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MISSOURI WORKER'S COMPENSATION

CASE LAW UDATE

JANUARY 2014 - MARCH 2014

Court Defers to Commission on Credibility and Findings of Fact

Maness v. City of De Soto and Treasurer of Missouri, Case No. ED100074 (Mo. App. 2014)

FACTS: The claimant worked as a supervisor performing maintenance for the employer’s water, street, sewer, and parks department. On June 14, 2007, the claimant gave his supervisor a report stating that he injured his neck moving decorative concrete stones three days prior on June 11, 2007. Each of the three doctors who evaluated the claimant stated that he reported to them that his injury occurred on or about June 11th. During the hearing, the claimant admitted that the employer’s time records showed he did not actually work on June 11th, but he insisted that he must have just been mistaken as to the dates, and was in fact injured on or about June 11, 2007. The ALJ awarded compensation.

On appeal, the Commission modified the ALJ’s award, but affirmed in finding for the claimant. The employer appealed arguing that the Commission erred in finding that the claimant sustained an accident on June 11, 2007 because the finding was not supported by competent and substantial evidence. Specifically, the employer alleged that the claimant’s testimony was not credible because it conflicted with statements the claimant made to doctors about the incident and because time records of the employer showed that he did not work on June 11th.

HOLDING: On appeal, the court affirmed and ruled in favor of the claimant, finding that the employer’s argument was merely a challenge to the weight of evidence and the claimant’s credibility as a witness. The court stated that because it defers to the Commission on findings of fact, credibility of witnesses, and weight to be given to conflicting evidence, it must affirm the Commission’s decision.

If Claimant is Placed at MMI and Continues to Treat the Issue of When Claimant Actually was or is at MMI can be Disputed

Hoven v. Treasurer of State of Missouri, Case No. ED98842 (Mo. App. 2014)

FACTS: In 2004, the claimant filed a claim for carpal tunnel syndrome. He had a subsequent work-related right knee injury in September 2007. With respect to the 2004 claim, the claimant was evaluated by Dr. Crandall in November 2007, at which time the doctor placed him at MMI and assessed 5% disability to the right wrist.  The claimant settled his claim with the employer and then proceeded to a hearing against the Second Injury Fund (“SIF”). After he was released by Dr. Crandall at MMI in November 2007 he underwent two additional surgeries in 2009 with Dr. Schlafly, who believed that the claimant had not yet reached MMI.  

At a hearing, the claimant argued that he was entitled to compensation from the SIF with respect to his wrists because Dr. Crandall opined that he had reached MMI, and his settlement with the employer stated he was at MMI.  The ALJ determined the claimant was at MMI, and therefore was entitled to recover from the SIF.  However, the Commission reversed and found for the SIF. The claimant appealed.

HOLDING: The court affirmed the Commission’s decision, finding that in order to receive compensation from the SIF, the claimant must first prove that he had a compensable injury that resulted in PPD.  The Commission determined that the claimant did not have PPD because he was not at MMI. The court also found that the settlement agreement between the employer and the claimant did not establish that the claimant was MMI for purposes of this case because the SIF was not a party to the settlement agreement. Finally, the Court noted that Dr. Schlafly opined that the claimant had not yet reached MMI following the surgeries in 2009.  In essence, the Court held that if a claimant is placed at MMI for a particular injury but then has subsequent medical procedures on that same body part, the issue of whether the claimant has reached MMI may again become an open question.

Claimant Not PTD Prior to Last Injury Because Could Compete in Open Labor Market Without Any Accommodation

Stewart v. Treasurer of the State of Missouri,Case No. SD32827 (Mo. App. 2014)

FACTS: The claimant sustained an injury while working for the employer in early 2009.  After a hearing, and a subsequent appeal, the Commission found that the claimant was PTD following the work injury. The SIF appealed arguing that the claimant was PTD even before the work injury and therefore, the SIF should not be liable.  The claimant’s medical history included arthritis, reflex sympathetic dystrophy, degenerative joint and bone disease, carpal tunnel syndrome, and a host of other maladies. The claimant qualified for SSD in 1997. Thereafter, the claimant worked sporadically, a total of 29 months over 11 years, at five different part-time jobs.  The claimant was able to perform all of her occupational duties without accommodation until the injury in 2009.  The Commission found that the claimant’s ability to compete on the open job market prior to her 2009 injury precluded a finding of PTD before working for the employer.

HOLDING:The Court affirmed the Commission’s finding that the claimant was not PTD prior to her work injury.  The Court was particularly persuaded by the fact that the claimant had competed for and won all of her jobs in the open labor market prior to her work injury.  Additionally, the Court noted that the claimant worked these jobs without any accommodation.  Thus, the Court found that the Commission did not err in finding the claimant was not PTD prior to her work injury because she was able to compete on the open labor market without any accommodation.

Claim Compensable When Claimant Tripped and Fell While Walking Across Street

Dorris v. Stoddard County,Case No. SD32830 (Mo. App. 2014)

FACTS: The claimant worked in the employer’s collector’s office.  While a new office building was being built, the claimant’s supervisor asked her to go over to the new building and inspect the counter tops that were being installed. As she was crossing the street to reach the new building, she tripped and fell causing a torn rotator cuff.  She was on the clock at the time of her injury. The employer denied the claim arguing that the injury did not occur in the course and scope of her employment. The ALJ found the injury compensable and the Commission affirmed the decision. The employer appealed.

HOLDING: The Court affirmed the Commission’s ruling, finding that the claimant was within the scope of her employment when she was injured.  The Court noted that in order to demonstrate the injury arose out of employment, the claimant must show a causal connection between the injury and her work activity.  In this case, the Court noted that because she was crossing the street at her supervisor’s behest and because she was on the clock when the accident occurred, she was within the scope of her employment.

Claimant PTD Because Credibly Testified That Needed to Recline Frequently Throughout Day to Relieve Pain

Ballard v. Woods Supermarkets, Inc.,Case No. SD32590 (Mo. App. 2014)

FACTS: While working for her employer, the claimant slipped and fell on grease causing her to land on her back and left arm.  As a result of the accident, the claimant was diagnosed with a comminuted distal left radius fracture, disc herniations at L4-5 and L5-S1, and strain/sprain of her cervical and thoracic spine.  The employer sent the claimant to Dr. Woodward for an IME. The claimant’s attorney obtained a report from Dr. Koprivica.  Dr. Koprivica diagnosed failed laminectomy syndrome and stated that the claimant needed to recline frequently in order to reduce and cope with the pain.  

At a hearing, the ALJ found the testimony of Dr. Koprivica and the claimant credible. Consequently, the ALJ found that the claimant needed to recline for at least 30 minutes several times a day to cope with the pain.  Based on this restriction, the ALJ determined that the claimant was unable to compete in the open labor market and found her PTD. The employer appealed to the Commission, which affirmed.  The employer again appealed, arguing that the ALJ erroneously concluded that the claimant needed to recline throughout the day because that conclusion was based on Dr. Koprivica’s subjective medical findings and not based on objective medical findings.

HOLDING: The court noted that there is no objective test for pain and that the extent to which a claimant experiences pain is a credibility determination for the Commission to decide. Thus, the Court found that assessing pain is inherently subjective, and therefore, Dr. Koprivica’s opinion qualified as competent and substantial evidence that the Commission may justifiably base their decision on.

Employer Responsible for All Past Medical Expenses Reasonably Required to Cure and Relieve Effects of Work Injury

Downing v. McDonald’s Sirloin Stockade,Case No. SD32683 (Mo. App. 2014)

FACTS: The claimant worked as a waitress for the employer from 1985 until 2007.  She first began to experience back pain in 2005 and sought treatment from her own chiropractor.  The claimant’s chiropractor eventually determined that an MRI was needed.  The claimant then spoke with the employer, at which time the employer suggested that she seek treatment through workers’ compensation. However, a claims representative at the insurer spoke with the employer and advised that they would be denying the claim because they did not feel that the claimant suffered a compensable injury.  Nonetheless, the employer referred the claimant to Dr. Ipsen, who ordered an MRI to determine if surgery was necessary. The claims representative authorized the MRI, which revealed disc degeneration at L5-S1, as well as a large extrusion causing impingement on the right S1 nerve root.  Dr. Ipsen subsequently scheduled surgery. However, the claims representative told the claimant that the surgery was not authorized because more information was needed. Nevertheless, the claimant took out a loan and underwent surgery as scheduled.  

Following surgery, the claimant filed a Claim and at a hearing the ALJ found in favor of claimant and awarded her unpaid medical expenses, TTD, and PPD. However, the ALJ did not award the claimant the cost of the two surgeries she had paid for with the loan.  The claimant appealed and the Commission modified the Award to include past medical benefits for the two surgeries.  The employer then appealed arguing that the Commission should not have awarded past medical benefits for the surgeries because the medical expenses were not authorized and the treatment was not needed on an emergency basis.

HOLDING: The Court first noted that the statute requires an employer to provide medical treatment that may be reasonably required to “cure and relieve” the effects of the injury.  The Court went on to say that the statute has been interpreted to mean that if an employer wrongly refuses requested treatment, the employer will be liable for medical treatment obtained at the claimant’s own expense. Therefore, the Court affirmed the Commission’s ruling, holding that the employer was responsible for reasonable and necessary medical expenses regardless of whether or not they were authorized by the insurer.

Claimant Not PTD Prior to Work Injury

Scott v. Treasurer of the State of Missouri,Case No. WD76602 (Mo. App. 2014)

FACTS: The claimant worked operating heavy equipment and doing excavation work on a contract basis.  Eventually, the claimant incorporated his business under the name Gary Scott Excavating, and was an employee of this business. Due to the claimant’s troubles with reading, a hearing problem, and a ninth grade education, most of the administrative bookkeeping and paperwork of the company was handled by his brother, wife, or other employees.  
The claimant had numerous injuries throughout his career.  In 1998, he had right rotator cuff repair.  In 2001, he fell from a grain bin fracturing his right leg, right foot, and left foot.  In 2004, he had bilateral carpal tunnel releases.  In 2006, he had colon surgery, and in 2007, he was diagnosed with arthritis. On January 11, 2008, the claimant had this work related injury, at which time he injured his back while operating a bulldozer.  Due to the back injury, the claimant saw Dr. Reintjes who performed back surgery.  On October 29, 2008, Dr. Reintjes found that the claimant had reached MMI and gave him a 50 pound lifting restriction. The claimant also received treatment for his back from Dr. Scott.  While treating for his back condition, Dr. Scott diagnosed two hernias, which were surgically repaired.  

The claimant returned to work operating machinery and supervising his employees, but limited how much lifting and vehicle maintenance work he did. On December 3, 2009, he was attempting to install a battery in a piece of equipment when he injured his chest and right shoulder.  He was eventually released to return to work with restrictions of no lifting over 50 pounds and no repetitive lifting or reaching above the shoulder.  Fearful of re-injuring his shoulder, he stopped working after the 2009 injury.  

He filed claims against his employer and the SIF for the hernias, the back injury, and the chest and shoulder injuries.  He settled all claims with the employer. He went to a hearing against the SIF for the 2008 back injury and the 2009 shoulder injury.  At the hearing, the ALJ found that the claimant was PTD prior to both injuries, and therefore, the SIF was not liable for any benefits. The ALJ was persuaded by claimant’s testimony that Dr. Scott had told him to stop working in 2007.  The ALJ also cited vocational expert, Mr. Dreiling’s testimony, that although the claimant was able to return to work after his 2008 and 2009 injuries, he was only able to do so because he self-accommodated by only supervising employees and such accommodation would not be made elsewhere. Therefore, the claimant was unable to compete on the open labor market. The claimant appealed to the Commission who adopted and affirmed the decision of the ALJ. The claimant appealed.

HOLDING: The Court reversed the Commission’s decision and remanded for further findings. The Court held that the Commission’s decision was not supported by substantial and competent evidence and was against the overwhelming weight of the evidence.  The Court noted that after his injuries, the claimant resumed lifting, loading, and vehicle maintenance duties, and would operate pieces of heavy equipment for as much as 8 to 12 hours a day.  Thus, the Commission erred in determining that the claimant’s sole function was overseeing the work of other employees. Additionally, the Court noted that there were no doctors’ opinions stating that the claimant needed to stop working prior to the 2008 and 2009 injuries. More specifically, the Court noted that the Commission erred in determining that Dr. Scott advised the claimant to stop his workload in 2007 because he did not see Dr. Scott until after his 2008 back injury.  Finally, the Court noted that the vocational expert, Mr. Dreiling, testified that it was only after the claimant’s back surgery in 2008 that he stopped performing the heavier physical lifting activities at work and needed to be accommodated.

Claimants are Not Entitled to Pre-Judgment Interest

Harrah v. Tour St. Louis,Case No. ED100185 (Mo. App. 2014)

FACTS: The claimant was injured in a motor vehicle accident while working as a bus driver.  At the time of the injury, the employer did not carry workers’ compensation liability insurance.  Consequently, the claimant sought medical treatment on her own, and as a result of that treatment, incurred over $150,000.00 in past medical expenses.  Following a hearing, the ALJ found the employer and the SIF liable for the claimant’s past medical expenses. Additionally, the ALJ declined to award prejudgment interest on medical expenses to the claimant.  The Commission affirmed the ALJ’s decision.  The claimant appealed from the Commission, arguing that she was entitled to prejudgment interest on her medical expenses.

HOLDING: The court upheld the decision of the Commission and found that prejudgment interest on medical expenses is not recoverable based on the new strict construction standard.

Must First Look to Last Injury Alone to Determine Whether SIF or Employer is Responsible for PTD Benefits

Blackshear v. Adecco,Case No. ED100251 (Mo. App. 2014)

FACTS: The claimant sustained injuries to her back and legs and brought a claim against the employer and the SIF.  Both the employer and the SIF agreed that the claimant was PTD, but they disagreed about who was responsible for the PTD benefits. The ALJ concluded that the claimant’s last injury alone rendered him PTD. Therefore, the employer was responsible for benefits, not the SIF. The employer appealed. The Commission modified the ALJ’s Award finding that the claimant’s disability was a combination of a pre-existing psychiatric condition and the primary injury. Specifically, the Commission found that the primary injury caused 85% of the claimant’s PPD, and that the claimant also had a pre-existing disability resulting from her psychiatric conditions. The Commission determined that the claimant was entitled to recover PTD benefits from the SIF because her disability resulted from a combination of her pre-existing conditions and the primary injury.  The SIF appealed, arguing that the Commission erred in allocating PTD liability to the SIF because the Commission  did not first determine whether the primary injury alone resulted in PTD.

HOLDING: The Court agreed with the SIF’s assertion that the first inquiry is the degree of disability incurred from the last injury. Additionally, the Court agreed that if the claimant’s last injury in and of itself rendered the claimant PTD, then the SIF has no liability and the employer is responsible for the entire amount.  However, the Court noted that the Commission found that the last injury had caused 85% PPD and that the claimant was not PTD as a result of the primary injury alone. Thus, the Commission correctly followed procedure by first evaluating the amount of disability resulting from the last injury alone and therefore, the SIF’s liability for PTD benefits is affirmed.

Credibility is Determination of Commission

Payne v. Treasurer of the State of Missouri,Case No. SD3254174 (Mo. App. 2014)

FACTS: The claimant worked as a truck driver for employer.  On December 24, 2004, the claimant tripped and fell on ice while at a truck stop, injuring his back and both of his shoulders. He was diagnosed with bilateral rotator cuff injuries. The claimant also had several pre-existing conditions including heart problems, diabetes, and sleep apnea.  Following the 2004 work injury, the claimant saw Dr. Bennoch who issued a report in May 2010 finding him PTD due to the effects of the 2004 work injury alone.  At Dr. Bennoch’s deposition, he opined that the claimant was PTD as a result of both his work related injury and his pre-existing medical issues. The claimant was also evaluated by a vocational rehabilitation counselor, Ms. Titterington, who opined that the claimant had transferrable job skills and therefore, was not PTD.  

A hearing was held, at which time both Dr. Bennoch and Ms. Titterington testified live. During the hearing, Dr. Bennoch testified that the claimant’s work injury alone was enough to make him PTD.  Ms. Titterington’s testimony was consistent with her prior statements, asserting that the claimant was not PTD. The ALJ ruled in favor of claimant finding that he was PTD as result of the 2004 work injury and his pre-existing conditions.  The SIF appealed arguing that the ALJ’s finding that the claimant was PTD did not comport with his pursuit of full time, regular employment.  The Commission amended the ALJ’s ruling, finding that although the claimant did have pre-existing disabilities, he was PTD as a result of the work injury alone.  The claimant appealed arguing that the SIF was prevented from arguing that the claimant was PTD as a result of the last injury alone because the SIF had previously argued at the hearing and in its Application for Review that the claimant was not PTD.  The claimant also argued that the Commission’s finding was against the weight of the evidence because it found Dr. Bennoch’s testimony to be most credible.

HOLDING: The Court began by noting that when the SIF appealed the ALJ’s finding that it was liable for PTD benefits, it triggered the Commission’s duty to first determine the degree of disability resulting from the last injury alone. Thus, the Commission was allowed to find that the claimant was PTD as a result of the work injury alone, regardless of whether the SIF requested or argued for such a finding.  The Court then focused on the claimant’s next argument – that the Commission’s finding was not supported by substantial and competent evidence. The Court stated that when the evidence before the Commission would warrant either of two findings, the Court is bound by the Commission’s determination. Thus, the Court affirmed the Commission’s decision, noting that the credibility of experts is to be determined by the Commission.

Claim Compensable When Claimant Walking Across Parking Lot to Take Trash Out and Smoke Cigarette

In Glenda Hunter v. Benchmark Healthcare of Harrisonville, Injury No. 13-021747, the claimant, a housekeeper, was walking across the employer’s parking lot when she slipped and fell, sustaining an injury on February 28, 2013. The claimant testified that she fell when she walked out the door of the facility while carrying trash. She was walking with another co-employee and they were planning on taking a smoke break. The dumpster was located in close proximity to the shed, which was built for employees to smoke cigarettes. Employees were allowed to smoke in the shed without clocking out and on a scheduled break. The claimant planned to clock out for her lunch break shortly after returning from the smoking shed. There were some inconsistencies with respect to the claimant’s testimony and the other employee’s testimony as the co-employee was not sure when the claimant fell and whether he was carrying the trash or the claimant actually had the trash in her hand.

In any event, the ALJ found the claimant credible and the claim compensable. He noted that the employer required employees to smoke in a designated shed and did not require the employees to clock out. Also, the employer had ownership and control of the parking lot. Furthermore, the claimant was exposed to the risk due to the placement of the dumpster and the instructions of her employer to smoke in a designated area, which required her to cross an icy lot. The ALJ further noted that whether or not the claimant was injured going to the dumpster or coming back from a smoke break is not material. The fact that she smoked a cigarette in the shed by the dumpster does not impact the analysis as she would be required to cross the same parking lot to return to work. The Commission affirmed the Award of the ALJ.

Claimant Gave Proper Notice When Filed Claim Prior to Diagnostician Connecting Condition to Job Duties

In Tamara Lynn v. McClelland Marketing, Inc., Injury No. 10-111727, the claimant worked for the employer as an office assistant and her job duties included data entry, filing and customer service. She estimated that she typed on the computer for about 5 - 6 hours per day, but acknowledged that this task was interrupted by other duties such as answering phones and handling boxes of files. In 2008 or 2009 she began developing symptoms of carpal tunnel syndrome and in December 2010 she sought treatment on her own. She underwent carpal tunnel releases with Dr. Schlafly in April and May 2011. She filed a Claim for Compensation on May 31, 2011. Thereafter she saw Dr. Berkin, who connected her symptoms to her job duties. The employer sent the claimant to Dr. Rende, who also connected the claimant’s symptoms to her job duties. The ALJ, of course, found that the claimant’s condition was work-related. However, he found that the claim was barred as the claimant did not provide the employer with proper notice.

The Commission reversed the decision of the ALJ finding that the employer was given proper notice. The Commission noted that a person cannot be diagnosed with an occupational disease or repetitive trauma until a diagnostician makes a causal connection between the underlying medical condition and some work-related activity or exposure. The Commission noted that in this case, the claimant’s condition was not connected to her job duties until she saw Dr. Berkin on August 31, 2011. In light of the fact that she filed her Claim on May 31, 2011, prior to a diagnostician connecting her condition to work, the claimant gave timely notice and her claim was not barred.

Claim Denied Because Claimant’s Testimony Was Inconsistent With Medical Records and Claimant Had History of Prior and Subsequent Injuries

In David Luka v. FedEx Ground, Injury No. 10-101154, the claimant worked for the employer as a tech specialist. On July 14, 2010 he was working with a co-worker repairing a conveyor belt, at which time he heard a snap and felt a sharp pain in his lower back. He did not report his accident to the employer because he was concerned about his job. He testified that the next day he went to his family physician and advised that he possibly hurt his back at work but asked the doctor not to mention his low back pain in his chart, as he was not sure whether he wanted to pursue workers’ compensation benefits. He continued to undergo conservative treatment. He was off work and received short-term disability benefits. When he returned to work on December 3, 2010, he sustained another injury and he testified that his low back condition permanently worsened. The first mention of the July 14, 2010 work injury was in the medical records of Dr. O’Boynick, dated December 6, 2010, five months after the date of injury. Dr. Hopkins, the claimant’s expert, testified that the work injury on July 14, 2010 was the prevailing factor in causing his condition. Dr. Bailey, the employer’s expert, diagnosed degenerative disc disease and opined that the accident of July 14, 2010 was not the prevailing factor in causing the claimant’s diagnosis. The claimant did have a prior history of back injuries, the first being in 1986 for which he underwent a lumbar discectomy. A few years later he suffered from an acute episode of low back pain for which he underwent injections. The ALJ found the claimant sustained an accident on July 14, 2010, which was the prevailing factor in causing his back condition and need for treatment.

The Commission disagreed, noting that they were not persuaded by the claimant’s evidence on the issue of medical causation. The Commission noted that there were multiple potential causes for the claimant’s current low back and lower extremity problems, including the 1986 surgery, the work accident on July 14, 2010, a subsequent incident which lead the claimant to the emergency room on September 2, 2010, and another incident at work on December 3, 2010. The Commission also noted they were not convinced that they could reasonably rely on the claimant’s history of events since it conflicted with the medical  records. Therefore, the Commission found that the accident of July 14, 2010 was not the prevailing factor in causing any medical condition in the claimant’s lumbar spine, or any disability. Therefore, the claim was denied.

Claimant PTD Because Vocational Expert Not Credible Because Did Not Use Correct Standard

In Grace Ketchum v. Missouri Department of Corrections, Injury No. 07-109955, the claimant was working for the employer and her job duties included supervising inmates, providing food and maintaining supplies. The claimant was a passenger in a food supply truck and the driver backed into a loading dock, at which time she sustained whiplash. Dr. Coyle performed an arthrodesis and the claimant was placed at MMI. The claimant then worked for a month and applied for extended medical leave and long term disability. After the claimant was released from Dr. Coyle, she treated with Dr. Guarino for pain management. Dr. Volarich assessed 65% disability and opined the claimant would need additional treatment as a result of her work injury. Mr. Eldred, the claimant’s expert, opined that she was permanently and totally disabled as a result of her injury. Mr. England testified on behalf of the employer, and opined that the claimant “would still be physically able to perform some types of entry level service employment such as some cashiering positions, security positions such as working in an office building or as an alarm monitor for a security company. She would be a logical person for some home health positions with ambulatory patients or working as a companion.” The ALJ found that the employer would be responsible for additional medical treatment to cure and relieve her from the effects of the work injury, as the ALJ found Dr. Volarich’s opinion credible. The ALJ also found that the claimant was not permanently and totally disabled as he believed that Mr. England’s opinions were more credible. The ALJ did assess 50% disability to the body.

The Commission modified the Award opining that the claimant was permanently and totally disabled as a result of the work injury. The Commission noted that Mr. England stated that the claimant would be “physically able” to perform some limited jobs, and that the claimant could perform “some” positions. The Commission noted that “the test for permanent total disability is whether the worker is able to compete in the open labor market, and the critical question is whether in the ordinary course of the business, any employer reasonably would be expected to hire the injured worker, given his present physical condition.” The Commission noted that they were left to speculate as to whether such positions actually exist in significant numbers in the open labor market and whether the claimant could reasonably compete for such positions. Therefore, they found the opinion of Mr. Eldred credible, and that the claimant was permanently totally disabled.

Claimant Found PTD Despite the Fact That He Worked For Employer For Over Two Years after Injury

In Rusty Archer v. City of Cameron, Injury Nos. 08-011470 and 10-075527, the claimant, a concrete layer, sustained an injury on January 16, 2008, when he struck a manhole while driving a skid loader. He underwent conservative care for cervical and thoracic strains, including physical therapy and epidural injections. The claimant was given permanent restrictions by two treating physicians, Dr. Zarr and Dr. Wheeler. Dr. Zarr provided a rating of 3% and Dr. Wheeler assessed 8%. Dr. Wheeler, the claimant’s last treating physician, advised that he would need ongoing medication to cure and relieve him from the effects of the January 2008 accident. The claimant continued to receive conservative care and continued to work from the fall of 2008 until September 16, 2010, when he sustained another work-related injury.

While the claimant was working up until his second injury, he received assistance from co-workers if he was unable to perform certain activities, and was accommodated by his employer due to his work restrictions. The claimant was permitted to take frequent breaks throughout the day.

On September 16, 2010 the claimant sustained another injury while bending over to shape a newly formed curb of concrete. He was diagnosed with a chronic and acute thoracic strain, myofascial syndrome, chronic lumbar strain and muscle spasms. He was released from care three weeks later, at which time the doctors indicated that his pain had returned to baseline. He was given the same restrictions.

The claimant actually alleged that he was permanently and totally disabled as a result of the January 16, 2008 accident, and had expert testimony supporting that allegation. However, the ALJ found that the claimant was not permanently and totally disabled as a result of the 2008 injury because he worked in the open labor market laying concrete from 2008 up through his September 16, 2010 injury. The ALJ did not find that the claimant’s work with the employer between that time period so accommodating to render him unemployable, especially when he received a raise and medical records reveal he was laying concrete every day in June 2010. The ALJ did assess 35% disability referable to the January 2008 accident. The ALJ also assessed 7.5% disability to his body as a whole due to the September 16, 2010 accident.

With respect to the January 16, 2008 injury, the Commission modified the decision of the ALJ, and found that the claimant was in fact permanently and totally disabled as a result of this injury. The Commission found that two experts opined that the claimant was PTD as a result of the 2008 injury. The Commission noted that the ALJ disregarded both opinions because the claimant worked in the open labor market laying concrete from 2008 up until September 16, 2010. The Commission disagreed noting the position was not in the open labor market, and the claimant simply went back to the job he already had. The Commission found that the claimant’s return to his job after his injury is not proof that he could compete in the open labor market. The Commission noted that since the claimant was not performing the usual duties of his employment in the manner that such duties were customarily performed by the average person engaged in his line of work, concrete laying, the claimant’s return to work did not constitute proof that he could compete in the open labor market.

With respect to the September 16, 2010 injury, the Commission noted that the Judge assessed 7.5% of the body. The Court reversed this decision opining that the claimant did not sustain any disability as a result of this injury. The Commission noted that none of the medical experts believed the claimant sustained any permanent disability and noted that an injury by accident is compensable only if the accident was the prevailing factor in causing both the resulting medical condition and disability. Since the accident did not cause any disability the claim was not compensable.

Motor Vehicle Accident Found to be In Course and Scope of Employment

In Anne Poole v. Preferred Hospice of Missouri, S.W., LLC, Injury No. 10-049134, the claimant was employed as an admissions coordinator and 80% of her job duties required travel away from the principal office to off site locations to perform in-person interviews with patients who are being admitted to hospice care. The claimant was required to maintain reliable transportation and was reimbursed for her mileage. She was provided a stipend for a cell phone, and she carried medical equipment with her at all times. On the day of her injury she had traveled to various patients’ houses, and her last appointment was in Seymour, Missouri. There was information that she needed to fax to a physician, and therefore she went back to the employer’s place of business. On the way there she was in a motor vehicle accident. The employer’s witness did indicate that the claimant’s decision to return to the office would have been highly unusual, particularly since the doctor’s office would have been closed. It was noted that the accident occurred at a location where the claimant reasonably would have been irrespective of whether she was traveling directly home or back to the office.
The main issue in this case is whether the claimant’s injuries were caused by an accident arising out of and in the course of her employment. The ALJ found that the claimant was credible and that her testimony showed that she was on the way back to the employer’s office to fax something to a physician’s office, which was benefitting the employer. The ALJ further noted that whether the claimant intended to return to the office or was going home, was not relevant since the accident occurred in close geographic proximity and time to the last appointment on the exact same route the claimant would have taken for either destination. The Judge did note that an accident occurring while an employee is going to and from work generally is not compensable. However, there is an exception for employees whose job duties entail travel. The ALJ did note that the legislature eliminated benefits for injuries sustained while traveling between home and an employer’s principal place of business. However, the claimant was not doing so in this case. The ALJ noted that the claimant was traveling from a facility in Seymour, Missouri, and therefore her claim was compensable.

The Commission affirmed the decision of the ALJ, however, came to the conclusion using a different analysis. The Commission did point out that the ALJ concluded that it did not matter whether the claimant had intended to return to the office or was going home. The Commission noted that the claimant’s actual destination at the time of the motor vehicle accident was dispositive of the issue in favor of the claimant. The Commission concluded that the claimant’s injuries arose out of and in the course and scope of employment because her injuries did not come from a hazard or risk unrelated to the employment to which workers would have been equally exposed outside of and unrelated to the employer in normal unemployment life. Basically, the Commission is saying that the claimant testified that she was going back to the employer’s office, and since the ALJ found the claimant credible, it was presumed the claimant was returning to work and not to her home. Therefore, this is the only fact scenario the Commission found relevant.

Editor’s Note: It appears as if the Commission is saying that it is possible that if the claimant was going home, the claim may not be compensable. However, they do not go into any discussion regarding this issue.

Claimant’s Fusion Related to Work Injury Despite Prior Herniations and Symptoms On and Off For Two Years Prior to Injury

In Elizabeth Lake v. Best Buy, Injury No.: 08-123984, the claimant was moving microwave ovens from department overhead storage to floor level on September 5, 2008, when she developed pain at the base of her neck. She did not report her injury to the employer until 2 weeks later. She continued to experience neck pain and went to her primary physician and treated conservatively. She was taken off work by her primary care physician and underwent MRIs. The claimant was then seen by Dr. Doll, the claimant’s cousin (this was not authorized care), who recommended that she see Dr. Raskas, a spinal surgeon. Dr. Raskas performed a two level fusion. Both Dr. Doll and Dr. Raskas believed that the claimant’s work activities in September 2008 were the prevailing factor in causing her medical condition and symptoms. This is significant in that the claimant did have a prior injury in 2006 for which she underwent physical therapy, chiropractic care and acupuncture for a disc herniation to the left at C4-5, the same level the claimant underwent the fusion after the work injury.

Dr. Volarich testified on behalf of the claimant, noting that although the C4-5 disc herniation was present in 2006, it was essentially asymptomatic prior to the 2008 injury, and the right disc bulge at C5-6, which was also present in 2006, had caused no radicular symptoms other than occasional finger tip tingling, prior to the 2008 injury. On cross examination, Dr. Volarich acknowledged that the claimant’s 2009 MRI and 2006 MRI were essentially the same. He also acknowledged that the claimant’s medical records demonstrated that the claimant had some cervical spine symptoms on and off between 2006 and 2008.

Dr. Kitchens testified on behalf of the employer and believed that the claimant had cervical degenerative disc disease which was not related to the work injury. The ALJ concluded that Dr. Kitchens’ opinion was credible and that the claimant’s work was not the prevailing factor in causing her medical condition and disability.

The Commission reversed the decision of the ALJ, noting that Dr. Kitchens based his premise on the fact that a specific incident or injury did not occur at work and he opined that overhead lifting activities cannot cause neck pain. Basically, the Commission did not find Dr. Kitchens’ opinions credible, and found the opinion of Dr. Volarich and the claimant’s testimony credible. Therefore, the employer was responsible for PPD, TTD, past medical expenses and future medical treatment.

South Dakota Department of Labor

Halstead v. J & R Well Drilling Services LLC and Zurich North America

James Sword/William Fuller

Judge Donald W. Hageman

This case involves a rather significant injury involving a 30 year old individual. The claim was that claimant was entitled to vocational rehabilitation benefits for a petroleum engineering degree. Claimant suffered an injury in July 2006 as he worked as a derrick hand for a drilling company. This was extremely strenuous and hard work. He had previously worked as a firefighter, roofer, and a cook. Claimant attended high school but did not have any formal education after that. After Claimant’s injury, all doctors agreed he was limited to sedentary physical activity, could not return to his usual and customary employment as an oil field worker/derrick hand, and that his prior jobs as a firefighter, roofer, and cook were no longer suitable for him due. Claimant chose to attend the University of Wyoming to obtain a four year degree in petroleum engineering. Petroleum engineers start making between $60,000 and $70,000, and will earn much more with some experience.

In order to be entitled to vocational rehabilitation benefits, a claimant must establish a five part test. This test is as follows: (1) the employee must be unable to return to his usual and customary line of employment; (2) rehabilitation must be necessary to restore the employee to suitable, substantial and gainful employment; (3) the program of rehabilitation must be a reasonable means of restoring the employee to employment; (4) the employee must file a claim with the employer requesting the benefits; and (5) the employee must actually pursue a reasonable program of rehabilitation.

The employer and insurer were challenging element (3) of the analysis as they claimed the program claimant sought elevated his status in life, and thus was not reasonable. The South Dakota Supreme Court has indicated that an insurer cannot be forced to pay for an educational program that would allow an employee to elevate his status in life. Claimant was making approximately $41,000 before his injury, and would make at least $60,000 to $70,000 starting off as a petroleum engineer. The Department agreed that the petroleum engineering degree was not reasonable and claimant was not entitled to have that benefit covered. The employer and insurer did not have to pay for any of claimant’s schooling.

Reiman v. Zylstra Body & Frame and Dakota Truck Underwriters/Auto Owners

Rex Hagg/Michael McKnight and Charles A. Larson/Rick Orr

Judge Donald W. Hageman

The Reiman decision has a number of issues. The first was whether Reiman’s work activities are a major contributing cause of his knee condition and need for bilateral knee replacements. The second issue was which insurer was responsible for the surgeries and claimant’s condition. The third issue is whether claimant was permanently and totally disabled.

Claimant worked for employer from 1986 to March of 2010 as an auto body repairman and painter. He was required to stoop, squat, and kneel between 33-66% of the time. He was 51 years old at the time of the hearing, and completed nine years of schooling. He later obtained his GED with the assistance of his wife (my wife hits me) but had difficulty reading and writing.

Claimant sought treatment for his knees between 2003 and June of 2006. At that time, Dakota Truck Underwriters was the insurer for employer. Dakota Truck Underwriters paid for treatment to claimant’s knees through 2006. After June of 2006, employer was insured by Auto Owners.

Claimant sustained an injury to his other knee in 2007, and ultimately ended up treating for both of his knees. He continued to complaint of knee pain in 2008 and also of low back pain. Claimant was told his knees would continue to worsen over time and there was nothing he could do to stop the degenerative processes in his knees. There was mention as early as 2007 of the potential for knee replacements. Claimant elected to go through with conservative treatments and physical therapy and wanted to postpone the knee replacement as long as possible.

Claimant was ultimately laid off from his job in March of 2010. He testified his knees continued to worsen after he was laid off. When he had another set of MRIs in June of 2010, it showed additional degeneration. Claimant had his left knee replaced in March of 2011. Claimant’s treating doctors opined claimant’s work activities at employer were a major contributing cause of his need for knee replacements, and his current condition. While claimant had been diagnosed with degenerative disease within his knees, the finding was that the work activities accelerated the degeneration and caused the need for a total knee replacement. Claimant was given a five pound lifting restriction and was precluded from bending, stooping, and kneeling.

Auto Owners retained Dr. Segal, an orthopedic surgeon, to conduct an IME. Dr. Segal opined claimant was not a candidate for knee replacement and claimant’s work activities were not a major contributing cause for his current conditions. Dr. Emerson was hired by Dakota Truck Underwriters and likewise opined the work activities were not a major contributing cause and claimant was not a candidate for total knee replacement.

The Department accepted the opinions of the treating doctors over the IME doctors. The Department found the operating surgeon was in a much better position to opine on causation as he actually saw the inside of claimant’s knee instead of simply looking at films, and used that surgical knowledge when forming his opinion. The Department found the treating doctors’ opinions were of greater weight, and rejected the opinions of Drs. Emerson and Segal. The Department thus found that claimant’s condition was related to his work activities at employer.

The second issue was whether Dakota Truck Underwriters or Auto Owners was responsible for benefits. This was governed by the last injurious exposure rule. The Department found that claimant’s condition was due to cumulative injuries. The injuries occurred over time as claimant continued working on his knees. Since Auto Owners was the last employer on the risk, it was found responsible for the condition, which includes both medical and indemnity.

Finally, the question was whether claimant was permanently and totally disabled. Rick Ostrander testified on claimant’s behalf that claimant was obviously unemployable as his physical condition, in combination with his age, training and experience excluded him from the type of work that was available in his community. The Department also found that claimant was in continuous, severe, and debilitating pain that would make employment nearly impossible. The burden then shifted to the employer to find some work that was open and available and pay at least claimant’s workers’ compensation rate. Jim Carroll testified on behalf of both insurers and opined that if Dr. Lawlor’s restrictions were used, claimant was unable to work in the community and make his workers’ compensation rate. However, if Dr. Segal’s work restrictions were used, there was work available to claimant and claimant would benefit from vocational rehabilitation. The Department rejected Dr. Segal’s work restrictions, adopted Dr. Lawlor’s work restrictions, and thus accepted Jim Carroll’s opinion that claimant could not work under Dr. Lawlor’s work restrictions in the Rapid City labor market and make his workers’ compensation rate.

I know that the Reiman decision is currently on appeal. Please remember that all Department decisions are subject to appeal. The first appeal will go the Circuit Court level, and the losing party at the Circuit Court can always appeal it to the South Dakota Supreme Court.

If you have questions or would like additional information, please contact Charlie Larson at 605-731-0228 orcalarson@bgpw.com.  If you would like SD cheat sheets, let me know. 

Sheila W. Austin, as admin. of the estate of Rose W. McMillan v.

Providence Hosp. and Sedgwick Claim Management. Services, Inc.

Released March 21, 2014

The deceased employee’s representative appealed Summary Judgment entered by the Mobile Circuit Court in favor of the employer and its claims administrator. The underlying case was based on a breach of contract claim filed by the estate against the employer and administrator. The alleged breach of contract was based on an agreement to settle future medical benefits.

On October 27, 2011, the parties agreed to settle McMillan’s future medical benefits for $75,000.00. However, McMillan was a eligible for Medicare so the parties submitted the Medicare Set-Aside proposal to CMS for approval. On November 29, 2012 CMS determined that of the $75,000.00, $35,951.00 had to be reserved for future medical care and drug expenses. The parties had agreed that the settlement was to be court approved. However, on December 9, 2012, McMillan passed away before the court could approve the settlement. Providence and Sedgwick indicated that the settlement would not be honored because it had not been approved by the court. As a result, Austin filed the breach of contract claim.

The Trial Court entered summary judgment in favor of the employer and administrator based on the exclusivity provision of the Alabama Workers’ Compensation Act. The Trial Court also concluded that the agreement was not valid because it had not been approved and could not be made valid due to the employee’s death. The Trial Court specifically said that because future medical benefits are payable without time limitation any lump sum payment would reduce the benefits available and require court approval.

Austin argued on appeal the agreement to settle was a binding contract and survived the death of McMillan pursuant to §§ 6-5-462 and 6-5-465, Ala. Code 1975. Austin argued that the agreement became unconditional after CMS approved the medicare set-aside proposal and it was not required to be court approved because the settlement exceeded the monetary value of the future medical benefits as determined by CMS. As a result, Austin argued that § 25-5-56, Ala Code 1975, did not require approval of the settlement by the court.

The Court of Civil Appeals did not address Austin’s argument because Austin failed to address the Trial Court’s primary ground for entering summary judgment, the exclusivity provision. The Court of Civil Appeals stated that Austin failed to argue or explain how the subject claim would fall outside of the exclusivity provision. The Court of Civil Appeals stated that because the Trial Court had an alternate basis for granting summary judgment, if the appellant fails to show error as to each basis, the appellant waives any argument on those grounds and this results in an automatic affirmance of the judgment.

My Two Cents:

While the Court of Civil Appeals did not actually rule on Austin’s argument, I find it interesting that they chose to write an opinion pointing out the exclusivity provision and breach of contract. This is the first time I have seen the exclusivity provision and breach of contract mentioned at the same time. The exclusivity provision prevents recovery by any other method, unless provided for under the Act, for injury caused by an on-the-job injury. § 25-5-52, Ala. Code 1975. The question created by this case is, does a breach of contract claim qualify as a claim based on the workers’ compensation injury? The argument could definitely be made that once a valid contract to settle is entered into, that an attempt to recover under the theory of contract is no longer based on the injury itself. This would then fall outside of the exclusivity provision.

In this case it does not appear there was a valid contract to enforce because the parties had agreed to have it approved by the court making the contract contingent upon court approval. Had that not been the case, the fact that the payment was in excess of what CMS determined necessary to cover future medical benefits may have resulted the agreement not being continent upon court approval. § 25-5-56 only requires court approval when settlement is for an amount less that the amount stipulated by the Alabama Workers’ Compensation Act. Therefore, if there had not been a contingency the estate might have succeeded in arguing the exclusivity provision does not apply to a breach of contract claim because the recovery is based on the contract and not the workers’ compensation injury.

______________________________

ABOUT THE AUTHOR

The article was written by Joshua G. Holden, Esq. a Member of Fish Nelson, LLC, a law firm dedicated to representing employers, self-insured employers and insurance carriers in workers’ compensation and related liability matters. Mr. Holden is AV rated by Martindale-Hubbell, which is the highest rating an attorney can receive. He is the immediate past chair of the ABA/ TIPS Workers’ Compensation and Employers’ Liability Committee.

Holden and his firm are members of The National Workers’ Compensation Defense Network (NWCDN). The NWCDN is a national and Canadian network of reputable law firms organized to provide employers and insurers access to the highest quality representation in workers’ compensation and related employer liability fields.

If you have questions about this article or Alabama workers’ compensation issues in general, please feel free to contact the author atjholden@fishnelson.com or 205-332-1428.

On March 14, 2014, the Alabama Court of Civil Appeals released its opinion in the case ofMichael Brown v. Dixie Contracting Company and Salter’s Exterminating Company, Inc. In that case, Brown sued Dixie and Salter’s for injuries he allegedly suffered in an automobile accident while working for them. The vehicle that Brown was driving at the time of the accident was owned by the owner of Dixie. Dixie and Salter’s are related companies, as the owner of Dixie was a majority shareholder in Salter’s. The two companies operated out of the same building, and they shared a secretary and receptionist. Salter’s performed termite inspection and extermination services, and Dixie would often repair termite damage discovered through Salter’s inspections. Brown alleged Dixie and Salter’s were essentially the same company, and that his injuries occurred in and arose out of his employment with both defendants. Dixie contended that Brown did not work for Dixie, and Salter’s contended that Brown was an independent contractor.

Brown testified that at the time he was hired, the owner of Dixie never specified whether Brown was being hired as an employee or independent contractor. He also testified that he did not sign a contract with Salter’s or Dixie. Brown testified that he considered himself to be an employee and that his supervisor told what time to be at work and when he could leave. Brown testified that his supervisor would tell him on any given day whether he was to sell pest control services or was to work construction. Brown testified that on some days he would sell pest control services for Salter’s, and on other days, he would perform construction work for Dixie. Brown further testified that when performing inspections for Salter’s, he was instructed to call Dixie if any termite damage was located so that Dixie could quote the repairs. Salter’s payroll records listed Brown as a 1099 "employee" who was to be paid a "draw" against commissions and sales. However, those same records indicated that Brown was actually paid at a flat rate of $80.00 per day for sales work, while he was paid at an hourly rate for construction work he performed for Dixie. Brown’s supervisor testified that he had hired Brown to work for Salter’s as a subcontractor in sales, but that Brown was also an "at will employee" that could be terminated for any reason. He testified that Brown was required to report to work by 8:00 a.m. each day. The defendants produced evidence that Brown was always paid by Salter’s and never by Dixie, and that Brown only performed construction work after the accident. However, Brown’s evidence also established that several other employees performed work for Dixie but were paid by Salter’s.

The trial court found that Brown was an independent contractor of Salter’s and that Brown did not perform any work for Dixie until after the alleged accident occurred. Based on this, the trial court denied workers’ compensation benefits. Brown appealed on the grounds that the trial court’s order did not include adequate findings of fact and conclusions of law, and was not supported by substantial evidence. The Alabama Court of Appeals agreed that the findings of fact and conclusions of law set out by the trial court were insufficient, which allowed them to look to the record in order to determine whether substantial evidence supported the trial court’s determination. The Court of Appeals noted that the primary factor in determining whether a worker is an employee or an independent contractor is whether the purported employer has reserved the right to control the manner in which the worker performs the duties of the work. In order for a worker to be considered an employee, the prospective employer must retain the right to direct not only what shall be done but also how it shall be done. The Court further pointed out that the four factors to be considered in determining whether an "employer" has retained the right of control include: (1) direct evidence demonstrating a right or an exercise of control; (2) the method of payment for services; (3) whether equipment is furnished; and (4) whether the other party has the right to terminate the employment. However, the Court also pointed out that no one fact by itself can create an employer/employee relationship, and that the retention of control necessary to establish such a relationship is determined on a case-by-case basis considering the totality of the evidence.

Based on the evidence, the Court of appeals found that Salter’s controlled nearly every aspect of Brown’s employment. Salter’s controlled whether Brown would perform tasks in pest control sales or construction as Salter’s or Dixie needed. Salter’s controlled the manner in which Brown would be paid for the different jobs he did and capped his weekly pay at $400.00. Salter’s provided the very equipment he was driving at the time of the accident. There was no contract between Brown and his employers that would prevent Brown from quitting his job at any time. Based on the totality of the evidence, the Court found that the trial court’s Order was not supported by substantial evidence, and that Brown was an employee. The case was then remanded to the trial court to determine the amount of workers’ compensation benefits Salter’s owes to Brown.

MY TWO CENTS

Employers need to be aware that paying a contractor via a 1099 as opposed to a W-2 does not necessarily preclude the contractor from recovering workers’ compensation benefits in the event of an injury. As this case demonstrates, if an employer retains the right to set the employee’s schedule, dictates which tasks he is to perform on any given day, provides his equipment, and pays him like a salaried or hourly employee, the contractor will be considered an employee.

___________________________

ABOUT THE AUTHOR

This article was written by Charley M. Drummond, Esq. of Fish Nelson, LLC. Fish Nelson is a law firm located in Birmingham, Alabama dedicated to representing employers, self-insured employers, and insurance carriers in workers’ compensation cases and related liability matters. Drummond and his firm are members of The National Workers’ Compensation Defense Network (NWCDN). The NWCDN is a national and Canadian network of reputable law firms organized to provide employers and insurers access to the highest quality representation in workers’ compensation and related employer liability fields. If you have questions about this article or Alabama workers’ compensation issues in general, please feel free to contact the author at cdrummond@fishnelson.com or (205) 332-3414.

MEDIATING THE PENNSYLVANIA WORKERS’ COMPENSATION CLAIM

By Kevin L. Connors, Esquire

 

Recently attending the ABA Workers’ Compensation Mid-Winter Seminar and Conference, in Chicago, over St. Patrick’s Day no less, and having been a presenter on the panel that addressed “Negotiation and Mediation Techniques:  The Latest Advice, The Latest Literature”, chaired and moderated by the Honorable David Torrey, a Pennsylvania Workers’ Compensation Judge in Pittsburgh, Pennsylvania, of infamous renown to all Pennsylvania Workers’ Compensation practitioners as being a veritable encyclopedia of knowledge concerning workers’ compensation practices, procedures, and training, both nationally and locally, this article will review practical lessons from the ABA panel’s presentation.

 

Before doing so, it should be noted that this pre-eminent panel consisted of three Workers’ Compensation Judges, the Honorable David Torrey, a Pennsylvania Workers’ Compensation Judge, the Honorable Ellen Lorenzen, a Workers’ Compensation Judge in Tampa, Florida, and Chairman Mike Alvey, chairing the Kentucky Workers’ Compensation Appeal Board.

 

Claimants were represented on the panel by Richard Johnson, a Workers’ Compensation Practitioner in Chicago, Illinois.

 

The panel, consisting of veterans of their workers’ compensation systems, provided advice with regard to the successful negotiation of workers’ compensation claims, to include the process of mediating workers’ compensation claims, as well as critiquing the latest thoughts and trends on mediation techniques.

 

As Pennsylvania practitioners will recognize, mediation has had a growing influence in Pennsylvania since the 1996 adoption of Act 57, allowing parties to settle workers’ compensation claims under Compromise and Release Agreements.

 

In 2006, the Workers’ Compensation Act was amended, to include provisions for Mandatory Mediation, resulting in mediations being required in all litigated workers’ compensation claims, with the Workers’ Compensation Judge presiding over a litigated workers’ compensation claim being required to refer the Petition being litigated to another Workers’ Compensation Judge, for the Petition to then be mediated, absent the parties proving to the presiding Workers’ Compensation Judge that mediation would be “futile”, with there apparently being some super-secret coded directive issued by authorities reviling disclosure, that “futility”, is/will not be an adequate reason to be excused from Mandatory Mediation.

 

Obviously, voluntary mediations have also been “in play” since the enactment of Act 57 in 1996, again allowing parties to settle workers’ compensation claims, although voluntary mediations have fallen in disfavor, given the costs associated with the same, with the nascent advent of free mandatory mediations, post-2006, through Bureau dictate.

 

In the course of enforcing mandatory mediations, the Bureau, in its infinite wisdom, has required all Workers’ Compensation Judges to undergo preliminary training in the skills necessary to mediate workers’ compensation claims, with some degree of success and failure being evidenced across Pennsylvania workers’ compensation judicial benches, as mediations have been embraced by some, and reluctantly undertaken by others.

 

No less true, mediating litigated cases, whether in the workers’ compensation system, or in any other system, requires a special skill set, and not all possess those skills equally.

 

As for the panel’s discussion regarding mediating workers’ compensation claims at the ABA Mid-Winter Seminar Conference, there was general agreement among the panel that there are several keys to successful mediations, to include the following:

 

·         First, both parties must be in agreement that mediation is worthwhile;

·         The litigated claim must be ripe for mediation;

·         The parties must have adequately exchanged sufficient information, through discovery or actual fact-finding, to have a clear understanding as to the issues in dispute, and the issues that would need to be resolved, in order to engage in a successful resolution of the workers’ compensation claim;

·         The parties must remain flexible in the course of attempting to resolve their disputed issues;

·         The parties must be prepared to understand the position held by the opposing party, without engaging in umbrage and incivility;

·         The parties must be clear in their objectives in the course of mediating the workers’ compensation claim;

·         The parties must be clear about their expectations and goals before and during the mediation process;

·         The parties must practice intelligent listening, as well as being internally honest as to the stakes involved;

·         Whether in confidence, or other, both parties must be honest with the mediator, in terms of the procedural, factual, legal, and medical issues involved in the claim;

·         Both parties must be prepared to think about compromise, eliminating unrealistic expectation, as well as the necessity of thinking that the purpose of the mediation is to vanquish the opponent;

·         Both parties must also leave emotions at the mediation door, as it is of no value whatsoever in the throes of mediation; and,

·         No less true, it is critical to “trust” not only the power of the mediation process, but to also revel in the candor and credibility of the mediator as an “agent of reality” to quote the Honorable Susan Cercone, a Workers’ Compensation Judge in Allegheny and Beaver Counties, Pennsylvania.

 

Privileged to have been a panel presenter with the Honorable David Torrey, we strongly encourage our clients to consider the advantages of mediation, as a testament to risk aversion and claim finality.

 

ConnorsLaw LLP

 

Trust us, we just get it!  It is trust well spent!

 

Defending workers’ compensation claims throughout Pennsylvania for employers, self-insureds, insurance carriers, and third party administrators, our 100+ years of cumulative experience defending our clients against compensation-related liabilities, empowers our workers’ compensation practice group attorneys to be more than mere claim denials, entrusting us to create the factual and legal leverage to expeditiously resolve claims, in the course of limiting/reducing/extinguishing our clients’ liabilities under the Pennsylvania’s Workers’ Compensation Act.

 

With every member of our workers’ compensation practice group being AV-rated, our partnership with the NWCDN magnifies the lens through which our professional expertise imperiously demands that we always be dynamic and exacting advocates for our clients, businesses, corporations, and insurance carriers, seeking our trial and compensation acumen, navigating the frustrating and form-intensive minefield pervasive throughout Pennsylvania workers’ compensation practice and procedure.

A BLOODIER KISS

 

By Kevin L. Connors, Esquire

 

 

To all familiar with our firm’s prior article impolitely titled “A Bloody Kiss:  The “Paye”-Off = The Missing Link”, addressing the Pennsylvania Supreme Court’s Decision inPayes v. WCAB, 79 A.3d 543 (Pa.2013), under which the Pennsylvania Supreme Court had held that mental injuries are highly fact-sensitive, requiring a reviewing Court to give deference to the fact-finding functions of the Workers’ Compensation Judge, with reviewing Appellate Courts being limited to determining whether the WCJ’s findings of fact are supported by substantial competent evidence, the Supreme Court has now directed the Commonwealth Court to revisit its Decision inKochanowicz v. WCAB (Pennsylvania Liquor Control Board),  a Decision circulated by the Commonwealth Court on September 20, 2011, and the subject of a yet-earlier article that we had posted for all receiving this post.

 

In  Kochanowicz, a Workers’ Compensation Judge had awarded workers’ compensation benefits to the Manager of a Pennsylvania Liquor Control Board Wine & Spirits Store, after the Manager was held-up at gunpoint, with the critical issue in the case being whether or not the Store Manager was able to prove that the robbery was an abnormal working condition that would have resulted in the Store Manager being entitled to receive workers’ compensation benefits for a mental/mental injury, in the absence of any physical injury having been sustained.

 

In reliance upon the Pennsylvania Supreme Court’s landmark Decision in Martin v. Kecthum, 568 A.2d 159 (Pa.1990), theKochanowicz Commonwealth Court held that a “psychic injury” case, involving an injury without any physical trauma or symptomatology, requires the Claimant seeking workers’ compensation benefits to prove that the injured Employee has been “exposed to abnormal working conditions and that his psychological injuries are not a subjective reaction to normal working conditions.”

 

Moreover, under Martin, “psychic injury” cases, involving the mental/mental claim, required the Claimant seeking workers’ compensation benefits to prove that the alleged working conditions causing injury had to be analyzed and considered in the context of the injured Employee’s specific employment, requiring a highly fact-sensitive analysis of not only the job being performed, but also the working conditions alleged to be abnormal, prior to the occurrence of the alleged mental/mental injury.

 

In Kochanowicz, the Commonwealth Court had also focused on an analysis as to whether the “working conditions” allegedly causing injury, alleged by the Claimant inKochanowicz to be abnormal, with the specific condition being the fact that the Claimant was held-up at gunpoint during a store robbery, were foreseeable or anticipated before the event in question by the Employer, as well as whether the Employee, the Store Manager, had been trained by the Employer that those types of situations, robberies at gunpoint, were potentially normal, in the course of performing work within their work environment, such that the potential for being exposed to violent crimes was a normal working condition.

 

With the Pennsylvania Supreme Court determining, in Payes, that psychic injury cases are highly fact-sensitive, it is has now directed the Commonwealth Court inKochanowicz, to reconsider the ruling that it had issued in 2011, effectively requiring the Commonwealth Court to give deference to the fact-finding functions of the Workers’ Compensation Judge, and to limit its review of the Workers’ Compensation Judge’s findings of fact to whether those findings are supported by substantial competent evidence.

 

In short, the Pennsylvania Supreme Court’s per curiam Order entered inKochanowicz on February 12, 2014, effectively reverses the earlier ruling by the Commonwealth Court on September 20, 2011, potentially eviscerating a long line of workers’ compensation decisions that have held, in similar situations, that the foreseeability of a robbery, as contemplated by the Pennsylvania Liquor Control Board inKochanowicz, negates the robbery from being considered to be an “abnormal working condition”, based on the frequency with which robberies occur in liquor stores, as well as by the fact that the Liquor Control Board contemplated that the robbery was not an unforeseen condition, and that it had, therefore, given specific training to its Employees, to include the Store Manager in question, as to what to do in those type of situations, with that foreseeability factor being negated by the Supreme Court’sper curiam Order in Kochanowicz.

 

Obviously missing from the Supreme Court’s February 12, 2014 per curiam Order is any reference to the issue of physicality, which seems to have been an underpinning in the Supreme Court’s ruling inPayes, as a careful reading of that Decision indicates that the Court was also relying upon the fact that the Claimant, a Pennsylvania State Trooper, had given mount-to-mouth resuscitation to a seemingly insane woman who had attempted suicide by police car, throwing herself in front of the State Trooper’s patrol car, with the State Trooper then attempting to resuscitate the bezerbo woman, and unsuccessfully so, although the State Trooper was exposed to the bezerbo woman’s blood, in the course of administering mouth-to-mouth resuscitation with there being, therefore, physical contact between the State Trooper and the bezerbo woman seeking relief from this tertiary existence, with no such physicality existing inKochanowicz, as there is no reference to any physical contact between the Store Manager, and the robber, during the incident alleged to have caused the mental/mental injury claim.

               

Although the Commonwealth Court will still be required, under the Supreme Court’sper curiam Order in Kochanowicz, to review the record to make sure that the Worker’s Compensation Judge’s findings of fact, finding that the Claimant proved the occurrence of a work-related mental/mental injury, sustained while the Claimant was subjected to “abnormal working conditions”, are supported by substantial competent evidence, it is predicted that the Commonwealth Court will now be affirming the rulings of both the Workers’ Compensation Appeal Board and the Workers’ Compensation Judge, finding that the Claimant did sustain his burden of proving the occurrence of an injury as a result of “abnormal working conditions”, since the principle issue that the Commonwealth Court had relied upon in reversing the prior rulings by both the Appeal Board and the Workers’ Compensation Judge, were the factors of foreseeability, as well as the fact that the Store Manager had been trained to not only expect such an occurrence, but also how to deal with such an occurrence, when it occurred.

 

 

ConnorsLaw LLP

 

Trust us, we just get it!  It is trust well spent!

 

Defending workers’ compensation claims throughout Pennsylvania for employers, self-insureds, insurance carriers, and third party administrators, our 100+ years of cumulative experience defending our clients against compensation-related liabilities, empowers our workers’ compensation practice group attorneys to be more than mere claim denials, entrusting us to create the factual and legal leverage to expeditiously resolve claims, in the course of limiting/reducing/extinguishing our clients’ liabilities under the Pennsylvania’s Workers’ Compensation Act.

 

With every member of our workers’ compensation practice group being AV-rated, our partnership with the NWCDN magnifies the lens through which our professional expertise imperiously demands that we always be dynamic and exacting advocates for our clients, businesses, corporations, and insurance carriers, seeking our trial and compensation acumen, navigating the frustrating and form-intensive minefield pervasive throughout Pennsylvania workers’ compensation practice and procedure.

The ADA Amendments Act has substantially broadened coverage under the law.  An example comes inGogos v. AMS Mechanical Systems, Inc., 737 F.3d 1170 (7^th Cir. 2013).  Mr. Gogos worked as a pipe welder and had been taking medication to reduce his elevated blood pressure for the past eight years.  He commenced employment with the defendant in December 2012 as a welder.  One month later his blood pressure spiked to a very high level, causing some intermittent vision loss. 

 

            After reporting to work on January 30, 2013, Gogos noticed that his right eye was red.  He sought and received permission to obtain immediate medical treatment for his blood pressure and ocular conditions.  As he left the work site to go for treatment, he saw his general foreman and said he was headed to the hospital for health reasons.  The foreman immediately fired him.

 

            Gogos sued under the ADA, but his case was dismissed by the district court because the court felt that his medical conditions were transitory.  The Seventh Circuit Court of Appeals reviewed the ADA Amendments Act and observed: “Under the 2008 amendments, a person with an impairment that substantially limits a major life activity, or a record of one, is disabled, even if the impairment is ‘transitory and minor’ (defined as lasting six months or less).   The court noted that the “transitory and minor” language only applies if the law suit is premised on being regarded as having an impairment. That was not the basis of Mr. Gogos’s law suit.  The court also noted that impairments that are episodic or in remission constitute a disability if they substantially limit a major life activity when active.

 

Based on these provisions, Gogos’s episode of a blood-pressure spike and vision loss are covered disabilities.  He attributes both problems to his longstanding blood-pressure condition, and the ADA’s implementing regulation lists hypertension as an example of an ‘impairment that may be episodic.’  Under the 2008 amendments, ‘the fact that the periods during which an episodic impairment is active and substantially limits a major life activity may be brief or occur infrequently is no longer relevant to determining whether the impairment substantially limits a major life activity.’

 

            The court said that what was relevant was whether Gogos’s higher-than-usual blood pressure and vision loss substantially impaired a major life activity when they occurred. The court accepted Gogos’s argument that he had impairment of two major life activities: circulatory function and eyesight.  The court also said that the chronic blood-pressure condition could also qualify as a disability because mitigating measures, such as medication that controls the condition, cannot be considered when assessing disability.  The condition must be considered without the benefit of medication in determining whether the condition is substantially limiting.  For these reasons the court vacated the dismissal of Gogos’s case.

 

            The lesson here is to appreciate that coverage under the ADA has been greatly expanded.  In the aftermath of the ADA Amendments Act, it will be extremely difficult for an employer to prevail in ADA litigation by arguing that there is no covered disability.

Among the hardest cases for employers to contend with are those where the claimant already has an advanced degenerative or arthritic condition and then has an injury.  That was the situation when Veronica Graham, a 55-year-old Certified Nursing Assistant, fell on a wet floor at work on June 25, 2011.  She landed on her left hip, buttocks, and back and was diagnosed with a contusion of the left hip. 

 

            Initially Graham returned to work with no pain, but within a few days she began to have hip pain.  She was referred to a physician who recommended three physical therapy sessions.  She was placed on light duty while in physical therapy and then returned to work full duty on her discharge date of  July 18, 2011.

 

            Graham said that she did not experience pain after the accident but did start having pain following physical therapy for her left hip.  She had to stop working in October due to her pain. 

 

            In November 2011, Graham met with Dr. Gregory S. Maslow, an orthopedic surgeon, who prescribed Percocet for pain management and took x-rays, which showed moderately severe degenerative arthritis of the left hip.  The x-rays showed petitioner lacked cartilage between her hip bone and hip socket.  Dr. Maslow gave an opinion that the work accident caused a previously asymptomatic condition to become symptomatic and thereby accelerated the time frame for a need for hip replacement surgery.

 

            The respondent’s expert, Dr. Hausmann, an orthopedic surgeon, opined that petitioner had “very severe arthritis” and said that this condition predated the work accident.  In his opinion, petitioner would have needed total hip replacement surgery regardless of the fall at work.  He said that there was a complete loss of the joint space and large spurs around the hip joint.

 

            The Judge of Compensation accepted the testimony of Dr. Maslow over Dr. Hausmann and found for the petitioner.  The employer appealed and argued that there was insufficient evidence to support the finding in favor of petitioner.  For one thing, the employer argued that petitioner had showed a lack of candor when she failed to disclose an earlier automobile accident and therefore could not be found to be credible in her entire testimony.  There is a doctrine in the law derived from the Latin phrase, “falsus in unum, falsus in omnibus.”  It means false in one thing, false in everything. The Judge of Compensation disagreed with this philosophy and found that the petitioner’s lack of candor was inconsequential since the prior car accident did not pertain to any hip problem.

 

            The Appellate Division affirmed the decision in favor of petitioner.  The court said,“With respect to petitioner’s claim of exacerbation and acceleration of degenerative arthritis, the record amply supports the judge’s finding that petitioner’s accident caused her previously asymptomatic hip to become symptomatic and increasingly painful.” The court cited previous case law to the effect that “Employers take their employees as they find them, ‘with all of the pre-existing disease and infirmity that may exist.’ “Verge v. Cnty. Of Morris, 272 N.J. Super. 118, 125 (App. Div. 1994).

 

            This case involves a fairly common situation for employers.  The case involved mostly the concept of “acceleration. ”  There was no dispute that petitioner would have needed a hip replacement at some point in time, so the issue in the case was whether the timing of that surgery changed because of the work accident.  The court was of the opinion that if the accident hastened the need for surgery, even if surgery would have been inevitable eventually, then the employer must pay for the surgery.  In handling similar cases, employers need to focus on prior medical discovery because this case turned on the fact that respondent was never able to prove petitioner had prior hip complaints.  The case also shows that proof that a claimant is not candid in testimony will not necessarily doom the petitioner’s case if the judge feels the lack of candor was not material to the claim.

 

            This case may be found at Graham v. Silver Care Nursing Center, A-2923-12T2 (App. Div. March 7, 2014).

Many clients ask what the difference is between the defense of independent contractor and casual employment.  The truth is that the defenses are very similar, and one important case,Berkeyheiser v. Mollie S. Woolf, 71 N.J. Super. 171, (App. Div. 1961), illustrates this point.

 

            The case involved a man who worked full time for St. Regis Paper Company as a pipefitter five days a week, seven and one half hours per day.  From time to time, he performed some odd jobs for Mollie S. Woolf, who owned several buildings. He repaired some doorbells in buildings in 1956.  In September 1957, he repaired a damaged ceiling in a building.  He also installed some shields over doorbells to prevent children from unnecessarily pushing on them.  In November 1957, he repaired apartment windows that had been damaged and installed two window sashes in an apartment.  In February 1958 he repaired some outlets and worked all day.

 

            On July 12, 1958, Mr. Berkeyheiser borrowed a drill from his son and started to install an electric outlet for a refrigerator in the home of Mollie S. Woolf.  The drill struck a live wire and caused injury to his right eye and facial scars.  He filed a workers’ compensation claim. 

 

            The facts showed that Mr. Berkeyheiser did not hold himself out to the general public as a repair person.  He had only done some repair work for one other person besides respondent.  The respondent would provide the equipment, of if she did not have the equipment, Berkeyheiser would purchase it and bill respondent.  He was paid by the hour and there was no withholding from his pay.

 

            The Judge of Compensation found petitioner to be an independent contractor, and the County Court affirmed.  Berkeyheiser appealed and argued that the work he performed was essential to the maintenance and operation of respondent’s business, the so-called relative nature of the work test. 

 

            The Court said, “Overlapping between casual employees and independent contractors is common, and it is not unusual that a petitioner falls into either or both unprotected classes.”  The Appellate Division held that there a number of factors arguing against employment here.  Petitioner had a regular and permanent full-time job at a substantial salary.  He had no expectation of regular and steady employment by the respondent and only worked when the need arose.  He did not perform repairs on a scheduled basis but would choose the times when he would appear to make repairs. 

 

We conclude that the character of the work was such as to preclude petitioner from the right to compensation under the Workers’ Compensation Act.  We have accepted all his factual contentions as true, but they do not establish the essential existence of an employer-employee relationship.  Whether he was more a casual employee or an independent contractor need not be decided.  There is no merit to petitioner’s claim that would justify an award, either within the letter or spirit of this remedial legislation.

 

            This case is useful for practitioners in dealing with these two very close cousins:  the independent contractor defense and the casual employee defense.

St. Louis attorney, J. Bradley Young, recently posted an interesting blog article entitledThis Story Shows Why Employers are Frustrated with Workers Comp Judges. In the article, he reported on a New Jersey case in which the claimant was involved in a car accident while driving off of her employer’s property. She was actually in the process of turning out of the employer’s property at the time of the collision. The Coming and Going Rule would have been an excellent defense except for the fact that it was established that the rear bumper of the car was still hanging over the employer’s property at the time of impact. Since New Jersey is a Positional Risk Doctrine state, it was easy for the employee to win once the Court determined that she was, at least partially, on her employer’s property. In Positional Risk Doctrine states, the employee only need show that the accident would not have happened but for her employment. In other words, if she had not been leaving work that day, the accident would have never happened.

MY TWO CENTS:

If this had happened in Alabama, the result would have been different. Assuming that the Alabama judge also agreed that a hanging bumper thwarted the Coming and Going Rule, the employee would still have had her work cut out for her. The reason being that Alabama is an Increased Risk Doctrine state. This means that the employee must prove that the employment somehow increased the risk to the employee of such an accident occurring. Since car accidents happen to people on and off the job, she would have had to show that the employer’s exit was located in a place that made her more susceptible to getting hit. Of course, if that was the case, the employer would have wanted to accept it as a workers’ compensation matter in order to be afforded the protections of the Exclusivity Doctrine.

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About the Author

This article was written by Michael I. Fish, Esq. of Fish Nelson LLC, a law firm dedicated to representing employers, self-insured employers and insurance carriers in workers’ compensation matters. Fish Nelson is a member of The National Workers’ Compensation Network (NWCDN). If you have any questions about this article or Alabama workers’ compensation issues in general, please feel free to contact the author atmfish@fishnelson.com or any firm member at 205-332-3430.