What happens when an injured worker gets a normal MRI study after a work injury but later on a second MRI shows an operable tear? Can the findings on the second MRI be related back to the original injury?  The Appellate Division addressed that issue inCostanzo v. Meridian Rehab, A-5547-18 (App. Div. June 17, 2021). 

Patricia Costanzo slipped and fell on April 1, 2016 while working at Meridian Rehab as a recreational aide. She felt pain in her left knee and underwent an MRI, which showed no tear and no fracture. It did show some prior osteoarthritis in the knee.  Respondent paid for PT and a series of injections, and petitioner returned to work thereafter.  She had a subsequent injury in August 2017 while walking on a beach (unrelated to work) and injured her right knee, requiring a meniscectomy.

The issue in this case arose when petitioner started feeling increased pain in her left knee in January 2018 and underwent a second MRI for the left knee.  She denied reinjuring the left knee in the beach incident that injured her right knee.  On this new 2018 left knee MRI, an anterior cruciate ligament tear and a meniscal tear could be plainly seen.  Petitioner filed a motion for medical benefits for the left knee tear seeking payment from Meridian Rehab for surgery.  Capehart Shareholder,Carla Aldarelli, Esq., handled this case successfully for Meridian Health System.

Petitioner’s expert, Dr. Cary Skolnick, testified that the new tears in the left knee were related back to the original accident of April 1, 2016.  He stated that the action of striking the ground caused petitioner’s arthritis to worsen to the point where additional treatment was needed.  Further, he opined that both the meniscus and ligament were stretched in the 2016 incident to the degree that only a few fibers were holding them together and those fibers eventually broke.

In contrast, the Judge of Compensation credited the testimony of Dr. Shawn Sieler, who diagnosed only a left knee contusion in the April 2016 fall.  Dr. Sieler testified that petitioner fully recovered from this incident.  Dr. Sieler was of the opinion that the meniscal and ACL tears “can only be explained by some subsequent traumatic accident.”  He did not accept Dr. Skolnick’s theory about fibers in the knee being stretched to a breaking point.  He noted that if arthritis was a factor, there was evidence before the April 2016 incident of arthritis in the knee.

The Honorable Salvatore Martino, Judge of Compensation found Dr. Skolnick’s testimony to be lacking in both credibility and logic.  The judge observed that Dr. Skolnick did not directly address some questions posed to him, and he became somewhat argumentative with respondent’s attorney.  Judge Martino said, “While it is clear that more severe pathology currently exists as compared to the time period closer to the injury date, there does not appear to be a reasonable connection between the mechanism of the injury and the current state of her pathology.”  The judge found Dr. Sieler’s testimony on lack of causation to be more credible because it was more consistent with the order of the MRIs.

Petitioner appealed and argued that Judge Martino erred in assessing Dr. Skolnick’s credibility.  The Court wrote, “Contrary to petitioner’s contentions on appeal, there was ample evidence in the record to support the judge’s conclusion that the current condition of petitioner’s left knee was not related to the injury she suffered when she fell at work in April 2016.  At that time, petitioner suffered only a contusion. The MRI taken in June 2016 revealed no meniscus tear and no ACL tear.  Although the MRI showed that petitioner had arthritis in the knee, this was a preexisting condition.”

For these reasons, the Appellate Division endorsed the conclusion of Judge Martino that there was no medical evidence that the arthritis in petitioner’s left knee had worsened as the result of the April 2016 fall. 

The argument in this case occurs quite frequently in workers’ compensation.  While every case is fact sensitive, the general rule for practitioners should be that when there are two MRIs that are vastly different from each other, the MRI closest in time to the work accident will generally control.  If a subsequent MRI shows findings that did not appear in the first MRI close to the time of accident, it makes little sense to draw causation. 

The analogy would be to a car that has a few tiny nicks on the windshield.  A minor car accident occurs at some point and a photo taken a few weeks after the accident shows no change in the windshield at all.  The nicks are exactly as they were. Two years later the owner gets in the car one morning and is shocked to find that there are now giant cracks all over the windshield.  The entire windshield needs replacement.  Under Dr. Skolnick’s theory, the minor car accident would be responsible as opposed to some other intervening event during the past two years.   While anything is possible, the legal standard remains more likely than not.   Under Dr. Sieler’s logic, the dramatic change in the windshield would be more likely due to some intervening event.

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John H. Geaney, Esq., is a Shareholder and Co-Chair in Capehart Scatchard's Workers’ Compensation Group.  Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at jgeaney@capehart.com. 

Written by: Lindsay Underwood

The Commission has recently issued decisions in the first extended benefits cases, in which plaintiffs are arguing entitlement to benefits past the 500-week cap provided in the 2011 reform. The cases have only been heard at the Deputy Commissioner level but give some additional insight into how they may be treated in the near future while we await inevitable appeals to the Full Commission and Court of Appeals. As a reminder, to obtain benefits beyond the 500-week cap, the injured employee must request a hearing and present evidence supporting an allegation of a total loss of wage-earning capacity. The employee is only eligible to request a hearing on this issue after 425 weeks have passed from the first date of disability. In the cases below, the decisions are split.

The first case, Milton Nobles v. North Carolina DHHS and CCMSI, was issued by Deputy Commissioner Robert Harris on January 25, 2021. The plaintiff in that case had no formal education but did have a high school diploma. He had work experience primarily as a health care technician. On June 26, 2011, he was working for a hospital and sustained injury while breaking up a fight. He experienced a significant beating, which ultimately resulted in headaches, PTSD, and depressive disorder. Deputy Commissioner Harris determined that was entitled to extended benefits beyond the 500 weeks. The Deputy found that plaintiff had long-term chronic PTSD and chronic major depression and that he had satisfied the requirements under N.C. Gen. Stat. § 97-29(c), and he has proven by the preponderance of the evidence in view of the entire record that he “has sustained a total loss of wage-earning capacity.”  Thus, he was entitled to extended benefits. The plaintiff presented expert evidence that the plaintiff was totally disabled from any employment and the defendants presented medical evidence that the plaintiff was not disabled at all.  The case basically hinged on which medical expert was found to be most credible.

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 plaintiff in that case graduated from high school and had CNA qualifications. She was a certified EMT, but her certifications had elapsed. Plaintiff worked as a health care technician and sustained her injury on August 12, 2011, while trying to restrain a combative patient. She sustained injury to the ankle which resulted in multiple surgeries. Plaintiff had sedentary work restrictions. Evidence showed that plaintiff remained involved with the Girls Scouts as a troop leader and summer camp director, volunteered with PTA, cut her own grass, and does crafts. The vocational expert testified that plaintiff’s condition prevented her from being employable. The Deputy found that plaintiff 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, Plaintiff was entitled to extended compensation.

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 plaintiff was working as a teacher’s assistant at a high school on February 24, 2012 when she sustained injury. Plaintiff worked for the County in multiple capacities in the past, including bus driver, substitute teacher, tennis coach, band director, and had experience as a CNA, truck dispatcher, cashier, food preparation, a line worker, and phlebotomist. Plaintiff had permanent sedentary work restrictions. Plaintiff testifies that she rides a motorcycle a few times during the summer, uses a riding lawnmower, can walk 1-2 miles without issue, bowls twice a week, cares for multiple animals, and actively swims. A vocational expert provided a labor market survey that showed the availability of jobs within plaintiff’s work restrictions. Plaintiff presented no evidence that she continued to suffer a total loss of wage-earning capacity. The Deputy found that plaintiff could at least work a part-time, sedentary job. Plaintiff’s claim for extended benefits was denied.

The last new 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. Plaintiff 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 dive a forklift, had training in blueprint reading, and had CPR experience. Plaintiff had been on his church’s Board of Trustees since 2008. On the date of his injury, plaintiff was working transporting inmates. Four of plaintiff’s physicians testified plaintiff could work and noted he could perform many of the essential functions of his prior job as a correctional officer. Defendants’ vocational expert also testified that plaintiff had capacity for work. It was determined that plaintiff could not show a “total loss” of wage-earning capacity and that the plaintiff’s wage earning capacity had not been destroyed. Thus, plaintiff could not show entitlement to compensation beyond the 500-week cap on benefits.

As you can see, the four decisions that have been issued to date have been 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 plaintiff has wage earning capacity. Defendants should make sure to have good experts secured prior to the hearing, along with possible surveillance and a labor market survey. It is also helpful to have a complete picture of the plaintiff’s job history, educational background, and other activities outside of work or education, like the ability to exercise, do yardwork, or maintain positions on boards or as a volunteer. We will continue to monitor cases as they are issued at the Deputy level, and as they are appealed to the Full Commission and Court of Appeals.

If you have any questions in regards to these recent extended benefits decisions, feel free to reach out to a member of our workers’ compensation team.

All too often holiday parties end with some unfortunate injury.  Is such an injury covered in workers’ compensation?  It depends on the circumstances. The Court in Regalado v. F&B Garage Door, A-0083-20, (App. Div. June 8, 2021), found that the injury in this case did not arise out of and in the course of employment.

Some of the facts in the case were undisputed.  On Friday, December 23, 2016, the company hosted its annual holiday party at a local restaurant.  The party was for employees, friends and family.  No company clients or vendors were invited. The owner of the company, Frida Ferrera, said that the purpose of the party was to thank employees for their hard work throughout the year. 

Petitioner, Ms. Regalado, invited her brother as in prior years.  Since neither of them drove, the owner drove them to the party.  The vehicle in which they all drove was owned by Martinez, who was not employed by the company.  Everyone at the party except the owner consumed alcohol. No one was paid to attend the party nor compensated for travel time.

The parties also agreed on the circumstances of the accident.  After the party ended, Ferrara drove first to her own home.  She exited the vehicle and then Martinez, the car owner, got in the driver’s seat.  Minutes later Martinez drove into a parked car, which caused the vehicle to flip over, resting on its roof.  Petitioner and her brother were treated at the ER and petitioner required surgical procedures to her neck and jaw.

Petitioner filed a workers’ compensation claim petition.  She argued that the owner told her she would not receive a holiday bonus if she did not attend the holiday party.  This allegation and others made by petitioner were disputed.  Petitioner also claimed that she received her cash bonus at the restaurant.  During testimony, however, petitioner said that she would not have attended the party if transportation had not been provided.

Respondent produced three lay witnesses.  They all testified that bonuses had already been paid prior to the holiday party.  The owner denied saying that petitioner’s bonus was contingent on attending the party.  The owner testified that the party was optional and there were no job ramifications for refusal to attend. Another employee testified that he attended the party for two years and was never told his bonus was contingent on attending.  He also said the bonus was paid prior to the party.

The only documentary proof offered by petitioner was a bank statement listing her deposit history between December 9, 2016 through January 10, 2017.  Those documents showed $540 was deposited on December 27, 2016.  Petitioner’s math did not add up.  She said this amount represented three days of pay at $60 per day plus a $300 cash bonus received at the party.  That total was $480, not $540.

After hearing testimony on several days, the Judge of Compensation found petitioner not credible nor consistent.  He observed that petitioner testified to receiving different amounts on different days of testimony.  He also thought it was contradictory for petitioner to say that she would not have attended the party without transportation being provided but then maintain that her attendance was essentially mandatory.  As for the bank deposit, the Judge of Compensation noted that there was no showing when petitioner received these funds.  The judge dismissed the case and petitioner appealed.

The Appellate Division explored the requirements under N.J.S.A. 34:15-7.  It noted that for a social activity to be compensable petitioner must prove that there is a benefit to the employer beyond improvement of health and morale. In this case the party was clearly about employee morale since only coworkers, friends and family were invited, not clients or vendors.

That left one remaining legal argument made by petitioner, namely that her attendance was mandatory.  There is a line of cases in New Jersey that establishes compensability when an employee is required to perform some activity, whether recreational or social.  The Court found no evidence that petitioner was in fact required to attend, or that there were threats of reprisal to her for non-attendance.  The Court viewed the party as an informal gathering on an optional basis.  It gave no weight to petitioner’s argument that her bonus was on the line because other witnesses made clear that the bonus was paid prior to the party.  The Court agreed with the Judge of Compensation that petitioner’s statement that she would not have attended the party absent transportation conflicted with the so-called mandatory nature of the party.

The lesson from this case is that employers who wish to host holiday parties and other similar events should make clear in writing that attendance is optional and voluntary and that there are no adverse job consequences for non-attendance.

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John H. Geaney, Esq., is a Shareholder and Co-Chair in Capehart Scatchard's Workers’ Compensation Group.  Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at jgeaney@capehart.com. 

Wanda Blanche Taylor confirmed by NC General Assembly to Serve as a Commissioner

Wanda Blanche Taylor was confirmed by the North Carolina General Assembly to serve as a Commissioner replacing former Commissioner and Chair of the Commission, Charlton Allen. Commissioner Taylor’s term begins immediately and runs through June 30, 2026.

Adrian A. Phillips Confirmed by NC General Assembly to Serve as a Commissioner

The General Assembly has confirmed Governor Roy Cooper’s appointment of Adrian A. Phillips to serve as a Commissioner on the North Carolina Industrial Commission. Phillips will begin serving her term upon taking her oath of office.

Mike Mackay Joins Commission as Director of Claims Administration

Mike MacKay was recently hired as the Director of Claims Administration at the IC. Attorney MacKay has extensive experience in Worker’s Compensation. Most recently, he was the managing attorney of the Worker’s Compensation Department at the Law Offices of James Scott Farrin and had previously represented defendants in Worker’s Compensation and personal injury cases at the law firm of Cranfill Summer.

Wes Saunders Appointed to Serve as Deputy Commissioner

Wes Saunders, most recently an Assistant Atty. Gen. at the Department of Justice handling Worker’s Compensation cases, was appointed as a Deputy Commissioner and is assigned to the Commission’s Raleigh office.

Celeste Harris Appointed to Serve as Deputy Commissioner

Celeste Harris was recently appointed as a Deputy Commissioner and assigned to the Winston-Salem regional office. Attorney Harris has represented injured individuals for over 30 years in the areas of Worker’s Compensation, personal injury and Social Security disability. She is also a North Carolina State Bar Board Certified Specialist in Worker’s Compensation law and a North Carolina Certified Mediator.

Bruce Hamilton is a Partner in Teague Campbell’s Raleigh office. For the past 30 years, his practice has focused exclusively on workers’ compensation defense.

In exchange for providing no fault workers’ compensation insurance, Alabama employers are afforded the protections of the Exclusivity Doctrine. While this doctrine serves to insulate employers from liability claims, Alabama Code § 25-5-11 provides a means for recovery against supervisors and safety personnel. To prevail, the employee must prove by clear and convincing evidence that the injuries resulted from a co-employee’s willful conduct. § 25-5-11(c)(1) requires a finding that the co-employee acted in a manner where he or she knew or should have known that someone would be injured. § 25-5-11(c)(2) requires a finding that the co-employee committed an overt act, such as removing a safety device that exposed the plaintiff to injury.

The Alabama Supreme Court recently reaffirmed the difficulty of proving co-employee willful conduct claims in its Means v. Glover opinion. In Means, the employee was burned by molten lead. At the time of the incident, he was using a forklift to pour a 55-gallon drum of sodium hydroxide into a hot kettle of molten lead and other metals. Because the process was newly developed and implemented, he did not know that he was adding the sodium hydroxide too quickly, or that doing so would cause it to react with the aluminum, form hydrogen gas, and explode. The employee asserted that his co-workers should have known of the dangers of mixing the substances, and that a safety windshield should have been installed on the forklift. However, he failed to produce the requisite clear and convincing evidence that his co-workers knew of the danger and instructed him to proceed with pouring the sodium hydroxide, with purpose of causing injury. For this reason, the trial court entered judgment in favor of the employer on the § 25-5-11(c)(1) claim.

Judgment was also entered in favor of the employer on the § 25-5-11(c)(2) claim because the evidence established that the forklift was purchased without a safety windshield. To prevail under this statutory provision, the safety mechanism must have been removed. There is no provision that an available safety mechanism must be added.

The Alabama Supreme Court found no error and affirmed the trial court’s Order.

About the Author

This blog submission was prepared by Karen Cleveland, an attorney with Fish Nelson & Holden, LLC, a law firm dedicated to representing self-insured employers, insurance carriers, and third party administrators in all matters related to workers’ compensation. Fish Nelson & Holden is a member of the National Workers’ Compensation Defense Network. If you have any questions about this submission or Alabama workers’ compensation in general, please contact Cleveland by e-mailing her at kcleveland@fishnelson.com or by calling her directly at 205-332-1599.

Written by: Daniel Hayes

If a claimant in a workers’ compensation claim is a current Medicare beneficiary, the carrier has certain reporting obligations to the Centers for Medicare and Medicaid Services (CMS).  Under Section 111 of the Medicare, Medicaid, and SCHIP Extension Act of 2007 (MMSEA), the carrier’s Responsible Reporting Entity (RRE) must not only report any settlement as fulfillment of its Total Payment Obligation to Claimant (TPOC), but also whether the carrier has any obligation to provide medical compensation, or Ongoing Responsibility for Medicals (ORM).  The carrier’s ORM is indicated to CMS as either “yes” or “no,” reflecting whether responsibility for payment of medicals under the workers’ compensation claim is admitted or denied.  Once ORM is indicated as “yes,” CMS will assume any and all medicals arising out of the accident are the responsibility of the workers’ compensation carrier as primary payer, or debtor.  This ORM will trigger ongoing reviews for any Medicare conditional payments, with the Commercial Repayment Center (CRC) seeking reimbursement for these Medicare conditional payments, as necessary.

In North Carolina, there are two important statutes of limitation that may allow a workers’ compensation carrier to terminate ORM.  Under Section 97-25.1 of the North Carolina Workers’ Compensation Act, a two-year statute of limitations limits the claimant’s ability to seek additional medical care after the last payment of medical or indemnity compensation, as follows:

97-25.1. Limitation of duration of medical compensation.

The right to medical compensation shall terminate two years after the employer’s last payment of medical or indemnity compensation unless, prior to the expiration of this period, either:  (i) the employee files with the Commission an application for additional medical compensation which is thereafter approved by the Commission, or (ii) the Commission on its own motion orders additional medical compensation.  If the Commission determines that there is a substantial risk of the necessity of future medical compensation, the Commission shall provide by order for payment of future necessary medical compensation.

N.C. Gen. Stat. 97-25.1.  The carrier may use this two-year period from the last payment of medical or the last payment of indemnity, whichever is later, to know and calendar when ORM should be terminated.

Under Section 97-47, the legislature provided a separate two-year statute of limitations for pursuing a change of condition claim, as follows:

97-47. Change of condition; modification of award.

Upon its own motion or upon the application of any party in interest on the grounds of a change in condition, the Industrial Commission may review any award, and on such review may make an award ending, diminishing, or increasing the compensation previously awarded, subject to the maximum or minimum provided in this Article, and shall immediately send to the parties a copy of the award.  No such review shall affect such award as regards any moneys paid but no such review shall be made after two years from the date of the last payment of compensation pursuant to an award under this Article, except that in cases in which only medical or other treatment bills are paid, no such review shall be made after 12 months from the date of the last payment of bills for medical or other treatment, paid pursuant to this Article.

N.C. Gen. Stat. 97-47 (emphasis added).  The carrier may also use this two-year period from the last payment of compensation under an award to know and calendar when ORM should be terminated.

Please note, as highlighted above, the statue also includes a one-year statute of limitations for seeking a change of condition in a medical only claim.  This would appear to allow the carrier to use a one-year period from the last payment of medical compensation to diary the termination of ORM in a medical only claim.

Practice Tip:  With regard to medical only claims, there is some inherent inconsistency in these statutes.  To our knowledge, there is no case that directly addresses the one-year change of condition period under Section 97-47 for a medical only claim.  It is unclear whether Sections 97-47 and 97-25.1 may conflict with the claimant’s right to seek additional medical care in a medical only claim under certain circumstances.

Have questions about ORM termination dates or other Medicare settlement solutions issues? Contact attorney Daniel Hayes!