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MISSOURI WORKERS’ COMPENSATION CASE LAW UPDATE

July 2022 – September 2022

Lamy v. Stahl Specialty Co., Case No. WD85163 (Mo. App. 2022)

FACTS:  The claimant filed a claim for an injury on August 26, 2016, to his left upper extremity. The employer referred the claimant to Dr. McNamara for left shoulder pain and numbness and tingling in his left hand. Dr. McNamara performed left shoulder surgery on October 11, 2016. In his notes from the February 13, 2017, appointment, Dr. McNamara indicated the claimant had left carpal tunnel syndrome that might require further treatment. The claimant’s attorney had the claimant examined by Dr. Stuckmeyer on November 9, 2017, who opined that the claimant had left carpal tunnel syndrome related to his work and might require further surgery. Thereafter, the claimant settled his August 2016 claim for 12.5% of the left shoulder. He initialed the Stipulation that he had full awareness of the consequence of the settlement and the ALJ approved the settlement on May 2, 2018.

The claimant filed a second claim on June 26, 2018, alleging injury to the left wrist on February 13, 2017, the date on which Dr. McNamara advised that the claimant still suffered from left carpal tunnel and required treatment. In his report dated August 19, 2019, he opined that the claimant’s left-hand complaints were related to his repetitive work that had been the subject of the August 2016 claim.

HOLDING:  The ALJ denied claimant’s February 2017 claim noting that the prevailing factor for claimant’s left carpal tunnel was the same prevailing factor that gave rise to the claimant’s 2016 claim which the claimant voluntarily settled, despite knowing that both physicians had diagnosed him with left carpal tunnel that might require surgery. The Commission affirmed the Judge’s decision and the claimant appealed.

The Court affirmed the decision of the Commission. The Court stated that the Commission did not commit legal error, when it found based on uncontested facts, that pursuant to Section 287.390, that the compromise settlement exhausted the Commission’s jurisdiction to reopen the August 2016 claim to consider the February 2017 claim. There was no showing of fraud or undue influence. The claimant knew he had a repetitive injury to his left wrist, a portion of his left upper extremity, when he entered the settlement for the August 2016 claim for repetitive injury to the left upper extremity.

Claimant Must Present Sufficient Evidence to Establish that a Work-Related Exposure is The Prevailing Factor Causing Occupational Disease

Hanes v. Department of Corrections, Missouri Office of Administration, CARO, and Treasurer of Missouri as Custodian of Second Injury Fund, Injury No. 08-124885

FACTS: At Hearing, the claimant testified that his for job from 1991 through 1998, he was in charge of taking inmates for medical procedures and that x-rays were involved 2-3 times per week from 1993 to 1998 but provided no additional detail. The claimant testified he was not provided protective gear in contrast to the testimony of Dr. Kibby who testified that the claimant told him he was protected. The Judge found the claimant did not establish the nature of the exposure and duration of the exposure, the frequency of the exposure, and the radiation levels which he may have been subjected. Dr. Kibby did not connect the claimant’s condition back to his job duties.

The Judge found the testimony of Dr. Parmet lacking in specificity and his ultimate opinion that the claimant had no other known cause of potential conditions which would lead to thyroid cancer did not establish that his job was the prevailing factor in causing his cancer.

HOLDING: The Judge found that pursuant to Section 287.067, the claimant failed to meet his burden of proof that he was exposed to an occupational disease which would require a demonstration of greater risk of exposure to the disease at work than other persons have in ordinary life, and also to show that the exposure was the prevailing factor in causing any illness. On appeal, the Commission affirmed the Award of the ALJ.

Claimant’s Bilateral Carpal Tunnel Syndrome Resulted from Longstanding Occupational Exposure from First Employer Despite Limited Exposure with Concurrent Second Employer

Porter v. St. Louis Post-Dispatch LLC/Lee Enterprise and CCL Label, Inc./CCL Industries Corp., Injury No. 17-013765

FACTS: On March 6, 2017, the claimant was employed by both the Post-Dispatch and CCL. The claimant began working for the Post-Dispatch in 2001. She worked at a machine that placed inserts in the newspapers. When the claimant first started working at the Post-Dispatch, she worked 40 hours or more a week. However, when she started working at LLC in 2012, she reduced her hours at the Post-Dispatch. The claimant worked over 40 hours a week at CCL. She would work 10 hours or overtime every 2 weeks. At CCL, the claimant inspected labels for medicine bottles and would only pick up a few labels at a time. She was also diagnosed with diabetes in 2016.

The claimant was working two jobs at the time she developed carpal tunnel symptoms, however, her job duties at the Post-Dispatch were much more strenuous and fast paced than those at CCL. The Post-Dispatch focused on the fact that the claimant was working part-time when she developed carpal tunnel symptoms. However, Dr. Schlafly testified that the claimant’s cumulated exposures for developing carpal tunnel syndrome increased while working at the Post-Dispatch as time progressed, even after her working hours reduced, because she continued to be exposed to the risk unabated.

The ALJ concluded that the claimant’s job duties at the Post-Dispatch were the prevailing factor in the development of bilateral carpal tunnel syndrome and therefore they were responsible for treatment and CCL did not have any liability.

HOLDING: The Temporary Award of the ALJ was appealed to the Commission. The Commission noted that Commission Rule 8CSR02-3.010 specifies when an Application to Review a temporary or partial Award may be filed. The rule allows a party who feels aggrieved by the issuance of a temporary or partial Award by an ALJ to petition the Commission to review the evidence upon the grounds that the applicant is not liable for payment of any compensation.

With respect to the Judge’s finding that “claimant’s diabetes was under control” was without support in the medical evidence, the Commission noted that Dr. Schlafly’s deposition testimony indicated that the employee’s diabetes was “well controlled as of the blood tests of February 10, 2017.”

Having reviewed the evidence and considered the whole record concerning the issue of liability, the Commission found that the Award of the ALJ was supported by competent and substantial evidence.

Evidence Must Persuasively Establish that Work Related Injuries Combine with Pre-existing Conditions to Render Claimant PTD

March v. Treasurer of the State of Missouri/Custodian of The Second Injury Fund, Case No. SC99381 (Mo. App. 2022)

FACTS: As a result of the primary 2015 occupational disease claim, the claimant underwent a repair a tear to his left rotator cuff, an injury to his right finger, and carpal tunnel. The claimant missed work due to these injuries but returned to work without restrictions. Before the claimant suffered the primary injury, he endured other health issues, including: morbid obesity, thyroid issues, hypertension, TIA, atrial fibrillation, asthma, a previous left rotator cuff tear, and a left leg laceration. The prior left leg laceration had created blood flow issues. The preexisting medical condition to the bilateral lower extremity included symptoms of edema and pain radiating down both legs into the ankles, secondary to morbid obesity and venous varicosities associated with obesity.

At the hearing, the claimant explained that after treating for his upper extremities, he was able to return to work. However, he stated that his leg conditions worsened due to standing at work. Both of the testifying experts, Dr. Hopkins and Dr. Waldschmidt agreed that standing for long hours during the course of employment aggravated and necessitated the claimant’s need for ablation and aggravated his preexisting venous condition in his lower extremities.

The claimant also offered at the Hearing the vocational report of Ms. Skahan who opined that the claimant was vocationally disabled due to the work injuries to his upper extremities in April 2015 and the progressive disabilities from his venous condition and aggravation from his work activities to the bilateral lower extremities around the same time frame of April 2015.

The ALJ determined that the greater weight of the testimony led her to conclude that the claimant had not met his burden of proof to establish Fund liability because the claimant’s lower extremity conditions which preexisted the work injury, were actively being treated and significantly deteriorated after the work-related accident. The Judge further found that there was no aggravation or acceleration of the work-related accident to combine to make the claimant permanently and totally disabled.

The Commission agreed that the Fund was not liable for PTD benefits because the claimant failed to meet his burden of persuasion. They were not persuaded that the combination of the claimant’s preexisting injuries and his primary injury resulted in the claimant’s PTD.

HOLDING: The claimant appealed, and the Court affirmed the Commission’s decision. The Court held the Commission appropriately found it was not persuaded that the combination of his preexisting disability and his primary injuries entitled him to PTD benefits because it was “equally likely” that his preexisting disabilities alone rendered him permanently and totally disabled.

No Fund Liability for PTD When Claimant Failed to Establish a New, Second Work Injury Combined with First Work Injury Alone Rendering Claimant PTD

Danner v. Missouri Department of Public Safety (settled), Missouri Office of Administration Caro (settled) and Treasurer of Missouri as Custodian of Second Injury Fund, Injury No. 14-050921

FACTS: The claimant and employer settled the claims for both the work injury of 6/4/2014 and the alleged work injury of 7/17/14 both involving the low back. Dr. Hopkins stated that based on the short period of time between the two injuries he believed that her low back injury on July 17, 2014, was a continuation of her first injury, just over one month prior. This statement was consistent with the expert medical testimony of Dr. Robson and Dr. Bailey who both opined that the 7/17/2014 incident was an aggravation or continuation of the 6/4/14 injury.

Therefore, at Hearing, the Judge stated that based upon the overwhelming majority of the expert’s medical evidence, the claimant failed to meet her burden that she suffered a new and distinct work injury on 7/17/14. Therefore, the Judge found that the 6/4/14 work injury in isolation was the prevailing factor in causing the claimant’s medical condition and disability.

The ALJ concluded that there was no work injury after 6/4/2014 that combined with a preexisting disability to result in the claimant’s permanent total disability. Therefore, the ALJ found that the claimant had failed to meet her burden that the Fund was liable for her PTD benefits.

HOLDING: On appeal, the Commission affirmed the decision of the ALJ. They noted that the Judge awarded compensation for the June 4, 2014 work injury. They also agreed with the Judge’s finding that the testimony of the employee and her experts, although unimpeached and found credible, failed to persuade the ALJ that the employee’s July 17, 2014 work event constituted a new and distinct injury separate from her prior work-related lifting injury of June 4, 2014. The Judge did not violate Section 287.800.2 by failing to weigh the evidence impartially or unfairly giving the benefit of the doubt to the Fund when it was found that the evidence the employee produced was insufficient to establish the elements of her claim.

The Commission relied on the recently decided case of March, (as discussed above) that stated that in order to establish a claim, the employee must not only meet her burden of production, but also the burden of persuasion. It noted that in March, the Court held that the fact that the Fund did not offer contradicting evidence and did not cross examine the employee, did not establish a presumptively valid claim and denied a post 2014 Fund claim for PTD.

Treasurer of the State of Missouri, as Custodian of The Second Injury Fund v. Van Horn, Case No. SD37311 (Mo. App. 2022)

FACTS: In January 2011, the claimant filed an amended Claim for Compensation alleging that he was injured in an “accident” on “11/18/2010” while “in the scope and course of employment” with the employer. At the time of the alleged injury, the employer did not have workers’ compensation insurance. Notice was sent to the employer’s last known address via certified mail that a final hearing was scheduled. The employer did not appear at the hearing.

The ALJ entered a final Award and found the claimant was injured while in the employment of the employer and that the employer was liable for all medical care and expenses resulting from the injury, totaling $34,345.00. Because the employer failed to maintain workers’ compensation insurance as required, the ALJ determined that the Fund was responsible for those expenses. The Judge also stated that the Fund “shall be entitled to reimbursement against the employer for all medical expenses incurred, and as is allowed by law”.

Thereafter, the Fund filed an “Application for Judgement on Certified Award from the Division” in Circuit Court, seeking reimbursement of the $34,345.00 from the employer pursuant to Section 287.220.5 and 287.500. Ten days later, counsel for the employer entered his appearance. On June 26, 2020, the reimbursement action was tried in the Circuit Court and a judgement was entered that same day in favor of the Fund against the employer’s business. On June 29, 2020, the Fund filed a Motion to Amend the Judgement to name the employer individually rather than his business because the Final Award found the employer liable as an individual. On August 30, 2020, the Court granted the Fund’s Motion and entered the Amended Judgement for the Fund and against the employer as an individual.

On August 10, 2021, nearly a year later, the employer filed his Rule 74.06 (b) Motion to Set Aside the Amended Judgement. After taking the matter under advisement, the Circuit Court entered a Judgement denying the Employer’s Rule 74.06 (b) Motion. The employer appealed.

HOLDING:  The employer asked the Court to set aside the Amended Judgement against him to reimburse the Fund in the amount of $34,345.00. The Court affirmed the Judgement of the Circuit Court. It found that the employer’s argument that the Division lacked subject matter jurisdiction or statutory authority was misdirected. The employer’s Rule 74.06 (b) Motion sought to set aside the Circuit Court’s Amended Judgement should have presented the argument regarding subject matter jurisdiction to the Circuit Court in the reimbursement action. The employer also argued that the Division denied the employer due process when it entered liability against him when the Division proceeded with the hearing without the Fund filing a pleading which notified the employer that the Fund held and pursued such a claim against the employer. However, the Court stated that after the initial judgement granting reimbursement was filed, notice of the Fund’s Motion to Amend the Judgement was sent to the employer’s counsel and again, the employer failed to raise a constitutional challenge at that time. After the Amended Judgement was entered, the employer did not appeal. Instead, the employer waited nearly a year to raise the due process challenge for the first time in his Rule 74.06 (b) Motion to Set Aside the Amended Judgement.

Employer Cannot Claim Sovereign Immunity as School District Under Work Comp Law   

Poke v. Independence School District, Case No. SC99384 (Mo. App. 2022)

FACTS: The claimant was employed as a custodian by the school district. He sustained an injury at work. He independently sought medical treatment and was diagnosed with a hernia. He initiated a workers’ compensation claim against his employer, the school district, who directed him to an authorized treatment provider who diagnosed inguinal tenderness. As requested, the claimant provided the authorized treatment provider with a urine sample. Thereafter, the employer discharged him because his urine sample tested positive for marijuana, violating the school district’s drug policy.

The claimant filed suit under Section 287.780 alleging that the employer’s stated basis for terminating his employment was pretextual and that he was actually discharged in retaliation for exercising his workers’ compensation rights. Subsequently, the school district filed a Motion for Summary Judgement, arguing it was entitled to sovereign immunity from the claimant’s workers’ compensation retaliation claim. The Circuit Court sustained the school district’s motion.

HOLDING: The claimant argued that because the legislature included the state and political subdivisions, such as school district, as employers for the purposes of the Workers’ Compensation Law, workers’ compensation retaliation claims are authorized against the school district. The Appellate Court stated that the issue before it was not whether the claimant had a valid claim for retaliation. Instead, they said the only issue is whether such General Assembly expressly waived whatever immunity the school district might have had, the judgement of the Circuit Court was reversed and the case was remanded for further proceedings.

In explaining its decision, the Court relied on the decision in Bachtel v. Miller County Nursing Home Dist., 110 SW 3d 799 (Mo. Banc 2003). The legislature (1) created a private right of action that can be brought against any employer who retaliates against an employee for exercising his or her workers’ compensation rights per Section 287.780; and (2) specifically included governmental entities in the workers’ compensation law’s definition of “Employer” under Section 287.030. The Court concluded that consequently, considered together, Sections 287.780 and 287.030 reflect legislative intent to waive the school district’s sovereign immunity for the claimant’s workers’ compensation retaliation claim.

Must Consider Number of Hours Needed to Qualify as Full Time Employee for Specific Employer When Calculating AWW

Kurbursky v. Independent In-Home Services LLC. and Treasurer of The State of Missouri – Custodian of Second Injury Fund, Case Nos. SD37103 & SD37104 Consolidated (Mo. App. 2022)

FACTS: The claimant was employed by the employer as a home healthcare worker. On August 15, 2012, the claimant was visiting a home of one of her patients when she hit her head on a canoe that was on top of a car in the patient’s driveway, causing her to fall on her back. At the hearing, the ALJ awarded the claimant PPD benefits and additional TTD benefits but determined the claimant had not met her burden of proof to obtain benefits for past or future medical care, Fund liability or PTD. The ALJ found Dr. Poetz’s testimony that the claimant was unemployable in the open labor market not credible and his disability ratings were substantially inflated, and that Mr. England’s vocational opinion was less than credible and was not persuasive because his opinion was based on substantial speculation regarding the effect of sleep deprivation and the impact daytime drowsiness would have on the claimant’s employment prospects.

The Commission affirmed the ALJ’s findings that the primary injury was compensable and on the issues of past and future medical care, nature and extent of PPD and the MMI date. The Commission modified the Award regarding the compensation rate, TTD benefits, and SIF liability. The Commission found Dr. Poetz’s PPD ratings and his opinions on the relationship between the claimant’s prior and preexisting injuries were persuasive, but that Dr. Poetz’s opinion on PTD was not persuasive. However, the Commission applied a 20% multiplicity factor to the ALJ’s PPD findings so that the claimant was entitled to enhanced PPD benefits from the Fund.

HOLDING: The Claimant appealed the Commission’s decision denying PTD benefits and challenged the Commission’s application of the law for calculating the average weekly wage for PPD benefits.

The Court noted that challenges to an Award, where the claimant failed to meet his or her burden of proof, are rarely successful on appeal. They noted that in this case, even assuming that the claimant produced competent and substantial evidence, the claimant still bore the burden of convincing the Commission to view the evidence in her favor. She failed to meet this burden. The Commission’s denial of PTD benefits, past medical care, and future medical care was affirmed.

Regarding the issue of the average weekly wage, the Court, however, agreed that the Commission incorrectly interpreted Section 287.250.3 by adding words to the statute and as a result, the Commission did not calculate the claimant’s average weekly wage based on the number of hours per week utilized by the employer to classify an employee as a full time or regular employee. Because the Commission failed to make actual findings on the average weekly wage of full time or regular employee engaged by this employer to perform work of the same or similar nature, and the number of hours required by this employer to classify an employee as a full time or regular employee, the Court reversed and remanded the case on this issue back to the Commission.

The Court affirmed the Commission’s final Award and all respects except for the calculation of PPD benefits. They reversed and remanded the case to the Commission to make actual findings on the correct average weekly wage to correctly calculate its Award.

TO: NWCDN STATE NEWS

FROM: Dill Battle, Spilman Thomas & Battle, PLLC

DATE: 09/26/2022

RE: West Virginia Workers' Compensation News – 4^th Quarter 2022

Intermediate Court of Appeals

The Intermediate Court of Appeals (ICA) started operations July 1, 2022, and has not issued any opinions. According to a report from the Workers’ Compensation Board of Review (BOR), since July 1, forty-two cases have been appealed to the ICA from the BOR.

 Supreme Court of Appeals

 The second term of the 2022 court year for the West Virginia Supreme Court of Appeals began September 7. The term ends in November. On September 19, 2022, the Court issued 18 memorandum decisions in workers’ compensation cases. http://www.courtswv.gov/supreme-court/opinions.html

On September 13, the Court held oral argument on a consolidated case in Charles Delbert v. Marshall County Coal Resources, Inc., No. 20-0537 and 21-0944. The case deals with W. Va. Code 23-4-16(e), which states that a claimant may only have one active request for a permanent disability award pending at any one time. Mr. Delbert filed an application for a PTD award. While the PTD issue was pending, he sought reopening of his Occupational Pneumoconiosis claim for additional PPD benefits and medical treatment. The claim administrator denied Mr. Delbert’s reopening request pursuant to W. Va. Code 23-4-16. Mr. Delbert argues that the claim administrator erred in denying medical treatment, when legislative policies mandate prompt medical treatment for OP. Because litigation is lengthy when seeking a PTD award, claimant asserts that the ruling is an absurd result. Mr. Delbert assets that W. Va. Code § 23-4-8d expressly allows for “a request for medical services, durable medical goods or other medical supplies in an occupational pneumoconiosis claim may be made at any time.” The second case is the employer’s appeal of Mr. Delbert’s PTD award, which was granted following litigation.

Reported Supreme Court Decisions

Timeliness of PTD Application

In Murray American Energy, Inc., v. Harshey, No. 20-0716, 2022 WL 4299577, (September 19, 2022) (memorandum decision), the issue before the Court was the timeliness of filing an application for permanent total disability benefits. Mr. Harshey was injured on January 20, 2012, when he was struck by a ram car. On March 7, 2014, he was granted a 14% permanent partial disability award for his psychiatric injuries. On November 10, 2015, the claims administrator granted a 39% permanent partial disability award for his physical injuries. The Office of Judges reversed the claims administrator’s November 10, 2015, decision and granted a 49% permanent partial disability award on November 15, 2017. On June 29, 2018, the Board of Review affirmed the Office of Judges’ Order. The decision was affirmed by the West Virginia Supreme Court on May 30, 2019. Murray American Energy, Inc., v. Harshey, No. 18-0676, 2019 WL 2406702 (W. Va. May 30, 2019) (memorandum decision). Less than a month after the Supreme Court’s decision, Mr. Harshey filed his Application for Permanent Total Disability Benefits on June 18, 2019, stating that he had been awarded a 49% and a 14% permanent partial disability award for his January 20, 2012, injury. The claims administrator denied the application for a permanent total disability award because it was untimely filed on July 5, 2019.

In its March 2, 2020, Order, the Office of Judges reversed the claims administrator’s denial of the claim and remanded the case with instructions to find Mr. Harshey’s application to be timely filed. The Office of Judges noted that West Virginia Code § 23-4-16(a)(1) provides that “in any claim that has been closed without the entry of an order regarding the degree of impairment, or in any claim closed on a no lost time basis, reopening requests must be filed within 5 years of the date of the closure. Only two reopening requests may be filed within that 5 year period.” Further, West Virginia Code § 23-4-16(a)(2) states “in any claim in which an award of permanent impairment has been made, reopening requests must be filed within 5 years of the date of the initial award. Only two reopening requests may be filed within that 5 year period.” Mr. Harshey was granted an initial permanent partial disability award on March 7, 2014. He filed his application for a permanent total disability award on June 18, 2019, clearly outside of the five year time period. Mr. Harshey argued his application should be considered timely based on equity and based on West Virginia Code § 23-4-16(e).

The Office of Judges found dispositive Mr. Harshey’s argument regarding West Virginia Code § 23-4-16(d). West Virginia Code § 23-4-16(e) states that “[a] claimant may have only one active request for a permanent disability award pending in a claim at any one time. Any new request that is made while another is pending shall be consolidated into the former request.” In the case at issue, Mr. Harshey was granted a 39% permanent partial disability award on November 10, 2015, at which point he was eligible to apply for a permanent total disability award. See W. Va. Code § 23-4-6(n)(1) (providing that in order to apply for a permanent total disability award, a claimant “must have been awarded the sum of fifty percent in prior permanent partial disability awards”). However, the decision was appealed to the Office of Judges, which reversed and granted a 49% permanent partial disability award. The employer then appealed the decision to the Board of Review and then to the Supreme Court. The Office of Judges rejected the employer’s argument that Mr. Harshey’s application for permanent partial total disability was untimely filed because he did not submit his application after the November 10, 2015, permanent partial disability award was granted. The Office of Judges reasoned that the November 10, 2015, 39% permanent partial disability award was a not final award because the decision was appealed and “there is no requirement which would cause the claimant to have to choose between whether he should forego his contention that he is entitled to a greater permanent partial disability award or whether an application for a permanent total disability award would be timely if the matter remains in litigation.” As the Office of Judges explained, “[s]ince the issue of the permanent partial disability award was not final, if the claimant had filed an application for a PTD award . . . then the application for PTD would not have been acted upon but would have been consolidated into the 39% PPD award issue.” Therefore, the Office of the Judges found that Mr. Harshey’s permanent partial disability award became final on May 30, 2019, when the West Virginia Supreme Court issued its ruling. Mr. Harshey filed his application for permanent total disability on June 18, 2019, and that application was received on July 5, 2019. Therefore, his application was timely and should be considered. The Board of Review adopted the findings of fact and conclusions of law of the Office of Judges and affirmed its Order on August 21, 2020.

The Supreme Court agreed with the reasoning and conclusions of the Office of Judges as affirmed by the Board of Review. West Virginia Code § 23-4-16(e) prevents a claimant from filing more than one claim for permanent disability at a time, whether that claim is for permanent total disability or permanent partial disability. Mr. Harshey in this case appealed his permanent partial disability award and was granted a greater award by the Office of Judges. The employer then appealed the decision to the Board of Review and the Supreme Court. In this time, the five year window for filing a claim for permanent total disability closed. However, as the Office of Judges found, the permanent partial disability award did not become final until the Supreme Court issued its ruling on May 30, 2019. See Murray American Energy, Inc., v. Harshey, No. 18-0676, 2019 WL 2406702 (W. Va. May 30, 2019) (memorandum decision). His application was timely filed because Mr. Harshey filed his application for permanent total disability less than a month later.

Compensability of CTS

In Bartram v. Coronado Group, LLC, No. 21-0479, 2022 WL 4299598 (W. Va. September 19, 2022) (memorandum decision), the issue before the Court was the compensability of carpal tunnel syndrome. Mr. Bartram was an equipment operator and alleged he developed carpal tunnel syndrome as a result of his job duties. A September 8, 2018, EMG, interpreted by Victor Jaramillo, M.D., showed entrapment neuropathy, mild on the left and moderate on the right, consistent with carpal tunnel syndrome. Cervical radiculopathy could not be ruled out. On February 21, 2019, Dr. Jaramillo found sensory deficit for pinprick and temperature in both hands and forearms upon examination. Tinel’s sign was positive in both wrists. He diagnosed polyneuropathy and carpal tunnel syndrome. C. Dale Cook, PA-C, with Family Healthcare Associates, Inc., saw Mr. Bartram on March 11, 2019, for bilateral hand pain and carpal tunnel syndrome. An EMG was positive for carpal tunnel syndrome. It was noted that Mr. Bartram was previously diagnosed with chronic lumbar pain and high cholesterol. The Employees’ and Physicians’ Report of Injury was completed on March 11, 2019, and indicates Mr. Bartram developed bilateral carpal tunnel syndrome as a result of his employment.

Mr. Bartram was a strip-mining equipment operator, and operated a loader, dozer, rock truck, and water truck. He also used hand tools. Samuel Muscari, D.O., opined Mr. Bartram developed carpal tunnel syndrome as a result of repetitive hand movements while operating heavy equipment. The employer presented evidence Mr. Bartram was a water truck operator, truck operator, loader operator, rock truck operator, and truck scale cleaner. He also picked up trash occasionally. Mr. Bartram drove a large rock truck with power steering and automatic shifting.

The employer also presented a Physician Review report by Rebecca Thaxton, M.D., in which she found that Mr. Bartram does not suffer from occupationally induced carpal tunnel syndrome. She noted that Mr. Bartram’s job duties involved driving various trucks and operating equipment. Mr. Bartram reported ten to twelve hours of continuous firm grip, bending, and rotating both wrists. She found that Mr. Bartram drove a large rock truck with power steering and shifting, and that there was no need to firmly grip the steering wheel because such trucks are manufactured to be easy to drive. The employer asserted that the wheel was as easy to turn as that in a normal vehicle. Further, Mr. Bartram’s job required a firm grip a few times a day. Mr. Bartram was required to occasionally tighten or loosen nozzles with wrenches but not frequently. Dr. Thaxton opined that Mr. Bartram’s job description was not consistent with an increased risk of development of carpal tunnel syndrome. The claims administrator rejected the claim on April 3, 2019.

Mr. Bartram testified in a September 17, 2019, deposition that he drove a water truck but had to run dozers and loaders sometimes. The loaders were operated with joysticks, and he had to operate one for six months when his water truck broke. Mr. Bartram stated that he also used hand tools to service equipment. Mr. Bartram testified that he currently has numbness and tingling in his hands that started three to five years prior. Mr. Bartram stated that he has high blood pressure and smoked cigarettes in the past. Mr. Bartram testified that his symptoms had not improved in the time that he had been off of work. A September 19, 2019, treatment note by Connie Cook, PA­C, indicates Mr. Bartram was seen for hand pain and was diagnosed with carpal tunnel syndrome.

Prasadarao Mukkamala, M.D., performed an Independent Medical Evaluation on September 23, 2020, in which he noted that Mr. Bartram stopped working due to back pain. He underwent left carpal tunnel release eight months prior. The symptoms ceased for two months and then returned. Mr. Bartram stated that his symptoms did not get better after he stopped working. Dr. Mukkamala opined that Mr. Bartram’s carpal tunnel syndrome was not the result of his occupational duties. He stated that the fact that Mr. Bartram’s symptoms did not improve when he quit working indicates his carpal tunnel syndrome was not the result of his occupational duties. Dr. Mukkamala opined that Mr. Bartram’s job duties do not involve the high force, repetitive movements and awkward positioning known to cause carpal tunnel syndrome. He noted nonoccupational risk factors in the form of obesity and generalized polyneuropathy.

The Office of Judges affirmed the claims administrator’s rejection of the claim in its November 30, 2020, Order. It found that the most comprehensive evaluation of record was the one performed by Dr. Mukkamala. Dr. Mukkamala stated that Mr. Bartram’s work activities were not the kind of forceful repetitive movements known to cause carpal tunnel syndrome. Further, Mr. Bartram’s symptoms did not improve when he ceased working. Dr. Mukkamala also noted that Mr. Bartram had confounding conditions in the form of obesity and polyneuropathy, which increase his risk for carpal tunnel syndrome. The Board of Review adopted the findings of fact and conclusions of law of the Office of Judges and affirmed its Order on May 20, 2021.

The Court agreed with the reasoning and conclusions of the Office of Judges as affirmed by the Board of Review. For an injury to be compensable it must be a personal injury that was received in the course of employment, and it must have resulted from that employment. Barnett v. State Workmen’s Comp. Comm’r, 153 W. Va. 796, 172 S.E.2d 698 (1970). West Virginia Code of State Rules § 85-20-41.5 provides that workers who perform high force, repetitive manual movements are at high risk for the development of carpal tunnel syndrome. West Virginia Code of State Rules § 85-20-41.4 states that confounding conditions, such as obesity, can precipitate carpal tunnel syndrome symptoms. The evidence indicates that Mr. Bartram’s work duties do not involve the kind of high force, repetitive movements known to cause carpal tunnel syndrome. Further, Mr. Bartram suffers from conditions known to contribute to the development of carpal tunnel syndrome.

Justice William R. Wooton dissented and would set the case for Rule 19 oral argument.

District of Columbia Court of Appeals Finds Bus Driver’s Injury Compensable as An Exception to the Going and Coming Rule.

On May 26, 2022, the D.C. Court of Appeals decided the case of Latonya Lee v. District of Columbia Department of Employment Services, 275 A.3d 307. The Court had to decide whether Lee’s (Petitioner) injuries arose out of and in the course of employment. The Petitioner was a WMATA bus driver who was scheduled to work a split shift. The Petitioner finished her first shift and parked her bus at the end of her route, several blocks away from where she started. While the Petitioner was walking back to her vehicle, parked close to the starting point of her bus route, she fell and sustained injuries. The Petitioner then applied for disability benefits. The administrative law judge denied the Petitioner’s claim as compensable as the injuries did not arise out of and in the course of employment, and the Compensation Review Board (CRB) affirmed that decision. The Petitioner appealed to the D.C. Court of Appeals. The Court of Appeals reversed the CRB’s ruling as they erroneously relied on the going and coming rule. 

The Court of Appeals found as follows:

·         The Court of Appeals applied the potential-risk test and found that the Petitioner’s injuries arose out of and in the course of employment. The risk of falling would not have happened but for the fact that conditions and obligations of employment which placed claimant in a position to walk back to her vehicle.  

·         Similarly, the Court found that the risk of injury was reasonably foreseeable because walking back to her car was reasonable incidental to her employment as the conditions of her employment put her in a position where it would be reasonably expected for her to go back to her original point.

·         Although the general rule is that “going and coming” to and from work is not within the scope of employment, this case fell within the exception since the bus driver is paid for their travel time. Therefore, the hazards of the journey are the obligations of the employer.

District of Columbia Court of Appeals Agrees that D.C. Code § 32-1505(b) Is Ambiguous and Remands Back to the Compensation Review Board for Further Consideration.

On July 14, 2022, the D.C. Court of Appeals handed down their decision in Sidnice Hughes-Turner v. District of Columbia Department of Employment Services, 2022 WL 2721060. At issue was whether D.C. Code § 32-1505(b) limits a claimant from receiving more than an aggregate total of 500 weeks of temporary total benefits and “non-schedule” permanent-partial benefits. The Compensation Review Board (CRB) decided that D.C. Code § 32-1505(b) precluded Hughes-Turner (Claimant) from receiving more than an aggregate total of 500 weeks of temporary total benefits and “non-schedule” permanent-partial benefits. In coming to their decision, the CRB relied on the legislative history of the amendments that included § 32-1505(b), and how the section compared to similar benefit caps in Maryland and Virginia. The Claimant appealed the CRB decision to the D.C. Court of Appeals. The Court of Appeals vacated the CRB’s decision and remanded the claim back to the CRB for further consideration.

The Court of Appeals found as follows:  

·         The Court of Appeals agreed the statutory language of D.C. Code § 32-1505(b) was ambiguous as to whether the 500-week cap applies in the aggregate to temporary total benefits and permanent partial benefits, or separately to each type of benefit.

·         However, the Court disagreed with the CRB’s interpretation heavily relying on the legislative purpose to create an aggregate cap more in line with 500-week Maryland and Virginia caps, as it was found that Maryland and Virginia took different approaches to the aggravation issue at the time § 32-1505(b) was enacted.

·         Further, the Court decided that although the CRB’s interpretation of § 32-1505(b) was in line with the legislative intent, they failed to address other considerations, such as “the principle that the Workers’ Compensation Act should be interpreted liberally in light of its humanitarian purposes”.  

District of Columbia Council Resolution PR24-0783: Parity in Workers’ Compensation Recovery Emergency Declaration Resolution of 2022.

Historically, an injured worker could not receive any workers’ compensation benefits in D.C. if they had ever received benefits for the same accidental injury or death in another state. However, on June 6, 2022, legislation permitting an employee’s access to workers’ compensation benefits in D.C., even if the injured worker has applied for and received benefits in another state, was put forth on an emergency basis. The support for the legislation came from arguments that injured workers were unfairly prevented from accessing the full compensation and benefits since workers’ compensation laws in neighboring states (Maryland and Virginia) were less favorable to the injured workers than in D.C. Although, the legislation included that D.C. courts would be required to reduce damages based on the compensation the claimant already received in the neighboring state, as to not allow overcompensation and manipulation. The legislation was ratified by Mayor Muriel Bowser on June 7, 2022 and will expire on September 26, 2022. 

August was chock full of examples of this old adage!  On the Division Disciplinary Order side of things, orders were issued against Chadwick Lee, an attorney who received payment directly from his client after being paid by the Carrier pursuant to an attorney fee order.  Apparently, Mr. Lee claimed he was underpaid by the Carrier and informed his client he had to make up the difference.  The Division found Mr. Lee took fees in an amount in excess of the amount approved by the Division and assessed a $5400.00 penalty.    The Division also assessed a $6,000 penalty against the Texas Pain Relief Group for failing to comply with a Carrier refund request.  

Meanwhile, down in San Antonio, the co-owner of Bill Hall Jr. Trucking Company, turned herself in to authorities on outstanding warrants for workers’ compensation fraud.  She is alleged to have defrauded Texas Mutual out of over $9 million in insurance premiums by filing false payroll information and concealing payroll reports.  It is not Mrs. Hall’s first time in the criminal spotlight though – in 2013, she was found guilty of killing her husband when she chased him and his mistress on a rural stretch of Highway 1604 and hit him with her SUV - killing Hall and injuring his mistress.  Ms. Hall spent two years in the Lane Murray Unit of the Texas Department of Corrections in Gatesville before being released to return to apparently less violent criminal endeavors.

Last, but not certainly not least, last week, Austin barbeque aficionados were shocked to hear that the owner and manager of a popular East Austin eatery, La Barbecue, were indicted on workers’ compensation fraud charges.  LeAnn Mueller and her wife, Allison Clem, owned the restaurant in 2016 when an employee was severely burned while using a piece of kitchen equipment.  It is alleged that four days later, they contacted an insurance company to obtain workers’ compensation coverage and did not disclose the injury – in fact, they asked that the policy be back-dated to three weeks before the accident occurred.   The application for the policy, signed by Mueller, attested that there had been no previous losses.   Travelers Casualty Insurance Company has paid over $350,000 in medical and indemnity benefits to date.  The attorney for Mueller and Clem appears to be relying on an argument that it is “perfectly legal to obtain a backdated policy in Texas” as a defense to the fraud allegations.  It will be interesting to see how this one plays out.

Copyright 2022, Stone Loughlin & Swanson, LLP

Earlier this month, Governor Abbott appointed Jeff Nelson to the long-vacant post of Commissioner of Workers’ Compensation.  Nelson previously served as Director of External Relations for the Division of Workers’ Compensation (a post he held since October of 2016).  A graduate of the University of Texas, Commissioner Nelson has extensive experience with the Texas legislature including posts with Senator Tommy Williams, Governor Rick Perry and Congressman Kevin Brady.  We look forward to working with Commissioner Nelson in the coming years.

Copyright 2022, Stone Loughlin & Swanson, LLP

Seven years ago, our firm was honored to be part of launching the Texas chapter of Kids’ Chance, a non-profit organization geared towards providing educational opportunities and scholarships for the children of workers seriously or fatally injured on the job.  Kids’ Chance of Texas has gone from an organization struggling to find recipients to a group of committed members who have supported nearly 50 students since 2015 that will have 31 scholarship students this year alone.  One of this year’s recipients is Mariam Falana, the 2022 Jim Hudak and Sally Silvia Scholarship awardee, who will attend Rice University pursuing a degree in neuroscience.

In her scholarship application, Mariam tells the story of being called to the office from her gym class the day before her 13th birthday only to be told her father had been killed in a motor vehicle accident while at work that day.  She reflected on the hardships thrust on her mother in her new role as the sole breadwinner for the family and the ways her father’s death changed Mariam’s perception of the small inconveniences that so many of us get wrapped up in every day.  She concluded by sharing that the memory of her father served as constant motivation for her to live as he did “spreading laughter and positivity as I challenge the conventions of today to innovate a better tomorrow.”  Mariam embodies the spirit of the young people Kids’ Chance of Texas strives to serve each year.

One way Kids’ Chance of Texas has been able to expand its reach over the last seven years is to take its show on the road.  The Marketing Committee has developed a Road Show strategy that involves mapping out all of the workers’ compensation industry conferences, meetings and activities for the year and setting about staffing all of those events with volunteers and board members. Those folks are equipped with a “kit” that includes banners, displays and materials that have helped spread the word and reach as many potential recipients as possible.

You too can be a part of Kids’ Chance of Texas!  Please visit the website at: www.kidschanceoftexas.org to donate, volunteer or participate in an event.

SAVE THE DATE:  October 28, 2022 – Golf Tournament – Cowboys Golf Club, Grapevine Texas

Copyright 2022, Stone Loughlin & Swanson, LLP

For over 2 years now, the Division has been collecting information from Carriers on COVID-19 claims.  The Research and Evaluation Group recently published their findings from the collection of that data.  A complete analysis of the information can be found at: 

https://www.tdi.texas.gov/wc/information/documents/covid19txwc0822.pdf.

Some of the key findings of the study were: 

• As of 8/7/22, there were more than 90,000 COVID-19 claims and 459 fatalities and more than half of those involved first responders and correctional officers.  

• More than 2/3 of all claims involved injured employees who tested positive or were diagnosed with COVID-19. 

• Carriers denied less than half of the claims with positive tests.  

• Slightly more than 1/3 of all COVID-19 claims had medical or indemnity benefit payments associated with them, and most involved indemnity benefits rather than medical benefits.  

• About one out of four claims that received professional or hospital services received those services beyond one month post-injury.  

Copyright 2022, Stone Loughlin & Swanson, LLP

As the DWC continues to see the number of designated doctors dwindling (there are now less than 300 on the list and only 65 of those are MDs), the agency has posted proposed changes to various DWC rules dealing with the designated doctor program including billing and reimbursement for designated doctor, RME and MMI/IR examinations performed by treating and referral doctors.  The first informal proposal to the billing rules details changes to the methods for billing – so no information is available regarding changes to the actual rates charged for these examinations, which begs the question – will the reimbursement rate increase enough to entice medical doctors to return to the fold?  

DWC will offer a virtual DD Billing and Reimbursement Rule Stakeholder Meeting Thursday, September 8, 2022.  

For more information:  https://www.tdi.texas.gov/alert/event/2022/09/dwc0908.html.

At a recent conference, Division staff addressed an increasing problem in finding qualified doctors to perform examinations for more complex injuries and offered as a potential solution the plan to open up the qualification standards to include all board certifications for those examinations requiring a specialization and allowing the Division more discretion in appointing doctors without specialization in those geographical regions where qualified doctors are not currently on the list.  

The Division focus certainly appears to be more on process and procedure rather than addressing the more systemic problems of quality, quantity and oversight of the remaining doctors on the list.  For now, the Division appears to be streamlining and reducing the amount of training, the frequency of testing and the certification process in efforts to make being a designated doctor less administratively burdensome for doctors.

Designated doctors and their administrators will, however, be required to use the Division’s own TXCOMP system to accept and manage appointments AND file their reports online beginning 9/19/22.  The Division will be training doctors in the use of the system. Apparently, RME doctors will also see pending RME appointments in their TXCOMP profile and enter basic information to upload their reports as well.

Copyright 2022, Stone Loughlin & Swanson, LLP 

The question of exclusive jurisdiction of the Texas Workers’ Compensation Act comes up often and we get many questions about its application.  The Austin Court of Appeals recently took a look at a wrongful death case where a worker’s potential beneficiaries did not file a claim for death benefits.  The beneficiaries took the position that he was not an employee.  Texas Mutual filed a BRC request.  The Division held that the worker sustained a compensable injury and his beneficiaries were entitled to death benefits.  However, his beneficiaries didn’t want death benefits.  They wanted to sue the worker’s employer in court without the limitations imposed by the Act’s exclusive remedy provision.  Therefore, the worker’s beneficiaries argued that the Division did not have jurisdiction to determine they were entitled to benefits because they didn’t file a workers’ compensation claim.  The Court of Appeals held that it didn’t matter whether the beneficiaries filed a claim: “However, we need not resolve that question to dispose of this case, as we conclude that DWC had exclusive jurisdiction over the question of eligibility regardless of whether there was, in fact, a pending claim or merely a potential claim.”  Long-standing case law holds that the Division, with its unique expertise, has exclusive jurisdiction to resolve any question regarding eligibility for workers' compensation benefits, including questions over employment status.  Sometimes plaintiffs seek to avoid the workers' compensation system in hopes of a bigger payday in the courts.  This case affirms that plaintiffs cannot avoid the Division’s exclusive jurisdiction simply by electing not to file a workers’ compensation claim.   In Re Hellas Construction, Inc. 2022 WL 2975702 (July 28, 2022).
 

Copyright 2022, Stone Loughlin & Swanson, LLP

Earlier this month, we at SLS experienced a first in appellate jurisprudence when our own Robert Greenlaw was tasked with responding to an appeal in which the claimant requested the Division Appeals Panel reverse a CCH Decision in his favor on issues of extent of injury, MMI, impairment rating and disability.  Yes, you read that correctly – despite the fact that the Carrier had accepted all conditions previously in dispute, and the fact that the designated doctor and post-DD RME doctor agreed (as did the Carrier) that the claimant reached MMI on the statutory date, rather than an earlier clinical date – the claimant insisted on a CCH.  Not surprisingly – at least to the Carrier – the ALJ found that all of the claimed conditions were compensable, pushed the MMI date out to the latest dated allowable by law, assigned the impairment rating agreed upon by both the designated doctor and the RME doctor, and awarded almost 10 months of disability.  

Incredibly, for reasons known only to the Claimant, he asked the Appeals Panel to reverse that decision.  As Mr. Greenlaw pointed out in his response to this novel appeal, the claimant expended extraordinary efforts throughout the life of his claim in complaints about his adjusters, doctors, ombudsmen and, of course, the Carrier’s attorney.   While the Carrier did not appeal the D&O, Rob found himself agreeing with the claimant on appeal and joining in his request that the Appeals Panel reverse the CCH D&O in his favor on all of the issues. 
 

Copyright 2022, Stone Loughlin & Swanson, LLP