State News

By:  Jeffrey D. Snyder, Esquire
ConnorsLaw   LLP

A.        THE CASE:

The Supreme Court of Pennsylvania, in the case of Giant Eagle, Inc. V. WCAB (Givner), No. 14 WAP 2010, decided on March 12, 2012, affirmed a Commonwealth Court holding that a claimant who fails to attend a Court ordered Independent Medical Examination (IME) without reasonable excuse can be subject to the suspension of medical benefits, in addition to wage loss benefits, as a ”measured and gradual” sanction to attempt to secure compliance with the Order.

B.        THE NARROW ISSUE PRESENTED TO THE SUPREME COURT OF PENNSYLVANIA:

The narrow issue accepted by the Supreme Court for its review was:

“Whether ‘compensation’ must include medical benefits as well as wage loss benefits under Section 314(a) of the Workers’ Compensation Act.” (emphasis supplied)

In addressing this narrow issue, the Court determined that “compensation” as used in Section 314(a) of the Pennsylvania Workers’ Compensation Act (Act) [that section of the Act that permits ordering attendance at an IME] can encompass, but need not encompass, medical expenses notwithstanding the availability of Utilization Review.

In other words, an employer may obtain a suspension of reasonable and necessary medical benefits to secure compliance, but does not have the ‘right’ to such relief, as the granting of a suspension of medical benefits remains within the discretion of the Judge.

C.        WHAT DOES “COMPENSATION” MEAN?:

Arriving at the conclusion that the term “compensation” as used in Section 314 includes medical benefits, the Court examined various uses of the term “compensation” in various other sections of the Act to discern Legislative intent, as it considered itself required to do so under Berwick Industries v. WCAB (Spaid), 643 A.2d 1066 (Pa., 1994).

The Court concluded that “compensation” as used within the Act sometimes refers only to wage loss benefits and other times may be implied or does more explicitly encompass medical benefits – depending on purpose and context.  The Court pointed out, for example, that the statute of limitations is a bar to compensability for both wage loss and medical benefits, while other sections of the Act, such as Section 308, refer to periodic payment of compensation, as opposed to medical benefits to be provided: “as and when needed”.

D.        WHAT ARE THE PROCEDURAL STANDARDS?  WHAT ARE THE LIMITS OF DISCRETION?:

Suspending medical benefits on a failure to attend an ordered IME, the Court deferred the precise procedure for later definition. In Giant Eagle, the Supreme Court instructed: “This mechanism is gradual and measured.”, referring further to the mechanism as: “… the measured temporary punishment imposable should he or she refuse.”.

Are we looking at a two step process?

Must the employer first request the suspension of wage loss benefits, and only then have standing to request the suspension of medical benefits on further non-compliance, or is it appropriate to request the relief of the suspension of both wage and medical benefits when initially requesting relief for a failure to attend without reasonable excuse under Order?

Given the Court’s instruction of “gradual and measured” sanctions to encourage compliance, it would seem that indeed there is to be a two step process.

What factors are to be considered and what are the limits of discretion in such circumstance?

If wage loss benefits are suspended and non-compliance continues, does a Judge have unfettered discretion to refuse to suspend medical benefits, or does the burden of proof, or at least the burden of persuasion, shift to the Claimant to show why such relief should not be granted to the employer?

An ancillary question presented is what additional burdens, if any, are going to be placed on the Supersedeas Fund, and ultimately on those entities that fund it, given this new potential for overpayment of [admittedly reasonable, necessary and related] medical expense if an abuse of discretion in the denial of suspension of medical benefits is ultimately established?

E.        Does the holding in this Opinion extend to the refusal of reasonable medical services? Does “all” mean all?:

Does this Supreme Court Opinion provide the employer with other potential relief in the context of the refusal of reasonable medical services?

Consider this fact pattern: a claimant sustained a soft tissue orthopedic work injury some years ago and entered into a commutation of wage loss benefits; that claimant continues to treat with pain management, also consuming a large quantity of addictive prescription medication; that claimant is a Medicare beneficiary and that Medicare requires several hundred thousand dollars to approve a set- aside trust; Utilization Review favors the claimant; an IME finds full recovery and recommends detoxification that will present no undue risk, has a high probability of success and has the goal of reducing disability; and that claimant refuses detoxification.

Forfeiture during the period of non-compliance (i.e., a suspension of wage loss benefits) is essentially a moot point, as wage loss benefits have been commuted.

What “gradual and measured” sanctions will encourage the claimant to enter the detoxification program? The only sanction available is the suspension of medical benefits, exactly as provided for by this Supreme Court Opinion in the context of the refusal without reasonable excuse to attend an ordered IME.

This Supreme Court Opinion has left issue of applicability to the refusal of reasonable medical services as open question in its review of the meaning of “compensation” as used in Section 306 (f.1) (8), a section of the Act which provides:

“If the employe shall refuse reasonable services of health care providers, surgical, medical and hospital services, treatment, medicines and supplies, he shall forfeit all rights to compensation for any injury or increase in his incapacity shown to have resulted from such refusal.” (emphasis in original).

In Giant Eagle, the Court stated: “These sub-clauses [including Section 306 (f.1) (8)] do not indicate, on their face, whether the term “compensation” is meant to include payments for medical benefits.” (emphasis in original)

Does “compensation” include both wage loss benefits and medical benefits unless clearly limited solely to wage loss benefits in a particular section of the Act? Does it matter that Section 306 (f.1) (8) refers to “all” rights to compensation?

Does “all” mean all?

Does the rationale implicit in Giant Eagle, Inc. V. WCAB (Givner), No. 14 WAP 2010 in measured dosages, encourage compliance by claimants with his or her obligations, affor,omg as well, the availability of the relief of suspension of medical benefits on a Petition to Suspend/Forfeit based on the refusal of reasonable medical services.

April 9, 2012:             Kansas Workers’ Compensation Law Update.

1.         Results Of The 2012 Kansas Legislative Session.

As of April 9, 2012, while the Kansas Legislative Session for 2012 is not technically completed, it appears that there will be no significant substantive changes to the Kansas WC Act by the 2012 Legislature. The significant pro-employer revisions enacted in 2011 (see July 7, 2011 update below) remained intact, and are starting to work their way through the WC litigation system with actual administrative decisions (see discussion below) with great results for employers, TPA’s and carriers!

2.         Several Initial Preliminary Hearing Appeals Board Decisions Are Effectuating On The Pro-employer Changes In Kansas’ 2011 Reform Laws, And The Results Are Dramatic And Favorable For Employers And Carriers.

Several initial Kansas Workers Compensation Appeals Board decisions interpreting and applying the 2011 Reform Laws bear out the sea change of outcomes for employers, TPA’s and carriers doing business in Kansas. Below are several examples.

RECKLESS VIOLATION OF SAFETY RULE/REGULATION DEFENSE:

Price v. Robert Todd Baker d/b/a Sunshine Lawn & Tree Service, Docket No. 1,058,417 (February 21, 2012).  Claimant was a tree trimmer and sustained injury when he fell out of a tree hitting a power line and then falling to the ground.  The employer provided claimant with safety equipment including a safety harness, lanyard and rope.  Claimant appeared to be an experienced climber and was seen in the days prior to the accident, properly using the safety equipment.  A supervisor testified that the owner had caught claimant on one occasion not using the safety equipment, and reprimanded the claimant.  The employer denied claimant’s entitlement to workers compensation benefits because just after the accident, claimant was caught with his safety equipment in a position evidencing he had not been using it just prior to the fall; therefore the fall was caused by claimant failing to properly use his safety equipment.

New law K.S.A. 44-501(a)(1) provides:

Compensation for an injury shall be disallowed if such injury to the employee results from … (D) the employee’s reckless violation of their employer’s workplace safety rules or regulations. (Emphasis supplied)

The Administrative Law Judge (ALJ) awarded compensation over the employer’s defenses applying “pre-reform law” principles and old law case precedent.  Basically the ALJ refused to grant the employer’s defense because the employer failed to prove that the claimant’s actions in  failing to use the safety equipment did not amount to a “willful” refusal to use the safety equipment.  This is in fact the way the vast majority of cases were decided under the “old law” statutory language, with the employer never able to effectuate on the defense because the hurdle to achieve the defense was place so high by the application of the requirement that the employer had to prove that the claimant’s refusal to use the safety equipment was “willful.”  In practice, this “willfulness”  proof requirement necessary to succeed on the old law defense was almost like having to prove the employee intended to injure himself – a threshold almost never impossible for an employer to prove.

On appeal to the Kansas Workers Compensation Appeals Board, the ALJ’s compensability award was reversed and all compensation was denied for purpose of preliminary hearing.  The Appeals Board member writing the decision correctly cited to the “new law” provision quoted above and consulted other Kansas appellate court decisions for an interpretation of the proof requirements under the word “reckless.”  “Reckless” conduct has been defined as conduct that shows a realization of the imminence of danger and a conscious and unjustifiable disregard of that danger.  The Appeals Board member applied this lesser standard to the employer’s defense and concluded under the facts that claimant’s act of failing to use the provided safety equipment constituted a reckless violation of the employer’s workplace safety rule concerning the use of safety equipment.  All compensation was denied for purposes of preliminary hearing.

Analysis of the application of this new “reckless disregard” defense: The Price case summarized above illustrates the pro-employer sea change taking place in Kansas under our 2011 reform laws.  Claimant Price made a conscious decision not to use the safety equipment his employer safety rules required him to use, which resulted in him sustaining personal injury on the job.  Why should the employer in this case be punished by having to pay workers compensation benefits when the cause of the accidental injury was the claimant’s conscious choice to not use the safety equipment provided by the employer?  Under the “old law” principles and concepts existing in Kansas before our 2011 reforms, claimant Price would have surely been awarded benefits and the employer would consequently be penalized by having his business costs go up, simply because this claimant made the conscious decision to not use safety equipment the employer provided him, which if used, would have prevented the accident from happening.  The purpose and intent of the 2011 reforms was in part to bring back some reason and sanity to Kansas workers compensation, and the Price case illustrates that the Appeals Board is in fact applying those reforms as intended.

PREVAILING FACTOR CAUSE DEFENSE:

In Lowrey v. USD 259, Docket No. 1,056,645 (November 21, 2011), claimant alleged he fell off of a ladder hitting and injuring his left knee.   Claimant denied preexisting left knee problems or treatment, and the employer agreed it could not prove claimant suffered from prior left knee injury or pain.  However, a post accident MRI of the left knee was reviewed by the authorized treating doctor, and he opined in a written report (but was not deposed) that in addition to a meniscus tear, claimant clearly had some degenerative changes going on in the left knee as shown on MRI.  The doctor also wrote:  “I explained to him that this is pre-existing…”

Kansas’ new reform laws contain multiple new references to a new medical causation standard (prevailing factor cause) which replaces the old “simple aggravation” rule.  Under the old law “simple aggravation” rule, the only thing the claimant had to prove was that the work accident caused some “aggravation” of a pre-existing condition.  This “simple aggravation” rule was almost impossible for employer’s to defend against, and prevail.

New law K.S.A. 44-508 now specifically requires the claimant must prove that the work accident is the prevailing factor causing the injury, medical condition, and disability or impairment.  “Prevailing” as it relates to the term “factor” means the primary factor in relation to any other factor.

The ALJ in Lowery awarded preliminary hearing compensation benefits including the cost medical treatment, without any analysis or application of the new law statutory proof requirement that the work accident must be the prevailing factor cause of the need for treatment.

On appeal, the Appeals Board member reversed the ALJ’s award of benefits, and denied all compensation benefits including medical treatment for purpose of preliminary hearing.  The basis for the denial of benefits was that claimant failed in his burden of proof of proving that the work accident was the prevailing factor cause of the need for medical treatment.

Analysis of the application of this new “prevailing factor cause” defense:  The Lowery case summarized above illustrates another sea change of Kansas workers compensation – the death of the “simple aggravation” causation rule.  Prior to the new reform law “prevailing factor cause” defense, it was virtually impossible for an employer to prevail on a defense that the work accident did not really cause “an injury” because the “injury” proof requirement was met by the claimant simply testifying that the work accident caused “an aggravation” of a pre-existing condition (no pain before, but pain now after the work aggravation).  There is absolutely no question under the “simple aggravation” test that the outcome of claimant Lowery’s preliminary hearing would have been different, and he would have received a preliminary award of benefits.  However, with the new law prevailing factor cause proof requirement, the Lowery outcome suggests to Kansas claimants that they better come to court with at least some credible medical evidence or opinion that the work accident was the prevailing or primary factor cause of the need for medical treatment, or risk that their claim will be denied for failure to meet the burden of proof requirement.  This is a huge and significant pro-employer change arising from the 2011 reform laws.

3.         New Director Of Workers Compensation Appointed.

Anne Haught was recently appointed to replace former Director Larry Karns, as the new Kansas Director of Workers Compensation.  Anne replaces former Director Karns and continues the task of properly and fairly administering the Kansas Division of Workers Compensation in its implementation of the new law reforms.

July 7, 2011:               Kansas Workers’ Compensation Law Update.

1.         Results Of The 2011 Kansas Legislative Session.

Significant new pro-employer workers’ compensation law reforms passed the Kansas Legislature in 2011 and were signed into law by Governor Sam Brownback.  Sweeping new pro-employer workers’ compensation laws went into effect in Kansas for dates of accident or repetitive trauma occurring after May 15, 2011.

In essence, the new law reforms sweeten the pot at the finish line for claimants by modestly increasing our maximum benefit caps (for example lifetime permanent total cap went from $125,000 to $155,000 – relatively speaking, still a very low perm total exposure).  However, the new law reforms contain many new defenses which will likely act as hurdles preventing many more claimants from getting to that finish line.

In short, fewer claimants will successfully establish compensable claims, but those that do, could see slightly more money in the end.  For employers and carriers, while there will be increased litigation costs on the short term effectuating all the new defenses, over the long term, these new law reforms will likely reduce the overall number of claims and costs for employers.

These new statutory reforms legislatively reverse the holdings of four prior appellate court decisions discussed in previous Kansas Law Updates found below:  Casco, discussed below in the May 17, 2007 update was reversed by these new law reforms (this change is one of the few that is pro-employee); Bergstrom, discussed below in the September 25, 2009 update, was reversed by the new law reforms (this reform law reversal is really good for employers); and both the Redd and Mitchell cases discussed in the October 5, 2010 update, were also reversed by the new law reforms (again these new law reform reversals are pro-employer changes).

It is strong suggested that any employers, adjusters, claims professionals consult with legal counsel regarding assessing compensability and exposure of all Kansas claims with dates of accident or repetitive trauma occurring after May 15, 2011.  It is a whole new ballgame in Kansas after May 15, 2011 and the changes are so sweeping and comprehensive that professional assistance is required to benefit from all the new changes.

A very brief list of some of the most significant changes includes:

• Multiple new compensability defenses including but not limited to:  new definitions for accident, injury and repetitive trauma which will provide new proof requirements for injured workers; sweeping new causation defenses (prevailing factor test) which heighten the worker’s proof requirements to establish compensability; new defense where worker’s injury results from reckless violation of employer’s work place safety rules and regulations; new beefed up horseplay/fighting on the job defense; new lack of timely notice rules; new easier to establish drug/alcohol impairment defense affording more chance of success for a complete denial of benefits.
• New private insurer and self-insured employer obligation to issue written notice to all workers receiving TEMPORARY disability compensation benefits concerning fraud.
• Multiple new defenses related to preexisting conditions, impairments and prior work restrictions which allow employers/carriers more opportunity for compensation denials, subtractions and offsets.
• Multiple new defenses for employers against TTD liability where the worker has voluntarily terminated or been terminated for cause or refused accommodated work.
• Increased importance and legal support of authorized treating physician opinions over worker’s hired gun doctor opinions in TTD entitlement context.
• New average weekly wage calculation method and rules.
• New limits on, and increased proof hurdles for, workers try to establish permanent total disability compensation.
• New permanent partial disability compensation rule for calculating value of bilateral carpal tunnel syndrome and other bilateral injuries – reversing Casco decision.
• Multiple new defenses to work disability compensation claims including higher hurdles (new minimum impairment threshold) for worker to claim work disability entitlement, and elimination of work disability compensation for undocumented workers.
• Enhanced methods for employers to get slow moving or dormant cases dismissed.
• Significant new defenses to future medical benefits exposure and new ways to get future medical liability cut off.
• Several pro-worker new law changes including modestly increased benefit caps, elimination of the timely written claim statute of limitation and conversion of bilateral carpal tunnel type cases back to a general body disability allowing for work disability compensation potential.

2.         New Director of Workers Compensation appointed:  Larry           Karns, one of the drafters of the pro-employer new law reforms,         was appointed Kansas Director of Workers Compensation.  This           really concludes the “pro-employer” sweep of a new pro-     employer set of laws, and a new pro-employer administrator to      see that the new law reforms are properly and fairly   administered and implemented.

October 5, 2010: Kansas Workers’ Compensation Law Update.

1.         Results Of The 2010 Kansas Legislative Session.

In summary, there were no substantial changes to the law by the Kansas Legislature in 2010.  The 2010 Kansas Legislative Session ended much like 2007, 2008 and 2009 with no significant legislative change or amendments to the Kansas Workers’ Compensation Act.  Labor groups and the claimants’ bar continue to push to increase Kansas’ low benefit caps.  Business and industry sought to decrease the cost of workers’ compensation.  There were competing bills introduced, but nothing significant was passed.  The end result was no legislative change favoring either side.  The pro-business Republican 2010 Legislature did not aggressively move to try to change laws in favor of employers because the current Governor is a Democrat, and would likely have vetoed any sweeping reforms.  That scenario is likely to change in the 2011 legislative session.  Kansans will likely elect U.S. Senator Sam Brownback as the new Governor in the upcoming November 2010 election.  If this occurs as is expected, both the House and Senate will be controlled by Republicans and the Governor will be Republican.  Many in Kansas are projecting that this is the optimum political environment and opportunity for employers to pass pro-business legislation which would most certainly be signed into law by the next Governor.  Stay tuned for updates after the 2011 legislative session ends as there most likely will be good news for employers in Kansas.

2.         Significant New Legal Changes In 2010 Continue To Come From The Kansas Supreme Court.

Two recently released Kansas Supreme Court opinions will likely continue to push employer workers compensation costs up. Last year’s update regarding the Bergstrom case predicted increased employer settlement and award disability compensation costs.  While there are no official statistics published yet, most employers, observers and practitioners would agree that the effect of the Bergstrom decision discussed in 2009’s update increased employer settlement and disability compensation award payments.

Two new decisions issued by the Kansas Supreme Court in September, 2010 will likely continue to push up employer workers compensation costs.  These new decisions are very lengthy and space allows for only a very brief summary.

In the most pro-claimant outcome, the Kansas Supreme Court in Redd v. Kansas Truck Center, No. 101,137 (September 10, 2010), ruled that for multiple injuries to a single scheduled member (such as a wrist and elbow surgery on the same arm) the workers compensation judge must now make separate awards for each injury to that scheduled member.  The practical result of this decision is that before a wrist and elbow injury would be computed based on a combined impairment to the full arm.  Now, instead of one award for both injuries to the full arm, there will be two separate awards issued from the one accident.  It is possible that in some fact situations, this new “multiple award” decision will actually compute to a lower actual cost to the employer.  Employers and adjuster are cautioned to seek advice of counsel to update exposure estimates on currently pending and new scheduled injury claim.

Redd also set forth a new rule regarding $50,000 “functional impairment cap.”   The new rule says that the cap does not apply where the worker has been paid even the slightest amount of TTD benefits.  Thus, in certain circumstances, an employer will want to carefully evaluate potential challenges to TTD benefit entitlement where the claimant is a high wage earner and potentially subject to future application of the cap.

Finally, Redd clarified that the new “appellate standard of review” for the appellate courts which allows for more scrutiny of the fact findings of the Workers Compensation Appeals Board applies to Board decisions issued after July 1, 2009.  For any appeals to the Court of Appeals or Supreme Court from Board decisions issued prior to July 1, 2009, the more limiting “substantial competent evidence” standard from the old statute is still applicable.

Turning then to the other new Kansas Supreme Court decision in Mitchell v. Petsmart, Inc., No. 99,528 (September 10, 2010), we find a “mixed benefit” opinion from the Court with elements that are both favorable and unfavorable to employers. The pro-employer ruling in Mitchell is the smack down by the Supreme Court of the often championed argument by claimants that the administrative regulation (K.A.R. 51-7-8) which allowed for, in the computation of permanent disability compensation benefits, a subtraction of the number of weeks of TTD benefit already paid to the claimant.  The claimant’s bar has for several years tried to argue for a statutory interpretation that would effectively allow for double-dipping – taking TTD benefit weeks and then also taking PPD compensation for those same weeks.  The Kansas Supreme Court affirmed the position long held by employers and carriers that the regulation preventing double dipping is clearly within the authority granted by the statutory language.

The remaining two Mitchell rules are characterized here as negative to employers and carriers because they fly in the face of the plain language of the workers compensation act and will likely increase employer and carrier defense litigation costs because they will increase workers compensation litigation costs.  The first of these two rulings is the re-establishment of the “bright-line rule” for determining date of accidental injury in repetitive use micro-trauma injury claims such as carpal tunnel syndrome cases.  The re-established “bright-line rule” for determining date of accidental injury is “the last date worked.”  At first glance this would appear to be a helpful clarification of the very confusing and cumbersome statutory legal test.  The problem is that this new “bright-line rule” for determining date of accidental injury is not found in, and is contrary to, the plain language of the statutory test.  So, the administrative law judges are now faced with the decision, in every repetitive use injury case, of deciding which rule to follow – the “bright-line rule” of last date worked as provided by the Mitchell decision, or the plain language of K.S.A. 44-508(d) which does not contain as one of the choices, the last date worked, as a date of accidental injury.  Clearly this will cause less certainty and more litigation.

The other carrier unfriendly language in Mitchell which is likely to increase defense litigation costs is the language purporting to create a new barrier for carriers to litigate their disputes as to liability for payment of benefits in the workers compensation litigation.  The purported new rule is that where there are two or more carriers with separate coverage periods spanning the claimed repetitive use injury claim, those carriers will now be forced to take their “carrier verses carrier” dispute to the local district court for determination.  Workers compensation judges are purportedly allowed to issue “joint and several liability” orders against multiple carriers in a claim.  The result is that both carriers are jointly and severally liable for all the benefits ordered paid to the claimant.  This can, and likely will, create significant confusion and problems for carriers in assessing their exposure and reserves.  There are also multiple potential pitfalls to good companies who are assessed joint and several liability with not-so-good companies who are chronically late or tardy in paying benefits.  It is totally conceivable that Insurance Company A which diligently pays its compensation claims will be assessed penalty awards for the late payments of Insurance Company B.  Furthermore, to try to get out from this situation, Insurance Company A must purportedly file a separate action in a state district court to adjudicate its liability to pay benefits to claimant.  The obvious first question is where did this new rule come from and what statutory authority exists for a compensation judge to order “joint and several liability?”  The answer is that there is no statutory authority in the plain language of the Kansas Workers Compensation Act and, in fact, the Kansas Supreme Court technically dodged this question in the Mitchell decision saying that the precise issue of statutory authority for joint and several liability was not properly raised and preserved by the parties in Mitchell.  In summary, this joint and several liability exposure combined with the directive to take your carrier verses carrier disputes to district court is bound to create new and additional confusion and litigation in currently pending and new workers compensation repetitive use injury claims.

3.         Update On Kansas’ Move To Mandate ODG Guidelines.

The 2009 update below, asked the question of whether Kansas was on the verge of mandating the ODG (Official Disability Guidelines).  The answer in 2010 was no, Kansas did not mandate use of the ODG in workers compensation.

As reported below, it appeared in late 2009 that a push was being made to mandate the use of the ODG through the Kansas Medical Fee Schedule update.  However, it turned out that the push to “mandate” use of the ODG did not go forward and was not included in the January 1, 2010 Kansas Medical Fee Schedule update.  Any move to “mandate” use of the ODG in Kansas will likely occur via legislative changes in 2011.  Stay tuned for updates after the 2011 legislative session.

4.         New Interim Kansas Director Of Workers Compensation.

In September, 2010, Kansas Division of Workers Compensation Director, Paula Greathouse, resigned and Assistant Director Seth Valerius was appointed as Interim Director to replace her.

September 25, 2009: Kansas Workers’ Compensation Law Update.

1.         Results Of The 2009 Kansas Legislative Session.

In summary, there were no substantial changes to the law by the Kansas Legislature in 2009.  The 2009 Kansas Legislative Session ended much like 2008, with no significant legislative change or amendment to the Kansas Workers Compensation Act.  Labor groups and the claimants’ bar attempted to increase Kansas’ low benefit caps.  Business and industry attempted to hold the line and avoid any legislative roll back of the Kansas Supreme Court’s sweeping 2007 employer friendly strict constructionist decision in the Casco case, discussed below in the 2007 summary.  The end result was no legislative changes favoring either side.  The predominantly pro-business Republican 2009 House and Senate resisted any attempts to amend the workers compensation laws so as to avoid any change in the law which would have the effect of increasing workers compensation costs to Kansas businesses, as they are already struggling in tough economic times.

2.         SIZZLING HOT NEW TOPIC IN KANSAS – New judicially created increase in permanent disability compensation exposure for employers and carriers under Kansas law.

On September 4, 2009 the Kansas Supreme Court issued a sweeping decision in Bergstrom v. Spears Manufacturing Company et. al. (http://www.kscourts.org/Cases-and-Opinions/opinions/supct/2009/20090904/99369.htm)  which will have an immediate impact on current exposure estimates in many pending, and future, general body disability injury cases.  The Kansas Supreme Court’s split decision in Bergstrom continues the same analytical movement departing from prior judicial precedent via a re-examination of previous statutory construction efforts, similar to what was seen in the 2007 Casco decision (discussed below).  However, the practical outcome of this version of the judicial statutory construction tsunami is the opposite of the outcome of Casco – Casco created an immediate reduction in work disability compensation exposure for employers, whereas Bergstrom will likely create an immediate increase in the work disability compensation exposure for employers.

Highly summarized, Bergstrom was a production janitor for a manufacturer of plastic plumbing parts.  She sustained a back injury (general body disability claim) after picking up a heavy garbage can.  Her employer tried to provide her with accommodated work within her restrictions after her injury.

Unfortunately, claimant continued to experience pain during the several attempts to return to work and on the last attempt was only able to work three hours and then had to quit, according to her, due to the pain caused by the accommodated work activities.  She left work and was subsequently terminated by the employer.

The ALJ initially awarded a permanent total disability award ($125,000).  The Appeals Board ultimately reduced this permanent total award to a much smaller dollar award limited to claimant’s 10% functional impairment, on the rationale that Bergstom did not make a “good faith effort” to continue working in the accommodated position provided by the employer.  The Bergstrom majority threw out the “functional impairment” only award of the Board, and remanded the case back to the Board for what is likely to be a significant increase in the permanent disability compensation award owed by the employer.

The rationale of the Bergstrom majority was that the functional only award by the Board relied on the same inaccurate assumption made by previous judicial interpretations, that the work disability statute contained an implicit “good faith job search effort” requirement on the injured worker.  The majority opinion stated that it could not find anywhere in the plain language of the work disability statute, a “good faith” requirement imposed upon claimants by the legislature.  The majority opinion noted that the plain language of the statute contains no explicit requirement from the legislature that claimants are required to attempt to work or look for work.

This of course raises the question, to even the most casual observer, of to what degree the Kansas Supreme Court now expects the Kansas legislature, when writing or amending statutes, to set forth explicitly in the plain language of the statute, basic societal norms and applicable common law principles.  Here the obvious societal norm is a mitigation of damages requirement – that workers are expected to be able to show a good faith effort in returning to work before asking for an award of benefits because they are not working.

Common sense would appear to dictate that at some base level, the Kansas Supreme Court should allow certain commonly agreed to societal norms and legal principles to be “read into” statutes, including the societal norm that able bodied individuals are expected to work and if they voluntarily choose to avoid work, even the “plain language” of our laws should not be read to allow or require the disability compensation system to reward behavior amounting to sloth.  The Bergstrom majority’s analysis and “strict constructionist” fervor appear to divorce the application of common sense from the act of construing statutory language.

According to the Bergstrom majority decision, the Court will not read into the statute something not readily expressed therein.  The dissenting opinion written by Chief Justice McFarland expressed the view that the result of the judicial exercise of statutory construction analysis must always occur in the context of respect for the established judicial principle of stare decisis (adherence to judicial precedent so as to promote stability and predictability in the law).  Chief Justice McFarland asserted that the majority opinion “cavalierly” overruled a 15-year-old statutory construction that the law implicitly requires of a claimant “a good faith job search effort” for no other reason than it (the current Court majority) would have interpreted the statute differently had if been faced with the issue in the first instance.

The immediate effect of this decision is to require all employers and carriers to reevaluate their current and future exposures to pending work disability compensation awards.  For those employers and carriers in the midst of defending a case on the basis that the claimant did not make a good faith effort to seek employment or accept a light duty accommodated job offer within the restrictions, those defenses may now be useless, and the exposure to benefits much higher.

It is anticipated by most observers that the 2010 Kansas Legislature will now be asked by business and industry interests to look into possible statutory revisions which will re-impose a good faith requirement on claimants.  It is also anticipated that labor interests will counter this with resistance at re-imposing the good faith requirement, and at the same time ask the legislature for a long overdue increase in overall benefit compensation caps.  The clear conclusion is the next legislative session is likely to include multiple opposing and competing demands from polar opposite interest groups, all in the context of a continued strained economic environment.  Stay tuned for more updates on this topic!

3.         H1N1 Flu Virus – Employers Get Ready To Respond To Possible Workers Compensation Claims Arising From Claimed Employer Exposure To The H1N1 Flu Virus.

QUESTION: Are employees who contract H1N1 flu virus entitled to workers compensation benefits under Kansas law?

ANSWER:  Probably not, depending upon the facts.   The defense would argue the claim would fall under the Occupational Disease (OD) Act.  In Kansas, prerequisites to a compensable OD claim include: 1) The condition is not an ordinary disease of life to which the general public is or may be exposed outside of the particular employment and which only generally exposes the employee in the work environment; 2) Exposure from a work environment where there is attached a particular and peculiar risk of such disease which distinguishes that employment from other occupations and employments, and where the risk of getting the disease is greater than the otherwise general risk of getting the disease, and 3) That the disease was actually contracted while engaging in work activity.

THEORIES OF COMPENSABILITY TO WATCH FOR: (1) Accidental injury theory that there is a distinct single traumatic exposure and there is some neutral or increased risk associated with the employment that makes the exposure to H1N1 work related.  (2) Occupational Disease theory which focuses on the “means of transmission” in making the exposure to the H1N1 virus occupational.

4.         Is Kansas On The Verge Of “Mandating” Use Of The “ODG” (Official Disability Guidelines)?

Is Kansas on the verge of “mandating” the use of the Official Disability Guidelines? The “Official Disability Guidelines” as announced by the Work Loss Data Institute, are the prevailing evidence-based authority on expected disability and appropriate medical treatment in workers’ compensation and non-occupational disability cases.

A December 19, 2007 Work Loss Data Institute public relations release proclaimed:  “The Kansas workers’ comp regulatory agency, the Department of Labor, Division of Workers’ Compensation (DWC), has adopted Work Loss Data Institute’s “Official Disability Guidelines – Treatment in Workers’ Comp (ODG) as the standard of reference for evidence-based medicine used in caring for injured workers.” (Emphasis supplied).

The Kansas Division of Workers’ Compensation web site has posted, as of this date, the following statement concerning the ODG:  “The Official Disability Guidelines – Treatment in Workers Compensation (ODG), published by the Work Loss Data Institute (WLDI), is to be recognized as the primary standard of reference, at the time of treatment, in determining the frequency and extent of services presumed to be medically necessary and appropriate for compensable injuries under the Kansas Workers’ Compensation Act, or in resolving such matters in the event a dispute arises.” (Emphasis supplied).

The above rather “mandatory” sounding description on the Division’s web page of what Kansas “recognizes” concerning the ODG, does not entirely square with what the Kansas Statutes, Administrative Regulations and published Fee Schedule currently have to say on the subject.

First, there is no reference or mention anywhere in Kansas Workers Compensation Act or Kansas Administrative Regulations relating to workers’ compensation, to Kansas adopting or recognizing the ODG.  Second, if one goes to the current 2008 Kansas Medical Fee Schedule (next to be revised January 1, 2010), one finds on page two, itemized paragraph number “10” the following statement regarding the ODG:  “The Official Disability Guidelines-Treatment in Workers Compensation (ODG) that is published by the Work Loss Data Institute (WLDI) has been adopted as the primary standard of reference for evidence-based medicine used in caring for injured workers. Medical treatment guidelines are not requirements, nor are they mandates; they are to provide advice to help those who make health care decisions regarding the care of injured workers.” (Emphasis supplied).

Clearly the Fee Schedule paragraph quoted above has a specific statement indicating that the ODG is not a requirement or a mandate; instead it is merely advisory.  This language means anyone in Kansas can chose to use the ODG, or ignore the ODG.  As a practical matter in workers compensation litigation before administrative law judges across the State of Kansas, the ODG has not been a source or reference typically used or consulted to assist in the adjudication of medical disputes between employers and claimants before Kansas workers’ compensation administrative law judges.  However, this may be about to change.

At the September 2009 Annual Division of Workers’ Compensation Seminar, there was significant buzz among attendees concerning whether there will be some attempt in the final version of the soon to be revised Kansas Medical Fee Schedule which will go into effect January 1, 2010, to change the current “ODG is only advisory” language, to language making the ODG “mandatory” and “required.”  Another avenue to watch for change is whether proposals will be submitted in the upcoming legislative session to add statutory changes to the Workers Compensation Act explicitly mandating and requiring the use of the ODG in Kansas Workers Compensation.  Stay tuned for more updates on this topic!

May 17, 2007:            Kansas Workers’ Compensation Law Update – Significant 2007 Pro-Employer Change To Kansas Workers’ Compensation Law From The Kansas Supreme Court, But Not From The Kansas Legislature.

1.         Results of the 2007 and 2008 Kansas legislative session.

The 2007 and 2008 Kansas Legislative Sessions ended with no significant legislative change or amendment to the Kansas Workers’ Compensation Act.  Controversial provisions put forward in past legislative sessions by both management and labor went nowhere in 2007 or 2008.

2.         The 2007 Kansas Supreme Court dramatically reverses its 1931 decision of Honn v. Elliott, 132 Kan. 454, 295 Pac. 719 that was the foundation for the “parallel injury rule” that for 76 years served as the basis for bilateral upper-extremity and lower extremity disabilities to be compensated as a general body disability, instead of separate scheduled disabilities.

In Casco v. Armour Swift-Eckrich, 283 Kan. 508, 154 P.3d. 494 (2007 Kan. LEXIS 235), the Kansas Supreme Court issued a dramatic reversal of its own precedent, abandoning the 76 year old “parallel injury rule” that originated from its 1931 decision in Honn v. Elliott.  In summary, the practical significance of Casco is it will likely result in an immediate and significant reduction in the disability compensation cost for employers of many pending and future bilateral upper-extremity and lower-extremity claims.

In place of a detailed technical legal analysis of the sweeping Casco decision, this limited discussion will focus on the likely practical effect this new change in the law will have on your existing and future bilateral upper-extremity and lower-extremity disability claims.

But first, in an effort to quell the shrill “sky is falling” cries from the claimant’s bar, that the Casco decision has tilted the earth off its axis, and eviscerated the essential “grand compromise” forming the basis for the entire Kansas Workers Compensation Act, remember what Casco does not change.  Casco does not change the unlimited lifetime right to payment of all causally related, reasonable and necessary, medical expenses, for all bilateral upper and lower extremity injuries, free of any co-payments or deductibles for injured workers.  Casco does nothing to ease the burden on employers of the cost of lifetime medical expenses for these injuries.  What the Kansas Supreme Court has said Casco will accomplish is bringing everyone back to a point that was originally intended by the legislature when it established the “schedule” of disabilities as the general rule, and “non-scheduled disabilities” (general body disabilities) as the exception for permanent partial disability compensation.

As a practical matter, the real issue involved here is whether “work disability” compensation benefits are available to injured workers with bilateral upper and lower extremity injuries.  Prior to Casco, the routine bilateral carpal tunnel syndrome injury to a high wage earner in Kansas, such as a highly paid aircraft industry worker who does not return to work after the injury, would typically expose the employer to a maximum $100,000.00 permanent partial general body “work disability compensation” award.  Under Kansas law, a general body disability award qualifies at minimum for an award based on the functional impairment, but that functional impairment percentage is but the compensation floor, for the potential ultimate compensation award.  Work disability compensation far in excess of the amount generated by the functional award would become available to the injured worker if he/she was not working at the time of the regular hearing, and that loss of employment was due to their bilateral carpal tunnel injury and disability.

A common pre – Casco 2007 work disability compensation award for a high wage aircraft or other industrial worker with bilateral carpal tunnel syndrome, which generates a 10% whole body impairment rating from the doctor, where the worker could not return to work after being issued permanent work restrictions, would be something similar to the following benefit computation: 415 maximum weeks of compensation x 50% work disability = 207.5 compensable weeks x $483 maximum compensation rate = $100,222,50.  This amount would automatically be reduced down to the $100,000.00 cap for any permanent partial general body disability.

While upper-extremity injuries generate “scheduled disabilities” under the Kansas statute, following the 76 year old pre – Casco “Honn precedent,” workers compensation administrative law judges would never have given the time of day to an argument by an employer that permanent disability compensation for bilateral carpal tunnel syndrome should be limited to that available to two separate scheduled disabilities.  The pre – Casco bilateral carpal tunnel syndrome awards would have almost always been calculated based on the much more economically generous general body work disability compensation entitlement formula.

After Casco, that same aircraft worker with a bilateral carpal tunnel syndrome injury with a functional impairment rating of 10% to each upper-extremity would likely receive something similar to the following permanent disability compensation benefit computation: Right Upper-Extremity: 190 maximum weeks x 10% impairment = 19 compensable weeks x $483 maximum weekly compensation rate = $9,177.00; Left Upper-Extremity: 190 maximum weeks x 10% impairment = 19 compensable weeks x $483 maximum weekly compensation rate = $9,177.00.  Adding together the right and left awards would result in a total permanent scheduled disability compensation award of $18,354.00.

In summary, this hypothetical illustrates that the pre – Casco bilateral carpal tunnel syndrome disability compensation award would likely cost the high wage paying employer $100,000.00 in permanent disability compensation benefits; whereas, under the Casco separate schedule disability compensation award, the same set of injuries would cost the employer $18,354.00.

One post Casco caveat regarding single injury (as opposed to repetitive micro-trauma injury) bilateral carpal tunnel and other similar combination extremity disability claims – under the plain language of the Kansas permanent total disability compensation statute, such combination disability claims could potentially, under certain fact situations, be presumed to constitute a $125,000.00 permanent total disability compensation award.  It can be expected that in certain currently pending, and future, bilateral upper and lower-extremity cases, claimants will utilize the plain language of the permanent total statute, and attempt to procure a $125,000.00 disability compensation award by invoking the permanent total disability presumption by putting on evidence that the worker is essentially and realistically unemployable from any type of substantial gainful employment because of the injury.  It is critical in such currently pending cases, and future cases, for the employer to put on evidence to rebut the presumption by putting on evidence that the claimant is capable of engaging in some type of substantial and gainful employment.

Employers should also be on the alert for separate body part conditions to be “combined” into a “single injury” via the “secondary injury” theory.  The “secondary injury” theory allows a subsequent, but separate, body part problem to be combined with the original injured body part via the “natural and probable consequence” rule to turn an otherwise inexpensive scheduled disability into a $125,000.00 permanent total disability compensation award.  An example of this would be a left knee injury that later causes an aggravation of a preexisting right knee condition.  Here the claimant would be favoring the original injury to the left knee, resulting in the “secondary” injury to the right knee by overcompensation.  Under the “secondary injury” rule, the right knee problem becomes a compensable injury and the date of this right knee injury relates back to the date of the original left knee injury via the natural and probably consequence doctrine.  The key for employers to avoid this often hidden but dangerous exposure is to always present lay and/or expert testimony that claimant is capable of engaging in some type of substantial and gainful employment.

In short, employers must now pay close attention to any bilateral or combination injury claims to see that they are properly compensated as separate scheduled disabilities, and if they are alleged as a single injury either directly, or indirectly through the “secondary injury” rule, that there is evidence to rebut the permanent total presumption that the claimant is incapable of engaging in any type of substantial and gainful employment.

Bernard Kent v. Diamond Shine Management Services, Inc. and United Heartland, Iowa Court of Appeals No. 2-064 / 11-1041

The Claimant, Bernard Kent, began work with the Defendant in 2000. Prior to that he had held jobs stocking shelves, repairing pallets, operating a forklift, working a production line as well as cooking and bartending. Since 2005, the Claimant’s duties with the Defendant including clearing floors at Target and Shopko stores in Nebraska and Minnesota and Fareway stores in Iowa.

On April 30, 2006, the Claimant injured his left and right shoulders during his employment. In May of 2006, he was diagnosed with tendonitis bursitis in the right shoulder and the emergency room. He was subsequently seen by Dr. Westpheling who diagnosed the Claimant with possible right shoulder tendonitis with possible right cervical radiculitis. An MRI subsequent to that diagnosis showed moderate degenerative changes in the AC joint.

As the Claimant did not experience any significant improvement, Dr. Westpheling referred the Claimant to Dr. Fabiano in June of 2006. Dr. Fabiano diagnosed the Claimant with shoulder pain and AC joint degenerative disease related to his May 2006 injury. He was then referred to Dr. Kim who gave the Claimant prolotherapy injections.

On November 9, 2006, Dr. Westpheling found the Claimant to be at MMI and gave him permanent work restrictions. In response to an inquiry from the employer’s insurer, Dr. Westpheling stated the Claimant had zero percent impairment. After an arbitration petition was filed, the Claimant was seen by Dr. Miller on referral by the Claimant’s attorney. Dr. Miller diagnosed the Claimant with degenerative arthritis of the AC joint bilaterally and carpal tunnel syndrome bilaterally. He then gave the Claimant twelve percent impairment to his right upper extremity and eight percent impairment to the left upper extremity.

The Claimant was subsequently re-seen by Dr. Miller in December of 2007 who assigned ten percent impairment to the Claimant’s right upper extremity and six percent impairment to the left (six and four percent body as a whole respectively). Dr. Westpheling concurred with these findings in January 2008 but noted that Claimant had not complained of left upper extremity pain in his May 2006 visit. These impairment ratings were also agreed to by Dr. Fabiano.

The Claimant was also seen by a vocational expert in December 2007 who opined that the Claimant did not currently possess the necessary capacities for competitive employment in the labor market. Based upon this, the Claimant moved to amend his petition to assert the odd-lot doctrine which was resisted by the Defendants as they would not have time to prepare before the February 2008 hearing. The deputy commissioner subsequently denied this motion.

At hearing, the deputy found that the Claimant had sustained a loss of earning capacity of forty percent. The deputy found that neither party’s vocational expert had provided ‘reliable, probative evidence.’ The case was appealed to the commissioner who found the deputy failed to take into account the Claimant’s disability in his arms as well as shoulders. The commissioner then increased the award to seventy percent disability. He did however endorse the deputy’s refusal to see the matter as an odd-lot claim.

On appeal to the district court, the court remanded the decision stating the decision was not sufficiently detailed to enable the court to consider whether there is substantial evidence to support the 70% disability rating, and that “it was arbitrary for the agency to refuse to consider” the odd-lot claim due to its untimely filing fifty-five days before the hearing.

On remand the Commissioner noted that the appeal decision identified the relevant factors of industrial disability at issue in this matter and thereafter concludes that the factors are evidence that claimant has “some residual ability to compete for employment positions in the competitive labor market.” The Commissioner also determined the Claimant failed to prove a prima facie case of total disability and that Diamond Shine proved the Claimant could find employment elsewhere in the community, and therefore the Claimant was not an odd-lot employee.

The case was again appealed to the district court which determined the seventy percent disability was based on an erroneous interpretation of the law and that the Claimant was “entitled to a finding of total disability under the odd-lot analysis.”

On Appeal, the Court of Appeals first noted that loss of earning capacity is determined by “the employee’s functional impairment, age, education, work experience, qualifications, ability to engage in similar employment, and adaptability to retraining to the extent any of these factors affect the employee’s prospects for relocation in the job market.” The Court noted that the commissioner reviewed all these factors in his decisions and found that the Commissioner’s finding of seventy percent disability was supported by substantial evidence.

Of particular note to the Court was that the Claimant had continued to work two jobs at the time of hearing as well as the deputy’s interpretation of the parties’ vocational witnesses’ testimony being skewed towards the respective party for which they were retained. The Court found that both the Deputy and Commissioner both addressed all the factors affecting the industrial disability determination and explained their reasoning. The Court finally stated that “although reasonable minds could differ when measuring the extent of Kent’s industrial disability, we find substantial evidence to undergird the agency’s decision.”

The Court then examined the commissioner’s finding that the Claimant was not an odd-lot employee. The Court first noted that if an individual is able to perform only those services “so limited in quality, dependability or quantity that a reasonably stable market for them does not exist,” courts will consider the odd-lot worker to be totally disabled. The Court found that in making its determination, the Commissioner had relied on the opinion of one vocational expert more so than another. The Court found that the district court had stepped outside its role by substituting its own credibility finding for that of the commissioner when it determined that the Claimant was in fact an odd-lot employee. Ultimately, the Court found that the commissioner’s finding was supported by substantial evidence.

The final issue addressed by the Court was whether the commissioner’s refusal to grant the Claimant’s request for payment of its vocational expert was proper. The Claimant had sought payment of these fees based upon the admittance of the Defendant that the Claimant had sustained a cumulative trauma to his right shoulder but refusal to compensate the injury. The Claimant argued this caused him to have to retain the vocational expert. The Commissioner however noted that the vocational expert’s opinion related to the extent of the disability, not to its nature.

The Court found that the costs of retaining the vocational expert as a consultant were not “reasonable expenses incurred” in proving the truth of the matter at the heart of the request for admissions. The Court finally added that they found it more likely that the Claimant had hired the vocational expert to prove additional issues in the case—such as the Claimant’s odd-lot claim and his ability to gain future employment—and not to prove the threshold claim that he was entitled to relief; as such he was not entitled to payment of the expert’s fees.

Refugio Orozco Serratos v. Tyson Foods, Iowa Court of Appeals, No. 2-103 / 11-1186

The Claimant began his employment with Tyson in November of 1990 when he was 48 years old. The Claimant claimed that the janitorial staff and cleaning crew at Tyson left a chemical residue on machines he touched, which irritated his breathing. He further claimed that water vapor and fumes from the animal parts bothered him as well. The manager said the plant’s cleaning crew members used detergents and chlorine products, but they were required to rinse the machines to avoid contaminating the meat.

It was noted that the Claimant was a cigarette smoker, however there was conflicting evidence regarding the extent and duration of the habit. The deputy found it to be one to three packs daily for four years.

In 1996 the Claimant began complaining of difficulty breathing and similar symptoms. These complaints continued over the next two years and ultimately the Claimant was diagnosed with asthma. In 1998, the Claimant filled out of form for injury/illness which reported difficulty breathing related to work areas and vapors from machines. He also had an episode where he collapsed at a rest area. He was taken to the ER in Iowa City and was diagnosed by Dr. McBride as having reactive air-ways disease or COPD. He was instructed to wear a mask to complete his duties as a butcher.

Subsequent clinical appointments produced mixed diagnoses. Dr. James Merchant concluded Refugio’s asthma was related to his occupation and that he should not be exposed to his current working environment. Dr. Dale Minner found Refugio’s condition was not caused by his work environment, but that he should nonetheless avoid laboring in the cold. Following these diagnoses, the Claimant was transferred to a “hot side” of the plant.

Over the next nine years, the Claimant would continue to seek periodic treatment related to COPD. The Claimant filed a claim with Tyson in July of 2005, alleging another incident of inhaling ammonia and chemicals. This claim was denied by Tyson based on medical records showing The Claimant had been exposed to “lots of smoke” at a party he attended on July 3, 2005. The Claimant subsequently took an extended leave of absence in 2006 and Tyson was informed by Dr. Bedell that the Claimant was permanently disabled and would not be coming back to his job. The Claimant was then terminated.

The Claimant filed his petition in August of 2007 alleging that he had sustained an occupational disease (per Iowa Code 85A, specifically related to occupational diseases) on May 10 of 2006. The Claimant was seen by Dr. Conte, a cardiovascular thoracic surgeon, who opined that the Claimant suffered from COPD, but identified its cause as chronic exposure to tobacco and heavy dust. He testified at the hearing that he could not recall any documented case of COPD caused by pure water vapor.

Dr. Thomas Hughes performed an independent medical examination of Refugio. Dr. Hughes testified that steam or water vapor did not cause COPD, though it could exacerbate it, and that a cold environment would be worse than a warm setting for the condition. Dr. Hughes produced a detailed report of his impressions, concluding Refugio’s exposure to irritants in the work place aggravated his respiratory condition, but that non-occupational activities likely caused his condition.

On September 30, 2009, the deputy issued an arbitration decision, denying Refugio’s claim because he did not show a connection between his work environment and his COPD. Refugio appealed to the commissioner, who affirmed the denial. On judicial review, the district court affirmed the agency decision.

On Appeal, the Court of Appeals first noted that the Claimant must show: (1) his occupational disease was causally related to the exposure to harmful conditions of his field of employment, and (2) those harmful conditions were more prevalent in his employment than in everyday life or in other occupations. The Court found that The commissioner concentrated on the opinion of the claimant’s own expert, Dr. Hughes, and concluded that Dr. Hughes provided “significant evidence” that Refugio’s COPD resulted from “a hazard to which claimant would have been equally exposed outside of his occupation.” The Court also found that the commissioner pointed out that Refugio did not show that “he and his fellow workers were exposed to any risk that resulted in anyone else working with claimant to develop or suffer from COPD.” Similarly, Refugio offered “no evidence that employees who work in meat processing facilities are routinely subject to a risk resulting in the development of COPD.”

The Court stated that their conclusion was the same as that of the district court, which acknowledged while “there is some evidence here to support the Claimant’s contentions, there is also certainly evidence in the record to support the findings actually made by the Commissioner.” In this situation, the Court’s task is not to determine whether the evidence supports a different finding; “rather, our task is to determine whether substantial evidence, viewing the record as a whole, supports the findings actually made.” Ultimately, the Court found that the Commissioner’s findings were supported by substantial evidence. The Court concluded the commissioner appropriately weighed the evidence, and concluded the greater weight of the evidence supported the deputy’s determination that medical evidence did not satisfy the claimant’s burden to show causation.

The Court then next had to determine whether the deputy’s analysis of the Claimant’s COPD as an injury rather than a disease warranted reversal. While the Court acknowledged the analysis for a disease claim differs from that of an injury claim, any error in this case was cured by the commissioner applying the occupational disease analysis on review. In so finding, the Court had to determine whether the Claimant was prejudiced by the Commissioner’s alternative endorsement of the deputy that COPD could also be analyzed as an injury.

Ultimately the court found no prejudice as substantial evidence undergirds the commissioner’s determination that the Claimant’s COPD did not qualify as an occupational disease. The Court stated the Claimant had the benefit of the commissioner’s application of the proper legal test to the deputy’s fact-finding. Because the commissioner’s alternative endorsement of the deputy’s lapse into an injury-based analysis did not ultimately impact the Claimant’s substantial rights, the Court found the agency decision should stand.

Call Mark Bosscher or Lee Hook with any questions @ 515-243-2100.  We’d be happy to help, whether it be a quick or a complex issue!

It appears that a U.S. District Court in Florida convicted a former Florida postal worker of health care fraud after she was caught participating in more than 80 long-distance races, including the Boston Marathon, all while taking workers compensation for a back injury.

55-year-old Jacquelyn V. Myers was also convicted of making false statements and faces up to 15 years in prison. Her sentencing is scheduled for July 25.

In May 2009, Myers claimed to have a lower back injury that prevented him from delivering the mail as part of her job. She was relieved of her mail carrying responsibilities and put on “light duty.”

However, photos and videos emerged showing Myers participating in the races, including a triathlon. And in what would ordinarily be considered good news, her race times actually improved after she made her initial injury claim.

Must have been quite the postal route if marathons qualify as light duty!