 no-fault provision of the tortfeasor’s insurance policy.

  ∙ Police Reports

  ∙ Statements of both drivers/witnesses      and photos of damage to both vehicles

  ∙ 3d party pleadings

  ∙ Deposition transcripts

∙ We must prove the weight of the vehicle. This can be done by running a Vehicle license Plate or Vehicle Registration search. Vehicle Registration will also show if the vehicle is registered as a Livery vehicle. Most private investigators have the ability to search this information. Cost is about $30.

∙ The arbitration hearing is the best way to ensure that your evidence is fully reviewed and considered.

∙ Phone Hearings – recent development allows us to handle cases all across New York State.