NWCDN Members regularly post articles and summary judgements in workers’ compensations law in your state.
Select a state from the dropdown menu below to scroll through the state specific archives for updates and opinions on various workers’ compensation laws in your state.
Contact information for NWCDN members is also located on the state specific links in the event you have additional questions or your company is seeking a workers’ compensation lawyer in your state.
Simon Law Group, P.C.
720 Olive Street, Suite 1720, St. Louis, MO 63101
314-621-2828
MISSOURI WORKERS’ COMPENSATION CASE LAW UPDATE
July 2021 – September 2021
Claimant Denied PPD For Compensable Injury as Claimant Not Credible, Testifying Inconsistently with Testimony of Treating Physicians
Sulier v. SSM Health Care Corporation, Injury No. 13-064888
The claimant testified that on September 1, 2013 she was helping a patient to a bedside commode when the patient felt like she was losing her balance and grabbed the claimant’s right forearm. She said this happened twice during her shift. The claimant began treating with Dr. Razzaque who diagnosed right elbow lateral epicondylitis and referred the claimant to an orthopedic surgeon/physiatrist. The doctor noted that her condition was work-related and that the September 1, 2013 incident was the prevailing factor. She then treated with Dr. Bender who concluded the same and provided an epicondyle injection. On October 23, 2013 the doctor opined that the epicondylitis had resolved and placed the claimant at MMI.
The claimant subsequently injured her upper extremities including her left hand when she was grabbed by a combative patient on January 4, 2014. She returned to Dr. Bender who again diagnosed right lateral epicondylitis and opined that this was a new injury after the claimant reported she was fine until she had to physically hold down a patient and felt pain in her elbow. She once again underwent an injection and then was released from care on March 12, 2014. She followed up with Dr. Bender on August 5, 2014 at which time she underwent a third injection.
She was then seen by Dr. Strecker who performed a right lateral epicondylectomy on October 24, 2014. Dr. Strecker’s notes indicated that the claimant had her right arm grabbed twice by a patient on January 4, 2014. She followed up with Dr. Strecker complaining of pain when swinging her right hand and wrist and that it occurred since her elbow surgery. The doctor was unable to relate these complaints to her original injury and released her from care on January 13, 2015. The doctor opined that she had a 6% permanent partial disability of the right elbow attributable to the alleged injury of January 4, 2014.
The claimant filed a Claim for Compensation alleging that on October 1, 2014 she sustained an injury to her right elbow when she was moving a patient off a toilet. The claimant then filed an Amended Claim for Compensation amending the date of injury to September 1, 2013.
On direct-examination, the claimant denied any accident occurred on January 4, 2014 and said that she had been having a continuation of elbow pain that dated back to September 1, 2013. She denied the accuracy of Dr. Strecker’s and Dr. Bender’s notes showing an accident occurred in January of 2014 and insisted she did not have a new injury.
Dr. Strecker testified that the claimant reported an injury on January 4, 2014 when she was attempting to assist a patient and her right arm was grabbed twice. He did not directly relate her subsequent right hand swelling and stiffness to her work injury and rated her as having 6% PPD of her right elbow attributable to the January 4, 2014 incident.
Dr. Woiteshek testified that he examined the claimant on November 12, 2016 and she provided a consistent history of the injury at work to her right elbow on September 1, 2013. However, there was no history provided concerning any other injuries to her right elbow after September 1, 2013. He diagnosed traumatic lateral epicondylitis of the right elbow medically related to the claimant’s September 1, 2013 work injury and rated her as having 35% PPD of the right elbow all as a result of that date of injury.
The ALJ concluded that the claimant met her burden of proving she sustained an accident on September 1, 2013. The ALJ found that the claimant sustained a second right elbow injury while at work on January 4, 2014. The ALJ also found that the claimant was confused about the time lines of events and onset of her complaints along with histories provided to physicians and therefore the claimant could not be relied on in her testimony regarding the nature of her complaints and problems. The ALJ further found that the claimant failed to meet her burden of proof to present competent, credible and persuasive medical evidence to show that the right elbow diagnosis and disability was medically causally related to the September 1, 2013 accident. The ALJ did not find the opinions and testimony offered by Dr. Woiteshek competent, credible or reliable. He did find that the claimant sustained an accident as a result of the September 1, 2013 date of injury. However, he did not believe that the claimant had any continuing disability as a result of the same and therefore did not award any compensation. Accordingly, the claimant’s September 1, 2013 right elbow claim was denied. The Commission affirmed the Award and decision of the ALJ.
Experts Who Reviewed Surveillance Found More Persuasive than Experts Who Relied on Subjective Evidence
Stratton v. R&L Carriers, Injury No. 15-079592
On October 16, 2015, claimant was involved in the delivery of freight at a local business when he slipped off the back of his truck and landed on his left foot. X-rays of the left foot revealed a mildly displaced fracture of the left calcaneus. He was seen by Dr. Bowling who recommended a bone stimulator. He then underwent an EMG report which was negative and was placed at MMI. He was then seen by Dr. Stuckmeyer for an IME and the doctor recommended he undergo a subtalar fusion. The employer’s doctor, Dr. Bowling agreed that this could be beneficial but would not agree to perform it unless the claimant quit smoking which he has never done. Dr. Bowling referred the claimant to Dr. Horton, who agreed that the claimant should discontinue smoking prior to undergoing a subtalar fusion. Dr. Horton then ordered a CT scan which showed that the fracture had healed and he did not recommend surgery.
The employer obtained surveillance of the claimant walking without difficulty, carrying groceries and using his foot to push himself into his truck without any difficulty. The employer obtained reports of Dr. Zarr and Dr. Patel who did provide the claimant restrictions and permanency but believed the claimant could work.
Dr. Stuckmeyer provided an addendum report but did not appear to have reviewed the surveillance footage provided to Dr. Patel and Dr. Zarr. At that examination, the claimant indicated a complete inability to walk on uneven ground and that he required the use of a cane to ambulate. The claimant was evaluated by Ms. Sprecker, a vocational expert who opined that the claimant retained the ability to return to the labor market. Mr. Cordray, a vocational expert retained by the claimant testified that he barely looked at the surveillance despite being specifically requested to review it and opined that the claimant was unemployable in the labor market on the basis of restrictions given by Dr. Stuckmeyer.
The ALJ found that the opinions of Dr. Patel and Dr. Zarr were more persuasive on the question of work restrictions as they reviewed the surveillance footage whereas Dr. Stuckmeyer relied on subjective evidence. The ALJ noted that the claimant testified he was incapable of bearing weight on his foot which was contrary to the surveillance. He also found that the claimant’s testimony was inconsistent with medical opinions and objective findings many times. The ALJ also noted that the surveillance was an important part of the case and was never reviewed by Dr. Stuckmeyer or Mr. Cordray. The ALJ found that the claimant was capable of light duty work and that the claimant suffered a 22.5% permanent partial disability to his foot. The ALJ found that the evidence did not support a finding that the claimant was entitled to future medical care. The request for future medical care was therefore denied.
The Commission affirmed the Award of the ALJ.
Pre-existing Work Injury Involving Three Different Body Parts Which Settled for 43% or 172 Weeks Qualifies for Fund Liability as Each Body Part Would Meet 50 Week Threshold
Cantrell v. Treasurer of Missouri as Custodian of Second Injury Fund, Injury No. 18-019636
The claimant sustained injury on March 16, 2018, to his right upper extremity. The treating physician released the claimant to return to work full duty on November 19, 2018. The claimant also sustained a psychological injury as a result of the primary injury. The claimant had a prior work-related right elbow injury for which he settled for 26.25 weeks, a 1998 injury to the left elbow for which he settled for 31.5 weeks, a low back and right shoulder injury in 1999, which he settled for 43% disability to the body referable to the right shoulder and low back or 172 weeks, a 2009 injury involving the right knee which he settled for 24% of the knee or 38.4 weeks and he also had preexisting psychological conditions. The ALJ found the claimant PTD and liable for benefits.
The Fund appealed and argued that none of the claimant’s preexisting conditions qualified. The claimant argued that his 1999 low back and shoulder injuries for which he settled with the employer for 43% disability, constitute qualify preexisting disabilities. The Fund argued that this would not qualify because it involves three distinct body parts. The Commission noted that even if one divided the PPD three ways, each of the three body parts would have at least 50 weeks PPD and therefore, the Commission found that it did qualify. However, the Commission goes on to note that because none of the experts in the case opined that the employee was permanently and totally disabled due to the primary injury solely in combination with the disability from the 1999 injury, the Second Injury Fund is not liable for the claimant’s perm total benefits as the other pre-existing conditions did not meet the threshold.
Fund Liable for Benefits as Primary Injury Combined With Three Qualifying Pre-existing Conditions to Render Claimant PTD
Wilson v. Treasurer of the State of Missouri-Custodian of the Second Injury Fund, Case No. WD84420 (Mo. App. 2021)
FACTS: On November 8, 2017, the claimant sustained an injury to his foot which required an open reduction and internal fixation. He was released from care and settled his claim against the employer for 42.5% of the right ankle. The claimant had various prior right knee surgeries, left knee, surgeries and cardiovascular issues. Dr. Volarich testified on the claimant’s behalf and opined that the claimant was permanently and totally disabled as a result of the work injury and his preexisting disabilities, including the right knee, left knee and cardiovascular condition. An ALJ denied the claimant’s claim for perm total benefits against the Fund as the claimant failed to sustain his burden of proof that perm total was the result of his primary injury in combination with a single preexisting disability at the 50-week threshold. The claimant appealed and the Commission affirmed and the claimant again appealed.
HOLDING: The Court of Appeals reversed the decision of the Commission noting that pursuant to Parker, all preexisting disabilities that qualify under one of the four eligibility criteria for Fund liability should be included when looking at perm total disability. Since the ALJ found Dr. Volarich’s testimony credible in that the claimant sustained a primary injury to his foot and had a preexisting work-related right knee condition, which amounted to 56 weeks and a work-related left knee injury which resulted in 88 weeks of disability along with a cardiovascular condition, which was 35% of the body or 140 weeks and that condition aggravated and accelerated his right foot injury the Fund was liable for benefits.
When Looking at Qualifying Pre-existing Disabilities, Filing a Claim and Receiving PPD is Just One Factor to Look at When Determining Fund Liability
Phelps v. Missouri State Treasurer as Custodian of the Second Injury Fund, Case No. SD36998 (Mo. App. 2021)
FACTS:. The claimant sustained a compensable work-related injury to his left shoulder on April 14, 2016. The claimant settled his claim with his employer. The claimant argued before the ALJ and the Commission that the Fund was liable for PTD benefits because his pulmonary system/lungs along with his right knee and low back were each a qualifying preexisting disability that when combined with his primary injury resulted in his PTD.
With respect to his pulmonary system/lungs the ALJ found that he was diagnosed with asthma as a child for which Dr. Volarich assessed 30% disability to the pulmonary system. He did not file any claims for workers’ compensation or any Reports of Injury with the Division. It also found he suffered a chemical exposure for which he filed a Report of Injury with the Division. He testified he was diagnosed with a chemical burn in his lungs which for which he did not receive a workers’ compensation settlement. The ALJ found that the claimant did not meet his burden of proof that work was a substantial factor in causing his condition and that his chemical exposures resulted in compensable injuries. With respect to his right knee the ALJ found this was a non-work-related injury that resulted in a preexisting disability of 15% of his right knee (24 weeks) which did not satisfy the requirements of Section 287. With respect to his low back the ALJ found that he was injured in 2007 for which he underwent therapy and injections. He reinjured his back in 2015 and once again underwent therapy and injections. The ALJ found that the claimant did not meet his burden that the 2007 injury was a compensable injury as no expert addressed causation. The ALJ also found he had 11.4% preexisting disability from the 2015 injury referable to the lumbar spine which did not qualify under Section 287.
The ALJ found that there was an absence of any qualifying preexisting disability satisfying the first condition of Section 287 and therefore entered an Award denying PTD benefits.
The Commission issued a supplement opinion noting that the claimant also failed to demonstrate a single qualifying preexisting disability exclusive of any other preexisting disabilities that combined with disability from his primary injury to result in PTD. The claimant appealed.
HOLDING: The claimant argued that the Commission erred in that they increased the claimant’s burden of proof by requiring a preexisting compensable injury to be one in which the claimant filed a Claim and received an Award of PPD. The Court noted that the claimant was incorrect as the Commission considered and weighed along with other evidence whether the claimant had filed a Claim or Received an Award, which was relevant though not necessarily conclusive, and so nothing in the Commission’s findings or the record supported the argument that the Commission imposed a heightened requirement upon the claimant. His point was therefore denied.
The claimant also argued that the Commission erred by misinterpreting and misapplying Section 287.220.3 which he argued required determining the total weeks of permanent partial disability for each body part/affected area rather than separating recurrent injuries to the same body part/area by their particular injury and reinjury dates. The Court disagreed as this was contrary to the qualifying preexisting disability analysis recently announced by the Supreme Court in Parker which the Court found the Commission followed and therefore concluded they were not in error.
The claimant also argued that the Commission erred in finding that the claimant’s primary injury to his left shoulder was not an injury to the opposite extremity of his right knee. The Court was not persuaded noting that an opposite extremity does not apply for a right leg and left arm, and therefore the Commission did not err. The Commission’s Award denying PTD benefits was affirmed.
Consideration of Multiple Qualifying Preexisting Disabilities Allowed in Determining PTD
Comer f/k/a Colvin v. Central Programs, Inc. and Treasurer of Missouri as Custodian of Second Injury Fund, Injury No. 16-085212
On November 1, 2016 the claimant sustained an injury to her low back. Dr. Bamber performed a kyphoplasty on the claimant’s thoracic spine. With respect to her preexisting disabilities, she was in a prior motor vehicle accident in 1987 where she shattered the ball of her left hip. She also sustained an injury in 2006 involved a compression fracture for her thoracic spine at the T8 level for which she underwent a vertebroplasty. She sustained another thoracic vertebral fracture in 2011, this time at the T6 level. After the 2016 injury the employer hired an investigator who observed the claimant as she walked, smoked, ate, conversed, carried a plate of food, drove and stepped up and down to enter and exit a truck. He did not observe her having any difficulty getting into or out of her vehicle or walking, though he noted her gait appeared to be somewhat guarded.
The claimant presented a report by Dr. Koprivica who assessed 15% PPD of the body for the various thoracic spine fractures prior to the work injury and 25% PPD of the left hip from the 1987 motorcycle accident. The doctor suggested the claimant was PTD due to a combination of her November 2016 injury and her preexisting conditions. The employer submitted a report of Dr. Bailey who assessed 10% PPD of the body as a result of the November 2016 accident and that she had a variety of preexisting conditions. Dr. Bailey did not opine that she was totally disabled. Mr. Dreiling testified she was PTD a result of the combination of the November 2016 injury and her preexisting disabilities. Mr. Karrow testified on behalf of the employer and concluded that the claimant was employable.
The ALJ concluded the claimant had 25% PPD referable to the work injury and that she was PTD due to a combination of the November 2016 injury and her preexisting disabilities and that the Fund was liable for PTD benefits.
The Fund appealed and argued that the ALJ failed to analyze whether claimant’s work injury alone caused her to be PTD. The Commission disagreed noting that no expert opined that PTD was because of the November 2016 injury in isolation and therefore affirmed that ALJ’s finding that claimant sustained 25% PPD related to her November 2016 back injury. The Fund also argued that the ALJ used two preexisting injuries in combination with the primary injury rather than one. The Commission noted that Parker allows consideration of multiple qualified preexisting disabilities. The Fund also argued that the claimant’s preexisting hip injury was non-qualifying. The Commission affirmed the finding that the radiculopathy involving the claimant's right lower extremity that resulted from her November 2016 injury qualified as opposite of her left hip despite the fact that the November 2016 back injury was rated at the body. It also found that the testimony of Dr. Koprivica was credible in that the low back injury was made worse due to the claimant’s altered gait which aggravated and accelerated the same. Therefore the Commission affirmed the award of the ALJ.
Fund Not Liable for Benefits Because Prior Settlement of 15% of Body Referable to Back and Bilateral Knees Did Not Qualify as Preexisting Disability
Adams v. Treasurer of Missouri as Custodian of Second Injury Fund, Injury No. 15-073485
The claimant sustained a work injury involving his right upper extremity on September 17, 2015 while working on a vehicle. The claimant settled his claim with the employer for 25% of the shoulder and 27% of the wrist. With respect to his preexisting conditions he sustained a 1984 work related injury to his left hand which he settled for 32.5% of the left hand. He also had a June 14, 2001 work related injury involving the bilateral knees and low back which he settled based on approximate disability at 15% of the body referable to the bilateral knees and low back. The stipulation failed to separate disability involving the body parts. The ALJ awarded PPD against the employer and found the Fund liable for PTD. The Fund appealed, arguing that the claimant failed to satisfy the criteria because the disability resulting from the 2001 work injury did not result in at least 50 total weeks of PPD to either the back or bilateral knees.
The Commission found that Parker explicitly required a claimant to demonstrate PTD solely by a combination of disability related to the claimant’s primary injury and preexisting disabilities that qualify under the statute. They noted that the Court expressly rejected the notion that non-qualifying preexisting disabilities may be considered. Because the claimant’s 2001 injury failed to qualify as a preexisting disability under the statute as neither condition resulted in at least 50 weeks of PPD and because no expert suggested that the claimant would be PTD in the absence of disability attributable to his 2001 work injury, the Commission concluded that the Fund had no liability. The claimant’s claim for PTD against the Fund was therefore denied.
Fund Responsible for Benefits as Both Preexisting Conditions, Including Polio, Found to be Qualifying Preexisting Conditions
Wolf v. Treasurer of Missouri as Custodian of Second Injury Fund, Injury No. 14-105395
The claimant’s primary injury involved carpal tunnel syndrome with an onset of December 2, 2014. The claimant settled against the employer for 22.5% PPD of the right wrist and 20% PPD of the left wrist. At a hearing, the ALJ found that the claimant had 13.5% PPD of the body from a prior November 2013 work related lower back injury that met the 50-week threshold pursuant to Section 287.220.3. The ALJ also found that the claimant had a non-compensable preexisting disability relating to polio in the amount of 35% PPD of each lower extremity at the ankle, which also satisfied the 50-week requirement set out in the statute and that this disability directly and significantly aggravated or accelerated the claimant’s primary injury, therefore qualifying as a preexisting disability under the statute. The ALJ concluded that the Fund was liable for PTD. The Fund appealed.
The Fund argued that the ALJ erred in considering claimant’s back condition because it had not reached MMI before the claimant’s primary injury. The Fund also argued that an award of PTD only is permitted when a single qualifying preexisting disability combines with a primary injury. The Commission found that the Supreme Court’s ruling in Parker was dispositive against these arguments as it found that a condition need not reach MMI before the primary injury and that multiple qualifying preexisting disabilities could be considered in determining fund liability. The Commission also found that Dr. Cohen’s testimony constituted substantial evidence that the primary injury and the preexisting condition resulted in PTD, as the polio aggravated and accelerated the work injury, contrary to the Fund’s argument that the ALJ improperly found that the claimant’s polio disability met the statute threshold. The Fund also argued that the ALJ improperly considered the claimant’s long history of disabling injuries without analyzing each preexisting injury separately. The Commission found that this was extraneous to the judge’s ultimate finding. The Award of the ALJ was affirmed.
Commission Decision Reversed After Erroneously Asserting Own Opinion on Matter of Causation
March v. Treasurer of the State of Missouri Custodian of the Second Injury Fund, Case No. WD84377 (Mo. App. 2021)
FACTS: Around April 2015 the claimant started having problems with his upper extremities. He treated with Dr. Winston who concluded that the claimant’s bilateral upper extremity complaints were work-related and provided the claimant an injection to the right shoulder as well as carpal tunnel releases. The claimant settled his claim for his bilateral upper extremity issues for 27% of the body. The claimant also had various other injuries and health conditions leading up to the last date of the injury. However, the most significant was his morbid obesity which caused symptoms of pain radiating to both legs and swollen ankles.
Despite this comorbidity, Dr. Hopkins opined that the claimant’s job duties were the cause of his symptoms and he assessed 30% disability to each leg plus a 15% load. He further concluded that a combination of the claimant’s preexisting condition and his disability from his job duties combined with his primary bilateral upper extremity claim resulted in PTD. The ALJ found that Dr. Hopkins’ opinion was not credible and therefore the claimant did not meet his burden to establish Fund liability. The claimant appealed to the Commission who rejected the ALJ’s finding and found Dr. Hopkins to be credible. However, a majority of the Commission’s three-member panel concluded that it was equally likely that the claimant’s pre-existing injuries resulted in the claimant’s PTD and denied benefits. The claimant appealed.
HOLDING: The claimant argued that the issue determining Fund liability was one of causation and there was only one uncontradicted expert medical opinion on the topic and the Commission credited that opinion as plausible but then erroneously asserted its own opinion to deny compensation. The Court agreed noting that the conclusion that it was equally likely the claimant’s PTD resulted from his pre-existing injuries was unsupported by any expert testimony and was instead simply a lay conclusion, and therefore could not constitute substantial evidence to support the Commission’s Award. The Commission’s decision was therefore reversed.
Claimant Failed in Burden of Persuasion as Commission Had Province to Believe or Disbelieve Witness
Anttila v. Treasurer of the State of Missouri Custodian of the Second Injury Fund Case No. SD36826 (Mo. App. 2021)
FACTS: The claimant worked as a truck driver. In 1994, he suffered on the job injuries to his left shoulder and left leg while working for Freymiller and made a full recovery. He then underwent chiropractic treatment in 2009 and 2010 for maintenance and then in 2011 and 2012 for complaints of neck, thoracic spine and left upper extremity pain. On January 3, 2014, he attempted to remove a pin from a trailer and felt a crunch in his neck and on the drive back, he began experiencing severe pain in his left arm and neck. The employer referred him to Dr. Mauldin who believed the claimant’s injury was preexisting regarding his shoulder and released him from care. He then treated on his own and underwent a cervical fusion on June 12, 2014 to address a C5-6-disc herniation.
In August 2015, he filed a Claim for Compensation. At the employer’s request, he was examined by Dr. Chabot who opined that the claimant’s cervical spine injury was work related and rated disability of 15% to the body as a whole, 5% of which he attributed to the claimant’s preexisting condition and noted he was able to return to work. The claimant filed an Amended Claim also alleging an occupational disease to the neck due to his job duties driving a truck. The claimant obtained his own physician, Dr. Paul, who examined the claimant and opined that he sustained 50% disability to the body as a whole as a result of all conditions relative to his employment with 15% due to his job duties and 35% for specific accident and resulting fusion. Dr. Paul also noted he sustained a 20% disability at the wrist for left traumatic carpal tunnel syndrome also as a result of the January 3, 2014 injury, and concluded that the claimant was PTD due to a combination of effects of the January 3, 2014 injury with prior disabilities. He was evaluated at his own request by a vocational expert, Mr. Eldred, who opined that the claimant was PTD as a result of his January 3, 2014 injury in isolation.
The ALJ found the claimant sustained 15% PPD to the cervical spine for his last occupational disease injury, 35% PPD of the cervical spine and 20% PPD for the left carpal tunnel syndrome both as a result of the specific injury. The ALJ also found he was PTD as a result of a combination of the occupational exposure injury of January 3, 2014 and the preexisting traumatic accident, which occurred earlier that day and found the Fund liable for benefits. The Fund appealed and the Commission denied the claim because he failed to demonstrate a preexisting condition that met the requirements of Section 287.220.3 as the preexisting disability (5% of the cervical spine per Dr. Chabot) did not meet the threshold requirement of a minimum of 50 weeks of PPD needed to combine with the specific accident. The claimant appealed.
HOLDING: The claimant argued that the Commission erred in reversing the ALJ’s finding of two separate claims. The Court did not agree and noted that the parties stipulated as to occupational disease and the traumatic injury. The claimant also argued that the Commission erred in finding that her was not PTD. The Court noted that it is the province of the Commission to believe or disbelieve witnesses and this was a battle of the experts. The Award of the Commission was affirmed.
Employer/Insurer Responsible for PTD for 2015 Low Back Injury Despite Subsequent Neck Injury in 2016 Because Despite Continuing to Work Claimant was Highly Accommodated After 2015 Injury
Watson v. Tuthill Corporation & Treasurer of Missouri as Custodian of Second Injury Fund, Injury No. 15-036120
The claimant, a 58-year-old Senior Service Technician, sustained an injury to his low back. He had worked for the employer for 28 years. His job did involve heavy lifting. Dr. Cunningham, the authorized treating physician, performed an L4-5 fusion. Thereafter, he treated with Dr. Woodward. On February 1, 2016, the claimant sustained a subsequent injury involving his neck, for which he treated conservatively. He returned to work from January 2016 until April 20, 2016, when he retired. He was subsequently placed at MMI for the 2015 low back injury on July 18, 2016. The claimant did have various preexisting conditions, including a right shoulder surgery, two low back strains, a left shoulder surgery, a hernia which was repaired and a prior right elbow injury, all of which were worked related. Dr. Koprivica opined that the claimant was permanently and totally disabled as a result of the 2015 date of injury, as did Mr. Eldred. Ms. Sprecker testified on behalf of the employer and found that the claimant was employable. Dr. Woodward, the claimant’s authorized treating physician, did not recommend any continued pain medications or treatment.
At the hearing, the 2015-2016 injuries were tried simultaneously and therefore, the employer argued that the true last injury was the 2016 neck injury. However, the judge disagreed and noted that the 2015 injury caused significant disability and the subsequent neck injury was quite minor. The judge did note that the claimant admitted to having pains and limitation accumulating through the years but after the 2015 date of injury, he needed more than a modification or slight accommodation to continue working. It was noted that after he returned to work after the 2015 date of injury, he never performed his job in the manner any employer would have expected on the open labor market, which included frequent days off and taking multiple breaks to lay down during the day due to his back pain. The judge noted that it was abundantly clear from the record that due to the 2015 lumbar injury, the claimant was not capable of returning to work on the open labor market. In light of this, the employer was found responsible for perm-total benefits. The employer was also responsible for future medical that was reasonably required to cure and relieve the claimant from the effects of the work injury. The employer appealed and the Commission affirmed.
Employer/Insurer Responsible for PTD Due to Conservatively Treated Low Back Injury, Despite Claimant’s History of a C3-C7 Cervical Fusion
Harper v. Springfield Rehab and Health Care Center/NHC Health and Treasurer of Missouri as Custodian of the Second Injury Fund, Injury No. 18-057914
The claimant, a 69-year-old registered nurse, sustained an injury to her hip/low back on June 22, 2018. She did have a prior neck injury, which required a fusion from C3 to C7 in 2013. She noted that due to this, she had limited strength in her arms so she used her hip to push the cart. She felt a pull in her back but continued to work her 12-hour shift. She testified that within a few hours, she had difficulty walking, which became increasingly worse throughout the shift. After her shift, she went home, took Tylenol and went to bed due to her discomfort. During her deposition, she did admit that she did not feel immediate pain but rather the pain began as she was walking later in her shift. She was not asked if she felt a strain or a pull during her deposition but at the time of the hearing, she testified that she felt a pull or a strain in her back at the time of the incident. She received conservative treatment and underwent an MRI, which showed chronic degenerative spondylosis of the lumbar spine. Therefore, she was referred to her primary care physician. She did undergo epidural injections and attended a psychological consultation. Dr. Koprivica opined that she was totally disabled as a result of the work injury in isolation.
Dr. Cantrell testified on the employer’s behalf and concluded that there was no accident or injury. He testified that a pulling sensation in the muscle was not evidence of an injury. However, he noted that the claimant’s treatment with Dr. Gil could be considered reasonable for a temporary aggravation of a preexisting condition but her subsequent treatment was not work related. Mr. Eldred testified on the claimant’s behalf and found that him PTD based on the back injury alone. Mr. Hosutt testified on the employer’s behalf and found that the claimant was employable. However, the ALJ noted that he had not reviewed the depositions of the IME physicians and was not aware of Dr. Koprivica’s testimony that the claimant was not capable of full sedentary work and that it was medically appropriate for the claimant to lie down during the day to relieve pain.
At a hearing, the ALJ found that the claimant was credible and found that she sustained unusual strain in her lower back when she pushed the heavy medicine cart on June 22, 2018. The ALJ also found Dr. Koprivica credible and did not believe that Dr. Cantrell was credible, based on the fact that the doctor noted that she did not sustain an injury due to not feeling immediate pain. However, the claimant described a pull in her back and experienced pain thereafter and therefore, pursuant to the statute, this would be an unusual strain.
The ALJ noted that the employer/insurer argued that if there was a work accident, then the claimant sustained nothing more than a soft tissue injury and that the claimant merely took a well-deserved retirement when she quit work on November 14, 2018. The ALJ did note that this was a close case but she found the claimant and Dr. Koprivica credible and also noted that the claimant was rehabilitated from severe cervical disability to return to work full time as a nurse and she also attempted to continue working after her release after the 2018 date of injury and therefore, this would hardly suggest that she simply was desirous of retirement. The judge found that the claimant was PTD from the work injury in isolation and believed that the employer was responsible for future medical treatment. The employer appealed and the Commission affirmed.
Claimant PTD Due to Hearing Loss and Preexisting Disability so Fund Responsible for Benefits
Fields v. Treasurer of Missouri as Custodian of the Second Injury Fund, Case No. WD 109251 (Mo. App. 2021)
FACTS: The claimant, a ramp agent, had various low back injuries, the first on August 17, 2011 and the second on May 17, 2012 which he testified worsened his low back symptoms from his initial injury. He also reported that he hurt his back at work on June 29, 2012 and then again on November 9, 2012. He also testified he began noticing problems with his hearing loss in the last few years of his employment and testified to other injuries including one to his right shoulder and his right thigh. He also reported a fracture to his C7 vertebrae after an auto accident and that same year was diagnosed with depression and anxiety.
The claimant brought multiple claims against the Fund and an ALJ denied compensation for the claimant’s August 2011, May 2012, June 2012 and November 2012 PPD claims for his back injuries and also denied compensation for his November 2012 PTD claim for his back and his PTD claim for his hearing loss. The claimant appealed to the Commission who reversed the ALJ’s Award as to the claimant’s May 2012 back injury and awarded PPD benefits but denied PPD for his August 2011, June 2012, and November 2012 back injuries and his alternative PTD claim for his November 2012 back injury and his PTD hearing loss claim. The Commission was not persuaded by the claimant’s physician who acknowledged that his disability ratings regarding the claimant’s back injuries were a “guess” and noted that nothing in the record suggested his hearing loss prevented him from performing his job duties. The claimant appealed.
HOLDING: The claimant argued that there was not sufficient evidence to support the Commission’s denial of the claimant’s PPD and PTD back claims because he was not required to establish an exact percentage of disability for each primary injury and he established the nature and extent of each primary injury by overwhelming evidence. The Court disagreed, noting that the Commission was presented with opposing expert opinions and noted that the claimant’s expert could not apportion the injuries individually and instead equally divided his disability rating among the back injuries which he conceded was a guess while the employer’s expert concluded that the claimant did not suffer permanent disability of any kind except from the May 2012 back injury. The Court noted the Commission was free to rely on the opinion deemed the most credible and persuasive.
The claimant argued that the Commission’s decision denying his PTD for his hearing loss was erroneous. The Court agreed. The Commission concluded that if the claimant was PTD it was based on prior physical injuries without consideration of his hearing loss but the Court noted that this was inconsistent with its own Award finding the claimant was not permanently and totally disabled based on his last back injury and his preexisting disabilities. The Commission’s decision finding the claimant was not PTD based on a combination of his hearing loss and preexisting disabilities was reversed while the Commission’s decision denying PPD for his back injuries and PTD for his last back injury were affirmed.
When Challenging Award All Evidence Favorable to Factual Proposition Necessary to Sustain Award Must be Presented
Patrick v. Mulvaney and City of Monett, Case No. SD36956 (Mo. App. 2021)
FACTS: In 2015, the City of Monett began a project to renovate City Hall. The City Council member, Jerry Dierker was assigned to coordinate the project. He hired contractors including Derek Mulvaney, who did business as Mulvaney Construction. The claimant began working for Mulvaney sometime in 2015 and in March 2016 he suffered a serious injury to his left hand resulting in tendon damage to several fingers, requiring surgery. The employer reported the injury to Mulvaney, who informed the claimant that he did not have workers’ compensation insurance. The claimant filed a claim and the City and Dierker both filed Answers, denying they were an employer while Mulvaney did not file an Answer. After a hearing, the ALJ entered an Award finding Mulvaney liable for the claimant’s injury and the City secondarily liable, while Dierker was not found liable. The City appealed.
HOLDING: The City argued that the Commission’s finding that the City was a statutory employer of claimant was not supported because the evidence established that the claimant did not perform work for the City as an operation of the usual business which the City carries on and the claimant was an independent contractor. The Court noted that the City purported to utilize the three step analytical formula set forth in Nichols v. Belleview that requires an appellant challenging an Award to 1) identify a factual proposition necessary to sustain the Commission’s result 2) marshal all evidence in the record supporting the factual proposition and 3) demonstrate why the evidence from the second step lacks sufficient probative force on the issues. The Court pointed out that the City’s arguments failed to meet the second criterion as evidence in the records supporting the proposition was cited inconsistently. Therefore, the Award of the Commission was affirmed.
Claimant Able to Move Forward with Appeal as Application for Review Complied with Statute Despite Cover Sheet Not Being Detailed
Miller v. Henniges Automotive Sealing Systems North America, Inc., Travelers Indemnity Company of America and Treasurer of Missouri as Custodian of the Second Injury Fund, Case No. ED109432 (Mo. App. 2021)
FACTS: The claimant filed two claims one for a 2015 date of injury and the second for a 2016 date of injury. The ALJ found the 2015 injury was not compensable but awarded PPD benefits against the employer for the 2016 injury. The Fund was not liable for benefits on either claim. The claimant filed an Application for Review (AFR) and appealed to the Commission arguing that the ALJ misapplied the restrictions placed on her by Dr. Cohen. The employer filed an Answer in response and the Fund asked the Commission to dismiss as the claimant’s pleading did not satisfy the requirements laid out in 8 CSR 20-3.030. The Commission issued an Order granting the Fund’s Motion to Dismiss finding the claimant’s AFR failed to satisfy the minimum requirements. The claimant appealed.
HOLDING: The claimant argued that the Commission acted without or in excess of its power in granting the Fund’s Motion to Dismiss because the AFR sufficiently specified the reasons the claimant believed the findings and conclusion of the ALJ were not properly supported. The Court agreed noting the Commission seemingly based its dismissal on the cover sheet of the claimant’s AFR while the AFR itself clearly specifies why the decision of the ALJ was not supported and therefore the pleading complied with 8 CSR 20-3.030. Therefore, the Commission erred in granting the Fund’s Motion to Dismiss. The decision of the Commission was reversed.
Legal Update by Attorneys Alison Stewart, Nick Cooling, and Law Clerk Jordan Gehlhaar
In August of 2018, Claimant Carmer sustained an injury to her right shoulder while working for Nordstrom, Inc. The employer accepted liability for the right shoulder injury. Carmer underwent a right shoulder surgery and reached maximum medical improvement (MMI) on May 8, 2019 at which time she was released without restriction. Subsequently, her right shoulder condition worsened and she reportedly used her left upper extremity more due to “favoring” of her right. At this time she was no longer working due to unrelated mental conditions.
Carmer reported her worsening symptoms to her previous employer and requested medical care. The employer sent Carmer for an independent medical examination (IME) with Dr. Milani. He found her left shoulder pain to have an unknown etiology, but likely from an underlying degenerative change or rheumatologic disorder. She subsequently underwent a second IME with Dr. Segal. He diagnosed the Claimant with left shoulder arthropathy “caused in part by overuse and compensation due to the right shoulder injury.” He recommended further evaluation and treatment of both shoulders.
Nordstrom denied that Carmer sustained a compensable injury to the left shoulder, contending any symptoms were related to underlying arthritis or joint problems. In the arbitration decision, the Deputy found Dr. Segal’s causation opinion more persuasive than Dr. Milani’s. As such, it was found that the claimant sustained both a right shoulder injury and a sequela to the left shoulder. This presented a novel issue: What statute governs compensation for a bilateral shoulder injury?
The employer asserted the injury was to be compensated under the schedule and therefore functional disability analysis; the claimant argued the injuries should be compensated industrially under the “catch all” provision. This was a matter of statutory interpretation. The legislature has set compensation for the “loss of a shoulder” and for the loss of multiple arms, hands, feet, legs, or eyes. See Iowa Code §§ 85.34 (2)(n), (t) (2017). However, it neglected to specifically address compensation for the loss of both shoulders. Therefore, the Deputy concluded that the bilateral shoulder injury had to be compensated industrially under 85.34 (2)(v) because it was a case other than those described in subsections a through t.
A similar issue was addressed in Anderson v. Bridgestone Americas Inc. The Claimant was found to have a right arm injury and a right shoulder injury. The issue again was what subsection of 85.34, and therefore what disability analysis, dictates compensation. The Deputy considered several possibilities:
See Iowa Code §§ 85.34 (m)–(n), (t), (v) (2017).
The Deputy found that the first three sections only apply in cases where the employee sustains a loss of the specific scheduled body part or parts described. Since the claimant had suffered a loss of both the right arm and the right shoulder—a combination of injuries not detailed in the statute—the compensation then lands in the “catch all” provision calling for industrial disability analysis.
Absent statutory amendment, an injury to both shoulders, a shoulder and another body part, or two body parts not specifically defined together will likely result in industrial disability analysis rather than functional.
Peddicord Wharton will continue to monitor case law on this issue.
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Peddicord Wharton Legal Updates are intended to provide information on current developments in legislation impacting our clients. Readers should not rely solely upon this information as legal advice. Peddicord Wharton attorneys would be pleased to answer any questions you may have about this update. ©2021 Peddicord Wharton. All Rights Reserved.
Cousineau, Waldhauser & Kieselbach is proud to announce that James Waldhauser, Thomas Kieselbach, Mark Kleinschmidt, Jennifer Fitzgerald, Whitney Teel, and Thomas Coleman have all been recognized on the Minnesota Best Lawyers List for 2021. Click here for the 2021 Best Lawyers in the Midwest Publication (see page 65 for the list).
In addition, we are proud to announce that James Waldhauser, Thomas Kieselbach, and Jennifer Fitzgerald have been selected as 2021 Super Lawyers, and Elizabeth Cox and Parker Olson have been selected as Rising Stars for 2021. Click here for the 2021 Super Lawyers Publication (see page 54 for the list).
Recognition by Best Lawyers is based entirely on peer review. Best Lawyers' methodology is designed to capture the consensus opinion of leading lawyers about the professional abilities of their colleagues within the same geographical area and legal practice area. Best Lawyers employs a system of peer review, feedback, and analysis for all attorneys nominated for this honor. See the Best Lawyers Website for more information.
Super Lawyers is a rating service for outstanding lawyers who have attained a high degree of peer recognition and professional achievement. Peer nominations and evaluations are combined with third-party research, and selections are made on an annual, state-by-state basis. Designation as a Super Lawyer is awarded annually to only 5% of the licensed, active lawyers in Minnesota. Designation as a Rising Star is awarded annually to no more than 2.5% of licensed, active lawyers in the state. For more information, see the Super Lawyers website.
The Minnesota Workers’ Compensation Court of Appeals (WCCA) decided Bosquez v. Super America and York Risk Services Group, No. WC20-6382 on May 26, 2021 and affirmed the denial of ongoing benefits.
The employee sustained a head injury on July 28, 2018. The employer and insurer eventually discontinued benefits, and the employee alleged that her injury resulted in ongoing vision and psychological changes.
At hearing, the employer and insurer offered testimony from two medical experts, Dr. Bushara, a neurologist, and Dr. Gratzer, a psychiatrist. These doctors evaluated the employee’s complex medical history prior to her work injury and compared her pre-existing conditions to her post-injury symptoms. Dr. Bushara concluded that the employee sustained a temporary head injury that resolved within six weeks or so without the need for ongoing benefits or treatment. Dr. Gratzer concluded that the employee’s injury did not substantially aggravate or accelerate her pre-existing psychological conditions. The employee presented conflicting medical evidence in support of her ongoing claims, including mental health and ophthalmology opinions.
The Compensation Judge carefully weighed the medical opinions and evidence before determining that any work injury had resolved by early December 2018. As such, the Compensation Judge denied ongoing benefits and claims related to any alleged conditions, including those related to mental health or vision.
On appeal, the employee argued that the Compensation Judge misunderstood the issues and that the Compensation Judge failed to consider whether the work injury aggravated her pre-existing conditions, especially when considering the factors outlined in McClellan v. Up North Plastics, slip op. (W.C.C.A. Oct. 18, 1994). The McClellan factors include: severity and extent of treatment of the pre-existing condition, severity of the incident and subsequent restrictions including disability and medical treatment resulting from that incident, the extent of the employee’s relevant work and leisurely activities, and medical opinions. The WCCA, however, has previously held that using the McClellan factors is not mandatory. Further, the WCCA determined that the Compensation Judge properly addressed the employee’s claims. The judge’s memorandum showed that he compared the employee’s pre-existing history and post-injury symptoms and weighed the experts’ medical opinions in detail. Therefore, the WCCA held that substantial evidence supported the Compensation Judge’s findings that the employee’s head injury resolved as of December 2018.
The employee also argued that the judge erred by ignoring an uncontested medical opinion regarding her vision changes. However, the WCCA followed precedent stating that although a medical opinion cannot be ignored, that medical opinion is not necessarily conclusive or binding. Here, the WCCA agreed that even though the employer and insurer did not present a specific vision expert, the Compensation Judge was entitled to credit Dr. Bushara’s well-founded opinion that the head injury had resolved by December 2018. As such, any claims for additional vision symptoms beyond that time could be denied.
Minn. Stat. § 176.101, Subd. 1(c) was recently amended to include a change to the minimum compensation rate structure/formula. Over the last several years, the minimum compensation rate has consistently been $130.00 or the Employee’s actual weekly wage, whichever is less.
However, starting with injuries occurring on or after October 1, 2021, the minimum compensation rate will be equal to one of the following, whichever is less:
20% of the maximum weekly compensation rate
OR
The Employee’s actual weekly wage
The maximum compensation rate for injuries on or after October 1, 2021 is $1,256.64. Therefore, for injuries on or after October 1, 2021, the minimum compensation rate will total $251.33 (instead of the previous $130.00).
The following bullet points outline the basic rate calculations.
If the AWW is less than $251.33
The Compensation Rate is the AWW
If the AWW is $251.33 to $377.00
The Compensation Rate is $251.33 (i.e., the Minimum Compensation Rate applies)
If the AWW is greater than $377.00
The Compensation Rate is 2/3 of the AWW
EXAMPLES
If an Employee's AWW is $200.00, the Compensation Rate would be $200.00
If an Employee's AWW is $300.00, the Compensation Rate would be $251.33
If an Employee's AWW is $400.00, the Compensation Rate would be $266.67 (which is 2/3 of $400.00)
For additional information, please see the resources page on our website for an updated Minnesota Workers' Compensation Reference Sheet, including compensation rates and other helpful benefit information. Thank you to Attorney Parker Olson for continuing to update that reference sheet.
OKLAHOMA TRENDS 2021:
Supreme Court new decision on “Course and Scope”.
The Oklahoma Supreme Court in Johnson v Midwest City Del City Public Schools, 2021 OK 29, issued an opinion regarding a smoke break for a school employee. Tobacco use on school property is not permitted. The employee left school property to smoke on their break and was returning when they sustained an injury in the school parking lot. The school denied the claim as not being in the “Course and Scope” of employment. The trial judge ruled in favor of the claimant and was reversed by the Commission En Banc, and the denial was affirmed by the Court of Civil Appeals. The Supreme Court by a 6-3 decision ruled the trial judge was correct to find the injury occurred in the “Course and Scope” of employment. The Supreme Court found that the claimant was on an authorized work break and the employer prohibited the use of tobacco on school premises. The injury occurred as the claimant was reentering the school building. The Supreme Court stated the school treated the parking lot as part of the facility grounds which required the claimant to leave the premises to smoke on their break; therefore, the injury was in the “Course and Scope” of employment and compensable.
Court of Civil Appeals new decision on “Major Cause”.
The Oklahoma Court of Civil Appeals in Bryan Linn Farms v. Arthur Monsebais, Jr., issued an opinion regarding whether “Major Cause” applies to the cause of the injury and/or the need for medical treatment. The claimant had pre-existing arthritis to his knee. The treating physician and the Court IME said the work injury aggravated the pre-existing condition. Both physicians stated the claimant needed a total knee arthroplasty; however, both stated the major cause of the need for the total knee arthroplasty was the pre-existing arthritis and not the aggravation from the work injury. The trial judge denied the request for the total knee arthroplasty and the Court of Civil Appeals stated the statutory term “Major Cause”, is the test for a compensable injury, but it does not apply to the need for medical treatment. The Commission further stated a claimant is not required to prove that the work injury is the “Major Cause” for a specific medical treatment, only that the work injury is the “Major Cause” of a compensable injury.
Changes to TTD and PPD Rates
The rates awarded for injuries after 1/1/21, have increased to $923.53 for temporary total disability (“TTD”.) The maximum number of weeks for TTD was also increased, in most cases, from 104 weeks to 156 weeks. The rate for permanent partial disability (“PPD”) will increase on 7/1/21 to $360.00.
New Limitations Periods
The Statute of Limitations was shortened to 1 year from the date of injury or 6 months from the date of last benefits paid, whichever is longer. A claim may be dismissed if after 6 months without payment of benefits, no request for a hearing has been filed. An injured worker now has 6 months following an Order for Permanent Partial Disability to file a request to reopen a claim based on a change of condition for the worse.
© Copyright 2021 by John Valentine, Lott and Valentine, PLLC. Reprinted with permission.
6909 N. Robinson, Suite A Oklahoma City, OK 73116 John@lottvalentine.com
OKLAHOMA TRENDS 2020:
IS COVID-19 INFECTION COMPENSABLE UNDER OKLAHOMA LAW?
The Statute that defines “Occupational Disease” is Okla. Stat. Tit. 85A section 65. The definition is found at 65 (D)(1) and states, “…any disease that results in disability or death and arising out of and in the course and scope of the occupation or employment of the employee or naturally follows or unavoidably results from an injury…” “…A causal connection between the occupation or employment and the occupational disease shall be established by a preponderance of the evidence.”
Under 65 (D)(2) the Statute further states, “No compensation shall be payable for any contagious or infectious disease unless contracted in the course and scope of employment.” 65 (D)(3) states, “No compensation shall be payable for any ordinary disease of life to which the general public is exposed.”
It would be difficult for most employees to prove their exposure to Covid-19 occurred in the course and scope of their employment. A preponderance of the evidence standard would require the employee to establish the exact type of exposure with a person that has tested positive for the virus. They would also have to prove they had not been exposed anywhere other than thru their employment. The definition stated above creates a difficult hurdle for an employee to establish causation of Covid-19 thru their employment.
The only exception may be for first responders and healthcare professional. The employees that are battling the virus on the front lines may have a continuous exposure to the virus, and the Court is likely to grant the benefit of the doubt to that employee regarding the exposure. In Oklahoma, the Court gives a lot of deference to first responders, and we expect any cases involving police, firefighters, or healthcare professionals to be more likely to be found compensable depending on the facts of the claim.
Changes to TTD and PPD Rates
The rates awarded for injuries have increased to $898.63 for temporary total disability (“TTD”.) The maximum number of weeks for TTD was also increased, in most cases, from 104 weeks to 156 weeks. The rate for permanent partial disability (“PPD”) was increased to $350.00.
Termination of TTD and Claims for Employment Retaliation or Discrimination
Employers are allowed to terminate benefits if an injured worker abandons medical treatment for 60 days or refuses to comply with an Order from the Judge. Jurisdiction for retaliatory discharge claims had been in the Workers’ Compensation Commission since February 1, 2014, but the latest version of the Act moved jurisdiction for those cases back to the district courts.
New Limitations Periods
The Statute of Limitations was shortened to 1 year from the date of injury or 6 months from the date of last benefits paid, whichever is longer. A claim may be dismissed if after 6 months without payment of benefits, no request for a hearing has been filed. An injured worker now has 6 months following an Order for Permanent Partial Disability to file a request to reopen a claim based on a change of condition for the worse.
© Copyright 2020 by John Valentine, Lott and Valentine, PLLC. Reprinted with permission.
6909 N. Robinson, Suite A Oklahoma City, OK 73116 John@lottvalentine.com
Written by: Tracey Jones
On September 29, 2021, the Full Commission entered an Opinion and Award in Milton Nobles v. North Carolina DHHS and CCMSI. The Full Commission reversed Deputy Commissioner Harris’ Opinion and Award and denied claimant’s right to extended benefits beyond the 500 weeks, as well as his claim for PTSD. The Full Commission panel consisted of Commissioner Myra Griffin, Commissioner Kenneth Goodman and Deputy Commissioner David Hullender.
By way of background, Deputy Commissioner Robert J. Harris entered an Opinion and Award on January 25, 2021, awarding claimant extended benefits beyond the 500 weeks and finding that claimant’s PTSD was compensable. On June 26, 2011, the claimant was working for a hospital and sustained physical injuries to his right eye, mouth and right shoulder, which were accepted. At the hearing, claimant alleged that he also developed PTSD as a result of his work injuries. In awarding extended benefits, Deputy Harris noted that the claimant had no formal education outside of a high school diploma, and his work experience was primarily as a health care technician. Additionally, Deputy Harris emphasized the severity of the fight and the resulting injuries to claimant as well as claimant’s limited job history and low IQ.
Dr. Thomas Gualtieri saw the claimant for a one-time neuropsychiatric evaluation in September of 2011 and opined that claimant was malingering. He testified in line with the same at hearing. Claimant then began seeing Dr. Edwin Hoeper, a psychiatrist, on his own starting in May of 2012. Claimant was still seeing Dr. Hoeper as of the date of the hearing and Dr. Hoeper provided testimony for claimant that his PTSD was related to the work injury, would never be cured and that his treatment could only improve his life slightly. Dr. Hoeper testified that claimant was permanently and totally disabled, and unemployable in any job. Dr. Manish Fozdar also conducted a one-time independent medical examination of claimant. Dr. Fozdar found claimant to be uncooperative and opined claimant was malingering. He opined any further mental health treatment was not related to his initial injury. Defendants also hired a vocational rehabilitation professional, who produced a labor market survey and identified several positions she believed claimant could perform. Defendants’ vocational expert never met with claimant and claimant did not hire his own vocational expert. Deputy Commissioner Harris determined that claimant was entitled to extended benefits beyond the 500 weeks. Deputy Harris found that claimant had long-term chronic PTSD and chronic major depression and that he had satisfied the requirements under N.C.G.S. § 97-29(c) and had proven by the preponderance of the evidence in view of the entire record that he “has sustained a total loss of wage-earning capacity.” Dr. Hoeper’s testimony was given more weight than that of Dr. Fozdar, Dr. Gualtieri, and of the vocational rehabilitation professional.
The Full Commission reviewed the evidence and testimony and noted that claimant had received no medical treatment for his physical injuries since 2012 and had no work restrictions related to those injuries. Additionally, the Full Commission noted that the Parsons presumption did not apply to claimant’s allegations of PTSD as it was not an accepted condition in the claim and found Dr. Gualtieri’s and Dr. Fozdar’s testimony more credible than that of claimant’s treating physician, Dr. Hoeper. The Full Commission concluded that Dr. Hoeper relied solely on claimant’s subjective complaints without any diagnostic testing or objective findings to support his diagnosis of PTSD. They specifically noted that Dr. Fozdar and Dr. Gualtieri performed objective testing which led them to conclude that claimant’s alleged mental conditions were not related to his work injury. Accordingly, the Full Commission conculded that claimant failed to prove that he suffered from PTSD or depression as a result of his work injury and did not prove that he lacks total wage-earning capacity as a result of his June 26, 2011, right eye, mouth or right shoulder injuries. The Full Commission denied medical treatment for claimant’s alleged PTSD and denied his claim for extended benefits beyond the 500-week cap.
Employers and adjusters should carefully draft Form 63s or Form 60s. When completing these forms, only list the body parts that are truly accepted, and list them with specificity.
Although it is unclear whether the Full Commission would have still reached the same conclusion if the mental component had been accepted in light of Dr. Fozdar’s and Dr. Gualtieri’s testimony and examinations, the Parsons presumption is a difficult one for defendants to overcome. (The Parsons presumption states that if a condition is listed on the Form 63 than there is a presumption that the condition listed and all future treatment for that condition is related to the original injury absent evidence to the contrary.) Additionally, the Opinion reiterates the importance of expert testimony that is based on objective diagnostic testing
Written by: Tracey Jones
Last Updated: September 30, 2021
The North Carolina Industrial Commission has recently issued decisions in the first round of extended benefits cases, in which claimants are arguing entitlement to temporary total disability benefits past the 500-week cap on benefits. Six cases have been heard and decided at the Deputy Commissioner level, and four of those cases are on appeal to the Full Commission. To obtain benefits beyond the 500-week cap, the claimant must request a hearing and present evidence supporting an allegation of a total loss of wage-earning capacity. The claimant is only eligible to request a hearing on this issue after 425 weeks have passed from the first date of disability. In the cases that have been decided so far, the decisions are split.
N.C.G.S § 97-29(c) outlines the physical and mental requirements for showing an entitlement to extended benefits. As stated above, to obtain benefits beyond the 500-week cap, the claimant must request a hearing and present evidence supporting an allegation of a total loss of wage-earning capacity. It should be noted that pursuant to N.C.G.S § 97-29(d) there are certain claims which allow for automatic permanent and total disability benefits (i.e., catastrophic cases where a claimant loses two or more limbs). These claimants are entitled to lifetime benefits without findings concerning work ability or wage-earning capacity. Three other categories of claims create a rebuttable presumption of permanent and total disability benefits: (1) spinal injuries involving severe paralysis of both arms, both legs, or the trunk; (2) severe brain or closed-head injuries evidenced by severe and permanent motor or communication disturbances; and (3) second- or third-degree burns to 33% or more of the total body surface. Under these three categories of claims, if the employer can prove that the claimant is capable of suitable employment, then permanent and total disability would not be due and payable.
Prior to discussing the cases that have come down to date, it is helpful to revisit the context and history regarding how this legislation developed. The Worker’s Compensation Act as originally enacted contained a limitation on permanent and total disability to a maximum of 400 weeks. In 1973, the Legislature removed that limitation. The General Assembly never reintroduced limitations on N.C.G.S. § 97-29 benefits, and the result was that there was essentially no limitation on how long a claimant could receive benefits. This resulted in a huge increase in indemnity exposure throughout the 1990s.
Sweeping legislative reform eventually took place in 2011, and one of the main goals of the defense bar was to put a limitation back on N.C.G.S. § 97-29 benefits. One of the last pieces of the legislation discussed during the legislative reform was the language for extended benefits. The initial legislation did not have any extended benefits language and N.C.G.S. § 97-29 benefits ended at 500 weeks. Governor Perdue threatened a veto stating that she did not want seriously injured workers, who may not qualify for permanent and total disability, to have to rely on support from the State. The Governor wanted some type of provision concerning extended benefits beyond the 500 weeks for claimants who were seriously and/or catastrophically injured but did not qualify for permanent and total disability benefits under the statute. As a result, the extended benefits language was added to ensure the reform passed.
When analyzing the traditional concept of permanent and total disability under prior case law, the Courts routinely referenced a total loss of any wage-earning capacity. The Gupton case specifically uses language that if the power or capacity to earn is totally obliterated, the claimant is entitled to total and permanent disability under N.C.G.S. § 97-29. Gupton v. Builders Transp., 320 N.C. 38, 357 S.E.2d 674 (1987).
Accordingly, as the Form 33 Requests for Hearing are filed in these extended benefits cases, defendants argue that the claimant will have to prove a total loss of any wage-earning capacity and/or that their wage-earning capacity has been totally obliterated. The plaintiff’s bar is taking a different approach and arguing the standard for extended benefits beyond 500 weeks is the same as it is within the 500 weeks. Defendants argue that the General Assembly does not pass legislation that is irrelevant; essentially asking the question: Why would the 2011 Reform have addressed the 500-week cap or extended benefits issue whatsoever, if the threshold is the same?
Defendants’ argument is that if the claimants has even some wage-earning capacity, they have not proven their entitlement to extended benefits, or a total loss of wage-earning capacity. Defendants should also continue to make the policy argument that this entire analysis needs to be framed within the bigger picture of the 2011 Reform. It is worthwhile to emphasize that the 2011 Reform Bill was titled a “Return to Work Act.” The system is designed to encourage people to return to work whenever possible. Therefore, unless the claimant has a total loss of any wage-earning capacity or their wage-earning capacity has been totally obliterated, they should be limited to 500 weeks of temporary total disability benefits under N.C.G.S. § 97-29 from the date of first disability or a total of 500 weeks of temporary partial disability benefits under N.C.G.S. § 97-30. Defendants should continue to rely on the way the Supreme Court has discussed and analyzed total loss of wage-earning capacity.
Now that we have a good understanding of the idea behind the 2011 Reform, including the extended benefits provision, we can discuss the six cases that have come down recently at the Deputy Commissioner level. The first case, Milton Nobles v. North Carolina DHHS and CCMSI, was issued by Deputy Commissioner Robert Harris on January 25, 2021. The claimant in that case had no formal education outside of a high school diploma. He had work experience primarily as a health care technician. On June 26, 2011, the claimant was working for a hospital and sustained injuries while breaking up a fight, which ultimately resulted in headaches, PTSD, and depressive disorder. The Deputy Commissioner emphasized the severity of the fight and the resulting injuries to claimant as well as claimant’s limited job history and low IQ. Dr. Thomas Gualtieri saw the claimant for a one-time neuropsychiatric evaluation in September 2011 and opined that claimant was malingering. He testified in line with the same at hearing. Claimant then began seeing Dr. Edwin Hoeper, a psychiatrist, on his own starting in May 2012. Claimant was still seeing him as of the date of the hearing. Dr. Hoeper provided testimony for claimant that his PTSD would never be cured and that his treatment could only improve his life slightly. Dr. Hoeper testified that claimant was permanently and totally disabled, and unemployable in any job. Dr. Manish Fozdar also conducted a one-time independent medical examination of claimant. Dr. Fozdar found claimant to be uncooperative and opined claimant was malingering. He opined any further mental health treatment was not related to his initial injury. Defendants also hired a rehabilitation professional, who produced a labor market survey and identified several positions she believed claimant could perform. The defendants’ vocational expert never met with claimant and claimant did not hire his own vocational expert.
Deputy Commissioner Harris determined that claimant was entitled to extended benefits beyond the 500 weeks. The Deputy found that claimant had long-term chronic PTSD and chronic major depression and that he had satisfied the requirements under N.C.G.S. § 97-29(c) and had proven by the preponderance of the evidence in view of the entire record that he “has sustained a total loss of wage-earning capacity.” Dr. Hoeper’s testimony was given more weight than that of Dr. Fozdar, Dr. Gualtieri, and of the vocational rehabilitation professional. Thus, the claimant was entitled to extended benefits.
Defendants appealed to the Full Commission. On September 29, 2021, the Full Commission entered an Opinion and Award reversing Deputy Commissioner Harris’ Opinion and Award and denying claimant’s right to extended benefits beyond the 500 weeks, as well as his claim for PTSD. The Full Commission panel consisted of Commissioner Myra Griffin, Commissioner Kenneth Goodman and Deputy Commissioner David Hullender. The Full Commission reviewed the evidence and testimony and noted that claimant had received no medical treatment for his physical injuries since 2012 and had no work restrictions related to those injuries. Additionally, the Full Commission noted that the Parsons presumption did not apply to claimant’s allegations of PTSD as it was not an accepted condition in the claim and found Dr. Gualtieri’s and Dr. Fozdar’ s testimony more creditable that that of claimant’s treating physician, Dr. Hoeper. The Full Commission concluded that Dr. Hoeper relied solely on claimant’s subjective complaints without any diagnostic testing or objective finds to support his diagnosis of PTSD. They specifically noted that Dr. Fozdar and Dr. Gualtieri performed objective testing which led them to conclude that claimant’s alleged mental conditions were not related to his work injury. Accordingly, the Full Commission opined that claimant failed to prove that he suffered from PTSD or depression as a result of his work injury and did not prove that he lacks total wage-earning capacity as a result of his June 26,2011 right eye, mouth or right shoulder injuries. The Full Commission denied medical treatment for claimant’s alleged PTSD and denied his claim for extended benefits beyond the 500 week cap.
The next case, Mary Betts v. North Carolina Department of Health and Human Services and CCMSI, was issued on March 12, 2021, also by Deputy Commissioner Robert Harris. The claimant in that case graduated from high school and had CNA qualifications. She was a certified EMT, but her certifications had lapsed. The claimant worked as a health care technician and sustained her injury on August 12, 2011, while trying to restrain a combative patient. She sustained an injury to the ankle which resulted in multiple surgeries. The claimant had sedentary work restrictions, but the claimant’s treating physicians noted that even while performing sedentary work, she would still experience pain and swelling and would need to elevate her foot every hour. Evidence showed that claimant remained involved with the Girls
Scouts as a troop leader and summer camp director, volunteered with the PTA, cut her own grass, and did crafts. The vocational expert hired by claimant testified that claimant’s condition prevented her from being employable. Defendants also hired a vocational expert who did not meet or speak with the claimant and who did not contact any potential employers to discuss the claimant’s limitations. The vocational expert was unaware of claimant’s need to elevate her foot to prevent swelling and pain. The Deputy Commissioner found the defendants’ vocational expert report to be too general and not tailored specifically to the claimant. Accordingly, the Deputy found that claimant had proven by the preponderance of the evidence in view of the entire record that she “has sustained a total loss of wage-earning capacity” because of this compensable long-term ankle condition. As such, claimant was entitled to extended benefits.
The third case, Michelle Brown v. NC Department of Public Instruction/Surry County Schools and Sedgwick, was issued on May 4, 2021, by Deputy Commissioner Jesse Tillman, III. The claimant was working as a teacher’s assistant at a high school on February 24, 2012, when she sustained an injury. The claimant worked for the county in multiple capacities in the past, including bus driver, substitute teacher, tennis coach, and band director, and had experience as a CNA, truck dispatcher, cashier, food preparation, a line worker, and phlebotomist. The claimant had permanent sedentary work restrictions; however, no doctor testified she could not work in at least some capacity. The claimant testified that she rode a motorcycle a few times during the summer, used a riding lawnmower, could walk one to two miles without issue, bowled twice a week, cared for multiple animals, and actively swam. A vocational expert provided a labor market survey that showed the availability of jobs within claimant’s work restrictions. The claimant presented no evidence that she continued to suffer a total loss of wage-earning capacity. The Deputy found that the claimant could at least work a part-time, sedentary job. The claimant’s claim for extended benefits was denied.
The fourth case is Martin Strudivant v. North Carolina Department of Public Safety and CCMSI. The decision was issued by Deputy Commissioner Erin F. Taylor on May 5, 2021. The claimant sustained a compensable back injury on July 23, 2013. He was a high school graduate and had completed some post-graduate courses. He was certified to drive a forklift, had training in blueprint reading, and had CPR experience. The claimant had been on his church’s Board of Trustees since 2008. On the date of his injury, claimant was working transporting inmates. Four of the claimant’s physicians testified claimant could work and noted he could perform many of the essential functions of his prior job as a correctional officer. Claimant only started looking for work in January 2020 and produced a job log, but some of the entries were inaccurate. Defendants’ vocational expert met with the claimant, performed a transferrable skills analysis, performed a labor market survey and identified several jobs in the surrounding area that claimant was capable of performing. Claimant’s vocational expert testified claimant was unable to work at all and disagreed with the treating physicians’ work restrictions. However, the vocational expert did not contact any potential employers, did not perform a transferable skills analysis and only looked for jobs in Anson County. As a result, the Deputy Commissioner afforded more weight to the defendants’ vocational expert and determined that claimant could not show a total loss of wage-earning capacity and was not entitled to extended benefits beyond the 500-week cap.
The fifth case is Glendell Murphy v. North Carolina Department of Public Transportation. The decision was issued by Deputy Commissioner Robert Harris on August 6, 2021. The claimant was 56 years old and suffered a compensable right knee injury while working at a youth center. Claimant had a high school diploma, worked at a chicken plant for two years, was in the US army, worked as a correctional officer, worked as a counselor at a Methodist home for children and worked as a delivery driver. He earned his associate degree in 2001, his bachelor’s degree in 2013 and his master’s degree in 2015, all in criminal justice. Claimant had prior issues with depression and treated through the VA, but never requested psychiatric treatment from defendants. Claimant testified he had not looked for work since 2016. The orthopedic authorized treating physician stated claimant could work and earn wages, but claimant’s unauthorized psychiatric doctor opined that he could not work at all. Defendants hired a vocational expert who met with claimant, reviewed claimant’s medical records and performed a labor market survey which identified 12 jobs that claimant could do within his orthopedic work restrictions. When the vocational expert was questioned about claimant’s depression, she testified that his psychiatric condition was a “concern regarding claimant’s employability.” Claimant did not hire a vocational expert, but the Deputy Commissioner opined that defendants’ vocational expert testimony did not support a finding that claimant had wage earning capacity, and as result, claimant was granted extended benefits.
The most recent case, as of the date of this publication, is George E. Tyson, Jr. v. North Carolina Department of Health and Human Services and CCMSI. The decision was issued by Deputy Commissioner Kevin Howell on August 12, 2021. The claimant sustained a compensable injury to his lower back on October 8, 2011, while assisting a client from a wheelchair to a couch. The claimant was a 59 year old high school graduate with some college education and a cosmetology certification. Claimant had previously worked as a seafood picker, cosmetologist, singer, custodian and groundskeeper. Claimant was also an ordained minister and performed ceremonies for friends and family, but not for wages. He took online courses for psychology in 2016 and volunteered regularly at his church. Claimant’s treating physicians testified that claimant could work in the sedentary to light duty category. Defendants’ vocational expert also testified that the claimant had the capacity for work. The claimant testified that he did not think he could work but provided no expert testimony to support this claim. The Deputy Commissioner determined that the claimant could not show a total loss of wage-earning capacity; therefore, claimant was not entitled to extended benefits beyond the 500-week cap.
As you can see, the six decisions that have been issued to date have been almost a 50-50 split on entitlement to extended benefits. The cases are also very fact specific. What is clear from the decisions where entitlement to extended benefits has been denied is that the testimony from medical providers and a vocational rehabilitation specialist are necessary to support a finding that a claimant has wage earning capacity. Defendants need to have good experts secured prior
to the hearing, along with possible surveillance and a labor market survey. It is also critical to have a complete picture of the claimant’s job history, educational background, skill set and ability to perform other activities, such as exercising, yardwork, or actively volunteering in the community.
These decisions show that there is no perfect workers’ compensation system. In the absence of a perfect or standard system, there is an argument to be made that the 2011 Reform created a more balanced system that provides a solid safety net for injured workers in North Carolina while simultaneously ensuring that North Carolina can maintain a successful business environment.
As we continue to forecast how the Court of Appeals will address extended benefits, we anticipate they will look to other jurisdictions with similar statutory caps on benefits. South Carolina, Virginia, Tennessee, and Georgia have similar statutes and their case law may provide guidance on how entitlement to extended benefits will be analyzed in North Carolina.
South Carolina places a 500-week limit on total disability. Their provision is stricter than North Carolina’s, and only allows extended benefits in very specific circumstances. S.C. Code Ann. § 42-9-10 establishes the cap on benefits. Any person determined to be totally and permanently disabled who, due to a compensable injury, is a paraplegic, a quadriplegic, or who has suffered physical brain damage is not subject to the 500-week limitation and shall receive benefits for life. Thus, there is no additional provision under the South Carolina statute that allows for proving extended benefits beyond the 500-week cap, outside of those circumstances outlined above. The main disagreements in South Carolina case law arise due to arguments regarding the “level of severity” of brain injuries.
For example, in Crisp v. SouthCo., 401 S.C. 627, 738 S.E.2d 835 (2013), the claimant sustained injury to the head and right hand while working in construction. The claimant was ultimately diagnosed with a cognitive disorder. When the claim went to a hearing, he alleged injured to his head, brain, neck, back, right upper extremity, and psyche, and sought continued temporary compensation benefits and continued medical treatment, including treatment in a traumatic brain injury program; and, in the alternative, sought a finding that he was permanently and totally disabled and entitled to lifetime compensation benefits due to “physical brain damage.” The claimant argued to the SC Supreme Court that the presence of any physical brain injury, regardless of degree, entitles the claimant to benefits beyond the 500-week cap on benefits, per the statute. The Supreme Court, however, emphasized that “inherent in the requirement that the injury to the brain be severe is the factor that the worker is unable to return to suitable gainful employment.” Thus, the analysis hinges on whether the claimant with the diagnosed brain injury can return to work in light of the severity of the injury.
Based on this type of precedent in South Carolina, we can see how difficult it would be for a claimant to prove entitlement to extended benefits outside of the specific circumstances outlined above. Similar to North Carolina, testimony about educational background, work history, and expert testimony on the issue of functionality seem to be important factors in determining return to work options for claimants with a brain injury, which is one of the few conditions that allow benefits beyond the 500-week cap.
Virginia is another comparable jurisdiction. They have a 500-week cap, which is enforced even where the claimant continues to have work restrictions after receiving 500 weeks of indemnity benefits and is unable to return to his pre-accident job or similar work. Va. Code Ann. § 65.2-503(c) outlines benefits for permanent and total incapacity. Under this code, a claimant may receive permanent total disability benefits when there is: (1) loss of both hands, both arms, both feet, both legs, both eyes, or any two of these body parts in the same work accident; (2) injury that results in total paralysis, as determined by the Virginia Commission on the medical evidence before it; or, (3) an injury to the brain that is traumatic and severe enough to render the worker permanently unemployable in gainful employment.
Most of the determinations of permanent and total incapacity in the Virginia system concern the level of permanent partial impairment ratings, coupled with the factors above. In practice, the courts consider wage-earning capacity and apply similar factors that the North Carolina courts will also be likely to consider.
In Georgia-Pac. Corp. v. Dancy, 24 Va. App. 430, 482 S.E.2d 867 (1997), aff’d, 255 Va. 248, 497 S.E.2d 133 (1998), the claimant’s legs were crushed by a conveyor while at work. The claimant attempted to return to work on one occasion but was sent home after a few hours. The claimant was seen by a company doctor who opined “I do not think that he is ever going to return to work under these circumstances.” Another physician completed a permanent disability assessment and assigned a 100% disability to one leg and a 15% disability to another leg. He was restricted to no standing longer than one hour, no sitting greater than two hours, and no climbing, stooping, crawling, or working on uneven ground. The record showed that the claimant had a tenth-grade education and had experience only in heavy physical labor jobs. A rehabilitation counselor testified that with the claimant’s limited education, time in the service, geographical location, and medical condition, there were some things he could do at least on a part time basis, providing there were no complications. For example, he could work at a nursery watering flowers, or work at a senior citizens’ home, or at a medical clinic preforming local driving tasks. The lower courts determined the claimant was permanently and totally disabled. The Virginia Court of Appeals cited Va. Code § 65.2-503, noting that permanent and total incapacity shall be awarded where there is loss of both hands, both arms, both feet, both legs, both eyes, or any two thereof in the same accident. Even so, they stressed that in determining the extent of the loss of use of two members, the inability of the injured employee to engage in gainful employment is a proper element to consider. Virginia Oak Flooring Co. v. Chrisley, 195 Va. 850, 858–59, 80 S.E.2d 537, 542 (1954). The medical evidence showed a rated loss of 100% and 15%, respectively, of his left and right legs. The Commission had found, despite the testimony concerning the ability to return to work including that from the rehabilitation counselor, evidence in the record that the combination of the losses to the legs rendered the claimant unemployable. The Court of Appeals agreed, finding that the proper inquiry was whether the rated loss of use in the claimant’s legs rendered both legs unusable. The court affirmed the finding of permanent and total incapacity and awarded extended benefits.
Although the case is unpublished, Hopkins v. RDA, Inc., No. 1053-11-4, 2012 WL 48156 (Va. Ct. App. Jan. 10, 2012), further demonstrates how courts examine the permanent and total disability analysis in Virginia. The claimant argued he was entitled to extended benefits. The courts first noted that the claimant’s physicians disagreed about whether he was permanently and totally disabled, and he saw a number of physicians. As to the ability to work, Dr. Harry Li, the authorized treating physician, testified claimant’s disability was total and permanent and that he should be removed from the work force. Dr. Zeena Doria, the authorized treating neurosurgeon stated that claimant was partially disabled due to his lumbar condition and stated claimant should receive permanent partial disability to the right leg only. Dr. Michael Shear stated that claimant was permanently and totally disabled and concluded he could not work for even an hour or so at a time. Dr. John Bruno, an orthopedic surgeon who conducted an independent evaluation, opined that claimant’s permanent partial impairment rating to his spine should be split to assign an 11.5% rating to each leg. Dr. Bruno reviewed claimant’s FCE and noted claimant was totally disabled from gainful employment. Dr. James Melisi and Dr. Charles Citron opined that there were no objective findings that claimant could not work in any capacity, and found claimant was not permanent or totally disabled. Dr. Anthony Debs specifically testified that claimant could work light duty or sedentary work. Dr. Debs also commented on “splitting the ratings” to each leg as suggested by Dr. Bruno, and disagreed, stating he would assign a rating to the right leg, but not the left leg. The Deputy Commissioner and Full Commission found claimant was not permanently and totally disabled. They gave little weight to Dr. Bruno’s ratings to both legs and noted that the evidence failed to demonstrate a loss of use of both lower extremities, and claimant failed to show he was unable to use his legs to any substantial degree in gainful employment. The Court of Appeals agreed with the Commission’s findings that the claimant was not permanently and totally disabled, and the decision was affirmed. The court found that there was credible evidence to support the Commission’s findings. Specifically, Dr. Dorai found claimant had no impairment to the left leg and Drs. Melisi, Citron, and Debs all opined claimant was capable of light duty or sedentary work and was not permanently disabled.
It appears that the main difference between the Georgia and Hopkins decisions lies in the lack of high ratings to both legs, as well as the inability of the claimant to demonstrate that he was
not capable of gainful employment due to said ratings. Though there was some evidence of the ability to work in the Georgia decision, the 100% rating to one leg, and additional rating to the other leg, outweighed that opinion. The Virginia case law again emphasizes the importance of obtaining credible expert physicians who will provide good evidence on disability and work ability. Further, it is interesting to note how the Virginia courts look to impairment ratings assigned to body parts as part of their analysis in determining entitlement to total disability.
Tennessee utilizes a 450-week cap on benefits similar to North Carolina. Tenn. Code Ann. § 50-6-102(15)(D) provides: “For injuries occurring on or after July 1, 2014, the maximum total benefit shall be four hundred fifty (450) weeks times one hundred percent (100%) of the state’s average weekly wage… except in instances of permanent total disability.” Tennessee courts also appear to analyze the amount of a permanent impairment rating when considering entitlement to extended benefits.
A claimant who is unable to return to any job in the open market because he retains a permanent disability from a work injury may be entitled to permanent total disability benefits. Bomely v. Mid-Am. Corp., 970 S.W.2d 929, 931 (Tenn. 1998). This benefit continues at the claimant’s compensation rate until the claimant is eligible for retirement based on their age under the Social Security Law.
The Hinson case is particularly instructive. Hinson v. Wal-Mart Stores, Inc., 654 S.W.2d 675 (Tenn. 1983). In this case, the claimant fell off a ladder at work and sustained injury to the femur. The trial court held that claimant was permanently and totally disabled, and the Supreme Court of Tennessee agreed. Specifically, the court emphasized that “it must be kept in mind that this Court makes a clear distinction in worker’s compensation cases between anatomical impairment as determined by a physician and disability to work which results from such impairment.” Federated Mut. Implement & Hardware Ins. Co. v. Cameron, 220 Tenn. 636, 422 S.W.2d 427 (1967). The court recognized that in determining what may constitute permanent and total disability, many pertinent factors should be considered, including the skills, education, and training of the claimant as well as job opportunities and other factors bearing upon employability. In determining the sufficiency of evidence to support disability, the extent of the disability should be determined through further medical evidence and lay testimony. The court also stated that the judge should not be bound by the physicians’ opinions only but should analyze evidence from expert and non-expert witnesses, including those outside of the medical field.
In another case, which is unpublished, Darnell v. Connecticut Indem. Co., No. M2003-00914-SC-WCMCV, 2005 WL 625885, at *1 (Tenn. Workers Comp. Panel Mar. 17, 2005), the claimant began working as a machinist out of high school when he sustained injuries to the right upper back and shoulder. The doctor that treated claimant assigned a 49% permanent partial impairment to the body as a whole. The claimant was only able to use his left arm. The claimant attended a second opinion with another physician and his diagnosis was confirmed. There was also testimony from a vocational counselor for the claimant, who concluded the claimant was permanently and totally disabled considering the medical opinions and educational history of claimant. Another vocational expert testified for the employer and was of the opinion there were jobs available in the labor market that could be performed with the use of one hand or arm. The trial court found claimant was totally disabled, and the workers’ compensation panel agreed. The record established that the claimant, a high school graduate, was right hand dominant. Although he occasionally managed to hunt and perform other functions, he was in constant pain, which caused him the need to lie down. The authorized treating physician testified that the claimant could perform work using his left arm. Although the vocational expert for defendants testified there were jobs available in the marketplace, there was no evidence presented that those jobs actually existed in the marketplace where the claimant lived. Considering the physical limitations of the claimant and other factors such as past work history, job skills, training, education, and job opportunities, it was concluded that the claimant was totally disabled.
This case emphasizes the factual specificity that may be important in extended benefits cases in North Carolina. For example, it is foreseeable that, even where a vocational expert provides good testimony on job availability and prospective employment, there may need to be additional considerations for geographical location and actual real-world availability.
Georgia has a 400-week limit on benefits per Ga. Code Ann. § 34-9-261. In the event of a catastrophic injury, there may be an entitlement to extended benefits. Ga. Code Ann. § 34-9-200.1 outlines the possible catastrophic injuries and defines this type of claim as one or more of the following: the claimant has a severe brain or closed head injury; the claimant has a spinal cord injury resulting in severe paralysis of the arm, leg, or trunk; the injury resulted in the amputation of an arm, hand, foot, or leg; the injury resulted in second or third degree burns covering a specific percentage of the body; the worker has a diagnosis of industrial or total blindness; or the injuries render him unable to perform his prior work, as well as any additional work available for which he is otherwise qualified. The last group, as expected, results in the most litigation and involves a more subjective analysis of entitlement to benefits. The courts have typically analyzed educational history, work background and experience, the current labor market, vocational experts and analysis, and the possibility of job training when considering whether the claimant is entitled to extended benefits under that classification.
In Reid v. Georgia Bldg. Auth., 283 Ga. App. 413, 641 S.E.2d 642 (2007), the claimant sustained a work-related hand injury and requested a hearing to determine whether her claim was catastrophic under the Act. The State Board of Workers’ Compensation found the injury was catastrophic and the appellate court agreed. The superior court reversed the state board and the claimant appealed. The Georgia Court of Appeals upheld the superior court’s ruling. The
claimant argued that her claim was catastrophic as it prevented her from returning to work. There was no dispute that she could not perform her pre-injury job. The only question was whether there was any work available within the national economy for which claimant was otherwise qualified. The evidence showed that claimant previously did housekeeping work that included “[s]weeping, mopping, dusting, and regular … cleaning,” and required the ability to “lift, push, pull, and carry heavy item[s].” Her physician released her to limited work of no heavy gripping, lifting, or carrying over 10 pounds. She returned to work, but was unable to perform her duties, so stopped working in any capacity altogether. Claimant’s physician ultimately concluded she was permanently and totally disabled from performing her previous job. The state board found that the claimant was 66 years old and had performed housekeeping work her entire life. She had no computer skills, completed school only through the 11th grade, and had no specialized training. It was further found that she could not perform work activities over four hours per day without experiencing swelling in the hand. The Court of Appeals found that the claimant did not present any competent evidence that she was unable to perform any work available in substantial numbers within the national economy. At the bare minimum, she should have tried to demonstrate that she attempted to obtain employment within her limitations. The sole evidence regarding her job search was a general statement at hearing that she “looked for work.” She also did not present a vocational expert. Thus, the court held there was insufficient evidence that the claimant was entitled to extended benefits.
In another case, Caswell, Inc. v. Spencer, 280 Ga. App. 141, 633 S.E.2d 449 (2006), the claimant argued his back claim was catastrophic in nature and he was entitled to extended benefits. The State Board of Workers’ Compensation found his injuries were catastrophic and cited, among other things, the claimant’s age of 62 years, stating it rendered him unable to even adapt to light duty work. Defendants appealed and were granted a hearing with an administrative law judge, who rejected the state board’s decision and found that the injuries were not catastrophic. The appellate division of the board agreed. Claimant then appealed to superior court, arguing that the board failed to consider his age. The superior court agreed and remanded the case. The case was then appealed to the Court of Appeals. The court found that the record showed the claimant’s age was fully considered, it was simply that the administrative law judge and appellate division of the board found the testimony from a vocational specialist to be more credible. The vocational expert disagreed with the statement that someone who is 62 years old is unable to learn new skills, noting he was not aware of any rule or school of thought that supported that contention. The vocational expert also provided research that many retired individuals were going back to work. The expert also testified that, in the national economy, there were something like four million jobs the claimant could perform. The Court of Appeals found that the superior court’s decision that age was not considered was unfounded. Thus, the claim was remanded to the board for reconsideration.
The case law and jurisdictional analyses above help to forecast what issues North Carolina appellate courts will consider when analyzing extended benefits cases in the days to come. What is less clear is whether North Carolina courts will adopt an analysis similar to Georgia, which requires more of an “obliteration” or complete loss of any wage-earning capacity, or whether it will be similar to Virginia where the medical aspect of the case, as well as “loss of use,” is extremely important to the outcome.
When we examine the trends from this analysis, a list of general takeaways emerges on how to defend a claim for benefits beyond the statutory cap:
Hearing requests for extended benefits are on the rise right now since there has been no guidance from the North Carolina Court of Appeals on the correct standard to be used when deciding these cases. Our analysis of the Deputy Commissioners’ decisions and research and review of similar jurisdictions, has demonstrated that these cases are fact specific and a full and complete understanding of the claimant’s medical, educational and vocational history will be imperative. Defendants will need clear and strong expert testimony to prevail in these cases.
Our team will continue to monitor the developments as this issue works its way through our court system. If you have questions or wish to discuss how to best position yourself in potential extended benefits matters, please reach out to Tracey Jones, Lindsay Underwood, or a member of our Workers’ Compensation Team.