Earlier this year the new hand and foot bill became effective on January 21, 2020.  This bill marked a significant change in the New Jersey Workers’ Compensation Act.  The language was unambiguous in augmenting the number of weeks for injuries of the hand, foot and fingers.  However, the language was less than clear concerning its effective date. Did it apply only to cases filed after January 21, 2020?  Did it apply to all cases pending as of January 21, 2020?

On October 30, 2020, Governor Phil Murphy signed legislation amending L. 2019, c. 387 to clarify that the law was intended to apply to cases that were pending in the Division but not yet settled and cases that were filed on or after the date of enactment.  Now the question is what do practitioners and judges do in regard to orders that were entered over the past 10 months using the pre-2020 rates for a hand or foot injury?

Before addressing this issue, let’s recap how this law changes New Jersey Workers’ Compensation Act.  Until the passage of this law, under N.J.S.A. 34:15-12 an injured worker would receive 2.45 weeks for each percentage of compensation for hand injuries.  The law increased the weeks to 2.6 for each percentage of compensation until the level of 25%.  At that level and above, each percentage gets compensated at 3 weeks.

Similarly, the new law raised the long-standing compensation for foot injuries from 2.3 weeks per percentage to 2.5 weeks until the level of 25%. At that level and above, each percentage gets compensation at 2.85 weeks.   It should be noted that the hand and foot law does not apply to reopener claims. 

The law made some other minor changes such as raising the weeks for finger injuries and raising the death benefit to $5,000 from $3,500 for a person who died from any cause other than the accident or occupational disease during the period of payments of permanent injury.

When the law passed in January, judges and practitioners seemed to split fairly evenly around the state on whether the law should only apply to cases newly filed after January 21, 2020 as opposed to cases pending in the Division in January 2020 but filed before that date.  Given the lack of consensus, many pending cases were settled using pre-2020 rates.  That meant somewhat less money in permanency awards for petitioners.

In light of the recent legislation from the Governor clarifying the effective date of this law, employers and practitioners are now asking the following questions:

1.      Did the parties expressly agree to use the pre-2020 rates as part of negotiations and was this agreement made part of the court record?

2.      Did petitioner reserve rights to revisit the issue of the law’s effective date in the event of clarification from the Appellate Division or the Governor?

3.      Was the issue never discussed or addressed at all on the record when the case settled?

In the first situation, respondents will argue that the order should not now be amended.  In the second and third situations, applications to modify the award may be filed, or the parties may even consent in some cases to amend the prior order should they agree.  When there is a genuine dispute, it will become important to obtain a copy of the transcript at the time the order was entered to see what the parties stipulated to on the record and whether rights were reserved.  Correspondence between counsel before the date of settlement may also be relevant in determining the intent of the parties.  Given that hand and foot injuries comprise a large percentage of New Jersey claims, one can anticipate significant disputes over the ensuing months.

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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. 

Ohio House Bill 81 to Significantly Change Ohio Workers’ Compensation Law

Ohio House Bill 81 (H.B. 81) went into effect on September 15, 2020, but many of its significant changes to current Ohio Workers’ Compensation Law have been discussed by claimant’s counsel and employer's counsel throughout the workers’ compensation community for many months.

The first major change encompassed by H.B. 81 involves the shortening of the time for the filing of claims asserting a Violation of a Specific Safety Requirement (VSSR). The current time limit for the filing of a VSSR claim under Section 4121.47 of the Ohio Revised Code is 24 months from the date of the injury. Under H.B. 81, for all such claims arisingon or after September 15, 2020, that time limit has been reduced to one year. This change to the statute of limitations for VSSR claims appears to be an attempt to bring this section of the workers' compensation world into alignment with a previous amendment passed by the General Assembly in 2017 that reduced the statute of limitations for injury and death claims to one year for all claims arising on or after October 1, 2017. With the enactment of H.B. 81, only claims of an occupational disease brought pursuant to Ohio Revised Code 4123.85 continue to allow for a two-year statute of limitations.

The second major change encompassed by H.B. 81 pertains to the continuing jurisdiction of the Ohio Industrial Commission to make modifications or changes for a period of five years with respect to former findings or orders involving matters of disability, compensation, dependency or benefits. Under current Ohio law, that time period begins running from the last payment of compensation or lastpayment for medical services. For claims arising on or after July 1, 2020, H.B. 81 now permits a five-year continuing jurisdiction period to commence from the last payment of compensation or the lastrendering (providing) of medical services. This should serve to hasten the beginning of that five-year time period since payment for medical services usually occurs after those services are rendered.

The third major change set forth by H.B. 81 effectively legislates a "proximate cause" standard to Section 4123.56 as it relates to the awarding of temporary total benefits or wage loss compensation, while expressly setting forth the "intent of the general assembly to supersede any previous judicial decision that applied the doctrine of voluntary abandonment to a claim brought under this section." For claims pending or arising after September 15, 2020, "an employee who is unable to work or who suffers a wage loss as thedirect result of an impairment arising from an injury ... is entitled to receive compensation under this section ..." (emphasis added). If an employee is not working or has suffered a wage loss as a direct result of reasonsunrelated to the allowed injury or occupational disease the employee is not eligible to receive compensation.

There is a final major change included in H.B. 81 that may potentially affect a state-funded employer’s desire to settle claims under Section 4123.65. For claims arising on or after September 15, 2020, an employer will no longer be able to deny or withdraw consent to an application to settle a claim if both of the following apply to the claim: 1) the claim is no longer within the employer’s experience; and 2) the employee named in the claim is no longer employed by the employer. This change will serve to limit an employer's ability to object to the resolution of claims that do not have any impact on the employer.

Revisions to Ohio Law Provide Clarity and Consistency to Motor Carriers as to Test for Independent Contractors

Effective July 3, 2019, the Ohio General Assembly has enacted statutory changes to the definition of “employment” to provide clarity to motor carriers and those in the trucking industry as to how administrative agencies, including the Ohio Bureau of Workers’ Compensation (BWC), will view independent contractor drivers. H.B. 62, Ohio’s transportation budget bill which was signed into law by Governor DeWine on April 3, 2019 (the Bill), was supported by the Ohio Trucking Association in order to address the issue that different common law tests were used by the various Ohio agencies with a hand in regulating the trucking industry.

Prior to the enactment of H.B. 62, each agency used a slightly different test as developed under common law. For workers’ compensation, agencies and courts looked to whether the employer reserved the right to control the manner and means of performing the work. In unemployment compensation matters (as well as with construction industry-specific cases before the BWC), a 20-factor control test was utilized. Yet another test for purposes of minimum wage regulations required one to examine the economic realities in the nature of the relationship between the worker and the employer. The Bill now replaces all these tests and should provide clarity and consistent results for motor carriers operating in Ohio.

The Bill now exempts from coverage – under Ohio workers’ compensation law, unemployment compensation law, overtime law, and minimum wage law – individuals who meet all seven factors of the new statutory test to govern the definition of independent contractor across the agencies. Under the revised R.C. 4123.01 defining “employment” for the purposes of Ohio workers’ compensation (similarly with R.C. 4111.03, et seq. for minimum wage/overtime and R.C. 4141.01 for unemployment), an individual who operates a motor vehicle in the performance of services for or on behalf of a motor carrier will be designated as an independent contractor (and therefore exempt from coverage) if all these seven factors apply:

1.         The person owns the vehicle or vessel that is used in performing the services for or on behalf of the carrier, or the person leases the vehicle or vessel under a bona fide lease agreement that is not a temporary replacement lease agreement. For purposes of this division, a bona fide lease agreement does not include an agreement between the person and the motor carrier transporting property for which, or on whose behalf, the person provides services.

2.         The person is responsible for supplying the necessary personal services to operate the vehicle or vessel used to provide the service.

3.         The compensation paid to the person is based on factors related to work performed, including on a mileage-based rate or a percentage of any schedule of rates, and not solely on the basis of the hours or time expended.

4.         The person substantially controls the means and manner of performing the services, in conformance with regulatory requirements and specifications of the shipper.

5.         The person enters into a written contract with the carrier for whom the person is performing the services that describes the relationship between the person and the carrier to be that of an independent contractor and not that of an employee.

6.         The person is responsible for substantially all of the principal operating costs of the vehicle or vessel and equipment used to provide the services, including maintenance, fuel, repairs, supplies, vehicle or vessel insurance, and personal expenses, except that the person may be paid by the carrier the carrier's fuel surcharge and incidental costs, including tolls, permits, and lumper fees.

7.         The person is responsible for any economic loss or economic gain from the arrangement with the carrier.

See R.C. 4123.01(A)(1)(d). This industry-specific test is now a comprehensive way for motor carriers to properly interpret the nature of the relationship with independent contractors, as well as for Ohio administrative agencies to determine and adjudicate coverage disputes should they arise.

While some of the required factors which must apply to be deemed an independent contractor are common to tests in other jurisdictions – mileage-based compensation, supplying personal services, responsibility for operating costs – this new test expressly requires a bona fide, written agreement to be in place that specifies that the relationship is one of independent contractor. Such agreement must not be directly between the contractor and the motor carrier transporting company for whom the contractor provides the services.

Pursuant to the revised statute, administrative rules will be developed in the near future for implementation of the test for each agency. In the meantime, those in the trucking industry should review both their current written independent contractor agreements and the in-practice relationship with contractors to remain or come into compliance with Ohio’s clarified standard.

Ohio COVID-19 Immunity Bill

On September 15, Ohio Governor Mike DeWine signed into law House Bill 606, the COVID-19 Immunity Bill, which grants temporary qualified immunity to healthcare workers as well as general temporary qualified immunity to individuals, businesses, schools, governmental entities and religious entities from civil lawsuits arising from the COVID-19 pandemic. The much-anticipated law will go into effect on December 13, 2020, and provides the above-referenced immunity from potential causes of action that may arise from March 9, 2020 (the date of the Governor’s Executive Order declaring an emergency) through September 30, 2021.

In general, the new temporary law provides businesses, individuals, schools, governmental entities and religious entities with immunity from civil liability for injury, death or loss to a person or property when that loss is based in whole or in part upon exposure to, or the transmission or contraction of certain viruses, including the virus that causes COVID-19. This immunity does not apply if it can be established that the exposure or transmission was as a result of reckless conduct, intentional misconduct, or willful or wanton misconduct by the defendant. The law also is quite clear that governmental orders, recommendations or guidelines do not create a legal duty that could be used to establish liability in a civil lawsuit. The new statute also includes a presumption that any such government order, guideline or recommendation is not admissible as evidence in order to establish a legal duty or new cause of action.  

For healthcare workers, the new law grants temporary immunity from tort liability and professional discipline for services provided that result in injury, death or loss as a result of and in response to the Governor’s declared emergency. This immunity covers actions or omissions and decisions related to the provision of healthcare services as well as actions resulting from compliance with an executive order or director’s order. This immunity, however, does not cover conduct that constitutes a reckless disregard of the consequence or intentional or willful or wanton misconduct on the part of the healthcare workers. Moreover, for disciplinary actions, conduct that is considered to constitute gross negligence is not provided immunity.

The New Jersey Assembly Appropriations Committee passed A1708 on October 26, 2020, setting the stage for an eventual full Assembly vote on an important piece of legislation concerning the obligation of workers’ compensation carriers and automobile insurers to pay for costs of medical marijuana.  Strangely enough, this Bill is being advanced at the same time as the New Jersey Supreme Court is scheduled to hear oral arguments in the case of Hager v. M&K Construction, 462 N.J. Super. 146 (App. Div.), certif. granted, 241 N.J. 484 (2020).  This case deals directly with several issues addressed in A 1708.

The proposed Assembly Bill states: “Notwithstanding the provisions of subsection a. of this section, an employer or workers’ compensation carrier or private passenger automobile insurance carrier shall provide coverage for costs associated with the medical use of cannabis . . . “ provided that the insured or the employee is a qualifying patient authorized for the medical use of cannabis.

The Bill further provides, “c.  Notwithstanding any provision of the insurance policy to the contrary, if for any reason payment by the insurer to the medical cannabis dispensary is not feasible, the insurer shall remit directly to the insured the costs for any benefits associated with the medical use of cannabis upon proof of payment by the insured to the medical cannabis dispensary.”

A 1708 seems premature given that the New Jersey Supreme Court has taken certification in Hager.  In this January 13, 2020 published case, the Appellate Division ruled for petitioner that he should be reimbursed by the workers’ compensation carrier for his expenses in connection with the use of medical marijuana for chronic pain.  The Appellate Division addressed five separate arguments, some or all of which are likely to be addressed by the New Jersey Supreme Court.  The issues addressed by the Appellate Division in Hager are set forth below:

1) Does the Controlled Substance Act (CSA) which makes it a crime to manufacture, possess or distribute marijuana, preempt the New Jersey MMA?

2) Does the MMA violate the CSA by aiding and abetting in the commission of a crime?

3) Does compliance with the court order expose M&K to the threat of federal prosecution?

4) Should a workers’ compensation insurer be treated the same under the MMA as a private health insurer?

5) Can medical marijuana be considered reasonable and necessary under the New Jersey Workers’ Compensation Act?

It would seem to make more sense and to accord appropriate respect to the judicial process for the legislature to wait for a very significant decision from our highest state court, given potential constitutional issues have been raised in this appeal.

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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. 

Thomas Kieselbach is celebrating 40 years with Cousineau. Tom’s contributions to our firm, and the legal profession as a whole, are vast. He is the current President of the National Workers’ Compensation Defense Network, leading a national organization of law firms committed to the representation of employers and insurers in workers’ compensation claims. He is a charter member of the College of Workers’ Compensation Lawyers, serves on the Larson’s National Workers’ Compensation Advisory Board, listed in Best Lawyers in America, Super Lawyers and “Top 40 Workers’ Compensation Attorneys.”  Thank you, Tom for your continuing work and passion for this area of law!

Thomas Kieselbach is celebrating 40 years with Cousineau. Tom’s contributions to our firm, and the legal profession as a whole, are vast. He is the current President of the National Workers’ Compensation Defense Network, leading a national organization of law firms committed to the representation of employers and insurers in workers’ compensation claims. He is a charter member of the College of Workers’ Compensation Lawyers, serves on the Larson’s National Workers’ Compensation Advisory Board, listed in Best Lawyers in America, Super Lawyers and “Top 40 Workers’ Compensation Attorneys.”  Thank you, Tom for your continuing work and passion for this area of law!

Mark Kleinschmidt is celebrating his 35^th year with Cousineau. Mark’s calm, well-reasoned counsel is greatly appreciated by his colleagues and clients alike. As the current President of CWK, his leadership provides the platform for the firm’s continued success. Mark’s substantial litigation experience is a benefit to the employers and insurers he advises, and to the numerous attorneys he has, and continues, to mentor. Mark is a Fellow in the College of Workers’ Compensation Lawyers, listed in Best Lawyers in America, and frequent lecturer and author on workers’ compensation topics. Thank you, Mark, for your years of service, advice, and comradery!

Tom Coleman is marking his 30^th year at Cousineau. Tom’s extensive litigation experience, courtroom abilities, and trivia knowledge is legendary. Tom’s a frequent lecturer on workers’ compensation topics, spent over a decade as a professor at local law schools teaching workers’ compensation law, and written extensively in scholarly publications and practical training guides alike. His breadth of knowledge for this area of law is only surpassed by his encyclopedic memory of Gophers Football statistics from 1950-1965. For those wanting more on either subject, Tom keeps office hours at Tiffany Sport Lounge in Saint Paul most Saturdays. Thank you Tom!

Dick Schmidt also marked his 30^th year milestone at Cousineau. Dick Schmidt, while retiring from active defense practice in 2019, was unable to completely walk away from the world of workers’ compensation law and continues to mediate cases. Whether this is due to a deeply held passion for the law, or his inability to keep himself independently busy during retirement, we are greatly appreciative of his continued presence, and the humor he brings into our office. We are excited for Dick’s next adventure, where he will continue to grow his mediation practice through Schmidt Mediation LLC, Congrats Dick and thank you!

CWK is pleased to welcome Adam Brown, who joins us as the Director of Professional Development and as a non-voting Shareholder.  Adam’s position is structured so that he will handle customary legal work for our clients, but he will also have the time and capacity to provide individual coaching, training, real-time feedback, and skill-building support for our associates and other legal professionals.  In addition, he will provide business development support for the firm and assist with our integral firm systems, including structural design and professional development.  Ultimately, Adam’s work will translate into even better service and support for our clients.

Adam comes to us from the University of St. Thomas School of Law, where he spent nearly six years as the Assistant Director of Career and Professional Development, managed the law school’s externship program, and taught courses in the externship and mentor programs (in fact, Adam is continuing to teach the advanced externship course at UST Law this fall).  Before UST Law, Adam worked as a staff attorney at the Minnesota Workers’ Compensation Court of Appeals (WCCA), an attorney at Heacox Hartman, and a judicial law clerk at the Minnesota Court of Appeals.

Adam’s experience in our practice area and his expertise in educational design and teaching, legal writing, diversity and inclusion (Adam will be the chair of the HCBA Diversity & Inclusion Committee for 2020-21), and business and practice development make this a great fit.  Adam is authentically passionate about this work, and having this type of direct, individualized support for our legal professionals in-house is almost unheard of in the legal industry.  Adam is eager to make this novel and innovative professional development model work for our clients, for our firm, and for our industry.  We have clear-eyed optimism that providing this brand of mentorship will ensure that our people have the skills they need for a successful professional career.  We are all excited to see where this can go, so please join us in welcoming Adam Brown.

                                                Simon Law Group, P.C.

                               720 Olive Street, Suite 1720, St. Louis, MO 63101

                                                             314-621-2828

                   MISSOURI WORKERS’ COMPENSATION CASE LAW UPDATE

                                               July 2020 – September 2020

Fall Not Compensable Because Stairs Were Risk Source Claimant Equally Exposed to In Nonemployment Life

Marks v. Missouri Department of Corrections, Case No. WD 82956 (Mo. App. 2020)

FACTS: The claimant worked as a corrections officer and on November 9, 2016 he was descending a staircase while conducting a security check when he missed a step and felt his right knee twist. He completed an Incident Report and noted that at the time of the injury he was not responding to a code or other emergency situation, was not distracted, was not carrying anything, there were no offenders in the area, there was nothing on the floor and there was nothing wrong with the steps. When asked what may have caused the injury the claimant answered that he stepped off the step wrong.

At a hearing the claimant testified that he was injured when he became distracted and looked back to check on a coworker who was helping the claimant conduct a security check. He testified he was concerned about the coworker’s safety and the risk posed by offenders who might have remained in their cells after being released for a meal. He confirmed that he was required to ascend and descend stairs at the apartment complex where he lived.

The ALJ denied the claim. He did not find the claimant credible as his testimony was inconsistent with the statements he provided almost immediately after the accident. The ALJ found that the accident occurred when the claimant missed a step and did not arise out of and in the course of the employment. The claimant appealed and the Commission affirmed. The claimant appealed again.

HOLDING: The Court noted that in the past the courts have conducted a “risk source analysis” between an employee’s work activities at the time of injury and the relative risk of injury in the employee’s nonemployment life. The Court has applied a two-part test which first requires identification of risk source of the claimant’s injury, that is, the activity that caused the injury and then a comparison of that risk source or activity to normal nonemployment life.

The claimant first argued that the Commission erred because it should have determined that the risk source of his injury was walking down the stairs while conducting the security check for criminal inmates in a correctional housing unit. However the Court noted that the claimant failed to offer credible evidence that would support a conclusion that this activity increased a risk of injury beyond the risk the claimant was exposed to in his normal nonemployment life.

The claimant also argued that the Commission erred in finding that he was equally exposed to the risk source of descending stairs in his normal nonemployment life. He argued that the Commission improperly compared the risk source of his injury, walking down the stairs, to the risk of injury he faced in his normal nonemployment life because the quality, quantity and nature of the stairs as well as the observance required of the claimant in traversing those stairs was not equal to the risk he faced descending stairs in his normal nonemployment life. The Court did not agree and noted there was no credible evidence upon which the Court could rely to conclude that he faced an increased risk of injury descending stairs while at work.

The Court noted that while it was clear that the claimant was injured at work descending stairs during a security check that does not in and of itself establish that the claimant’s injury occurred in the course of employment. The Court found that the Commission’s determination that the claimant’s injury resulted from a risk source to which he was equally exposed to in his nonemployment life was supported by sufficient, competent and substantial evidence and therefore confirmed the Commission’s decision.

CNA’s Bilateral Carpal Tunnel Syndrome Compensable Despite Other Risk Factors

Hill v. Caring Hearts Inc and Guarantee Insurance Company and Liquidation c/o Missouri Insurance Guaranty Association, Injury No. 11-109031

FACTS: The claimant was a certified nurse’s aide and had worked for the employer since 2005 or 2006, with her last day of work being July 3, 2012. The claimant began working as a bath nurse and homemaker for the elderly and disabled and began experiencing problems with her hands during 2008. As her workload increased, requiring her to work, at times, 14-hour days, seven days a week, the claimant’s hands became increasingly symptomatic and weak.

She treated with Dr. Dysarz, who diagnosed carpal tunnel syndrome March 29, 2011. Then on June 17, 2011, Dr. Dysarz diagnosed right cubital tunnel syndrome and recommended an EMG which revealed prolonged median nerve latencies at both wrists, consistent with bilateral carpal tunnel syndrome.

In May of 2013, the claimant was evaluated by Dr. Brown, who opined that her work-related activities were not the prevailing factor in causing her carpal tunnel syndrome. He attributed the cause of her carpal tunnel syndrome to other risk factors including a history of Ehlers-Danlos Syndrome, which is a condition in which connective tissues may be loose and more elastic than normal; being over the age of 50; and the possibility of rheumatoid arthritis. The employer then refused to authorize any further treatment.

The claimant, having no insurance coverage, was unable to work a bath nurse or a homemaker and struggled to obtain treatment for the injury. She ultimately obtained Social Security Disability with Medicaid coverage. She began treating with Dr. Osei, who performed surgery for right carpal tunnel release and excision of a volar ganglion cyst on June 30, 2015. Dr. Osei performed a left carpal tunnel release on August 4, 2015.

The claimant was subsequently evaluated by Dr. Berkin, who opined that her job duties were the prevailing factor in causing the bilateral carpal tunnel and ganglion cyst to her right wrist.

The ALJ found that the claimant’s job duties were the prevailing factor in causing the resulting medical condition and disability and the treatment that she underwent was related back to her job duties. He also awarded 148 weeks of TTD or $118,260.28. He assessed 20% of the left hand, 25% of the right hand and a 5% load.

HOLDING: The Commission reviewed the evidence and considered the whole record and found that the Award of the ALJ was supported by competent substantial evidence and therefore, the Award and decision of the ALJ was affirmed.

Claimant Awarded Future Medical Treatment in Accordance with Expert Testimony

Fuwell v. Missouri Department of Corrections, Central Accident Reporting Office and Treasurer of the State of Missouri as Custodian of the Second Injury Fund, Injury No. 13-087198

FACTS: On November 21, 2013, the claimant was performing his usual duties which included checking doors of the facility and while descending the stairs his boots, which were wet from walking outside, slipped out in front of him.

He was then referred by the employer to Dr. Taylor, who ordered an MRI and he was referred to Dr. Boutwell for pain management. The claimant also treated with Dr. Crabtree and Dr. Leonard who recommended conservative treatment. He then saw Dr. Robson, for an IME and he recommended surgery which he believed flowed from the work injury.

After a Hardship Hearing wherein the claimant was awarded treatment, he underwent that surgery and was placed at MMI with permanent restrictions. Dr. Volarich assessed 15% of the lumbar spine and 5% of the cervical spine. He also assessed pre-existing disability of 10% of the lumbar spine, 15% cervical spine, and 15% of the right knee. However he believed the claimant was perm total as a result of the last injury alone. He did recommend continuing medications.

Dr. Koprivica performed an IME at the request of the employer and he believed that the claimant was perm total as a result of the last injury along with his pre-existing conditions.

Mr. Eldred believed that the claimant was permanently and totally disabled as a result of the work injury. Mr. Hughes testified that the claimant was not permanently and totally disabled but if it was found that he was, it would be due to his pre-existing conditions in combination with his primary injury.

The ALJ concluded that Dr. Volarich and Mr. Eldred were credible and therefore found that the claimant was permanently and totally disabled and the employer/insurer were responsible for all compensation and the Fund had no liability. The ALJ also found that the claimant was entitled to future medical treatment, as the authorized treating physician, Dr. Robson, and Dr. Volarich both identified the need for ongoing prescription medication and Dr. Volarich also identified other treatment such as a future need of the replacement of the orthopedic fixation. The employer then appealed.

HOLDING: The Commission found that the Award of the ALJ was supported by competent and substantial evidence and therefore, the Commission affirmed the Award and decision of the ALJ.

Dependents Denied Benefits as No Evidence in Award Showing Dependency of Wife or Children On Date of Injury

Lawrence, II (Deceased), Lawrence, Lawrence and Lawrence v. Treasurer of the State of Missouri, Custodian of the Second Injury Fund, Case No. WD83123 (Mo. App. 2020)

FACTS: The claimant filed a Claim for work-related injuries on May 11, 2005. He settled his claim with his employer and then went to a hearing against the Fund and the ALJ denied benefits.   The Commission affirmed but the Court of Appeals reversed and awarded PTD benefits. On March 11, 2019, the claimant passed away from causes unrelated to his work-related injury. On May 16, 2019, the claimant’s wife and children filed a Suggestion of Death and Motion to Substitute Parties with the Commission claiming that each were dependents of the claimant at the time of his work-related injury and, upon his death, were entitled to his PTD benefits. The Commission denied the Motion to Substitute, finding that the claimant’s wife and children’s status as dependents at the time of the claimant’s injury had not been established in the Final Award.

HOLDING: The claimant’s wife and children then appealed. The Court noted that the sole issue was whether the dependent status of the claimant’s wife and/or children at the time of the 2005 injury was established as a matter of law in the Final Award. The Court noted that the ALJ issued a forty-nine page award on November 20, 2013 and the only references to the claimant’s wife or children could be found in a two-page section addressing the claimant’s current activities. The Final Award noted that the claimant’s wife performed house cleaning activities and that he would drive his daughters to school. The Final Award never identified the wife or daughters by name. The Court noted that at most, the Final Award established that at the time of the hearing before the ALJ in 2013, the claimant lived with his wife and two daughters. These findings in no manner establish “as a matter of law” that any of these individuals were dependents of the claimant at the relevant time, the claimant’s date of injury. Therefore, the Court denied the claimant’s wife and children’s Motion to Substitute and were denied benefits.

The Claimant Failed to Prove his Pre-Existing Disabilities Combined with His Work Injury Rendering Him PTD

Bennett v. Treasurer of the State of Missouri, as Custodian of the Second Injury Fund,

Case No. ED108713 (Mo. App. 2020)

FACTS: The claimant filed two claims against his employer, one relating to an injury that occurred on August 14, 2013 with respect to his right knee and the other relating to an injury to his left hand and ribs, which occurred on March 24, 2014. He did have a prior right shoulder injury in 1999 when he resolved for 25% disability. He settled both of his claims against the employer and proceeded to a hearing against the SIF for perm total benefits.

Following a hearing, the ALJ denied both claims against the Fund. The claimant appealed and the Commission affirmed the decision of the ALJ. The claimant again appealed.

HOLDING: The claimant argued that the Commission erred in denying him PTD benefits from the Fund because his injuries from his March 2014 incident, combined with his pre-existing injuries, made the claimant unable to compete in the open labor market. He furthered argued that the Commission’s decision was against the weight of the evidence and/or not supported by sufficient competent evidence. The Court disagreed noting that there was no evidence that the claimant’s primary March 2014 work injury, combined with his 1999 right shoulder injury alone, resulting in PTD. The Court noted that the claimant’s experts wrongly included pre-existing conditions that did not qualify for Fund liability under §287.220.3.

The claimant also argued that the Commission erred in denying his PPD benefits from the Fund, because his August 14, 2013 injury combined with his pre-existing injuries, resulted in a disability greater than the sum of their individual parts, but the Court again disagreed. The Court noted that Dr. Berkin, the claimant’s medical expert, never addressed how the work injury which occurred in August of 2013, specifically combined with his prior disabilities. Therefore, the Court affirmed the decision of the Commission.

Fund Found Responsible for PTD Benefits Due to No Medical Expert Testifying that Claimant PTD Due to Last Injury Alone

City of Jennings and Missouri Employers Mutual Insurance Company v. Williams, and Treasurer of the State of Missouri, Second Injury Fund, Case No. ED108393 (Mo. App. 2020)

FACTS: On September 7, 2010, the claimant was physically attacked by an inmate. She sustained physical injuries and also was treated for insomnia, anxiety, depression and anger as a result of the work injury. The claimant did have an extensive history of psychiatric issues, including witnessing her father abuse her mother and being raped by a family member as a young teenager. She had attempted suicide one time as a teenager. Further, in 2007 and 2008, she took a year leave of absence from the employer following a stress-induced mild stroke, stemming from a series of personality conflicts with various supervisors. The claimant agreed on cross-examination that she had experienced panic and anxiety attacks weekly since her teenage years through the work injury, which she had been able to deal with her on her own. She also agreed that she had experienced episodes of untreated depression since she was a teenager through 2007, for which she would have to call in sick to work, and that she had been unable to work due to depression for two weeks prior to her stress-induced stroke in 2007. Although she was receiving treatment for depression and anxiety between 2007 and 2010, she was able to complete tasks and leave the house alone. In the years leading up to 2010, she was on full duty with no restrictions. After the work injury, she had difficulty completing tasks, became nervous and fearful about leaving the house, especially alone, and was constantly checking to make sure doors and windows were locked.

The claimant submitted a report of Dr. Brockman, who opined that the claimant was PTD as a result of her work injury and her pre-existing psychiatric conditions. Dr. Bassett, testified on behalf of the employer and he believed the claimant had 40% psychiatric permanent partial disability, 75% of which was attributed to the work injury, and 25% of which was attributed to the pre-existing psychopathology.

The ALJ determined the claimant’s work injury resulted in her pathologies of PTSD and panic disorder with Agoraphobia, which taken in isolation rendered the claimant PTD. The ALJ acknowledged the claimant’s pre-existing psychiatric conditions but found she had been able to maintain work and conduct normal life activities before the work injury and therefore the employer was liable for benefits. The employer then appealed, and the Commission affirmed the Award and decision of the ALJ. The employer again appealed.

HOLDING: The Court found that the Commission’s conclusion that her PTD was entirely caused by the work injury was not supported by sufficient competent evidence. The Court noted that while the claimant’s work injury was indeed horrific, no medical expert testified that the work injury was the sole cause of the claimant’s PTD and the Commission gave no explanation for rejecting the undisputed medical evidence. Therefore, the Court found that the Fund was liable for a portion of the claimant’s PTD and reversed and remanded to the Commission.

Fund Liable for PTD Benefits as All Pre-existing Disabilities Can be Considered as  Claimant Had One Pre-existing Disability Which Met Fund Liability under §287.220.3

Treasurer of the State of Missouri as Custodian of the Second Injury Fund v. Parker, Case No. WD83030 (Mo. App. 2020)

FACTS: On March 8, 2014 the claimant sustained an injury to his right elbow. On June 18, 2014, the claimant filed another claim for an injury to his neck due to his repetitive job duties of heavy lifting and looking up on a repetitive basis to trim trees. He then had surgery for his right elbow on August 13, 2014 and thereafter was released to return to work without permanent restrictions on March 26, 2015. However he never returned to work full duty thereafter. He then underwent a cervical fusion on September 3, 2015 which he related back to his job duties and the June 18, 2014 claim. The claimant also had other pre-existing disabilities and injuries leading up to the 2014 claims.

Dr. Stuckmeyer assessed 30% disability to the shoulder and 35% of the neck due to the work injuries. He reviewed Mr. Dreiling’s vocational report and believed that the claimant was PTD as a result of the last injury alone. However, then he issued a subsequent report after reviewing additional information and believed that the claimant was permanent and total disability based on his pre-existing lumbar spine and knee conditions, his March 2014 upper extremity injury and the June 2014 neck injury.

The claimant settled his March 2014 and June 2014 injuries with the employer and proceeded to a hearing against the Fund for perm total benefits. The claimant’s attorney submitted the report of Dr. Stuckmeyer pursuant to §287.210 as well as the medical records the doctor reviewed. The Fund did not object to the admission of the reports of Dr. Stuckmeyer at the hearing but objected to the medical records attached to the report arguing that they did not include the proper medical records affidavits. The Fund argued that §287.210.7 applies only to the admission of medical reports and does not make the accompanying medical records admissible for evidentiary purposes. The ALJ overruled the Fund’s objection and admitted the exhibits and found the claimant was perm total and the Fund was responsible for benefits based on §287.220.2. The Fund appealed and the Commission affirmed. The Fund again appealed.

HOLDING: The Fund argued that it was incorrect to rely on §287.220.2 to determine Fund liability as it should have been based on §287.220.3 as the claimant’s primary injury was after January 1, 2014. The Court agreed. The Fund then argued that the claimant failed to meet his burden under §287.220.3 and therefore the case should be remanded back to the Commission. However the Court disagreed as they felt they had enough information to make a ruling.

The Court noted that the Commission found that the claimant did have a pre-existing condition which met Fund liability as he received a settlement of 25% of the shoulder which met the 50 week threshold and it was a direct result of work-related injury. Also the claimant sustained a subsequent compensable work injury, the neck injury. The Fund argued that the experts looked at the claimant’s prior lumbar spine and knee injuries when deciding that the claimant was PTD and since they did not meet the threshold for Fund liability they could not be included in determining whether the claimant was PTD.

The Court did not agree and concluded that as long as a claimant has a pre-existing disability that satisfies one of the thresholds in subsection 3 and the claimant has a qualifying subsequent primary injury than the Commission may consider less serious pre-existing injuries and disabilities as well as other characteristics of the individual in determining whether an employee is PTD. Therefore the Court concluded that since the claimant’s prior shoulder injury met the threshold for Fund liability his other pre-existing conditions could be considered, in this instance the claimant’s prior lumbar and knee injuries.

Finally with respect to the Fund’s argument that the medical records and reports attached to the medical report of Dr. Stuckmeyer should not be admissible, the Court did not agree and believed the Dr. Stuckmeyer’s complete medical report was admissible.

[Editor’s note: This matter has been transferred to the Supreme Court.]

Claimant Failed to Prove His One Qualifying Prior Disability and Work Injury Combined to Make Him PTD and Therefore Benefits From Fund Denied

Hammons v. Treasurer of State of Missouri as Custodian of the Second Injury Fund, Injury No. 16-074722

FACTS: On September 7, 2016, the claimant sustained an injury to his back and underwent a left L4 hemi-laminectomy with decompression of the L4-5 and resection of the synovial cyst on March 9, 2017. He never returned to work after work injury.

He did have serious pre-existing conditions. He had a prior work-related injury to his left foot which he settled for 12.5%. He also suffered a work-related meniscus tear of his right knee in 2014. He settled that case based on 5% impairment under Kansas law. He also suffered a work-related injury to his low back resulting in an L5-S1 discectomy. He was released from care with permanent restrictions.

He also suffered numerous injuries due to a non-work-related motor vehicle accident in 2010. These injuries included fractures to his ribs, scapula, as well as fractures of the T1, T6 and C5 levels of his spine. He also suffered a pneumothorax due to this accident.

The ALJ found that the claimant was PTD, however found that the Fund did not have liability as the claimant’s PTD was not a result of qualifying pre-existing injuries combined with the primary injury. The ALJ found that the only qualifying pre-existing condition under §287.220.3(2) was the claimant’s prior low back injury as he received a settlement of 20.5% of the body as the other injuries did not meet the 50 week threshold. Also there was no testimony that the claimant was PTD as a result of the work injury and only this pre-existing condition as the experts believed that he was permanently and totally disabled based on all of his pre-existing conditions. The claimant appealed.

HOLDING: The Commission affirmed the Award of the ALJ, denying compensation. The Commission noted that strict construction of §287.220.3(2) required the claimant to prove that he was PTD due to a combination of one qualifying pre-existing disability and a subsequent compensable work-related injury. The Court noted there was no evidence in the record that suggested that the claimant was PTD as a result of the combination of the primary injury with his sole qualifying pre-existing disability that related to the lumbar spine. Therefore, the Court affirmed and adopted the Award of the ALJ.

Claim Against Fund Denied as PTD Arose Solely From Work Injury

Howard v. Treasurer of State of Missouri as Custodian of the Second Injury Fund, Injury No. 15-049121

FACTS: On June 28, 2015, the claimant, a mortgage loan officer, went to his car to retrieve some files and while he was returning from the parking garage, a concrete slab fell from the ceiling and he was struck on the head. He developed constant headaches, dizziness and nausea, along with neck pain, returned to work for 4 days but stopped working due to difficulty reading and looking at the computer screen. He never returned to work thereafter.

Dr. Volarich assessed 40% disability to the body as a result of the work injury and the following pre-existing disabilities: 15% of each hand due to prior carpal tunnel; 15% of each elbow due to cubital tunnel and 15% of each foot due to tarsal tunnel syndrome. Dr. Bassett assessed 50% disability due to his psychiatric conditions, 10% due to pre-existing conditions and 40% due to the work injury.

The claimant settled with the employer and pursued perm total benefits against the Fund. The ALJ denied benefits based on the fact that the claimant was permanently and totally disabled as a result of the last injury alone. He did note that the psychiatric experts did agree that the claimant had pre-existing psychiatric issues but the claimant failed to show how these issues affected his psychiatric issues after the work injury. The claimant then appealed.

HOLDING: The Commission noted that Dr. Volarich, the claimant’s expert, issued physical restrictions that were attributable solely to the 2015 work injury. The Commission further noted that the vocational expert, Mr. Timothy Lalk, opined that Dr. Volarich’s specific restriction involving the claimant’s need for constant supervision in any attempt to perform any kind of work activities would by itself, render the claimant unemployable in the open job market. Based on this evidence, the Commission found as a factual matter that the claimant’s current condition was solely attributable to his June 28, 2015 work injury and that the Fund was not liable for the claimant’s alleged PTD. Therefore, the Commission affirmed and adopted the Award of the ALJ.

Employer Responsible for PTD Benefits After Right Shoulder Injury Despite Claimant’s Pre-existing Condition

Shield v. Lowes Center, Inc. and Treasurer of the State of Missouri as Custodian of the Second Injury Fund, Injury No. 15-0101348

FACTS: The claimant, a 72-year-old employee injured his right shoulder and underwent a mini open rotator cuff repair, biceps tendinosis, arthroscopic decompression and excision of lipoma from the anterior lateral shoulder. He returned to work after his surgery, but could no longer work in the paint department and ended up working as a greeter but found that his right hand would swell after about an hour of working at the door. He retired on January 18, 2017 “mostly” because of his right shoulder.

At a hearing, an ALJ found the claimant PTD solely due to his December 23, 2015 primary injury. The ALJ noted that Delores Gonzalez opined that the work injury was solely responsible for his lack of access to gainful employment. The Judge further noted that June Blaine initially opined that the claimant was perm total as a result of the work injury in combination with her pre-existing conditions. However, she testified that Dr. Volarich’s restrictions of use of the claimant’s right upper extremity for activities of daily living only would render the claimant unemployable. The employer then appealed.

HOLDING: The Commission noted that the ALJ based her Award on competent and substantial evidence of the record and therefore, in light of the Commission’s deference to the ALJ weighing of the pivotal issue of medical causation, the Commission did not need to undertake an analysis of whether the claimant’s evidence in this case was sufficient to meet the criteria for PTD against the Fund. The Commission noted that an employer is liable for PTD that is solely attributable to the claimant’s compensable injury. Therefore, the Court affirmed and adopted the Award of the ALJ.

Due to Chronic Pain and Physical Impairment Claimant Found PTD as Result of Work Injury

Gilman v. Missouri American Water Company, Travelers Indemnity Company of America and Treasurer of Missouri as Custodian of the Second Injury Fund, Injury No. 11-020246

FACTS: In 1983, the claimant began working for the employer as a laborer digging ditches by hand and with a backhoe. He subsequently was promoted to construction foreman. On March 16, 2011, he was assisting in the repair of a broken water line when he inadvertently stepped into a deep hole with his right leg, jarring his back and wrenching his left leg behind him.

The claimant treated with Dr. Woodward, who believed that the work injury had caused lumbar radicular symptoms but noted that the claimant had multi-level pre-existing degenerative disc disease. He then saw Dr. Mace, who ordered a lumbar myelogram which showed an annular fissure and disc bulging at L4-5. Dr. Mace recommended no surgical intervention and returned the claimant to Dr. Woodward’s care. Dr. Woodward issued a final impairment rating on November 8, 2011, assigning 5% disability for the work-related condition and 5% for the pre-existing lumbar degenerative disc disease.

The claimant then treated on his own with multiple physicians, who all recommended against surgery. On February 29, 2012, Dr. Stephens wrote that the claimant was indefinitely unable to work. He thereafter continued to treat the claimant up to the date of the hearing with a significant amount of narcotics, as well as medication for high blood pressure, memory issues, sleep disturbance, blood clots, depression and restless leg syndrome.

After the work injury, the claimant performed light duty work for a few months until July 1, 2011, when he was terminated as the employer could no longer accommodate his restrictions. The claimant had not worked since.

The ALJ noted that after the work injury, the claimant returned on light duty but was released due to being unable to perform his regular job duties and at the time, the claimant had been employed by the employer for nearly 30 years. The ALJ also noted that the claimant continued to have chronic pain and physical impairment from the work injury. Therefore, the ALJ concluded that the claimant was permanently and totally disabled as a result of the work injury and therefore, the employer/insurer was liable for PTD benefits and determined that all issues relating to the Second Injury Fund were moot. The ALJ also found that the claimant was entitled to future medical care consistent with the opinion of Dr. Koprivica, who opined that it was reasonably probable that the claimant would have ongoing future medical needs including pain management, which the ALJ found credible. The employer then appealed.

HOLDING: The Commission found that the Award of the ALJ was supported by competent substantial evidence and affirmed the award of the ALJ.

Claimant’s Work as Hairdresser Prevailing Factor in Causing Mesothelioma

Hayden, Surviving Spouse of Marc Haden (Deceased) v. Cut-Zaven LTD and Papillon LTD, Case No. ED108695 (Mo. App. 2020)

FACTS:  The employee worked as a hairdresser for 47 years. He worked at multiple salons. He alleged that he used hand-held hair dryers which he believed contained asbestos. He could not remember the specific hairdryers he had used over the years. There is documentation that there were certain hairdryers that contained asbestos and most of those were discontinued as of 1979. He was diagnosed with mesothelioma on June 26, 2014 and died on April 26, 2016.

The claimant’s attorney obtained a report of Dr. Hyers who concluded that the employee’s mesothelioma was related back to his use of asbestos-containing hairdryers.

Cut-Zaven obtained a report of Dr. Barkman who did note the employee was diagnosed with mesothelioma but there was no comment regarding whether the disease was asbestos related. He did not believe that the employee’s employment as a hairdresser was the prevailing factor in the  development of his mesothelioma. He also noted that the employee’s hairdryers could have been asbestos free because only certain versions and serial numbers of the hairdryers contain asbestos.

The ALJ concluded that the employee did not meet his burden of proof regarding medical causation. The judge noted that the employee could not specifically recall the types of hairdryers he used. She also noted that Dr. Hyers’ conclusion that the employee’s condition was work-related was simply based on the employee’s deposition testimony. She found Dr. Barkman’s opinion more credible. She went on to note that the employee simply presented a version of events he believes could have happened. The employee could have owned the specific serial numbers and models containing asbestos and it is also possible that he could have used one of the serial numbers that did not contain asbestos. She noted that what “could” have happened is not competent and substantial evidence of what did happen. There was no testimony confirming the employee was ever exposed to any of the specific models of asbestos-containing hairdryers during any particular time with any of the named employers. She noted that the employee’s testimony lacked specificity required to prove his claim, and therefore the claim was denied. The claimant appealed.

The Commission affirmed with a supplemental opinion. The Commission noted that the ALJ denied the claim based on a finding that the opinion of Dr. Barkman was more persuasive than that of Dr. Hyers and they were not inclined to reverse the determination to deny the claim on the issue of medical causation. However, they provided a supplemental opinion with respect to the proper burden of proof in occupational disease claims. The Commission noted the case law states that the claimant is not required to present evidence of specific exposure to an occupational disease in the workplace but rather is required to submit medical evidence establishing a probability that working conditions caused the disease. The Commission noted that despite the ALJ’s comments regarding specificity, they were confident that she properly understood the relevant factual and legal issues in the claim and agreed that the testimony of Dr. Barkman was more credible, and therefore affirmed the decision of the ALJ. The claimant appealed.

HOLDING: The claimant argued that the Commission acted without or in excess of its powers because it failed to conduct its medical causation analysis under the correct standard by adopting Dr. Barkman’s opinion that the claimant’s employment was the prevailing factor in causing his mesothelioma. The Court agreed noting that Dr. Barkman based his opinion on the fact that there were no studies out there definitively showing that all mesotheliomas associated with hairdressing are associated with asbestos exposure. The Court noted that the claimant does not have to prove by a medical certainty that his or her injury was caused by an occupational disease but only that there was a probability that the working conditions caused the disease.

The claimant also argued that the Commission’s determination that the claimant’s employment as a hairdresser was not the prevailing factor causing his mesothelioma was not supported by sufficient and competent evidence and the Court agreed. The Court noted that Dr. Barkman’s own testimony supports the conclusion that in all probability the primary factor causing the mesothelioma was the claimant’s employment-based exposure as opposed to other factors, as Dr. Barkman testified that the claimant was exposed to airborne asbestos through his employment and hairdryers admitted asbestos particles. Also, the doctor testified that even brief or low-level occupational exposure can cause mesothelioma.

The claimant also argued that the Commission’s determination that the claimant’s date of injury was November 2013 which is when he initially had chest discomfort was not supported by sufficient competent evidence. The Court noted that the moment it becomes reasonably discoverable and apparent that an injury has been sustained related to such exposure is the date of injury in an occupational disease claim. The Court noted that in this case the claimant was not diagnosed with mesothelioma until June 26, 2014 and therefore that was the proper date of injury.

The Court concluded that the claimant’s employment as a hairdresser was the prevailing factor in causing his mesothelioma and the correct date of injury was June 26, 2014. The Commission’s Award was reversed and remanded to the Commission.

We make no bones about it; this is one of the stranger stories to be posted on the Alabama Workers’ Compensation Blawg.  It wasrecently reported by WorkersCompensation.com that one of the world’s leading hip and knee experts began the act of keeping his patient’s bones in the 90’s.  Since that time, he has held on to bones from close to 5,224 surgeries.  The Birmingham doctor, known to have a list of famous athletes as his patients, is known as the “Father of Modern Hip Resurfacing” and invented a widely used hip resurfacing technique and developed a procedure known as the Birmingham Knee Replacement.

If you live in or near Birmingham and had hip or knee surgery in the last 25 years, you are probably wondering if it was by this famous doctor and if he pilfered one of your bones.  The odds are against it, unless your surgery took place across the pond.  You see, the doctor’s name is Dr. Derek McMinn and he was suspended from Edgbaston Hospital in Birmingham, United Kingdom.   

If Dr. McMinn did perform surgery on you and you want your bone back, it may take awhile for the hospital to process your request.  They are apparently operating with a skeleton crew.

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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.