State News

October Surprise

DWC is putting on its annual Texas Workers’ Comp Conference October 22nd and 23rd in Austin and registration is still open. It is the “go to” event in the Fall every year for anyone involved in the workers’ compensation process. A featured speakers is Mark Pew who is well respected as one of the developers of the excellent Workers’ Comp College educational platform, for which SLS is the Texas contributor.  Check it out here.
 

Copyright 2024, Stone Loughlin & Swanson, LLP  

BRCs Continue to be Zoomies

We couldn’t resist this cartoon!  The Fall is also the time carriers are asking SLS for Zoom training meetings, which made this especially relevant to those of us who teach!

Copyright 2024, Stone Loughlin & Swanson, LLP  

DWC Plugs Leak in the Subsequent Injury Fund

DWC has proposed a rule addressing a little-known problem.  In some circumstances SIF can issue Lifetime Income Benefit payments to an employee who meets the criteria.  Of course the employee must be alive to receive them.  This new rule proposal protects the Fund by providing a process to verify that a LIBs recipient is still among the living before the payments are issued.  Public comments are being accepted to proposed Rule 131.5. (CITE)
 

Copyright 2024, Stone Loughlin & Swanson, LLP  

Welcome to ALJ Liesman

Attorney Colby Liesman is reported to be the newest ALJ to come on board at the agency.  He got his law degree at the Florida Coastal School of Law in 2017 and was licensed to practice law in Texas in 2018.  Prior to his employment at the agency, his practice areas included business, criminal, family and probate law.  His wide range of expertise will serve him well in his new role dealing with claimants,  the administrative process, and the lawyers who practice the interesting and complex field of workers’ compensation. Welcome, Judge Liesman!
 

Copyright 2024, Stone Loughlin & Swanson, LLP 

VNA of St. Luke’s Home/Hospice, Inc., v. Ortiz (WCAB) A.3d. No. 1312 and 1362 C.D. 2022 (Pa Cmwlth. 7/23/2024)

Holding- Under Section 413(a) of the Pennsylvania Workers Compensation Act, an employer who initially agrees to a Stipulation of Facts can set aside the Stipulation if it is shown that the Claimant/employee falsely provided information material to the Stipulation. Claimant, Elizabeth Ortiz was an administrative assistant who initially claimed a November 2017 work injury in the form of a left shoulder strain alleging that she fell while attempting to sit on a chair and injured her shoulder. In May of 2018, the Employer issued a notice of temporary compensation payable (NTCP) accepting a left shoulder strain. In June 2019, the Claimant filed a claim petition seeking to expand the work injury to a left shoulder rotator cuff tear and biceps tendon injury. In September 2019, the parties entered into a Stipulation of Fact, approved by the trial judge, for additional injuries, specifically a full thickness tear and a biceps tenodesis of the left shoulder. While Claimant was being paid total disability benefits in October 2020 and January 2021 the employer filed two Modification petitions asserting that Claimant had failed to respond to modified-duty job offers that would have paid her wages less than her average weekly wage. In the course of litigating the Modification petitions, newly discovered medical records disclosed to the Employer revealed that a left shoulder rotator cuff tear and biceps tendon injury pre-existed the November 2017 work accident. The Employer sought to set-aside the Stipulation of Facts accepting the expanded injury description based on the newly uncovered medical records. The WCJ had found that the Claimant repeatedly under oath falsely denied having suffered and being treated for the stipulated before the work accident. The Judge ruled that, inter alia, Employer’s request to set aside the September 2019 stipulation of facts was denied for lack of sufficient competent evidence. The Employer appealed to the WCAB, but the Board affirmed the WCJ’s refusal to set aside the stipulation. The Board treated the matter as a legal issue, as one of waiver, determining that there was no indication that the Employer lacked the opportunity to fully investigate the challenged finding before entering into the stipulation and that it failed to act properly in seeking relief. The Employer appealed to the Commonwealth Court who noted that this case boils down to how much an employer is expected to do by way of investigation and within what timeframe when a claimant misrepresents her condition and/or existence of prior injuries. The Court in an opinion written by Judge Leadbetter noted “turning to the extent to which Employer should have conducted a more rigorous investigation before entering the stipulation, it bears repeating that Claimant time and again misled Employer, her own surgeon, and the workers compensation tribunal as to pre-existing left shoulder issues. It was noted that the Employer was not seeking to set aside its original acceptance of the work injury (left shoulder strain). It was disingenuous for the Claimant to attempt to shift blame for her repeated misrepresentations when such false statements had the practical effect of complicating the proceedings. The Court reversed the Board in deciding that the stipulation could be set aside based on the false statements by the employee.

Paul C. Cipriano Jr., Esquire

Rulis & Bochicchio, LLC 

On August 16, 2024, the Alabama Court of Civil Appeals released its opinion in Victoryland v. Patricia Dianne Arnold wherein it addressed the Successive Compensable Injury Test.  Specifically, it affirmed the trial Court’s judgment that a subsequent motor vehicle accident that exacerbated the Employee’s compensable low back injury did not qualify as the type of intervening event that would relieve the Employer from its responsibility to provide medical benefits. 

The trial Court considered the Employer’s motion for relief from future responsibility based on an MVA that occurred approximately 9 years after the Court approved a workers’ compensation settlement concerning the low back which left medical benefits open. It also considered evidence that the Employee was deciding whether to proceed with a third low back surgery at the time she was involved in the MVA. The Employee testified that the accident resulted in exacerbated low back pain that radiated down into both legs.

The Employee took a position in the MVA lawsuit that her low back condition was exacerbated as a result of that accident. In the Workers’ Compensation matter, the Employee took the position that, despite the exacerbation, her Employer should remain on the hook for medical benefits. The trial Court denied the Employer’s motion for relief and so it appealed the decision.

On appeal, the Court of Appeals did not agree with the Employer’s position that the Employee was judicially estopped from taking inconsistent positions in the workers’ compensation case and the MVA case. Specifically, it was the Employer’s position that since the Employee alleged a permanent exacerbation of her low back as a result of the MVA in one proceeding that she could not also assert that an intervening event that severed the chain of causation had not taken place in another proceeding. The Court disagreed with the Employer’s position by stating that the positions, while inconsistent, were not so inconsistent as to warrant applying the Doctrine of Judicial Estoppel.

The Court also considered the Employer’s position that an MVA is not the type of routine event or “customary activity” that would allow the Employee to connect her current need for medical benefits to the original workers’ compensation claim under the Successive Compensable Injury Test (a test which states generally that employer is not relieved of responsibility when it is established that the later injury is the direct and natural result of the compensable work injury).   

The Court noted that an MVA is an unusual traumatic event and pointed out that case law cited in the briefs did not address whether such events should be treated as intervening causes. The Court expanded its research beyond the cases cited by the parties to consider a case specifically involving an MVA wherein the Plaintiff filed a petition seeking an order compelling medical treatment after the Defendant denied treatment following the accident. In that case, the trial Court denied the Plaintiff’s motion and the Court of Civil Appeals reversed that decision. 

Although it did not state as much, the Court applied what amounted to a reverse eggshell doctrine theory.  The “eggshell doctrine” states that you take the plaintiff as you find him or her, for purposes of determining damages.  It provides that plaintiffs who are far more susceptible to a particular harm than the average person may nonetheless recover their full damages without reduction. So applying the eggshell doctrine in the MVA case allowed the employee to maximize her recovery against the third party driver.  In the Victoryland opinion, however, the Court relied on a reverse application because it found the Employee was more susceptible to a particular harm (aggravation to the compensable low back) than the average person.  So, in the liability case, her eggshell condition put responsibility for the increased damage on the liable 3rd party and, in the workers’ compensation case, that same condition put the responsibility on the Employer. 

My Two Cents: While the Court did not say as much, this type of situation really comes down to the specific facts of a case. The seriousness of the pre-existing condition versus the seriousness of the “unusual traumatic event.” Other factors to consider would be whether or not the injured Employee was actually acting in a routine and customary manner at the time of the accident. In the Victoryland case, it was noted that the Employee was driving her two grandchildren and so she was not likely to have been driving in a unsafe or erratic manner. However, in situations where the driver was driving in an unsafe manner, that could certainly be used in support of a motion for relief from future liability of medical benefits. 

A Few More Cents: Of note, the Employer formerly asserted its subrogation rights in the MVA case. The Employer continued to pay for the low back injury medical treatment and, when the Employee recovered from the other driver in the motor vehicle accident case, the Employer received $46,950.81 in satisfaction of its subrogation lien. The lesson to be learned here is that the right to a subrogation recovery and the statutory right to reimbursement can extend to any event involving third-party liability that increases the amount or duration of medical benefits in your workers’ compensation case. 

About the Author

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

What better way to celebrate the Dog Days of Summer than to pay tribute to the time-honored tradition of the Dog Show? 

TOY GROUP

Courts of Appeal Toy with Exclusive Remedy

How Exclusive is “Exclusive”

The stage is set for the Supreme Court of Texas to weigh in on whether a plaintiff can bypass the DWC adjudication process and, instead, have a trial court consider the merits of a defendant’s exclusive remedy defense in a plaintiff’s personal injury lawsuit.
 
The courts are now officially split on the issue.  In January of 2023, the 13^th Court of Appeals decided UTRGV v Oteka, and decided Ms. Oteka did not need to exhaust her administrative remedies with the DWC before filing her personal injury suit and the trial court had jurisdiction to deny UTRGV’s plea to the jurisdiction.  No. 13-22-00063-CV, 2023-WL 413587 (Tex. App. – Corpus Christi – Edinburg Jan. 26, 2023, pet. filed) (mem. op.)   Noting UTRGV had not had the merits of the exclusive remedies defense considered by the trial court, instead moving for dismissal on the grounds that the course and scope issue was the exclusive jurisdiction of the Division, the Valley Court of Appeals concluded that “Oteka’s suit is not based on the ultimate question of whether she is eligible for workers’ compensation benefits.  As we previously observed, it is ‘just the opposite, if [Oteka’s] injury is compensable, this would likely bar [her]suit pursuant to the exclusive-remedy defense.’”
 
Fast forward to August 20, 2024, when the 1^st Court of Appeals in Houston took the completely opposite position.  The Houston Court spent quite a bit of time unpacking the Texas Workers’ Compensation Act and the legal precedent supporting their holding that failure to exhaust the administrative remedies required by the Act deprived the trial court of subject matter jurisdiction over the personal injury lawsuit filed by the plaintiff in In Re Prentis, a mandamus action filed by the defendants in a personal injury suit filed by Desi Sykes arising out of claimed work injury. (No. 01-23-00616-CV, 2024 WL 3862953(Tex. App. – Houston [1^st. Dist] August 20, 2024).

The 1^st Court of Appeals reasoned that the Act vested the Division with the sole authority to determine whether an employee sustained a compensable injury thereby entitling him to workers’ compensation benefits and that same Act provides the mechanism for resolving disputes regarding those claimed injuries. 
 
Sykes’ thought that the fact that whether he was injured in the course and scope of his employment was “hotly contested” conferred jurisdiction on the trial court and allowed him to bypass the DWC administrative process.  The 1^st Court disagreed.  The Court of Appeals held, to the contrary, that the Legislature conferred exclusive jurisdiction on the DWC “to consider in the first instance the question of compensability, including the question of course and scope” and Sykes failed to exhaust his administrative remedies, necessarily depriving the trial court of jurisdiction over the matter.  The 1^st Court determined abatement, rather than dismissal was the appropriate remedy, pending the exhaustion of Mr. Sykes’ administrative remedies.  The 1^st Court conditionally granted the Petition for Mandamus feeling confident the trial court would vacate its order denying the Plea to the Jurisdiction and issue and order abating the case in accordance with its holding.
 
With the Courts of Appeal in a dogfight over this exclusive remedy issue, the Supreme Court is primed to bring the issue to heel once and for all.

Administrative Violations Don’t Defeat Exclusive Remedies Defense

Meanwhile, over in Cowtown, the Fort Worth Court of Appeals, upheld a trial court’s summary motion judgment in Lane v. Odle, 2024 WL3897109 (August 22, 2024).  Mr. Lane filed a third-party suit and Odle, Inc., filed a summary judgment motion in district court alleging an exclusive remedy defense, presenting all kinds of evidence of Mr. Lane’s employment status.  The trial court granted the summary judgment.
 
Lane’s arguments in support of his defense of the summary judgment included: the failure of Odle to prove TDI had approved its workers’ compensation policy; the failure of Odle to offer evidence that it was authorized to write workers’ compensation insurance in Texas; and, Odle’s failure to show it was a registered subscriber with TDI.  The Fort Worth Court held that in order to prevail, Odle had to show that Mr. Lane was its employee at the time of the injury and was covered by its workers’ compensation insurance policy.
 
The Court pointed to numerous pieces of uncontroverted evidence, including Mr. Lane’s own petition in which he asserted he was an employee, in support of the affirmative defense and defeat of the no-evidence grounds.  The Court then looked to the shifted burden and discussed the fact that rather than attaching evidence raising a genuine issue of material fact, Lane complained that there was no evidence the workers’ compensation insurance policy was approved by TDI and that Odle’s parent company failed to register with DWC – facts that amounted to administrative violations – not facts that would overcome Lane’s evidentiary burden.  The Fort Worth Court of Appeals cited other Texas courts who have held an administrative violation does not affect an employer’s ability to satisfy the employer element of the exclusive remedy defense.
 

WORKING GROUP
 

The Appeals Panel was busy this month – and by busy, I mean they wrote three decisions, which lands them squarely in the Working Dog Group.
 
In APD 240974, they reversed and remanded an ALJ who made a material error in the statement of the evidence when determining a claimant didn’t have disability.  When adding up the claimant’s earnings for the relevant disability periods, the ALJ apparently got the math wrong and the Appeals Panel remanded the case to allow the ALJ to dust off her trusty calculator and try again.
 
In APD 240839 and APD 240805, the Appeals Panel reversed ALJs who got it right on extent of injury, but subsequently adopted designated doctor certifications of MMI/IR that included conditions that they themselves determined were not compensable.  The Appeals Panel pointed out that this is a no-no and overcomes the presumption afforded said designated doctor.  In 240839, happily there was another certification that rated the compensable injury and the Appeals Panel was able to render a decision on MMI/IR.  In 240805, however, there was no other certification that rated the compensable injury, as defined by the Division after the CCH, and the Appeals Panel had no choice but to remand for the ALJ to send the case back to a designated doctor to rate the compensable injury only.
 

SPORTING GROUP
 

BE A SPORT!! REGISTER NOW! FOR THE 5^TH ANNUAL Kids’ Chance of Texas Golf Tournament – October 28, 2024 – Shotgun start 1:00 p.m. – The Lakes at Castle Hills, Lewisville, Texas
 

HOUNDS

Licensing board hounding you to get your hours in?  Here’s a great opportunity to rack up some CE credit and learn a few things while you are at it:  NWCDN’s Annual Conference in Denver September 26, 2024 – BONUS: It’s free to SLS clients 😊 – Check out the Agenda here.
 

TERRIERS
 

The Division is like a dog with a bone when it comes to sending out information and they just introduced a new way to do just that - the DWC Texas Comp Update. Check it out here.

HERDING GROUP
 

The Division is herding everyone together on September 5, 2024 at 2:30 p.m. for a Hybrid Insurance Carrier/Health Care Provider Quarterly Meeting. For more information about this and future hybrid stakeholder meetings, including dates and times and Zoom links, see here.
 

NON-SPORTING GROUP

A few participants found themselves in the doghouse with the Division recently which landed them in the non-sporting group. 

 
One claimant’s attorney, was directly paid attorney fees by the Carrier by virtue of winning a disputed SIBs quarter.  He failed to timely pay back said Carrier when ordered by the DWC following a CCH requested by the Carrier to dispute the amount of those fees.  The DWC felt 1,857 days was far too long to pay back the owed fees, regardless of any mitigating circumstances, fined him $10,000 and ordered him to attend 6 hours of ethics.
 
An RME doctor, who was ordered by the DWC to perform an extent of injury examination, apparently threw in an MMI/IR certification as well and completed a DWC-69 and report, which was entitled “Peer Review/Impairment Rating.”  The Division fined the doctor $500.00 for improperly certifying MMI/IR when not being ordered to do so, and for certifying MMI/IR without an examination (although there clearly was some kind of examination), and for assigning a prospective MMI date.
 
A carrier is on a short leash with the DWC when it comes to lifetime and death benefits.  The Division, noting the harm in failing to timely pay LIBs and death benefits to injured employees and their beneficiaries under particularly stressful circumstances, fined the Carrier $19,000 for a variety of violations related to the administration of death and LIBs benefits.
 
Finally, a Carrier who determined there were no beneficiaries in a death case waited 84 days too long to send that money to the SIF.  Turns out, that dog won’t hunt – the Carrier was fined $32,000! 
 
It’s a dog-eat-dog world in workers’ comp so keep your nose clean (and out of your neighbor’s tail) and remember, every dog has his day.
 

BEST IN SHOW
 

From time to time, we all hear some interesting - and let’s face it - entertaining stories in our line of work.  Our Best In Show entry is designed to put a smile on your face as you slough off the August heat and, hopefully, welcome some cooler fall days. 
 
While reviewing a BRC report recently, our own Robert Greenlaw came across a most peculiar injury for which he was unable to find a corresponding ICD-10 code – a lumbar disc bugle!  As Rob put it, “wouldn’t want to hear him play that…”
 

Copyright 2024, Stone Loughlin & Swanson, LLP 

TO: NWCDN STATE NEWS

BY: Dill Battle, Spilman Thomas & Battle, PLLC

With assistance from clerks Carter Capehart, Taiesha Morgan, and Alan Parsons

DATE: August 28, 2024

RE: West Virginia Workers' Compensation News

West Virginia Supreme Court of Appeals

Permanent Partial Disability Calculations and Whole Person Impairment

In the Spring Term of Court in 2024, two decisions by the West Virginia Supreme Court of Appeals have significant impact on apportionment calculations of preexisting awards and conditions in workers’ compensation claims.

Logan-Mingo Area Mental Health, Inc. v. Lester, 902 S.E.2d 768, 2024 WL 2890070 (W. Va. 06/10/2024)

In Lester, the Court clarified the proper usage of the Combined Values Chart of the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition to calculate permanent partial disability (PPD) when the claimant has a definitely ascertainable preexisting impairment. Although the holding was narrow, the case has significant impact on the methodology of PPD calculations.

Lester had a previous workers’ compensation injury  in 1999 resulting in a 20% PPD award after application of the Combined Values Chart combining a 14% whole-person impairment for his lumbar spine, and a 7% impairment for his thoracic spine. In 2017, Lester again filed a claim from a fall resulting in more impairment to his lumbar spine and thoracic spine, together with additional impairments to his cervical spine, left shoulder, right knee, and left knee.

After achieving maximum medical improvement for these new injuries, Dr. Bruce Guberman calculated the following whole person impairment: 8% for the cervical spine; 8% for the lumbar spine; 7% for the thoracic spine; 4% for the left shoulder; 4% for the left knee; and 4% for the right knee. He combined these calculations for a total whole-person impairment of 30% when properly applying the Combined Values Chart on page 322 of the AMA Guides Fourth Edition. Dr. Guberman, however, offset the previous lumbar and thoracic spine injuries before combining the impairments which resulted in a 19% whole-person impairment from the new injuries. When added with the previous award, this would mean that Lester would receive compensation for 39% PPD even though he only had a whole-person impairment of 30%.

Dr. Rebecca Thaxton performed her own assessment of Lester’s injuries and used a different method of calculating whole-person impairment. She agreed with the total impairment of 30% and then deducted the 20% previous PPD award, resulting in 10% attributable to the new injuries. Lester was awarded 10% PPD in the new claim, which award was affirmed by the Workers’ Compensation Office of Judges (OOJ) but reversed by the Board of Review (BOR) which granted the 19% PPD award.

The Supreme Court of Appeals reversed the BOR and upheld the 10% PPD award granted by the OOJ. In ruling that Dr. Guberman’s methodology was improper, the Court found it dispositive that Lester would receive an award that was 9% higher than his total whole-person impairment. They also held that Dr. Thaxton’s methodology was the proper usage of the Combined Values Chart when offsetting prior awards.

The Court described the correct calculation method in Syllabus Point Two of the decision:

When a claimant has preexisting, definitely ascertained impairments to multiple body parts and then sustains new compensable injuries that affect the previously impaired body parts, the proper method for apportioning the preexisting impairments is to first determine the claimant's total, unapportioned whole-person impairment using the Combined Values Chart of the American Medical Association's Guides to the Evaluation of Permanent Impairment (4th ed. 1993). Then, the total amount of the claimant's preexisting impairment that has been definitely ascertained must be deducted from the total, unapportioned whole-person impairment to calculate the amount of the claimant's Permanent Partial Disability award.

Syl Pt. 2, Logan-Mingo Area Mental Health, Inc. v. Lester, 902 S.E.2d 768, 769 (W. Va. 06/10/2024).

This opinion has significant impact on workers’ compensation claims when the claimant has been granted prior awards, and emphasizes a stronger weight on those previous awards.

Duff v. Kanawha County Comm’n, No. 23-43, 2024 WL 1715166 (W. Va. 04/22/2024)

The West Virginia Supreme Court of Appeals handed down another opinion with significant impact on claims involving the apportionment of preexisting impairment from prior injuries. In Duff, the Court adopted a stricter definition of “definitely ascertainable” as it appears in West Virginia Code § 23-4-9b, resulting in a shifting of the burden of proof to the employer when asserting the existence of prior impairments.

After Duff was injured on the job, he was granted a 13% permanent partial disability award. This was based upon a medical report by Dr. Prasadarao Mukkamala calculating 25% whole-person impairment in the lumbar spine with 12% apportioned to preexisting conditions arising from a long history of back problems in the lumbar and thoracic spine. This award was affirmed by the Workers’ Compensation Board of Review (BOR), and the West Virginia Intermediate Court of Appeals (ICA).

The Supreme Court of Appeals reviewed the findings of three doctors who examined Duff with an eye on the depth of analysis regarding any preexisting conditions and any resulting apportionment. In order to examine the reports, the Court felt it necessary to define the term “definitely ascertainable” in the applicable governing statute W. Va. Code § 23-4-9b which reads as follows:

Where an employee has a definitely ascertainable impairment resulting from an occupational or a nonoccupational injury, disease or any other cause, whether or not disabling, and the employee thereafter receives an injury in the course of and resulting from his or her employment, unless the subsequent injury results in total permanent disability within the meaning of section one, article three of this chapter, the prior injury, and the effect of the prior injury, and an aggravation, shall not be taken into consideration in fixing the amount of compensation allowed by reason of the subsequent injury. Compensation shall be awarded only in the amount that would have been allowable had the employee not had the preexisting impairment. Nothing in this section requires that the degree of the preexisting impairment be definitely ascertained or rated prior to the injury received in the course of and resulting from the employee's employment or that benefits must have been granted or paid for the preexisting impairment. The degree of the preexisting impairment may be established at any time by competent medical or other evidence. Notwithstanding the foregoing provisions of this section, if the definitely ascertainable preexisting impairment resulted from an injury or disease previously held compensable and the impairment had not been rated, benefits for the impairment shall be payable to the claimant by or charged to the employer in whose employ the injury or disease occurred. The employee shall also receive the difference, if any, in the benefit rate applicable in the more recent claim and the prior claim.

W. Va. Code § 23-4-9b (emphasis added).

The Court read the term “definitely ascertainable” to require a medical expert to offer thorough justification for a conclusion that the claimant had a preexisting condition that warranted apportionment, with the AMA Guides offering the appropriate method of calculation. The Court also read this statute to shift burden to the employer to prove apportionment is necessary in any given case, as seen in Syllabus Point Six:

Under West Virginia Code § 23-4-9b (2003), the employer has the burden of proving apportionment is warranted in a workers’ compensation case. This requires the employer to prove the claimant “has a definitely ascertainable impairment resulting from” a preexisting condition(s). This requires that employer prove that the preexisting condition(s) contributed to the claimant's overall impairment after the compensable injury and prove the degree of impairment attributable to the claimant's preexisting condition(s).

Syl. Pt. 6, Duff v. Kanawha County Commission 2024 WL 1715166 (W. Va. 04/22/2024).

With the burden shifted to the employer to prove that apportionment is necessary, the Court looked to evidence presented by the parties’ respective medical experts. Dr. Mukkamala’s report was seen to have offered little reasoning in his conclusion that Duff’s preexisting conditions justified a 12% apportionment. Dr. Bruce Guberman, who performed an examination on behalf of the claimant, also found that Duff had a whole-person impairment of 25%. However, he offered more justification in his report to come to his conclusion that apportionment was not necessary. Dr. David Soulsby also gave a report that apportioned 12% impairment to preexisting conditions, but the report was found to be inadmissible because it lacked a mandatory lower back examination form. Under this new definition of “definitely ascertainable,” the Court held that Dr. Mukkamala’s report did not present enough proof showing that Duff had a definitely ascertainable prior impairment or a proven degree of impairment that would justify apportionment.

In reversing the BOR and ICA, the Court accepted the reasoning of Dr. Guberman and remanded the case to the BOR to grant a PPD award of 25%. It was determined that since neither of the parties requested the Court to remand to the BOR to rehear the claim in accordance with this new standard, the Court declined to do so, determining the final resolution of the issue on its own accord.

In his separate opinion concurring, in part, and dissenting, in part, Chief Justice Armstead disagreed with the shifting of the burden of proof to the employer, likening it to a treatment as an affirmative defense. He found the Majority’s opinion at odds with prior West Virginia case law requiring the employee to prove his or her claim by “proper and satisfactory proof.” Casdorph v. W. Va. Office Ins. Comm'r, 225 W. Va. 94, 99, 690 S.E.2d 102, 107 (2009). Chief Justice Armstead would have affirmed the rulings of both the BOR and ICA, allowing the apportionment of the prior injury.

Justice Bunn concurred in part and dissented in part. She disagreed with the majority’s handling of remand. She wrote that the parties should not be held to findings of fact on appeal under a new standard without being given the chance to present evidence in accordance with that standard.

The case is a significant change in the way apportionment of preexisting impairment is proven. Greater certainty is now required on behalf of the employer to overcome a presumption that the claimant’s impairment is the result of the injuries that brought rise to the claim. This can be very difficult when claimants are not examined for the necessary impairment ratings under the AMA Guides when the prior injuries did not occur in the context of a workers’ compensation claim. The Supreme Court refused a petition for reconsideration, and employers will have to adapt to this new interpretation.

Compensability

In the fall term 2023, the West Virginia Supreme Court of Appeals discussed the “increased risk” test to analyze compensability of a fall down a set of stairs and found the employee’s act of descending a short staircase did not increase his risk of injury and affirmed the rejection of the claim. Hood v. Lincare Holdings, Inc., 21-0754, 894 S.E.2d 890 (W. Va. Nov 08, 2023).

In Hood v. Lincare Holdings, Incthe Court ruled that the fall was not compensable because the employee was injured while employed but not as a result of his employment. Justice Walker succinctly described the facts of the case:

“While descending a short set of stairs from a customer's porch after making a delivery for his employer, Robert Hood felt a “pop” and pain in his right knee. He was later diagnosed with a right knee sprain. Mr. Hood did not slip, trip, or fall, and he was not carrying anything. The West Virginia Workers’ Compensation Board of Review affirmed previous rulings rejecting the claim, and Mr. Hood appeals. Even though Mr. Hood was injured while working, he failed to show that his work caused the injury. We affirm.”

Hood v. Lincare Holdings, Inc., 894 S.E.2d 890, 893 (W.Va., 2023).

The Court explored the jurisprudence in West Virginia and noted the cases and commentaries on this topic in Arthur Larson, Lex K. Larson, Thomas A. Robinson, Larson's Workers’ Compensation (Rev. Ed. 2023)). In Syllabus Pt 4, the Court held: “In the context of workers' compensation law, there are four types of injury-causing risks commonly faced by an employee at work: (1) risks directly associated with employment; (2) risks personal to the claimant; (3) mixed risks; and (4) neutral risks.” In Syllabus Pt 5, the Court held: “The factfinder may use the increased-risk test when deciding whether an employee sustained a compensable injury under West Virginia Code § 23-4-1(a) (2018), in cases where the injury occurred while the employee was engaged in a neutral risk activity. Under the increased-risk test, even if the risk faced by the employee is not qualitatively peculiar to the employment, the injury may be compensable if he faced an increased quantity of a risk.”

Applying these principles to the facts at hand, the Court looked to the “increased risk” test and found the employee’s act of descending a short staircase did not increase his risk of injury and affirmed the rejection of the claim. Hood v. Lincare Holdings, Inc., 894 S.E.2d 890, 895 (W.Va., 2023).

Permanent Partial Disability in Occupational Pneumoconiosis Cases – Lung Transplant

Rockspring Development, Inc. v. Brown, No. 22-0135, 902 S.E.2d 785 (06/11/2024)

In Rockspring, the Court affirmed the Workers’ Compensation Board of Review’s decision affirming Brown's additional 20% PPD award for occupational pneumoconiosis (OP) impairment. Brown contracted OP based upon his coal dust exposure as an underground coal miner. In August 2016, the claims administrator granted him a 30% PPD award based upon his OP. Brown’s pulmonary function study caused the interpreting physician to diagnose him with a severe obstructive ventilatory defect, a mild restrictive ventilatory defect, and a moderate gas transfer defect. The study demonstrated that his “flow-volume loop pattern [wa]s consistent with chronic obstructive pulmonary disease.” Because the results indicated that his OP had worsened, Brown subsequently requested that his PPD claim be reopened. The claims administrator referred him to the OP Board for evaluation.

Members of the OP Board examined Brown and relevant medical records. The OP Board noted the previously diagnosis of asthma and chronic obstructive pulmonary disease in 2015, and that he was treated for pneumonia in 2017. Brown reported to the OP Board he was on the lung transplant list for several years due to progressive massive fibrosis. The OP Board ultimately determined Brown’s condition had worsened to progressive massive pulmonary fibrosis. The OP Board further relied on the October 2017 Vanderbilt pulmonary function testing, which demonstrated significant impairment. Ultimately, the OP Board concluded sufficient evidence justified an additional 20% impairment rating the diagnosis of OP, for a total of 50% when combined with the previous 30% impairment.

On December 6, 2018, the claims administrator granted Mr. Brown an additional 20% PPD award. Rockspring protested this order to the Office of Judges. During the pendency of the protest proceedings, Brown received a bilateral lung transplant on May 3, 2020. Following the surgery, Brown submitted to a pulmonary function study at Vanderbilt on August 3, 2020. The interpreting physician found no obstruction present in Brown's lungs. Because the study occurred after Rockspring's evidentiary development deadline, Rockspring moved the Office of Judges to admit the medical records regarding Brown's lung transplant and subsequent testing into evidence. The Office of Judges granted the motion.

As Justice Bunn wrote in her decision, the lower tribunals were faced with “a rare set of factual circumstances”. Rockspring Development, Inc. v. Brown, 902 S.E.2d 785, 791. The Court found that the Workers' Compensation Board of Review did not clearly err in determining that Brown was entitled to a 50% PPD award for his OP impairment following bilateral lung transplant, although certain medical documentation indicated that Brown’s pulmonary function was normal following transplant, and the OP Board used pre-transplant pulmonary function testing to determine his impairment. Members of the OP Board provided testimony before the Office of Judges that support its decision to use the pre-transplant pulmonary function testing to determine Brown's impairment, including that Brown clinically “still suffers” and that, while he had no discernable pulmonary function impairment due to the transplant surgery, he faces other medical issues due to the transplant and has a shortened life expectancy.

The Court concluded:

“There was undisputed evidence in the record below to demonstrate that Mr. Brown contracted OP and suffered a resulting measurable impairment for many years. In the absence of statutory guidance on whether and how a transplant surgery that occurs during the pendency of the claim impacts an impairment rating, we simply cannot conclude that the Board of Review erred, particularly in light of the deference they are afforded.”

Rockspring Development, Inc. v. Brown, 902 S.E.2d 785, 792 (W.Va., 2024).

Collateral Estoppel

Ruble v. Rust-Oleum Corporation, No. 22-0329, 902 S.E.2d 873 (06/12/ 2024)

The West Virginia Supreme Court of Appeals determined that the plaintiff’s workers’ compensation claim did not preclude a related civil claim from being brought under collateral estoppel. Ruble v. Rust-Oleum Corp., No. 22-0329, 902 S.E.2d 873 (06/12/ 2024). Justice Hutchison summarized the issue presented to the Court: “Specifically, we consider whether collateral estoppel (sometimes called “issue preclusion”) applies such that a finding in a West Virginia workers’ compensation decision may be used to preclude litigation of that issue against a third party in a West Virginia circuit court." Id. at 1.

In Ruble, the plaintiff sued his past and current employers, along with two chemical suppliers, claiming injury suffered at work after breathing in toxic fumes. Id. at 2-3. Contemporaneously, the plaintiff filed a workers’ compensation claim against his most recent employers and chemical suppliers in circuit court. Id. at 3. The administrative claim was denied, for which the plaintiff appealed and was again denied before the West Virginia Workers’ Office of Judges (“the OOJ”). Id. at 3-4. It important to note that there was no hearing before the OOJ, and the only evidence presented included the proffered record from the administrative claim. Id. at 3. The OOJ found that the plaintiff did prove, by a preponderance of the evidence, that he developed an occupational disease “in the course of and as a result of employment.” Id. at 4.   

The plaintiff appealed to the West Virginia Workers’ Compensation Board of Review (“the Board”), and was also denied. Id. 3-4. As a result, the plaintiff voluntarily dismissed their claim against both employers. Id. at 5. The chemical suppliers also moved to have the claims against them dismissed, under the doctrine of collateral estoppel, for which the court granted. Id. at 5-6. The plaintiff appealed the decision of the circuit court. Id. at 6.

Collateral estoppel is a principle that completely bars a claim from being brought if certain elements are met. Id. at 7. The only element that the Court questioned states “the party against whom the doctrine is raised had a full and fair opportunity to litigate the issue in the prior action.” Id. at 7; Syl pt. 1, State v. Miller, 194 W. Va. 3, 6, 459 S.E.2d 114, 117 (1995). The Court analyzed the processes during the workers’ compensation proceedings and found that they were significantly different from the claims in circuit court. Id. Specifically, citing differences in the procedural and statutory rules in the collection, presentation, and development of discovery and evidence. Id. at 9-13. The Court found that it hindered the plaintiff’s ability to prove the claim itself and the subsequent damages. Id. The smaller award amounts allowed in workers’ compensation claims limit workers’ compensation attorney’s from spending large amounts to fully prepare claims against defendants were also noted. Id. at 13-14. For those reasons, the Court found that the plaintiff did not have a “full and fair opportunity to litigate[ ]” his claims before the workers’ compensation tribunals. See id., at 14. The Court mentioned:

“Upholding the circuit court’s dismissal would deter employees from seeking workers’ compensation until any third-party claims have been developed and resolved. . . contrary to the Legislature’s command that employees injured on the job by a third-party are allowed to purse both a workers’ compensation claim and a claim against the third party.”

Id.

Justice Armstead dissented, believing that it “unjustly call[s] into question the applicability of collateral estoppel in relation to a myriad of other administrative proceedings and agencies.” Ruble, No. 22-0329, 14-16 (W. Va. Supreme Court, June 12, 2024) (Armstead, C.J., dissenting). Finding that under the facts, the plaintiff received a “second bite at the apple” to prove causation against a third party, which the doctrine of collateral estoppel and West Virginia case law has prohibited. Id. at 1. See Steel of West Virginia, Inc. v. West Virginia Office of the Insurance Commissioner, No. 11-1607 (W. Va. Supreme Court, November 16, 2012)(memorandum decision). 

For any questions, please contact:

Dill Battle

Spilman Thomas & Battle, PLLC

hdbattle@spilmanlaw.com

304-340-3823

OKLAHOMA TRENDS AUGUST 2024

 CO-WORKER LIABILITY

 The Oklahoma Supreme Court has said a co-worker can be sued by an injured worker in a third-party district court action. The case is Bayouth v. Dewberry, 2024 OK 42.

 A fundamental premise of workers' compensation/tort law is that exclusive remedy prevents an injured worker from maintaining a third-party action for the negligence of a co-worker. BUT THIS CASE IS DIFFERENT.

 On his day off, Employee A had an argument with Employee B and shot and injured him. The incident occurred at the place of their employment. Employee B filed a third-party action in district court against Employee A. An Oklahoma County district judge granted summary judgment for the estate of Employee A, citing the exclusivity of workers' compensation and a co-worker's immunity from third party suit.

 In a 7-2 decision, the Supreme Court said "an employee, who injures another employee, must be acting within the course and scope of their employment when the incident occurs in order to receive the protection of the exclusive remedy provision" of the Administrative Workers' Compensation Act.

The district judge did not make a ruling on whether Employee A was acting within the course and scope of his employment. There is a dispute about that issue, so the case has been remanded to the district court judge to opine on that issue.

 INDEMINITY PROVISIONS SUBCONTRACTORS OVERRULLED

The Oklahoma Supreme Court may have dealt a fatal blow to so-called "indemnity" provisions in contracts with subcontractors in work-related injury cases. Such indemnity agreements are common in the oil and gas industry, the employee leasing business, and in other areas. We have also seen provisions in contracts of janitorial services that indemnify the building owner in the event of third-party liability.

The case is Knox v. Oklahoma Gas and Electric Co., 2024 OK 37. Seven justices concurred in the result, two dissented in part, and two justices dissented to the entire decision. Justice Edmondson wrote the majority opinion.

 The facts—OG&E contracted with sub "A" to develop property for a solar power facility. Sub "A" contracted with Sub "B" who contracted with Sub "C" who was the employer of Mr. Knox who was killed in an accident while performing construction work. His widow brought a wrongful death action in district court. The widow received statutory workers' compensation benefits.

 As is common in oil field operations, the Employer (Sub "C) signed a contract agreeing to indemnify Sub "B" for any sums paid out in a third-party claim.

 Here is what we believe the opinion holds:

 (1) An employee cannot sue his or her employer BOTH in workers' comp and under common law negligence theories. (That's exclusive remedy) The dual capacity doctrine does not appear in the Administrative Workers' Compensation Act.

 (2) An employer cannot be held liable twice, under workers' comp, and by an indemnity agreement with another party. The Supreme Court opinion reasons that an employer cannot agree to indemnify a third party guilty of negligence if the third-party claim is based upon the same physical injury covered by workers' compensation. An employer is allowed to agree to indemnify contractors above in the case of an INTENTIONAL TORT, just not in negligence cases. 

 Parties other than the employer can still be sued based upon common law negligence in a traditional third-party case.  But those third parties cannot look to a subcontractor who is the employer for reimbursement for any negligence damages, even though the employer agreed to such terms.

 There have been claims in which a drilling contractor, the employer of the injured worker, signed an indemnity agreement with the owner of the oil or gas well. Because of the indemnity agreement, the drilling contractor paid BOTH the comp claim and the third-party negligence tort claim. It appears this will no longer be the case.   

 This decision could be far-reaching. Insurance risk managers must look at a general contractor for possible third-party liability because indemnity agreements won't prevent damage awards any longer.

Coming and Going, Part I

Course and scope of employment, specifically the question of whether an employee was merely “coming and going” to/from work at the time of an injury, is one of the trickier aspects of Texas workers’ compensation jurisprudence, often hinging on minute details of the particular claim. Any guidance in this arena is therefore highly coveted, and the Texas Court of Appeals in Amarillo has just provided some much-needed clarity in Old Republic Insurance Company v. Evans, No. 07-23-00326-CV, 2024 WL 3249336.

The employee in the case was tragically killed in a motor vehicle accident on his way to work in the early morning. He left home on his motorcycle, arrived at work, and entered the building by scanning his security badge. However, he realized that he left his company laptop at home and felt he could not proceed in his work duties without it. Thus, he departed, returned home to claim the laptop, and drove to work again, during which time he was involved in the fatal collision.  

The Administrative Law Judge at the Contested Case Hearing determined that the decedent was not in the course and scope of his employment at the time of his death, but the Appeals Panel reversed. A trial court jury concurred that the decedent’s work day commenced when he arrived to work and that he needed his computer to further the business affairs of the employer, hence he was still in the course and scope of employment at the time of his death.  

The Court of Appeals disagreed, reasoning that the decedent was under no express direction from his employer to return home to recover the computer, and thus he was not on a special mission that would otherwise have provided an exception to the coming and going rule. The fatal injury was therefore deemed non-compensable.  

The complicated analysis required for “coming and going” cases is illustrated here by the fact that the decision kept switching back and forth, from the ALJ, to the Appeals Panel, to the trial court, to the court of appeals. See, like we said, “tricky.”  

Copyright 2024, Stone Loughlin & Swanson, LLP