State News

James Waldhauser will moderate and speak at theWorkers' Compensation Update in Minnesota hosted by Lorman on February 7.

Attendees will hear speakers discuss a general overview of forms, benefits, time lines and penalties, as well as case law, new legislation, interplay between ADA and work comp, subrogation, retaliation and a panel on settlements, fraud and return-to-work.

To learn more specifics about this event or to register, visit www.lorman.com

Requirement to Provide Notice to Employer

Anderson v. Frontier Communications

Minnesota Supreme Court, filed September 5, 2012

The Minnesota Supreme Court reversed the WCCA and affirmed the Compensation Judge’s findings, holding that the failure of the employee to give timely notice of his work related injury to the employer, as well as the employer’s lack of actual knowledge regarding the work related nature of the employee’s injury, precludes recovery of benefits under the Minnesota Workers Compensation Act.

 The Employee worked from 1987 to 2007 as a lineman for a communications company, which was a physical job that required frequent heavy lifting and bending over to mark underground cables.  Pursuant to his testimony given to the Compensation Judge, following the gradual onset and progressive worsening of his low back pain symptoms from 2004 to 2005, and following his consultation with a surgeon in May 2007, the Employee knew that his work activities at the Employer were causing or aggravating his low back problems. However, it was not until May 2009 that the Employee, through his attorney, gave notice to the Employer of the claimed work related nature of his low back condition.

 As the Anderson court held, pursuant to Minn. Stat. § 176.141 and Issacson v. Minnetonka (Minn. 1987), in order to recover workers compensation benefits, an employee must either: (1) give notice of injury no more than 180 days after “it becomes reasonably apparent to the employee that the injury has resulted in, or is likely to cause, a compensable disability,” or (2) must show that the employer had actual knowledge of the injury, or in other words, that the employer had “some information connecting work activity with an injury.”

Here, where the Employee knew in May 2007 that his work activities were contributing to his low back problems, but failed to provide notice to the Employer of this fact until May 2009, and also failed to show that the Employer had actual knowledge of the injury, he was barred from recovering benefits under the Minnesota Workers Compensation Act.

Justices Paul Anderson, Alan Page, and Helen Meyer all dissented. In his dissent, Justice Paul Anderson noted the stoic attitude of the Employee with respect to his own pain symptoms, and provided an interesting and somewhat animated discussion on the point at which the Employee, as a reasonable person, may have realized the compensable nature of the disability he sustained from his work injury.

Causation

Preston vs. Hitchin Rail

W.C.C.A., June 4, 2012 ~ Reviewed by Natalie K. Lund

The Employee sustained a work-related injury to her back on September 28, 2004. After subsequent settlement and return to work, the Employee alleged a second specific injury to her back and neck on December 22, 2006. She continued to work with the pre-injury employer, and ultimately alleged her work duties aggravated her back and neck conditions. A Claim Petition was filed asserting injury dates of September 28, 2004, December 22, 2006 and a Gillette injury culminating in July of 2006. Dr. Wengler testified on behalf of the employee, concluding the Employee’s work activities after April 2005 and/or her fall on December 22, 2006 were a substantial contributing cause of her lumbar and cervical spine conditions.  The compensation judge found the employee sustained a Gillette injury to her cervical and lumbar spine arising out of and in the course of her employment in 2005 and 2006, which culminated on March 5, 2007, when the employee was taken off work, and that the December 22, 2006 injury further aggravated the employee’s conditions. Both injuries caused the employee’s need for medical treatment and disability. The employer and insurer appealed.

The WCCA affirmed in part and vacated in part. The employer and insurer’s contention that the employee’s expert, Dr. Wengler, lacked foundation was denied.  The fact that Dr. Wengler did not mention prior chiropractic records in his report was not sufficient to show he assumed there were no prior low back complaints where he acknowledged having read such records in his deposition.  The determination of the compensation judge on the credibility of the employee was also affirmed despite the employee’s inconsistent recollection of her medical history.  The WCCA vacated the finding of the compensation judge that the Gillette injury culminated on March 5, 2007, as the date was irrelevant given the finding as to a specific injury on December 22, 2006. The award was affirmed.

Causation/Evidence

Myhre vs. Public Storage, Inc.

W.C.C.A. file June 5, 2012 ~ Reviewed by Natalie K. Lund

The WCCA affirmed the findings of the compensation judge that the employee was not exposed to mold in her employer-furnished apartment and that she was not disabled as a result of that exposure.  From June 2008 through August 2010, the employee lived in an employer-furnished apartment. She reported a foul odor from the basement of the apartment and water damage on the wall of the basement to her district manager. A February 8, 2009 x-ray indicated a one centimeter ovoid nodular density in the right lung. In late 2009 and 2010, the employee treated with symptoms including heavy feeling in her chest and coughing. She reported there was black mold in her basement. However, her medical history included heavy smoking and she had treated in the past for respiratory infection, cough and shortness of breath.  On August 5, 2010, the employee’s residence was inspected for mold exposure by EFI Global, Inc.  The inspection found that there was evidence of water and moisture damage in the basement, but there were no visible signs of fungal growth in the living or basement area of the residence. At hearing, the employee made a claim for temporary total disability benefits and medical expenses based, in part, on two exhibits of medical journal articles. The employer and insurer objected, which the compensation judge sustained. The judge found the employee failed to prove she was exposed to mold in the employer-furnished apartment or that she was temporarily and totally disabled. Within her memorandum, the judge discussed the articles submitted by the employee’s attorney. The employee appealed the decision and the employer and insurer cross-appealed the judge’s consideration of the employee’s exhibits.

The WCCA found substantial evidence supported the compensation judge’s finding that the employee was not exposed to mold. The employee was not disabled as a result of mold exposure.  Finally, where there was no indication the judge’s consideration of the article exhibits formed the basis for her decision, any error by the judge in discussing the exhibits not admitted into evidence was harmless.

Notice

Dahlen vs. Hiway Amoco, Inc.

W.C.C.A., June 7, 2012 ~ Reviewed by Natalie K. Lund

The WCCA affirmed the findings of the compensation judge that the employee failed to prove she sustained a personal injury on March 9, 2009 and that she failed to provide notice of an injury as required by Minn. Stat. 176.141. The employee alleged that on March 9, 2009, her foot became stuck between two pallets.  As she pulled her foot out, she experienced an onset of pain and her foot began to swell. The employee testified she told her supervisor about the injury the following day. The supervisor testified she was not told about the injury at work. She was only told the employee had injured her foot.  This was supported by a medical records stating the injury had not been reported to workers’ compensation.  Further, another employer witness testified there was no way the employee could have fit her foot in between the two pallets. The compensation judge accepted the testimony of the employer witnesses, as well as the report of the employer’s IME doctor, Dr. Segal. The WCCA found there was substantial evidence to support the compensation judge’s denial of a compensable claim.

Jurisdiction

Stevens-Stevenson vs. Greater Lake Country Food

W.C.C.A., May 18, 2012 ~ Reviewed by Natalie K. Lund

The employee sustained three work-related injuries in the course and scope of her employment with Greater Lake Country Food: a 1996 right shoulder injury, a 1997 right ankle injury, and a 1998 cervical injury.  In May 2011, the employee filed a medical request for payment or approval of recommended cervical and lumbar MRI scans. The attached medical records included an MRI order form, which indicated the employee had right hand pain and numbness “shooting down legs”. Physical therapy records noted chronic neck pain, bilateral hip pain and decreased lumbar and hip range of motion. In a Decision and Order, the mediator/arbitrator denied the medical request based on his conclusion that inadequate documentation had been established to support the request. A request for formal hearing was filed.  Counsel for the employer and insurer argued at hearing that the compensation judge lacked jurisdiction to determine the employee’s entitlement to the claimed treatment where the employer and insurer had never admitted liability for lumbar spine or hip injuries. The compensation judge awarded the lumbar MRI. The employer and insurer appealed.

The WCCA vacated the decision of the compensation judge on separate grounds. The Court found that a claim that a work injury has produced or contributed to a condition in a different body part than the original injury – what is commonly referred to as a consequential injury – raises the issue of causation, not primary liability.  A consequential injury is not a separate injury that must be pleaded by claim petition.  Jurisdiction was appropriate.  However, the employee had produced a medical report two months prior to the hearing, which formed the support for her claim. The employer and insurer had not received sufficient notice of that report, and had been unable to perform responsive discovery. On that basis, the judge’s decision was vacated and remanded for additional proceedings.

Causation – Occupational Disease – Expert Medical Opinion

Vandenberg v. Swanson & Youngdale, Inc.

WCCA, filed 9/18/12 ~ Reviewed by Joseph D. Amos

The WCCA affirmed the Findings of the Compensation Judge that the employee sustained a work-related injury to his kidneys.

The employee was exposed to various solvents and chemicals, including latex products, xylene and epoxy products during his career as a commercial painter. The employee obtained causation opinions from three different doctors, who opined that the exposure was the cause of the employee’s kidney problems because they were unable to come up with any other cause. The employer’s expert opined that the exposure was not the cause because it was not the result of an acute, high-level exposure.

The compensation judge accepted the opinions of the treating physicians. The WCCA rejected the employer’s arguments that the treating physician’s opinions lacked foundation and were not given to the degree of medical certainty required by law. The WCCA affirmed, granting deference to the province of the compensation judge to decide questions of medical causation.

Petition to Discontinue PTD

Stevens v. S.T. Services

WCCA, filed October 8, 2012 ~ Reviewed by Jennifer Augustin

The Employer and Insurer filed a Petition to Discontinue the Employee’s PTD benefits with the WCCA, alleging that he was no longer permanently and totally disabled because he had engaged in and was capable of gainful employment. A prior Stipulation for Settlement provided the Employee would continue to receive PTD benefits “subject to the terms and conditions of Chapter 176.” Given this language, the court determined it was evident the parties contemplated continued payments only so long as the Employee continued to qualify as permanently and totally disabled under the statute. The WCCA refused to issue a decision and referred the matter to the Office of Administrative Hearings for a full evidentiary hearing to determine if the Employee was permanently and totally disabled, and whether the Employer and Insurer were entitled to a credit for benefits paid while the Employee was gainfully employed.

Res Judicata Effect of § 176.106 Decisions

Abbett, Jr. v. Georgia-Pacific Corp.

WCCA, filed October 11, 2012 ~ Reviewed by Jennifer Augustin

The WCCA reiterated its prior decisions acknowledging the potential for res judicata effect by unappealed Minn. Stat. § 176.106 decisions from the Department of Labor and Industry, but only for those issues specifically decided in the prior proceeding. Problems exist in using administrative decisions to bar future claims and defenses since there is no record of the administrative conference, no sworn testimony, and no formal exhibits. Giving res judicata effect to an administrative decision concerning future treatment may be particularly inappropriate.

Independent Contractor v. Employee

Price v. David Fox

WCCA, filed October 15, 2012 ~ Reviewed by Jennifer Augustin

Where a homeowner hired Price to mow the lawn, remove leaves, and shovel snow, Price was paid a guaranteed salary based upon 16 hours per week with payment on an hourly basis for any time expended in excess of 16 hours, where Price decided what days and hours he worked, where the homeowner provided 90% of the tools and equipment, where Price was allowed to hire whomever he wished to assist him, and those assistants were paid based upon the hours Price billed to the homeowner, the WCCA concluded that Price substantially met all of the safe harbor criteria for an independent contractor pursuant to Minn. R. 5224.0110, subp. 1, and reversed the decision of the compensation judge.  Even had they not concluded he met all of the safe harbor criteria, they would nevertheless have concluded he was not an employee under the general rules, where the right to control the means and manner of the performance of the work is the most significant factor to consider. The court pointed out that the homeowner may control the quality or description of the work without controlling the means or manner by which the person performs the work.

Traveling Employee

Eide v. Award Const. Co.

W.C.C.A., filed Oct. 16, 2012 ~ Reviewed by Jennifer Augustin

The Employee was required to travel to California for work. While in California and after his work shift, he died from a heart attack in his hotel room. The WCCA affirmed the Compensation Judge’s denial of dependency benefits holding that, while the death occurred “in the course of employment” under the traveling employee doctrine, it did not “arise out of the employment,” because there was no causal connection between the Employee’s work and his fatal heart attack.  In other words, there was no increased risk or hazard with its origin or source in the employment and beyond the exposure of the general public.

Milbrat v. The MarketPlace, Inc.

W.C.C.A., filed Oct. 22, 2012 ~ Reviewed by Jennifer Augustin

The Employee sustained a work-related injury. While traveling from her treating physician’s office to her usual and customary pharmacy to fill prescriptions related to her injury, she was involved in a motor vehicle accident, sustaining further injury. The WCCA concluded that coverage shall be granted for this injury that occurred during travel to obtain medication for a work injury. They cite prior case law extending coverage to those employees injured during travel to or from a doctor for treatment of a work injury, which says the employer has an obligation to provide medical treatment and the employee has an obligation to receive such treatment and thereby avoid further medical complications.  The proper treatment of an employee’s injury is in the interests of both the employee and employer.  This same rationale is equally applicable to cases in which an employee is traveling to obtain medication prescribed to cure and relive her from the effects of the work injury.

The Nebraska Workers’ Compensation Court has announced that the new mileage rate effective January 1, 2013, is $.565.

Membership in the Alabama Workers’ Compensation Organization offers a number of professional and social opportunities. Among these is the popular 3 day Annual Spring Conference usually held in early May. If you pay your dues by January 31st the 2013 Spring Conference is FREE.

A link to the application is below.

http://awcotoday.com/tyfoon/site/fckeditor/file/2013AWCOMembershipApplication.pdf

_________________________________________

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 at mfish@fishnelson.com or any firm member at 205-332-3430.

Effective January 1, 2013, the standard mileage reimbursement rate for Alabama was increased to 56.5 cents per mile.

_________________________________________

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 at mfish@fishnelson.com or any firm member at 205-332-3430.

On December 14, 2012, the Alabama Court of Civil Appeals released its opinion in Goodyear Tire & Rubber Company v. Marvin Wilson. On appeal, was the trial court’s holding that the employee’s current complaints of back pain were caused, at least in part, by a 1986 lumbar back strain. The 1986 claim resulted in a 1987 lawsuit which was subsequently settled with future medical benefits remaining open. Per the authorized treating physician, he had been treating the employee from time to time from 1987 until the present. However, it was his opinion that the employee’s current complaints were likely due to his degenerative arthritis rather than the original compensable lumbar strain. In holding the employer to be responsible for the current care, the trial judge noted that the physician could not rule out with certainty that the lumbar strain did not, at least, contribute to the employee’s degenerative arthritis. In reversing the trial court, the Court of Appeals noted that the physician’s testimony only provided a mere possibility that the current back pain and the 1986 injury were related. As such, the trial judge’s holding was not considered to be supported by substantial evidence.

My Two Cents: At the trial of this case, it was assumed that the burden of proof was on the employer to prove that the current complaints of pain were not related to the previously accepted and compensable injury. However, it should be noted that it is always the burden of the employee to prove, by a preponderance of the evidence, that the complaint for which he or she seeks medical treatment arose out of and in the course of his or her employment.

_________________________________________

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 at mfish@fishnelson.com or any firm member at 205-332-3430.

NC Risk Handling Hint - Futile Job Search

TheThompson Court reinforces the Commission’s discretion to weigh evidence, draw inferences from the evidence and paraphrase testimony. Defendants challenged the Commission’s factual conclusions regarding Thompson’s vocational and educational history, but the Court found that while Thompson may not have used the ‘precise’ words in the Full Commission’s decision, the Commission’s findings ‘paraphrased’ Thompson’s testimony and that the Commission drew reasonable inferences from his testimony. The Court continues to clarify that it will not disturb the Commission’s credibility determinations on appeal.

Kelvin D. Thompson filed a claim for workers’ compensation benefits on October 21, 2008. One year later, the Deputy Commissioner entered an Opinion and Award concluding that Thompson had suffered a compensable back injury and awarding him temporary total disability benefits, payment of past and future medicalexpenses, and attorney’s fees. On appeal by Defendants, the Full Commission adopted the Deputy Commissioner’s Opinion and Award with minor modifications. In its Opinion and Award, the Full Commission incorporated language from both the first and third prongs ofRussell v. Lowes Prod. Distribution, 108 N.C. App. 762, 425 S.E.2d 454 (1993), to justify its determination that Thompson was disabled (“[G]iven plaintiff’s current physical andvocational limitations, plaintiff is incapable of work in any employment”). Defendants appealed, and the North Carolina Court of Appeals remanded the case for clarification of the basis for the Full Commission’s conclusion that Thompson was disabled.

The Full Commission entered a new Opinion and Award on remand, finding that Thompson had “met his initial burden to show that he was totally disabled . . . by showing that a job search would be futile in light of his physical and vocational limitations.” The Full Commission further concluded that “[D]efendants have not shown that suitable jobs are available for plaintiff and that plaintiff is capable of obtaining a suitable job, taking into account plaintiff’s physical and vocational limitations.” Defendants appealed again to the Court of Appeals.

On November 6, 2012, inThompson v. Carolina Cabinet Co.,the Court of Appeals first considered Defendants’ argument that theFull Commission’s conclusion of law that Thompson was disabled failed to adequately identifywhich prong of Russell the Commissionapplied. In rejecting this argument, the Court noted that although the Full Commission did not expressly state which prong ofRussell it applied, it was apparent from the Commission’s findings that it applied the third prong. In order to support a conclusion of disability, the Commission must find that Thompson was incapable of earning pre-injury wages in the same or any other employment, and that the incapacity to earn pre-injury wages was caused by his injury.Hilliard v. Apex Cabinet Co., 305 N.C. 593, 595, 290 S.E.2d 682, 684 (1982). Pursuant toRussell, an employee may meet his initial burden of production on this issue by producing one of the following: (1) medical evidence that he is physically or mentally, as a result of the work-related injury, incapable of work in any employment; (2) evidence that he is capable of some work, but that he has, after a reasonable effort, been unsuccessful in his efforts to obtain employment; (3) evidence that he is capable of some work, but that it would be futile because of pre-existing conditions, such as age, inexperience, or lack of education, to seek employment; or (4) evidence that he has obtained other employment at wages less than his pre-injury wages. Russell, 108 N.C. App. at 766, 425 S.E.2d at 457.

Defendants pointed to theCommission’s reliance on Thompson’s“physical” and “vocational” limitations, arguing the Commission improperly merged the first and third prongs ofRussell. The Court concluded, however, that any determination under the third prong necessarily required the Commission to consider both types of limitations, since a job search would be limited only to those jobs consistent with Thompson’s physical restrictions. The Court further noted that the Commission was not required to state specifically that Thompson was “capable of some work,” because a finding of futility presumes that an employee is capable of some work physically. According to the Court, there would be no need for a finding that a job search would be futile if an employee was in fact incapable of working at all under the first prong ofRussell.

The Court also rejected Defendants’ argument that the Full Commission erred in determining that Thompson meet his burden of showing disability under the third prong of Russell. With respect to vocational considerations, the Commission pointed out that Thompson was, at the time of itsdecision, 45 years-old with a high school education and limited work experience. With respect to physical limitations, the Commission noted that Thompson was restricted to lifting no more than 15 pounds and working no longer than nine hours per day. In addition, he was required to avoid repetitive bending, lifting, and twisting, and had been experiencing steady, intense pain. The Court held that these findings were supported by competent evidence and were sufficient to support the Commission’s conclusion that it would be futile for Thompson to search for a job consistent with his physical restrictions. The Court also pointed out that once an employee meets his initial burden of production underRussell, the burden of production shifts to the employer to show that suitable jobs are available and that the employee is capable of obtaining a suitable job taking into account his physical and vocational limitations and that Defendants made no argument that the Full Commission erred in concluding that they failed to meet this burden.

NC Risk Handling Hint - Necessary Findings of Facts Supporting an Opinion and Award and Credibility

The issue of credibility is squarely within the domain of the Industrial Commission and their findings rooted in the issue of credibility will rarely be disturbed on appeal.

Corey McAdams worked for Safety Kleen as a vacuum customer service representative. On March 22, 2007, he was injured under compensable circumstances as a result of a motor vehicle accident. He received ongoing medical treatment from multiple physicians, some of whom concluded that McAdams had a variety of injuries and was unable to return to work. Other physicians who treated McAdams concluded that he had not sustained any serious injuries, and that there was nothing preventing him from returning to work. In addition, McAdams provided conflicting accounts of the circumstances under which he was injured. He initially stated that he was making a left turn and the driver of another vehicle struck the rear of his car as he was turning. Contrary to this account, McAdams later indicated that his vehicle was actually stopped on the side of the road and that as he started to exit his car, the driver of the other vehicle involved rear-ended his car, throwing him around and causing him to lose consciousness. Shortly after the accident, McAdams also completed an accident report in which he checked the box indicating that he had not been injured in the accident.

After a hearing and appeal to the Full Commission, the Full Commission entered an Opinion and Award granting indemnity and medical benefits. The Full Commission did not make any Findings of Fact as to what injuries McAdams actually sustained in the accident and did not reconcile the different versions of the accident which were provided by McAdams. Defendants appealed to the Court of Appeals.

In January 2012, the Court of Appeals remanded the case to the Full Commission to make specific Findings of Fact with respect to the crucial facts upon which the question of an employee’s right to compensation depends. The Court noted that the findings must be sufficiently specific to enable a Court on appeal to determine whether they are supported by the evidence and the law appropriately applied. According to the Court, it was unclear which version of McAdams’ accident the Commission found credible, and the Findings of Fact that were made tended to indicate that McAdams had made many representations and exaggerations regarding the accident and his medical condition. Notwithstanding these inconsistencies, the Full Commission never made a determination of McAdams’ credibility. The Full Commission also failed to determine whether the doctors who had concluded that McAdams required medical care based their opinions on an entirely inaccurate description of the accident. Judge Bryant dissented, however, noting that, notwithstandingthe different versions of the accident which McAdams conveyed, defendants admitted compensability of the accident on a Form 60 and that the Court should be careful not to extend its authority to areas solely reserved for the Commission – credibility of evidence. Judge Bryant also indicated that the Findings of Fact were supported by the evidence despite the existence of contradictory evidence.

On October 5, 2012, inMcAdams v. Safety Kleen Sytems, Inc., the Supreme Court reversed the Court of Appeals for the reasons in Judge Bryant’s dissent.