Hilpert v. Maid Pro and Auto Owners Insurance Group, No. WC20-6348 (Dec. 23, 2020)

Jennifer Fitzgerald andParker Olson of Cousineau, Waldhauser, and Kieselbach prevailed on appeal at the Minnesota Workers’ Compensation Court of Appeals (WCCA) on December 23, 2020, when the WCCA affirmed the Compensation Judge’s denial of a request for implantation of a spinal cord stimulator.

In this case, the Employee originally sustained an injury to her low back in July 2010. The parties entered into a settlement agreement in October 2011.  That settlement closed out a number of medical treatments/benefits, including a two-level fusion surgery that had been recommended, along with any psychological treatment.

The Employee continued to treat for ongoing low back symptoms, primarily through a pain clinic.  Ultimately, three different treating physicians recommended consideration of a fusion surgery, with the most recent opinion coming in September 2018.

In April 2019, one of the Employee’s physicians recommended a psychological consultation for possible implantation of a spinal cord stimulator.  The Employee filed a medical request seeking approval of a psychological or psychiatric consultation to assess whether she would qualify for a spinal cord stimulator trial and potential permanent implantation of that device.

At hearing, the Employer and Insurer maintained that a spinal cord stimulator was not reasonable and necessary treatment based on multiple IME opinions and the argument that the Employee did not meet the qualification requirements of the medical treatment parameters for spinal cord stimulators.  Minn. R. 5221.6200, subp. 6(C) states that spinal cord stimulators have very limited application, and those devices are indicated only if the treating health care provider has determined that a trial screening is indicated because an employee (1) has intractable pain, (2) is not a candidate for another surgical therapy, and (3) has no untreatable major psychological or psychiatric comorbidity that would prevent the patient benefiting from the treatment.

The Compensation Judge decided in favor of the Employer and Insurer.  The Compensation Judge found that the Employee did not meet the requirements of Minn. R. 5221.6200, subp. 6(C), in part because the Employee was a candidate for the fusion surgery that had been recommended by multiple treating physicians.

On appeal, the Employee argued that the Compensation Judge erred in determining that she was a candidate for the surgical procedures.  The Employee also argued that she was unlikely to undergo the surgery because she had closed out her claims for a fusion surgery in the 2011 settlement.

The WCCA, however, affirmed the Compensation Judge’s choice of expert opinion and the determination that the Employee was a candidate for the fusion surgery.  The WCCA stated, “in recommending surgery for the employee, her treating physicians clearly found her suited to be chosen for it.”  As such, the Employee met the definition of candidate “even if she is unlikely to choose to undergo the procedure.” The WCCA also noted that the question of whether a patient is a surgical candidate is a medical question that “does not depend on personal considerations, as opposed to medical ones, regardless of who pays for the surgery.”

Ultimately, this case reaffirms the very limited application of spinal cord stimulators, as outlined in Minn. R. 5221.6200, subp. 6(C), and it clarifies that the medical questions involved with these cases depend on analysis of the objective medical evidence presented and not the Employee’s personal or payment considerations. 

If you have questions about this case or any of the issues involved, please feel free to reach out to Jen and Parker any time.

                                                       Simon Law Group, P.C.

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                      MISSOURI WORKERS’ COMPENSATION CASE LAW UPDATE

                                              October 2020 – December 2020

Claimant’s Accident Compensable as Risk Source was Driving/Conditions of Road, Not Choking on Breakfast Sandwich, but Employer Entitled to Reduction in Benefits for Safety Violation

Boothe v. Dish Network, Inc. Case No. SD36408 (Mo. App. 2020)

FACTS: The claimant, an installer for Dish Network, was injured in a single car accident in the Dish van he was driving on the way to his first job of the day. He choked on a breakfast sandwich, blacked out and crashed into a short pillar on the side of the highway. The Claim was denied by the employer. The case went to a hearing and the ALJ awarded benefits, concluding that the risk source was having to travel on a rural highway on a strict timeline in a Dish van. The employer did receive a 30% reduction for a safety violation as eating while driving was against company policy. The employer appealed and the Commission reversed the decision of the ALJ, finding that the risk source was actually the claimant’s decision to eat breakfast while driving. The Commission found there was no aspect of the claimant’s work that required him to eat breakfast while driving and the employer prohibited him from doing so. The claimant then appealed.

HOLDING: The claimant argued that the risk source was the inherent road and driving conditions of his employment not his decision to eat breakfast while driving and the Court agreed. The Court noted that the claimant had to identify the risk source as the immediate cause of injury and that he was not equally exposed to driving risks in nonemployment life. The Court agreed with the claimant that the activity that caused the claimant’s injury was driving and crashing the van. It noted that while choking caused the accident, the accident caused the claimant’s injuries. The Court went further to note that there was no dispute that the claimant drives extensively as a part of his employment and there was undisputed evidence that on the claimant’s day off, he does not maintain a travel schedule he has on his job. Therefore, the claimant’s injury occurred within the course and scope of his employment.

The employer also argued that violation of a company rule, such as doing prohibited work or engaging in an activity personal to the employee, may be such conduct as to take the employee outside of the course of employment. The Court found that the argument lacked merit. It noted that the claimant’s general argument that the claimant’s violation of a safety rule takes him outside the course of employment would render the section of safety violations meaningless. For the Commission’s final award, denying compensation was reversed and the cause was remanded to the Commission for further proceedings consistent with the opinion.

Claimant’s Condition Not Compensable as Workplace Stress Not Extraordinary and Unusual

Shipley v. State of Missouri Office of Administration and Treasurer of Missouri as Custodian of The Second Injury Fund, Case No. SD36643 (Mo. App. 2020)

FACTS: The claimant was hired on by the employer in 2001 as a maintenance engineer at a prison power plant. He had various issues with other employees and supervisors. In March 2010 the claimant refused to timely turn off a boiler scheduled for repairs, got into shouting matches with his supervisor and subordinates, and then left in his truck. He returned briefly the next day, but after calling the peer-action review team, he was taken to a nearby ER and then transported by ambulance to another hospital for psychiatric care.  The claimant resigned in May 2010 and filed a Claim for Compensation shortly thereafter.  The claimant suffered a stroke six months later and filed a second Claim for that event.

After a hearing, an ALJ concluded that the claimant did not meet his burden of proof on the mental health claim that the actual events he described, alone or collectively, objectively rose to the level of extraordinary and unusual stress.  The ALJ also concluded that the claimant did not meet his burden of proof that his work-related stress was the prevailing factor in causing his stroke six months after he resigned from his employment.  The Commission affirmed with a supplemental opinion.  The claimant appealed.

HOLDING: The claimant argued that that the Commission’s acceptance of one expert’s opinion over another was so unreasonable that it must be overturned.  The Court pointed out that the weighing of conflicting medical testimony lies within the Commission’s sole discretion and cannot be reviewed by the Court.  The claimant also argued that there was a lack of evidentiary support for the finding that the claimant did not meet his burden of proof that his mental injury arose out of and in the course of his employment and that he did not meet the objective standard for proof that he was exposed to extraordinary and unusual work stress compared to other power plant managers or other similarly situated employees.  The Court was not persuaded, noting that evidentiary support is only needed when factual findings are made to make an Award for the claimant. The Commission’s decision was affirmed.

Claimant’s Shoulder Condition Denied as Employer’s Expert More Credible than Claimant’s Expert

Comparato v. Lyn Flex West, et al., Case No. ED108870 (Mo. App. 2020)

FACTS: The claimant worked for the insured beginning in 1998 and in 2013 allegedan occupational disease to her shoulder. The employer sent her to Dr. Strege who did not believe that her job duties contributed to her condition. The claimant then treated on her own and underwent surgery. The claimant’s attorney sent her to Dr. Poetz who connected her condition to her job duties. The parties went to a hearing and the ALJ denied benefits. The Commission affirmed the ALJ’s decision and modified the Award specifically finding that Dr. Strege’s opinion was more credible than Dr. Poetz’s opinion. The claimant again appealed.

HOLDING: The claimant argued the Commission exceeded its authority by substituting its own opinion of causation for the opinion of the doctor. The Court noted that the Commission specifically found Dr. Strege’s opinion more credible than Dr. Poetz’s opinion and therefore her first argument was denied.

The claimant also argued that the Commission’s findings were not supported by substantial and competent evidence. The Court disagreed and noted that there was sufficient and competent evidence as Dr. Strege considered more information than Dr. Poetz including the claimant’s medical history, photographs of her surgery, personal review of radiographic testing, two examinations of the claimant, deposition testimony, and the PDA. Therefore, the Commission’s final award was affirmed.

Claimant’s Unauthorized Surgery Not Compensable due to Pre-existing Condition, Gap in Treatment and Subsequent Exacerbation of Symptoms

Beavers v. St. Johns Mercy Medical Center et al., Injury No. 07-123519

On December 24, 2007 the claimant sustained an injury to his back and treated with Dr. Coyle who diagnosed a lumbar sprain with left leg radiculopathy. He was also seen by Dr. Cantrell who recommended work conditioning and work restrictions. He was released at MMI. He returned to work and thereafter he was subsequently terminated because of an encounter with a co-worker which ended with an argument and the claimant telling the co-worker to “get the f*** out of my face”. This occurred in front of a patient which was grounds for termination.

The claimant then treated on his own and eventually underwent an L5-S1 lumbar microdiscectomy with Dr. Levy. He continued to treat and subsequently filed for Social Security disability and was awarded benefits on September 21, 2011. Dr. Poetz testified on behalf of the claimant and believed that the need for the claimant’s surgery and subsequent treatment was a result of the work injury.

At a hearing the ALJ noted that despite the claimant denying any radicular complaints prior to the work accident there was evidence in the medical records that he did experience the same. The ALJ also noted the gap in treatment from when he was last seen by Dr. Cantrell on August 13, 2008 until he saw his own physician on December 7, 2009 at which time, he reported low back pain, noting, “pain began couple of weeks ago progressively worse-last episode - 07.” The ALJ also noted that in or around December 2009 the claimant sustained another acute exacerbation of his low back and leg complaints while working for a subsequent employer. In light of this he did not believe that the claimant’s surgery and subsequent treatment was related back to the work injury. Therefore, the employer/insurer was not responsible for the claimant’s unauthorized medical treatment or future medical treatment.

The ALJ also noted that the claimant was not entitled to TTD benefits since causation was not found. However, he did note that even if causation was made the claimant would not be entitled to TTD based on the fact that he was terminated and his actions did arise to the level of post injury misconduct. The claimant was awarded 12.5% of the body referable to the lumbar spine as a result of the work injury as well as permanent partial disability benefits from the Fund due to the claimant’s preexisting conditions. The claimant appealed and the Commission affirmed the award of the ALJ.

Claim Filed Against Fund Denied Because Not Timely Filed

Hunsaker v. Treasurer of the State of Missouri Custodian of the Second Injury Fund, Case No. SD36450 (Mo. App. 2020)

FACTS: On June 28, 2011 the claimant filed a Claim for Compensation against the employer or an injury on January 24, 2011.  The SIF was not included as a party to the Claim.  On December 28, 2015 the claimant settled his claim against the employer. On December 14, 2016 the claimant filed an Amended Claim adding the SIF.  In its Answer, the SIF asserted that the Claim was barred by the statute of limitations.  At a Hearing, the ALJ agreed and denied benefits.  The Commission affirmed the ALJ’s decision. The claimant appealed.

HOLDING: The claimant argued that his December 28, 2015 settlement with the employer constituted a claim, and his Amended Claim against the SIF on December 14, 2016 was therefore timely filed because it occurred within one year of the settlement.  The Court found that the settlement could not constitute a “Claim” for statute of limitations purposes since the claimant filed an earlier Claim for Compensation.

The Court also noted that because the Amended Claim did not supplement or amend the Claim against the employer, the Amended Claim could not be used to calculate the statute of limitations date.  Therefore, the Amended Claim against the SIF was filed more than one year after the claimant filed his initial Claim against the employer on June 28, 2011. 

The claimant also argued that the barring of his SIF claim violated his constitutional rights of due process and equal protection of the law. The Court was not persuaded. The Commission’s decision was affirmed.

Claimant’s Claims Against the Fund Denied Based on The Statute of Limitations

Scott v. Treasurer of the State of Missouri Custodian of the Second Injury Fund, Case Nos. SD36596 and SD36597 (Mo. App. 2020)

FACTS: The claimant sustained an injury while working for the employer in July 2009. The claimant sustained another injury in March 2010.  The claimant filed two separate Claims for Compensation against the employer on March 24, 2010.  On April 18, 2016, 6 years later the claimant filed Amended Claims for each injury now naming both the employer and the Fund.  Each of the Amended Claims named the same body parts as the original Claims.  In response to each Claim, the Fund asserted a statute of limitations defense.  After a Hearing, the ALJ entered Awards finding the claimant’s Claims against the Fund were not timely filed. The Commission affirmed.  The claimant appealed. 

Per the statute, a claim against the Second Injury Fund shall be filed within two years after the date of injury or within one year after a claim is filed against an employer or insurer, whichever is later.

HOLDING: The claimant made various arguments, one being that she filed sufficient Amended claims making subsequent changes before settling her cases and therefore her claims against the Fund were not untimely. The Court did not agree as she did not add any additional body parts that she injured and therefore neither of the Claims added to the original Claims by adding some cause, effect, or injury relating back to the original Claims.

The claimant also argued that other filings in the case such as the pre-hearing requests, mediation requests and hearing requests counted as Claims since they listed the Fund as a party to the proceedings.  The Court was not persuaded. 

Therefore, the Court affirmed the Commission’s decision that the Claims were barred by the statute of limitations.

Court Upheld Commission’s Dismissal of Claimant’s Fund Claim for Failure to Prosecute

Hager v. Treasurer of Missouri as Custodian of the Second Injury Fund,Case No. ED108950 (Mo. App. 2020)

FACTS: The claimant was injured at work and filed a Claim. He settled the case with his employer but his Claim against the Fund remained pending. Over the next several years the case was set, continued and re-set numerous times. An ALJ issued an Order of Dismissal with prejudice for failure to prosecute. The claimant filed an Application for Review and the Commission set aside the Order of Dismissal. The case was again repeatedly reset and continued for multiple years.

The Division then sent the claimant and his attorney a Notice of a pre-hearing which was mailed to the claimant’s address on file but was returned by the postal service with the notation “Attempted-not known” and “unable to forward.” The Division informed the claimant’s attorney and advised it was imperative the Division have the claimant’s updated contact information. The Division also set the case on a Dismissal Docket. The attorney for the Fund appeared but the claimant and his attorney did not. The ALJ later issued an Order of Dismissal with prejudice for failure to prosecute.

The claimant’s attorney filed an Application for Review with the Commission on the claimant’s behalf asserting (1) he had faxed a letter to the ALJ seeking a continuance because he had been unable to reach the employee (2) the ALJ erred in finding no good cause was shown because the Judge did not hear evidence and did not review any of the claimant’s medical records (3) he did not believe the claimant received the Notice to Show Cause because the address used did not appear to be a good one and (4) he had retained a professional investigator to make an effort to locate the claimant.

The Commission affirmed the ALJ’s Order of Dismissal noting it was still not convinced the Application sufficiently alleged the claimant had prosecuted his claim or had good cause for failing to do so. The Commission also found that counsel being unable to reach his client showed that the claimant failed to prosecute his claim by failing to keep in contact with his attorney. The claimant again appealed.

HOLDING: The claimant made various arguments including that the Commission’s decision was not supported by sufficient evidence because the Application for Review established evidence of good cause for failure to participate in the show cause setting and also that the Commission relied on several cases predicated on a Regulation that had been repealed. The Court was not persuaded and affirmed the decision of the Commission.

Employer Responsible for PTD Benefits Due to Left Knee Surgery and Pulmonary Emboli

Joyner v. Monsanto & American Zurich Insurance Company & Treasurer of Missouri as Custodian of Second Injury Fund, Injury No. 17-035903

The claimant was a journeyman plumber and on January 18, 2017 he sustained an injury to his left knee. He underwent an MRI which showed a tear. He had a week-long vacation to Costa Rica planned and asked the doctor if it would be okay to go and the doctor advised it would not be a problem as it would take a while to get into an orthopedist. A day after his return he was taken to St. Anthony’s Medical Center and hospitalized for deep vein thrombosis which caused pulmonary embolism in both lungs and respiratory failure with hypoxia

Subsequently Dr. Fissel performed surgery. Dr. Fissel did assess 5% disability to the left knee and did connect the claimant’s deep vein thrombosis and pulmonary emboli back to the work injury. He provided the claimant restrictions of no ladders, no squatting, no climbing and no kneeling.

The claimant’s attorney obtained a report of Dr. Volarich who assessed 25% disability to the left knee and 25% disability to the body due to the deep vein thrombosis. He also assessed 35% of the body which was preexisting due to a prior low back surgery and 15% of the left foot due to a prior injury.

Mr. Hughes testified on behalf of the employer and concluded that if the claimant was permanently and totally disabled it would be due to his preexisting condition in combination with the work injury. Ms. Gonzalez provided a report on behalf of the claimant and she concluded that the claimant was permanently and totally disabled as a result of the last injury in combination with the claimant’s preexisting condition. However, at her deposition she testified that the claimant would not be able to perform even sedentary work because of the limitations he has from shortness of breath, easy fatigability and lack of endurance which were a direct result of the last injury alone. Therefore, the ALJ found the employer/insurer was responsible for benefits. The employer appealed and the Commission affirmed.

Employer Responsible for PTD Benefits Despite Claimant’s Pre-existing Conditions Including Bilateral Shoulder, Back and Carpal Tunnel Surgeries

Franklin v. Mitchell Mill Systems USA, Inc. & Accident Fund Insurance Company of America & Treasurer of Missouri as Custodian of Second Injury Fund,Injury No. 14-025678

The claimant filed a Claim for occupational disease with an April 12, 2014 date of injury involving the claimant’s low back. Dr. Cunningham performed a L4-5 decompression and microdiscectomy. Thereafter, he treated with Dr. Woodward who released him to full duty and assessed 10% disability to the body referable to the work injury and 10% preexisting. After he was released from authorized care he never returned to work.

The claimant does have various preexisting injuries/conditions including a prior right knee surgery, work-related right shoulder surgery, work-related left shoulder surgery, low back surgery, and work-related bilateral carpal tunnel syndrome.

The claimant’s attorney obtained a report of Dr. Koprivica who noted that it was possible that the claimant was PTD was based on the last injury alone. However, if it was found that he was not then he would be PTD due to the work injury and his preexisting conditions. Mr. Eldred opined that the claimant was PTD as a result of the primary injury and his preexisting disability. The ALJ agreed and found that the claimant was PTD and the Fund had liability. The Fund appealed arguing that all of the claimant’s preexisting conditions did not meet the threshold pursuant to section 287.220.3 as they did not fall into one of the four categories needed to be considered for Fund liability.

The Commission did not specifically address that argument by the Fund as they first looked to the last injury alone and found that the claimant was PTD as a result of the same. Therefore, the employer was liable for benefits regardless of whether 287.220.2 or 287.220.3 applied.

Fund Not Responsible for PTD Benefits as No Evidence That All Claimant’s Pre-existing Disabilities Met Threshold for Fund Liability

Clinkenbeard v. Department of Corrections & Central Accident Reporting Office & Treasurer of Missouri as Custodian of Second Injury Fund, Injury No. 14-089634

On October 28, 2014 the claimant, a correctional officer sustained an injury to his elbow and shoulder. He received authorized care and Dr. Hicks performed a left shoulder arthroscopy. Ultimately Dr. Hicks provided the claimant a permanent lifting restriction of 20 pounds.

The claimant did have a variety of preexisting conditions including a right shoulder fracture, bilateral work-related knee surgeries, bilateral hip pain, back pain, sleep apnea, a left wrist surgery, GERD/acid reflux, diabetes, restless leg syndrome, cataracts and deafness. Dr. Volarich and Mr. Eldred testified that the claimant was PTD as a result of the last injury along with his preexisting conditions. The ALJ agreed and found the employer responsible for 27.5% of the shoulder and 10% of the elbow and the Fund was responsible for PTD benefits. The Fund appealed arguing that all the claimant’s preexisting conditions did not meet Fund liability pursuant to§287.220.3.

After looking at the claimant’s preexisting conditions the Commission determined that no qualifying preexisting disability had been established. The Commission noted that Dr. Volarich and Mr. Eldred both concluded that the claimant was PTD based onall the claimant’s preexisting conditions and his primary injury.

The Commission noted that there was evidence to show a preexisting fracture of the right shoulder from 2009 which would qualify under§287.220.3 as it was a pre-existing condition to the opposing extremity as the work injury. However, there was no medical opinion to support the conclusion that the combination of the right shoulder preexisting condition and any resulting disability combined with the left shoulder and elbow primary injuries resulted in permanent total disability. Rather Dr. Volarich and Mr. Eldred opined that it was all the preexisting conditions together that combined to result in permanent total disability. Therefore, the Commission concluded that the claimant’s disability from the last injury did not combine with any preexisting qualifying disability to result in total and permanent disability pursuant to §287.220.3 and therefore the Fund was not liable for benefits.

Civil Claim Barred Against Distributer as It was Found to Be Claimant’s Statutory Employer

Sebacher v. Midland Paper Company, Case No. ED108615 (Mo. App. 2020)

FACTS: Midland is a distributor of paper and packaging supplies. They contract out to independent contractors who deliver the products instead of Midland’s own employees delivering them. The products are delivered by CHR Transportation and the claimant was employed by this entity as a truck driver working full-time delivering Midland’s products pursuant to its contract with CHR. The claimant was allegedly assaulted by one of Midland’s employees and filed a petition against that employee and Midland asserting claims of assault and battery and alleging that Midland was negligent in failing to supervise and train the co-employee and in retaining him as an employee. Midland asserted an affirmative defense advising that it was immune from the suit as workers’ compensation was the claimant’s exclusive remedy since Midland was his statutory employer. Midland filed a Motion for Summary Judgment which was granted. The claimant appealed arguing that Midland was not its statutory employer.

HOLDING: The Court noted that one is a statutory employer if 1) the work is performed pursuant to a contract 2) the injury occurs on or about the premises of the alleged statutory employer and 3) the work is in the usual course of the alleged statutory employer’s business. The issue here was whether the claimant was performing work within the usual course of the employer’s business.

The Supreme Court of Missouri has defined usual business as those activities that 1) are routinely done 2) on a regular and frequent schedule 3) contemplated in the agreement between the independent contractor and the statutory employer to be repeated over a relatively short span of time and 4) the performance of which would require the statutory employer to hire permanent employees absent the agreement.

In this case, the claimant was on the employer’s premises to pick up products for delivery.  This work was to be routinely performed on a daily basis and delivery services would be repeated over a relatively short period of time.  Finally, the employer established through Affidavit that if the third party’s drivers were not performing transportation services for the employer, the employer’s employees would have to provide the transportation.

Therefore, the Court found that the employer’s usual business was to distribute and deliver its products to its customers. Therefore, the employer was the claimant’s statutory employer and the claimant’s claim was barred because the claimant’s exclusive remedy was workers’ compensation.

Written by: Melissa P. Woodard and Tracey Jones

The current state of the law in North Carolina Workers’ Compensation in latent occupational disease claims is in flux right now. Considering current case law, there are often three options for calculating a plaintiff’s average weekly wage, and neither the plaintiffs’ bar nor the defense bar can be certain about how the Industrial Commission will rule.

Background

The primary reason this issue remains unsettled is that these kinds of cases, namely asbestosis, byssinosis and silicosis claims, are not often tried. There are always multiple defendants and they require extensive expert testimony resulting in astronomical litigation costs for both sides. Attorneys are forced to address the average weekly wage issue at mediation and come to a compromise that does not always adhere to how the respective side would like to interpret N.C.G.S. § 97-2(5).

Under N.C.G.S. § 97-2(5), there are five methods of calculating the average weekly wage.

The first three apply when the plaintiff worked at the employer in the 52 months prior to diagnosis of the alleged occupational disease. Since asbestosis, byssinosis and silicosis typically do not manifest for many years after exposure and because last injurious exposure may be separated by subsequent employers or decades, these methods for calculating the average weekly wage are arguably inapplicable. Most often, the fifth method, which is essentially a catch-all, “whatever is most fair,” approach is used. This is where the three different approaches can be utilized.

The three approaches for determining “whatever is most fair” include:

1. 1. 1. The last full year of wages;
      2. The last year of wages listed on the Social Security Earnings Report; or
      3. Wages earned in the 52 weeks prior to the diagnosis.

Last Full Year

The plaintiffs’ bar generally argues that the average weekly wage should be based on the last full year of wages the plaintiff earned regardless of any other circumstances. This argument may be considered “fair” under the Court of Appeals’ holdings in Lipe v. Star Davis Co. Inc. and Abernathy v. Sandoz Chemicals, which state that the average weekly wage should be based on the wages earned while working, not the actual wages earned when the employee died or was diagnosed.  237 N.C. App. 124, 767 S.E.2d 539 (2014); 151 N.C. App 252, 565 S.E.2d 218 (2002). In both cases, the plaintiff was diagnosed with an alleged occupational disease, but had retired years earlier. The Court held that he average weekly wage was based on the last years they worked, not zero, because using their actual earnings was “obviously unfair.”  Id.

As an illustrative example, we will use Joe Smith, who worked for 30 years and retired in June 2008:

Based on his Social Security Earnings Report, Joe earned $52,000 in 2007, which was his last full year of employment, and $26,000 in 2008, where he worked less than 52 weeks.  Joe did not have any reported wages since 2008. In 2019, Joe was diagnosed with asbestosis and has timely filed his claim. Using this approach, Joe’s average weekly wage would be $1,000 based on the 2007 wages since it was his last full year of wages.

Last Year of Wages

In 2018, the Court of Appeals decided Penegar v. United Parcel Service, which holds that the average weekly wage can be based on post-retirement wages from another employer and need not be based solely on earnings from the last injurious employer, nor does it have to be solely based on full time wages. 259 N.C. App. 308, 815 S.E.2d 391 (2018).

In Penegar, the employee retired from UPS and then earned post-retirement wages with Union County in the amount of $4,272.92, resulting in an average weekly wage of $82.17. Id. The plaintiff argued the wages should be based on those from the last injurious employer, but the Court held the post-retirement wages were indicative of his actual earnings in the years prior to his diagnosis. Namely, the Court quoted N.C.G.S. § 97‑2(5), and emphasized that the average weekly wage should reflect what the plaintiff would have earned, not what he could have earned. In 2019, the Supreme Court of North Carolina denied a petition for discretionary review the plaintiff filed, essentially, but not overtly, affirming the holding.

Obviously, this seems to conflict with Abernathy and Lipe, but there is an argument that one can read the cases together without Penegar abrogating the prior case law. Under this argument, the average weekly wage should be based on the last year of wages, regardless of whether it was a full year. This is supported by the fact that either extrapolating 52 weeks of earnings from a partial year or using a previous year when the most recent earnings are not a full 52 weeks is based on the other statutory methods under N.C.G.S. § 97-2(5), not the fifth method, and the Penegar court clearly used the fifth method.

Using this approach and utilizing our Joe Smith example again, the average weekly wage would be $500.00 based on plaintiff’s 2008 part-time wages.

There is a caveat to this argument of which one should be aware, however. If, in our example, Joe worked for the same employer in 2007 and 2008, then there is a very good argument that one would have to use the 2007 wages under the other prongs of N.C.G.S. § 97-2. However, if Joe went to work for another employer in 2008 and worked part-time, then the 2008 wages could be used under the Penegar analysis.

Wages Earned in the 52 Weeks Prior to Diagnosis

Finally, the most defense-oriented argument would be that Penegar has abrogated prior case law on this issue based on the strict statutory interpretation the Court of Appeals employed: the average weekly wage “should ‘most nearly approximate the amount which the injured employee would be earning were it not for the injury[,]’ not what the injured employee could be earning.” 259 N.C. App. 308, 815 S.E.2d 391 (2018) (quoting N.C.G.S. § 97-2(5)).

Taken literally, if the employee has retired and has earned no wages in the 52 weeks prior to the diagnosis, his average weekly wage is $0.00 because he was not earning any wages. Based on this argument, it is a misapplication of the law to use wages prior to the most recent year because they show what the plaintiff could be earning, which is in direct contradiction to the Court’s holding in Penegar and the clear language in N.C.G.S. § 97-2(5).

Returning again to our plaintiff, Joe Smith:

Joe’s average weekly wage would be $0.00, resulting in the minimum compensation rate of $30.00 because he retired in 2008 and has not earned any wages at all for more than 10 years prior to his diagnosis.

These discrepancies in average weekly wage calculations create huge gaps in exposure for the defense. Assuming 500 weeks of indemnity entitlement, Joe Smith could recover up to $333,335.00 under the first argument, last full year wages, and up to $166,666.00 under the second argument, last year of wages. Under the third argument, Joe would be entitled to the minimum compensation rate, which would result in indemnity exposure of $15,000.00.

Based on our example with plaintiff Joe Smith, the difference in exposure only increases with higher wage earners. The Industrial Commission has yet to apply the Court of Appeals’ holding in Penegar to an occupational disease claim like Joe Smith’s diagnosis of asbestosis, and many attorneys and adjusters alike wait in anticipation to see how the law will be applied.

If you have questions or wish to discuss this further, please contact one of our workers’ compensation attorneys.

At least, that was the opinion of the Alabama AG on February 3, 2003.  A few months prior to that, President Bush announced the National Smallpox Vaccination Program, a smallpox vaccination plan that would, in phases, vaccinate a significant number of Americans against a potential release (via act of terrorism) of smallpox into the population.  Since it was anticipated that there would be side effects associated with the vaccinations, the Director of the Alabama Department of Industrial Relations (now Department of Labor) asked the AG for an opinion on whether the side effects would be covered as compensable per the Alabama Workers’ Compensation Act.  In his opinion letter, the AG conceded that there were no Alabama cases on point.  The AG looked at how the courts of other states had handled the issue and ultimately concluded that Alabama courts would find the side effects to be compensable.  Of course, the AG’s opinion is not law.  It is just an opinion and, just like lawyers, everybody has one.

So how would an Alabama Circuit Court Judge handle this issue?  Certainly, everyone (sans antivaxxers) has an interest in being vaccinated.  While employers see the benefit of an immune work force that is less susceptible to sickness or death, they also see the same benefit with employees that are healthier due to nutritious eating, regular exercise, or simply taking their Flintstone vitamins every morning. 

Whether or not the side effects associated with the vaccine would be considered compensable will probably come down to whether an employer requires or encourages its employees to be vaccinated.  On the flipside, employers will defend against such claims by trying to establish that the employee took the vaccine for reasons unrelated to work.  Courts will most likely focus on the type of employment, when and where the vaccine was administered, who paid for it, whether incentives or bonuses were offered as inducements, and whether the employee would have taken the vaccine anyway.

As with the 2003 AG letter, this is just an opinion and you know what they say about those.

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About the Author

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

As the Moderna and Pfizer COVID-19 vaccines begin to be administered to the population in the United States, many clients have asked whether an adverse reaction to the COVID-19 vaccine would be considered compensable if the employer were to offer a voluntary vaccination program at some time in the future.  Many employers currently offer such programs during flu season.  This is an important question but unfortunately there is precious little case law to guide us in New Jersey and in most states.   

The last published case in New Jersey on the compensability of an adverse reaction to a vaccine goes all the way back to 1949 in Saintsing v. Steinbach Company, 1 N.J. Super. 259 (App. Div. 1949). The case involved an employer which sent out a notice strongly urging employees to get the smallpox vaccine.  The notice read, “On April 23, 1947, we will provide free inoculation to all those who choose to be immunized against smallpox.  We are sure that everyone is aware of the current spread of smallpox and we strongly urge that you take advantage of this service, which we are glad to provide in the interest of your health.”

Most of the company employees, including the petitioner, were vaccinated, but petitioner developed a reaction that caused her to lose time from work and to suffer partial permanent disability.  The respondent’s personnel director testified at trial that this vaccination offer was made to promote morale, create a happier environment for employees and to reduce absenteeism.  He stressed that the vaccination was entirely voluntary.  The Judge of Compensation ruled that the adverse reaction was compensable.  The Monmouth County Court reversed in favor of the employer, but the Appellate Division reversed again in favor of the employee.  The Appellate Division focused on two factors:  one, that the employer strongly urged employees to be vaccinated, and two, the mutual benefit doctrine.  “We have concluded that the activity was mutually beneficial, that the risk was reasonably incident to the employment and that the petitioner’s injury resulted from an untoward event or accident arising out of and in the course of her employment….”

The better argument is that adverse reactions to voluntary vaccination programs offered by employers are not covered under workers’ compensation and that Saintsing has been effectively overruled by subsequent statutory changes.  First, the New Jersey Workers’ Compensation Act underwent a wholesale revision in 1979.  There is no mention of the mutual benefit doctrine in the modern statute, and there are very few post-1979 cases that discuss the doctrine.  The court in Saintsing based its decision largely on the mutual benefit doctrine along with a “strong urging” by the employer to participate in the program.  Before 1979, there were literally scores of cases whose outcome depended on the mutual benefit doctrine.  In fact, the Saintsing case has not been discussed by any published case in New Jersey since 1979.

More importantly, a new provision was added in 1979 to N.J.S.A. 34:15-7 which moved courts away from the nebulous mutual benefit doctrine.  The law adopted in 1979 states that social activities are not compensable unless the employee can show the activity is a regular incident of employment and promotes a benefit beyond improvement of health and morale.  The main purpose an employer would have in offering a vaccination program to employees is precisely improvement of employee health and morale.  Of course there may be some mutual benefit to the employer but that is not the test in this statute. The injured employee would have to show that a critically important public health program is really focused on some other benefit to the employer beyond the obvious one:  making sure its employees are healthy and not spreading a highly contagious and deadly virus to others.  Until a reported decision comes down, no one can know for sure how the Appellate Division or New Jersey Supreme Court will rule on this issue.

What if the employer mandates that an employee must get the vaccine as a condition of continued employment, and then the employee develops an adverse reaction?  The mandatory nature of the program would likely result in a ruling for petitioner.  There are a number of New Jersey Supreme Court cases that have held that employees who are required to undertake certain actions that would otherwise be non-compensable and then are injured performing those actions are covered for purposes of workers’ compensation.  The theory of these cases is that compelling an employee to perform an action renders the action compensable.

When a vaccine is not compensable in workers’ compensation, are there any benefits available to someone who develops an adverse reaction to the vaccine?  The answer is yes.  There are two important federal programs that assist such individuals. The first is the National Vaccine Injury Compensation Program.  Petitions must be filed, with limited exceptions, within three years after the first symptom of the alleged vaccine injury, or within two years of the death and four years after the first symptom of the alleged injury the resulted in death.

The other program is called the Countermeasures Injury Compensation Program.  Compensation under this program includes unreimbursed medical expenses that health insurance did not cover, lost employment income, and a survivor death benefit.  A countermeasure is a vaccine, medication, device, or other item that is used to prevent, diagnose or treat a public health emergency or a security threat.  COVID-19 is among the specific public health threats covered in the program.

It is important to realize that there is one and only one statutory provision in the New Jersey Workers’ Compensation Act that applies to injuries arising from the administration of a vaccine.  This statute is part of the 2019 Thomas P. Canzanella Law, but it applies solely to first responders and public safety workers.  The statute can be found at N.J.S.A. 34:15-31.6.  It reads:  “Any injury, illness or death of any public safety worker, resulting from the administration to the worker of a vaccine including, but not limited to, smallpox vaccine, to prepare for, or respond to, any actual, threatened, or potential bioterrorism or epidemic, as part of an inoculation program in connection with the worker’s occupation, geographical area, or other category that includes the worker, or resulting from the transmission of the disease from another employee or member of the public inoculated under the program, is presumed to arise out of and in the course of the employment and all care or treatment of the worker, including testing, diagnosis, surveillance and monitoring of the worker’s condition, and all time during which the worker is unable to work while receiving the care or treatment is compensable under the provisions of R.S. 34:15-1 et  seq.”  As with other statutory presumptions, the employer can rebut the presumption by a preponderance of the evidence standard, meaning proof by more than 50% that the adverse reaction is not work related.

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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. 

Effective January 1, 2021, the mileage reimbursement rate for Alabama will be 56.0 cents per mile, a 1.5 cent decrease from 2020.

On December 21, 2020 the Alabama Supreme Court issued Administrative Order No. 9 which extended its previous orders concerning workers’ compensation and taking witness testimony remotely during the pandemic.  This means that the following rules will be in effect through April 30, 2021:

1. Any workers’ compensation settlement hearing in any court may be conducted telephonically or by videoconferencing.
2. Any workers’ compensation settlement may be approved by an ombudsman of the Alabama Department of Labor (ADOL) or by a circuit judge. If a workers’ compensation case pending in a court is settled with written approval of an ombudsman from the ADOL, that settlement shall result in the dismissal of the workers’ compensation claim pending in court.

In addition to the above, the rules that provide for remotely swearing in and taking witness testimony are also extended.

About the Author

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

Legal Update by Attorneys Alison Stewart, Nick Cooling, and Law Clerk Jordan Gehlhaar

In Deng v. Farmland Foods, it was determined that “shoulder” under § 85.34(2)(n) is not limited to the glenohumeral joint, and at least includes the muscles that make up the rotator cuff. Ourbriefing of Deng suggested there would be increased litigation surrounding this issue to further define what constitutes the shoulder. One of the first appeal decisions following the shoulder expansion came inRosa Chavez v. MS Technology, LLC.

Claimant Chavez sustained tears of several rotator cuff muscles (supraspinatus, infraspinatus, and subscapularis), as well as tears to her biceps tendon and labrum. She had a surgical repair of the rotator cuff including extensive debridement, tenotomy, and decompression. Claimant argued her biceps injury should be compensated as an arm injury under § 85.34(2)(m), rather than a whole body injury under § 85.34(2)(v).

Claimant’s expert, Sunil Bansal, M.D., opined the rotator cuff tendons were proximal to the glenohumeral joint, and did not address the labrum. The Commissioner found the rotator cuff and the labrum are both close in proximity to the glenohumeral joint and crucial to its proper functioning. Therefore, a labral tear should be compensated as a shoulder under section 85.34(n).

The claimant also argued the subacromial decompression should be compensated as an unscheduled injury because it involved “changes to the body as a whole.” Based on the record’s description of the procedure, and common definitions of acromion, the Commissioner also found the acromion to be closely connected with the glenohumeral joint in location and function – it forms part of the socket and protects the glenoid cavity. 

Alternatively, claimant argued her biceps injury was an injury to the arm, and the combination of an arm and shoulder injury should allow compensation under the “catch all” provision of 85.34(2)(v). The Commissioner declined to address this argument, finding claimant failed to prove an injury to the arm since the impairment ratings were based solely on range of motion deficits in the shoulder.

All permanent disability was found compensable as a shoulder under § 85.34(n). Dr. Bansal’s impairment rating was found to be more convincing and accurate than Dr. Peterson’s rating. Claimant Chavez was compensated PPD benefits according to the ten percent upper extremity rating based on 400 weeks.

Peddicord Wharton will continue to monitor case law on this issue. 

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NOTICE TO THE PUBLIC

The determination of the need for legal services and the choice of a lawyer are extremely important decisions and should not be based solely upon advertisements or self-proclaimed expertise. This disclosure is required by rule of the Supreme Court of Iowa.

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. ©2020 Peddicord Wharton. All Rights Reserved.

By Attorneys Alison Stewart, Nick Cooling, and Law Clerk Jordan Gehlhaar

The Iowa Supreme Court recently released an opinion in Terry v. Dorothy, ruling on a gross negligence claim against a co-employee. In October of 2015, Brian Terry, an employee of Lutheran Services in Iowa, sustained serious injuries after he was attacked by a client. Brian filed a workers’ compensation claim, which was resolved by a final compromise settlement pursuant to Iowa Code section 85.35(3). The settlement documents consisted of a “Compromise Settlement,” and “Additional Terms of Settlement.”

The Compromise Settlement contained release language in which Claimant Terry discharged the employer and insurance carrier from all liability pertaining to the accident under workers’ compensation law. The Additional Terms provided the settlement was a “final discharge of all claims and demands that may exist against [LSI and their insurance carrier] and any of theiremployees by reason of . . . employment.” (emphasis added).

In October of 2017, Brian Terry and his wife brought claims in the district court against Meghan Dorothy, Brian’s supervisor at the time of the injury. The petition alleged gross negligence when the supervisor put Terry in a one-on-one situation with a likelihood of assault. Additionally, Terry’s wife brought a loss of consortium claim. Dorothy moved for summary judgment relying in part on the release language in the settlement between Terry and LSI. The district court granted the supervisor’s motion for summary judgment reasoning that Terry lost further rights to pursue damages under Iowa Code section 85.20 (rights exclusive) and 85.35(9) (settlement as a final bar).

The Terry’s appealed and the majority in the Court of Appeals reversed. It was found that the statutory settlement before the Workers’ Compensation Commissioner only released statutory claims, not common law claims such as gross negligence. The majority also found that contractual theories were not properly before the court.

The Iowa Supreme Court vacated the Court of Appeals and affirmed the district court’s grant of summary judgment. The Supreme Court agreed that gross negligence was a common law claim and not within the scope of workers’ compensation. Statutory immunity for claims under workers’ compensation previously applied only to employers, not co-employees. In 1974, the statute was amended extinguishing common law claims against co-employees - except those founded in gross negligence.

Summary judgment was granted on contract grounds. Since a release is a contract, basic principles of contract law apply. The Compromise Settlement is limited to release of workers’ compensation claims and was therefore not enough to provide a basis for summary judgment of the common law claims. However, the “Additional Terms of Settlement,” containing broad language releasing all employees from any and all liability, was sufficient to distinguish the gross negligence claim.

Absent legislative amendment, gross negligence claims must be specifically bargained for and enumerated in a settlement release to bar further action against co-employees arising from a work injury.

Peddicord Wharton will continue to monitor this issue. 

If you'd like to sign up for our e-newsletter, please click here.

~~~~~~~~~~~~~~~~~~~~~~~~~~~

NOTICE TO THE PUBLIC

The determination of the need for legal services and the choice of a lawyer are extremely important decisions and should not be based solely upon advertisements or self-proclaimed expertise. This disclosure is required by rule of the Supreme Court of Iowa.

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. ©2020 Peddicord Wharton. All Rights Reserved.