State News

Bobby Robinson was injured working at a construction site in Asbury Park, N.J. when a jack hammer “kicked back” and knocked him off a ladder in December 2006.  He filed two workers’ compensation petitions:  one against Tishman Construction Corporation and the other against Air Joy Heating and Cooling, Inc.  The two companies asserted joint responsibility for workers’ compensation benefits and an order approving settlement was entered in the Division of Workers’ Compensation.

            During the receipt of workers’ compensation benefits, Robinson also brought a civil suit against Tishman Construction Corporation (hereinafter “Tishman”).  Tishman filed an answer to the complaint contending that Robinson’s suit was barred by the exclusive remedy provision of N.J.S.A. 34:15-8, which prohibits civil suits against employers except in the case of intentional harm.  The question before the court was whether Tishman was in fact Robinson’s employer.

            The construction site in Asbury Park was owned by Paramount Homes, which wanted to build three residential units on its property.  Paramount contracted with Tishman to provide administrative and supervisory staff for the site and to monitor labor levels and equipments as well as manage trade contractors.  Tishman then entered into a contract with Air Joy as the HVAC subcontractor for the site.

            Air Joy’s job was to install exhaust vents by cutting out duct openings in the exterior walls.  However, Air Joy could not use its own employees to do this.  The Local 595 Laborers Union (Local 595) claimed this project, and since Air Joy did not have any contract with the Union it could not hire union employees directly.  Air Joy relied on Tishman to do this because Tishman was a signatory to the labor union.  Air Joy would tell Tishman’s construction superintendent how many laborers were needed, and then Tishman would provide the laborers through the union.

            Robinson was told to report to the construction site in August 2006.  He reported to Kenny, the Air Joy foreman.  Robinson said that while on the site Air Joy employees directed his work.  However, he submitted his time sheets to Tishman’s labor foreman.  Tishman employees gave the final sign-off on the time sheets before sending them to payroll.  Tishman paid Robinson directly and then charged Air Joy back for his wages.  The payor on the checks was Tishman.  Before he received a paycheck, Robinson would have to show his Social Security card and driver’s license to the appropriate individual at Tishman. 

            Tishman’s project foreman testified that Robinson worked for Air Joy on loan from Tishman.  Tishman’s project foreman patrolled the site for safety issues and checked on employees.  Tishman retained the right to fire union workers and had exercised such power in the past.  When Robinson was injured, a Tishman employee called the ambulance that took him to the hospital, and Tishman filled out the accident investigation report.

            The trial court found that Tishman was Robinson’s general employer and Air Joy was its special employer.  That gave both companies immunity from civil suit.  The Court of Appeals affirmed that decision, noting that both companies shared in responsibility for the workers’ compensation claim. The Court said that it was clear that Tishman was a general employer. “There was an implied contract of hire based upon the fact that plaintiff’s services were procured by Tishman through his union, he performed work, and was paid.  Tishman paid his wages.  Tishman had the right to control the work and the power to both hire and discharge him. Tishman was plaintiff’s employer and is entitled to the immunity provided by the Act.”

            This case shows that employers benefit from joint employer situations such as general and special employer relationships. Both the general and special employer are entitled to immunity from civil suit in the case of injury to a borrowed employee.  The case may be found at Robinson v. Tishman Construction Corp. of New Jersey, A-1370-11T4 (App. Div. June 28, 2013).

For all injuries occurring after July 1, 2013, the max comp rate is $691 and the min comp rate is $346.

Charlie Larson 605-336-2424; calarson@bgpw.com

Issue: When does a surveillance video need to be provided to Claimant’s attorney

Claimant sent Employer and Insurer interrogatories and requests for production asking to produce any surveillance evidence they had. Employer and Insurer objected to the request based on the work product doctrine and that the information sought was beyond the scope of discovery. The rule has been that surveillance must be turned over after the claimant’s deposition. However, employer and insurer refused to produce the surveillance after claimant’s deposition as they had not determined whether they would use the surveillance at hearing.

The department determined that surveillance materials were work product and not discoverable until the Employer and Insurer determine that it will use the surveillance, in any way, at hearing. The judge determined that if Employer and Insurer wanted to use the surveillance material at hearing, it must provide Claimant a copy of the materials at least 30 days prior to hearing. This is a change from previous rulings and will be interesting if the matter goes up on appeal.

Let me know if you have questions.  Charlie Larson (605) 336-2424 orcalarson@bgpw.com

The SD department handed down two more decisions where it ruled with the treating doctor on treatment recommendations.  It's nearly impossible to prove that treatment recommended by the treating doctor is not necessary, and most of the time it is not worth the fight.

Let me know if you have questions.  Charlie Larson (605) 336-2424 or calarson@bgpw.com 

This is an interesting decision regarding a parking lot case. Here, a husband came to his wife’s work during her morning break and shot and killed her in the parking lot. He then took his own life. It was undisputed that work had nothing to do with the martial conflicts they were having, yet a petition was filed because the murder took place on the employer premises. The department found the death did not arise out of the wife’s employment, the circuit court affirmed, and the SD Supreme Court also affirmed.

In order to arise out of the employment, the injury must have its origin in the hazard to which the employment exposed the employee. There are three possible categories to determine whether an injury has its origin (i.e. whether there is a causal connection) in the employment. These are: 1. Risks distinctly associated with the employee, which are always compensable. 2. Risks personal to the employee. These are generally non-compensable and defined as "risks so clearly personal that, even if they take effect while the employee is on the job, they could not possibly be attributed to the employment." 3. Neutral risks, which may be compensable under the positional risk doctrine.

Positional risk doctrine only applies in neutral risk situations. Positional risk involves situations where the only connection with the employment is that the work placed the employee at the particular place and time when he or she was injured by a neutral force (neither personal to the employee nor distinctly associated with the employment).

Under the positional risk doctrine, you apply the "but for" test: "An injury arises out of the employment if it would not have occurred but for the fact that the conditions and obligations of the employment placed claimant in the position where he or she was injured."

The HSBC case hinged on whether the death was from a neutral risk or a personal risk. The Court found the death arose from the personal risk (pressure from the pending divorce). "The positional risk doctrine requires that the risk must be one in which any other person then and there present would have met with irrespective of his employment." Since the husband would not have killed anyone but his wife, no other employee would have met with the same fate, and thus the positional risk doctrine did not apply.

Other assault cases may be compensable depending on the circumstances. For instance, fights between co-workers, when the employer brings the two employees together, the fight is about work, etc. Unfortunately, there is no bright-line rule and this will be fact specific in the future.

The claimant argued the employment contributed to the assault because the husband knew where she parked and the only time she was away from the kids was when she was at work (he wouldn’t have killed his wife in front of the kids). The court rejected this argument as the risk of assault must be increased by the employment. The Court said just because the wife was killed on the premises was not enough even if it provided the husband with the opportunity to kill her as the work did not have anything to do with the conflict between them.

The case also had a discussion about unexplained deaths, shifting presumptions and other legal mumbo jumbo. I’m not sure what significance this will have later on. I do not believe this case will have much bearing on future parking lot cases unless we can show that the injury was personal and not neutral. For instance, if someone trips in a pot hole in the parking lot, that’s a neutral risk because "but for" the work, the employee would not have been in that parking lot. However, if the employee’s knee simply gives out, that may be a personal risk and the "but for" test would not be used. The key will be how the department classifies the injury and risk.

If you have questions, please call me at 605-336-2424 or email me atcalarson@bgpw.com.  Thanks, Charlie Larson.

The words “fitness for duty” do not appear in the New Jersey Workers’ Compensation Act, but the issue is of paramount importance to employers and employees in many workers’ compensation cases.  In New Jersey the need a fitness exam is often compelling because medical and temporary disability benefits end at maximal medical improvement often without any comment from the treating physician about whether the employee can return to work.  When workers’ compensation benefits end, the focus often turns next to whether the employee can return to work and perform the essential job functions.  This is not for the Judge of Compensation to decide in New Jersey.

            When can an employer require a fitness-for-duty examination in a workers’ compensation setting?  Practitioners must differentiate between employees who are out of work and employees who are working.  When an employee seeks to return to work following a workers’ compensation absence and there are restrictions imposed by the treating doctor, a fitness-for-duty exam is appropriate.  In fact, New Jersey physicians often seek guidance from FCEs, functional capacity examinations.  In contrast, when an employee with a workers’ compensation claim is working, an employer cannot request a fitness exam absent a business reason. A medical evaluation of an employee can be required by an employer under the Americans with Disabilities Act and under state disability law under certain circumstances. The ADA standard is “job related and consistent with business necessity.” 42U.S.C. 12112(d)(4). 

            It is important to appreciate differences between the New Jersey Workers’ Compensation Act and laws in other states.  Many states have a requirement for vocational rehabilitation. New Jersey does not.  Awards for partial permanent disability in New Jersey are not generally dependent on how long an employee has been out of work but on the level of functional loss in the injured body member.  New Jersey compensation law does not provide job protection, except against retaliation for filing a workers’ compensation claim.  Temporary disability benefits and medical benefits end at maximal medical improvement in New Jersey.  Whether the employee returns to work may not matter all that much as far as the outcome of a workers’ compensation claim but it matters to the employee and employer for obvious reasons.

            Workers’ compensation cases suddenly merge into labor law at the return to work stage.  It is outside the power of a Judge of Compensation to order an employer to return an employee to work.  However, employees have rights under the Americans with Disabilities Act, the Family and Medical Leave Act, and the New Jersey Law Against Discrimination that impact on return-to-work status.  Many workers’ compensation claimants are covered under the ADA and NJLAD but these laws do not automatically mean the employee must be reinstated.  An employee with a disability must be able to perform the essential functions of the job with or without reasonable accommodation. 

            How then do employers decide whether an employee who has been out of work  with a serious injury is fit for duty?  Medical and legal guidance is crucial.  From a medical vantage point, employers can reach out to treating doctors, occupational physicians or physiatrists for advice on fitness for duty.  As mentioned above, FCEs are a wonderful tool that provide objective and scientific information about ability to perform essential functions. For this reason, treating doctors routinely ask for FCEs before giving opinions on restrictions and ability to perform job duties.   From a legal standpoint, it is important to consider the application of disability and leave laws that may apply.

            Here are some common traps that employers fall into in fitness assessments:

            * The Ambivalent Treating Doctor Syndrome

            Quite often the treating doctor imposes serious job restrictions that carry on for many months.  There may be severe restrictions against lifting, bending, reaching and performing other physical functions. Light duty may be offered. After maximal medical improvement is reached and compensation benefits end, the employee will often contact the employer to return to work. When the employer expresses concerns about the medical restrictions, a short note may suddenly appear from the treating doctorremoving all restrictions.  This stunning turn of events leaves employers shaking their heads. 

            * The “Wing It” Return-To-Work Note

            New Jersey is blessed with highly skilled surgeons in the workers’ compensation arena.  However, surgeons are not always the best choice when it comes to deciding whether the employee can do a particularly difficult job.  A good fitness-for-duty examination requires time, information and medical expertise.  The job description must be read and considered, and the physician must speak with the employee about job duties.  In addition, FCEs should be analyzed to see that the testing reflects the actual job duties to be performed.  Cryptic medical notes following a serious surgery stating, “Bill may return to work full duty” without analysis or any indication that job description has been analyzed are more often than not “wing-it” notes.  There are risks to the employee who is returned to a job that he or she cannot safely perform, and a well intentioned “wing-it” note can do more harm than good.

            * Reflexively Turning to Treating Doctors

            When it comes to assessing fitness for duty, the best choice is generally an occupational physician or physiatrist who specializes in this area of medicine and has an understanding of reasonable accommodation requirements. These experts often have training in biomechanics and are willing to expend the time it takes to fully appreciate the job duties and consider possible accommodations. There is simply no substitute for thorough analysis. The idea that fitness assessment is as simple as scribbling on a note pad could not be further from the truth.  Yet all practitioners continue to see treating doctors hurriedly write “full duty” without any analysis at all of the job requirements or previous restrictions.

            * Asking the Comp Adjuster Whether the Employer Must Reinstate

            This is also a very common mistake that employers make in New Jersey.  The reason this happens is that many employers erroneously think that return-to-work issues are decided in comp court.  Almost every adjuster has been asked more than once for advice from an employer on whether the employer can terminate or must reinstate.  This is a complex medical/legal inquiry with significant labor law implications that should be put to house counsel or outside counsel for guidance. 

            Developing a return-to-work team is the best solution. There is an important role on this team for counsel, HR managers, claims professionals, supervisors, nurse case managers, and medical experts.  It is a fact of life that many employees post-injury cannot return to their former job while many others can and should be reinstated.  The process is complex but can be handled effectively with a consistent and comprehensive approach.

               MISSOURI WORKERS' COMPENSATION

CASE LAW UPDATE

APRIL 2013 - JUNE 2013

LEGISLATIVE UPDATE

SB1 has passed the House and Senate and is awaiting the Governor's signature. Below are some of the major changes that will go into effect on January 1, 2014 if the Governor approves the Bill.

Employee:

"Employee" does not include any person performing services for board, lodging, aid or sustenance received from any religious, charitable or relief organization. §287.020.1

Occupational Disease:

Workers’ Compensation is the exclusive remedy for occupational diseases. §287.120.1 & .2

"Occupational diseases due to toxic exposure" include: mesothelioma, asbestos, berylliosis, coal workers pneumoconiosis, bronchiolitis obliterans, silicosis, silicotuberculosis, manganism, acute myelogenous, leukemia and myelodysplastic syndrome. §287.020.11

In cases of "occupational diseases due to toxic exposure" (but not including mesothelioma) which result in permanent and total disability or death, the claimant shall receive 200% of the state’s AWW for 200 weeks. Currently using the state’s AWW of $788.33, this would amount to $157,666.00. §287.200.4

Mesothelioma cases are treated differently. Employers can elect to accept or reject mesothelioma liability. Employers can elect to insure liability by qualifying as a self-insurer or by becoming a member of a group insurance pool. §287.200.4 A Missouri Mesothelimoa Risk Management Fund will also be created and any employer can participate in the Fund which uses funds collected by members to pay mesothelioma Awards made against any member of the Fund. Participation in the Fund has the same effect as becoming a member of a pool or a self-insured. §287.223

When mesothelioma results in permanent and total disability or death, ifthe employer has elected to accept mesothelioma liability, the claimant shall receive an additional amount of 300% of the state’s AWW for 212 weeks from the employer or the group of employers in which the employer is a member. Currently using the state’s AWW of $788.33, this would amount to $501,377.88. §287.200.4

If the employer has elected to reject mesothelioma liability, than Workers’ Compensation is not the employee’s exclusive remedy. In other words, the employee can move forward with his/her claim in civil court. §287.200.4

The benefits for "occupational diseases due to toxic exposure" must be exhausted before the regular PTD or death benefits are paid. §287.200.4

If the claimant dies before the benefits for "occupational diseases due to toxic exposure" are fully paid, the claimant’s spouse or children are entitled to the benefits. If the claimant has no spouse or children, the unpaid benefits go to the claimant’s estate. §287.200.4

The employer has no subrogation rights for any benefits that were paid for an "occupational disease due to toxic exposure" when the claimant or his/her dependents receive compensation from a third party claim. §287.150.7

Fund Responsibility:

There no longer will be PPD claims against the Fund. §287.220

PTD cases will be allowed where the prior injury(ies) amount to at least 50 weeks of PPD which is due to an active military disability, a prior workers’ compensation disability, any prior disability which directly and significantly aggravates or accelerates the work-related disability, or is a pre-existing disability to an extremity when there is a subsequent compensable work injury involving the opposite extremity. §287.220

When an employee is entitled to compensation from the Fund, the employer at the time of the last work-related injury shall only be liable for the disability resulting from the subsequent work-related injury considered alone and of itself. §287.220

The Fund is no longer liable for death benefits and medical bill benefits for an injured worker working for an illegally uninsured employer. §287.220

The Fund is no longer responsible for second job wage loss. §287.220

Surcharge:

There is a supplemental surcharge not to exceed 3% in the calendar years 2014 - 2021. The surcharges are for the sole source of payment for Second Injury Fund obligations. §287.715

Medical Fee Disputes

Medical providers are required to apply for reimbursement within 2 years from the date the first notice of disputed medical charges was received by the health care provider for services rendered before July 1, 2013 and within one year if services are rendered on or after that date. §287.140.4

EVIDENCE

One Medical Opinion Relating an Occupational Disease to a Job is Sufficient For Claim to be Found Compensable

Stephen Smith (deceased) v. Capital Region Medical Center, Case No. WD75078 (Mo. App. 2013)

FACTS: The claimant worked in the hospital from 1969 - 2006 as a lab technician. At one time the lab technicians pipetted blood samples using their mouths. The claimant testified that he once got blood in his mouth while doing so. Also, in 1970, he received a blood transfusion following a non work-related hunting accident. The claimant was diagnosed with Hepatitis C in December 1999, and ultimately died on February 27, 2007 of sepsis, Hepatitis C and acute tubular necrosis. Dr. Parmet, the claimant’s expert, opined that the claimant’s work was "clearly the largest risk factor and the most probable source" of his Hepatitis C, as well as the prevailing factor. Dr. Bacon, the employer’s expert, opined that the claimant likely contracted Hepatitis C when he had the blood transfusion in 1970.

The ALJ concluded that the claimant failed to prove that he contracted an occupationally induced disease, and therefore, his claim was denied. The Commission agreed because there was no evidence of any person with Hepatitis C treated in the employer’s facility while the claimant worked there. The Commission noted that the claimant worked at the employer for many years and it would seem that someone with Hepatitis C must have, at some point, treated at the hospital. However, the Commission could not speculate.

HOLDING: The Court reversed the Commission’s Decision and remanded the case back to the Commission. The Court noted that Courts have found that in an occupational disease case "a claimant must submit medical evidence establishing a probability that working conditions caused the disease, although they need not be the sole cause. Even where the causes of a disease are indeterminate, a single medical opinion relating the disease to the job is sufficient to support a decision for the employee." The Court further noted that Courts have found that the Statute does not require a claimant to establish, by a medical certainty, that his injury was caused by an occupational disease in order to be eligible for compensation. The Court found that Dr. Parmet’s opinion was sufficient evidence to meet the claimant’s burden on the issue of causation since he opined that the claimant’s work was the prevailing factor in him contracting Hepatitis C.

Claim Denied Because Claimant Not An Employee Nor Statutory Employee

Brito-Pacheco v. Tina Hair Salon, Case No. WD75062 (Mo. App. 2013)

FACTS: The claimant, a hairdresser, worked for the employer which was a hair salon owned by Tina Diaz, and she supplied a work station to the hair dressers. Ms. Diaz provided salon business cards to which hair dressers could add their name. The owner did not schedule appointments, limit or mandate work hours, provide employee benefits, pay taxes or mandate fees. The hair dressers would use the space provided and divide proceeds of compensation paid by the customers. The claimant was covering for another employee when he was shot and killed during a robbery at the salon. The ALJ noted there was no evidence to support Ms. Diaz had the right to control the claimant’s work. Therefore, the claimant was unable to sustain his burden of proof regarding the employer/employee relationship. The ALJ looked to whether the claimant was a statutory employee. The Courts have noted that the elements to establish statutory employment were whether the work done was under contract on or about the premises of the employer which was in the usual business of the employer. The ALJ found there was no evidence that the work of the claimant was pursuant to contract either written or verbal, and therefore, the employer was not the claimant’s statutory employer. Therefore, the Claim was denied. The Commission affirmed the decision of the ALJ.

HOLDING: The Court upheld the denial of benefits. The Court found that the Commission properly found that the stylist was not a statutory employee because his work was not performed in the usual course of the employer’s business, specifically because he was doing his own work rather than work of his employer. The Court noted that the employer simply provided him the facility.

Fund Has No Liability Because Claimant was PTD Prior to Last Work Injury

Schussler v. Treasurer of the State Custodian of the Second Injury Fund, Case No. WD74596 (Mo. App. 2012)

FACTS: The claimant worked for the employer from June 2006 through June 2008. In March 2008 she began to experience symptoms of bilateral carpal tunnel; she reported the carpal tunnel to the employer; and a week later she was terminated. She subsequently underwent two surgeries for carpal tunnel and was released to work without restrictions in April 2009. The employer and the claimant settled, and the claimant then went to a hearing against the Fund for PTD benefits.

It was noted that the claimant had an extensive history with respect to pre-existing conditions involving her knees, her cervical and lumbar spine, brittle type 1 diabetes, Hepatitis C, depression and post-traumatic stress disorder. Dr. Koprivica testified on behalf of the claimant opining that she was PTD as a result of her pre-existing conditions, as well as the 2008 carpal tunnel syndrome. He did note that she had "significant industrial disability" prior to her carpal tunnel syndrome. Ms. Titterington, a vocational expert, opined that she was not employable on the open labor market and further noted that she was unemployable "from all the restrictions that are in Dr. Koprivica’s report, even if the hand injuries were not considered." The ALJ found the claimant was not entitled to benefits from the Fund because she was PTD prior to the carpal tunnel injury. The Commission affirmed the decision of the ALJ.

HOLDING: The Court also found that the Fund was not liable for PTD benefits because the claimant was PTD prior to the carpal tunnel. The Court noted that the fact that the claimant maintained employment with the employer did not bar a finding that she was PTD. The Courts have made it clear that the Commission is not prevented from finding that the claimant is PTD simply because she holds limited, sporadic and/or highly accommodated employment. The Court noted that the test is whether the claimant could compete in the open labor market, and certainly the fact that the employer discharged the claimant almost immediately after learning of her carpal tunnel syndrome suggests that her employment was tenuous.

PROCEDURE

Appellate Court Only Has Jurisdiction to Review Commission’s Final Award, Not Temporary Award

Maria White v. Anderssen Mobile X-ray Service, Case No. ED98181 (Mo. App. 2012)

FACTS: The claimant was a staff technologist and her job duties involved taking x-rays at various locations throughout the metropolitan area. She drove the employer’s minivan containing the employer’s equipment, films and office paper. The gas and vehicle repairs were paid for by the employer. The claimant was to be in the office by 3:00 P.M. and was to call 30 minutes before her shift, or 2:30 P.M., to see if there were any assignments or she was to go directly to the employer’s office. The claimant called the dispatcher and was on her way to the office when she was in a motor vehicle accident which occurred at 3:10 P.M. In the Temporary Award, the ALJ found that this was not a case of a casual drive to work in which the claimant was driving from her home to the employer and concluded that the accident arose out of and in the course and scope of her employment. The Commission affirmed this Temporary Award noting that its Award was also Temporary.

HOLDING: The Court found that it was without jurisdiction to review the Commission’s Temporary Award. The Court noted that §287.495 only allows appellate review of a final award. The Court further noted that before the 2005 Amendments appellate courts created two exceptions allowing appellate review of a temporary award. The first was when the award was one of permanent total disability and the second was when the employer denies all liability. The Court acknowledged that the 2005 Amendments did not alter the Commission’s authority to enter temporary or partial awards or its appellate jurisdiction. However, the Amendments did change the construction of the Statute, to a strict construction.

The Court looked to a prior decision, Norman v. Phelps County Regional Med. Ctr.(Mo. App. 2008).In Norman, the Court did not apply the exception to the general rule that employers can appeal the temporary award of the Commission as long as the employer denied all liability. TheNorman Court found that application of the prior judicially-created exception would violate the clear legislative intent to limit appellate review to a final award from the Commission. Therefore, it determined that it lacked jurisdiction to review the Commission’s temporary or partial award. Here, in this case, the Court noted that the employer argued that the Commission’s Award was a final award, but it was not. The Commission designated its award in this case as a "Temporary Award," and expressly stated that the proceedings were continued and held open until a final award could be made. Therefore, since the Commission’s Award was not final, the Court could not review it.

Editor’s Note: The Court did not address whether the Commission has the right to review an ALJ’s Temporary Award.

Minor Dependents Entitled to Continuing PTD Benefits for Life (Applies only if Claim was pending from January 9, 2007 through June 26, 2008)

David Spradling (deceased) v. Treasurer of the State of Missouri as Custodian of the Second Injury Fund Case No. SD31907 (Mo. App. 2013)

FACTS: The claimant alleged that in August or September 1998 he was injured while lifting pallets while working for the employer. He initially filed his Claim in September 1998, and several amended Claims thereafter. On November 30, 2005 the claimant passed away from causes unrelated to his work injury. At the time of the injury, the claimant had three minor children and there was no dispute that each of them were dependents. On October 27, 2008, the claimant’s dependents filed an amended Claim alleging they were entitled to the claimant’s continuing PTD benefits. The dependents settled their Claim against the employer and proceeded to a hearing against the Fund for PTD benefits.

The ALJ found that the claimant was PTD prior to his death, and that the Fund was liable for PTD benefits. The ALJ also found that the three dependents should receive his benefits continuing after his death for life. The Commission affirmed the Award of the ALJ.

HOLDING: The Fund appealed arguing that the minor dependents were only entitled to benefits until they attained the age of 18, at which time benefits ceased. The Court disagreed noting that dependent status is determined at the time of the injury, not the time of death and all three children were dependents at the time of the injury.

The Court then looked to whether the dependents were entitled to an Award of "lifetime workers’ compensation benefits." The Court noted thatSchoemehlapplies. Please note that the Schoemehl Court found that when an injured worker dies from causes unrelated to the work injury, the worker’s dependents become the "employee" for purposes of receiving PTD benefits. The Court further noted it has been held that surviving dependents are deemed to have the same rights as the employee under the Statute. As a result, the law in effect at the time of the claimant’s injury required compensation to be paid for PTD benefits not only over the lifetime of the claimant, but also over the lifetime of any of his surviving dependents. Therefore, the Court found that the Commission was correct in determining that the claimant’s dependents were entitled to receive PTD benefits for their lifetime, despite the fact that their entitlement to death benefits would, in most cases, cease when they reached the age of 18.

VA Entitled to Become a Party in a Workers’ Compensation Proceeding

United States Department of Veteran Affairs v. Karla O. Boresi, Case No. SC92541(Mo. S.Ct. 2013)

FACTS: The claimant alleged that on November 20, 2002 he sustained a work-related injury. He received care and treatment for that injury in the amount of $18,958.53 from the VA medical facility. It was undisputed that the employer did not authorize care at the VA facility. The VA filed a Motion in the claimant’s workers’ compensation proceeding asserting its right under 38 U.S.C § 1729 (2006) which allows it to intervene in an action or proceeding brought by the veteran against a third party to recover charges they have paid which were "incurred incident to the veteran’s employment and...covered under workers’ compensation law or plan." The ALJ overruled the VA’s Motion on the ground that she had no authority to permit the intervention. The VA filed a Petition in the Circuit Court again asking to be able to intervene in the workers’ compensation proceeding and after a hearing, the Court denied the VA’s Petition. The VA then appealed to the Court of Appeals, who transferred the case to the Supreme Court.

HOLDING: The Supreme Court found that although Missouri Workers’ Compensation Statutes do not allow the VA to intervene in the proceedings, 38 U.S.C § 1729 (2006), a federal law, does allow the VA to intervene. Pursuant to the Supremacy Clause of the United States, which states that federal laws are supreme, the VA had the right to intervene in the workers’ compensation proceeding, and therefore the Court directed the ALJ to allow the VA to intervene.

COMMISSION DECISIONS

Employer Found Responsible For PTD Benefits After Conservatively Treated Back Injury

In William Rook v. Bodine Aluminum and Treasurer of Missouri as the Custodian of the Second Injury Fund, Injury No. 07-041658,the claimant sustained a herniated disc at L4-5 on April 22, 2007. He treated conservatively with Dr. Coyle with injections and physical therapy and was then released from care. He subsequently saw Dr. Kuntz, an unauthorized physician, who recommended a 3-level fusion which the claimant did not undergo. However, the employer did send him back to Dr. Coyle who disagreed with Dr. Kuntz’s assessment and again placed the claimant at MMI. It was noted that he had extensive pre-existing injuries to his low back including a central disc protrusion at L4-5 and L5-S1 and he had been diagnosed with transverse myelitits and treated with traction therapy. It was further noted that the claimant was symptom free for three years prior to his injury. The ALJ opined that the claimant was PTD as a result of a combination of his pre-existing disabilities and the primary low back injury. The ALJ determined that the employer was liable for 40% PPD referable to the body, and the Fund was responsible for PTD benefits. The Fund filed a timely Application for Review alleging the employer rather than the Fund was liable for PTD benefits.

The Commission agreed with the Fund opining that the employer, not the Fund, was liable for PTD benefits. The Commission noted that the ALJ failed to consider the effects of the work injury in isolation before inquiring as to the claimant’s pre-existing conditions. The Commission noted that the claimant’s testimony showed that after his work injury he needed to lie down 5 - 6 times per day, which precluded him from competing in the open labor market. The claimant testified that this began after his work injury. Therefore, the Commission found that the employer, not the Fund, was liable for PTD benefits because the claimant was PTD due to the work injury alone.

Commission Can Only Double Benefits Awarded By ALJ and Unpaid By Employer

In Jennifer Thomas v. Forsyth Care Center, Injury No. 05-080783, the ALJ issued a Temporary or Partial Award ordering the employer to provide medical care, as may be authorized and directed by Dr. Cornelison, which is reasonable and necessary and causally related to the accident. Thereafter, the employer failed to pay for various treatments ordered by the doctor, despite the fact that the doctor made it clear in her records that she continued to make recommendations and was unable to obtain authorization from the employer. The claimant asked that the Commission double the amount of the TTD both paid and unpaid by the employer, the medical expenses paid by the employer, and the amount of PTD benefits owed from the date of the Final Award.

The Commission noted that the only discretion they have with respect to doubling any Award is when an ALJ orders benefits to be paid and then the employer does not pay them. Therefore, the Commission cannot double any amounts the employer paid to the claimant, nor can it double any amount that was not ordered by the ALJ. It is noted in this case that the ALJ did not order the employer to pay TTD or PTD benefits. The Commission noted that it would be inclined to order such a doubling in this case, however, they were unable to do so because the claimant failed to prove the value of medical expenses ordered by the ALJ and unpaid by the employer because the claimant did not put any of her medical bills into evidence to establish the dollar value of the medical treatments which she was unable to obtain due to the employer’s conduct. Therefore, the Commission affirmed the ALJ’s Decision in not doubling any part of the Award. The Commission did go on to condemn the employer's refusal to comply with the ALJ’s Temporary Award, and noted that the employer offered no explanation for refusing to authorize any treatments recommended by the doctor.

Editor's Note: Please note that pursuant to previous Commission decisions, the ALJ cannot direct the employer to authorize treatment with a specific physician, as the employer has the right to choose the physician. However, the employer in this case did not make that argument, as the Commission noted that it was silent on why it refused any recommended treatment.

Claimant on Job Site Walking to Truck and Tripping Over Pile of Dirt Found Compensable

In Milton Young v. Boone Electric Cooperative, Injury No. 08-123324,the claimant was on a job site walking to his bucket truck to get materials for the job when he stepped on frozen dirt and his left knee buckled and popped, causing him to fall down. Other crew members helped him to his feet, at which time he experienced another pop in his left knee. The ALJ found that the claimant sustained a left knee sprain arising out of and in the course of his employment on January 4, 2008. The employer appealed arguing that the claimant did not sustain an unexpected traumatic event or unusual strain and also that the claimant was equally exposed to that risk or hazard in his normal non-employment life. Therefore, his accident did not occur in the course and scope of his employment.

The Commission found that this was an "unexpected traumatic event or an unusual strain" as the claimant testified credibly that he tripped on a pile of dirt and fell, which would qualify as a traumatic event. The employer argued that the injury was not compensable because he was merely walking to his truck. However, the Commission noted that the claimant was not merely walking to his truck, but instead fell because he stepped on a pile of frozen dirt. The Commission found that the record did not contain substantial and competent evidence to support a finding that the claimant was equally exposed to the risk of stepping on a pile frozen dirt and falling in his normal non-employment life. Therefore, the claimant’s left knee injury arose out of and in the course of his employment and his injury was compensable.

Claimant PTD Due to Work Injury and Prior Shoulder Injury

In Daneen Pennington v. Treasurer of Missouri as Custodian of the Second Injury Fund, Injury No. 10-020750, the claimant sustained an injury to her back lifting a box of paper. She treated conservatively and eventually underwent surgery with Dr. Ciccarelli. She was then released from care with permanent restrictions of no lifting over 25 pounds, and she settled her claim against the employer for 22.5% of the body. The claimant then proceeded to a hearing against the Fund for PTD benefits. The ALJ denied the claimant’s claim against the Fund concluding that the claimant was PTD due to the work injury alone.

The Commission disagreed and found that the claimant was PTD as a result of her work injury and her pre-existing disability, specifically a prior shoulder injury. The Commission noted that the ALJ determined that after her prior shoulder injury the doctor released her from his care without any restrictions. However, the Commission noted that this was not quite accurate, and it was clear from the doctor’s final report that the claimant was still having problems with her shoulder and although she did not have any specific restrictions, she was to limit her activities to those that she could tolerate. The Commission further noted that the claimant testified that her shoulder had continued to bother her after she was released from care. Also, the Commission disagreed with the ALJ’s finding that the expert opinions of Michael Dreiling, who found that the claimant was PTD as a result of her work injury and her pre-existing shoulder disability, and the opinion of Dr. Stuckmeyer, who noted that the claimant’s shoulder condition was a hindrance to her employment, were not credible. The Commission reversed the Award of the ALJ and opined that the claimant was PTD and entitled to benefits from the Fund.

Employer Not Entitled to Reduction in Benefits for Drug Violation

In Tyler Kelsey v. Loy Lange Box Company, Injury No. 08-114802,the claimant sustained an injury to his left upper extremity on December 30, 2008. Dr. Goldfarb performed two surgeries and released the claimant from treatment in August 2009. The employer alleged a 50% reduction in all three benefits because the claimant's drug test on his day of injury was positive which was in violation of the employer's drug policy. The Employer’s Alcohol and Drug Policy provided in part that employees shall not use prohibited drugs while on the job or on company property. Also, employees are not allowed to work while under the influence of illegal drugs. The policy ends by stating that the Employer will not tolerate use on the premises or allow employees to work while under the influence of drugs.

At the hearing, the drug test was admitted into evidence and both parties had expert testimony. It was noted that the claimant’s drug test was positive for marijuana metabolite, carboxy-THC, which lasts in the body for an average of 3 days after smoking or ingesting marijuana. However, the test showed that THC, marijuana’s active ingredient that causes the physical effects or altered sensation, was no longer in the claimant’s system.

The ALJ found that the claimant did not violate the employer’s drug policy because he was not impaired at the time of this injury. The ALJ noted that the experts agreed that the claimant had smoked or ingested marijuana before the injury, and noted that it was difficult to pinpoint the exact time of usage. The experts further agreed that there was no evidence suggesting the claimant was physically impaired at the time of the accident, and even if the claimant had smoked marijuana right before he left for work, he would not have been suffering an impairment or physical effect at the time of the accident, which was four hours into his shift. Also, the medical records revealed no suspicion on the part of the staff at the hospital that the claimant was impaired by any drug. Therefore, the employer was not entitled to a reduction in benefits. The Commission affirmed the decision of the ALJ.

Editor’s note: Please note it appears that this decision relied on the employer’s policy which didn’t state that the employer is a "drug free" work place. It simply noted that employees can not use drugs on the premises or be under the influence.

Claimant Sustained Accident However No Disability Since Treating With Injections Weeks Prior to Injury

In Lester Taylor v. Penmac Personnel Services, Inc., v. Ace American Insurance Company, Injury No. 08-089380,the claimant was riding on a bus driven by a co-worker, at which time the co-worker made a turn, cutting the corner too tightly which caused the bus to travel into a ditch. The claimant fell out of his seat and onto the floor, and the co-worker continued to proceed uninterrupted to the destination. Upon arrival, the claimant got off the bus and expressed concern that his feet had become numb and he was experiencing pain in his low back. It was noted the claimant had a multitude of prior medical conditions including prior injuries to his lower back. In fact, the claimant had received epidural injections just 6 weeks before this incident. Both medical experts agreed that there were no acute findings on the MRI. The claimant's expert also admitted that the claimant was given the same restrictions after the work injury as he had prior to the injury. The employer's expert opined that the claimant did not sustain any permanent disability as a result of the work injury.

The ALJ found that the claimant did sustain an accident which caused him to sustain a soft tissue injury to his lumbar spine. However, the ALJ noted that it was significant that the claimant was treating and had undergone epidural steroid injections in his low back a month and a half prior to the injury. Also, according to the expert testimony, there was no change in pathology between an MRI which was performed before the work injury, and the MRI that was performed after the work injury. Furthermore, the claimant’s symptoms prior to and after the injury were essentially the same. Therefore, the ALJ found that the claimant did not sustain any permanent disability as a result of the work injury. The Commission affirmed the Award of the ALJ.

On June 28, 2013, the Supreme Court of Alabama released its opinion in the case ofEx parte Stanford D. Isbell, wherein it reversed the the Court of Civil Appeals which overturned a jury verdict in favor of Isbell in a retaliatory discharge lawsuit against his employer, M & J Materials, Inc. In February 2007, Isbell sued M & J for workers’ compensation benefits. His Complaint contained a claim for retaliatory discharge. The underlying worker’s compensation claim settled prior to trial, but the retaliatory discharge claim went to trial before a jury in Jefferson County, Alabama.

At trial, Isbell presented evidence that he had suffered an employment related injury to his right wrist on June 15, 2006 and promptly reported his injury. Isbell then underwent surgery and was placed at MMI in late November of 2006. On September 18, 2006, Isbell was terminated by M & J, allegedly for bringing a loaded firearm into M & J’s facility. There was no dispute as to whether Isbell actually brought the firearm into M & J’s facility, but the exact timing of that incident was disputed. Isbell claimed it happened in April before his workers’ compensation claim ever arose, while M & J alleged that it happened in late June 2006. it was Isbell’s position that his alleged violation of M & J’s firearm’s policy was pretextual and that the real reason he was terminated was because he had pursued a workers’ compensation claim. Isbell claimed that other employees had brought weapons into the facility on other occasions and had not been terminated, and that his termination for a violation of the firearms policy was discriminatory.

M & J moved for judgment as a matter of law at the close of evidence, but the trial court denied that motion. The trial court instructed the jury on the applicable law, and specifically instructed the jury that in order to award Isbell punitive damages, they must first award compensatory damages or nominal damages. The case then went to the jury, and they returned a verdict in favor of Isbell, awarding $0.00 in compensatory damages and $75,000 in punitive damages. The attorneys for both parties and the Judge noted that the verdict was inconsistent. Before the jury was discharged, the judge recalled the jury and reminded it of its earlier instructions. The Jury then went back to deliberate and ultimately returned a verdict awarding Isbell $5,000.00 in compensatory damages and $70,000.00 in punitive damages. The trial court then entered judgment on that verdict, over M & J’s objection. M & J then appealed to the Supreme Court of Alabama. The Court transferred the appeal to the Court of Civil Appeals. On appeal, M & J argued that Isbell had failed to meet his prima facie burden for a retaliatory discharge claim; that the trial court erred in rejecting the jury’s first verdict; and that the trial court should have concluded that the punitive damages award was excessive.

The Court of Civil Appeals agreed with M & J that Isbell failed to present substantial evidence of termination of his employment based solely on his filing of a workers’ compensation claim. In regard to Isbell’s argument that the reason for his termination was pretextual, the Court of Appeals found that Isbell failed to show that M & J applied any policy against the possession of weapons in the work place in a discriminatory manner only to employees who have filed workers’ compensation claims, acted outside of company policy, or disavowed the reason given for Isbell’s discharge. The Court of Appeals then reversed the judgment entered on the jury verdict in favor of Isbell, and Isbell filed a Petition for Writ of Certiorari asking the Supreme Court to review whether the Court of Appeals failed to view the evidence in light most favorable to Isbell and whether the Court of Appeals misconstrued and misapplied applicable law in the course of reaching its conclusion.

In its review of the case, the Supreme Court noted that the case of Alabama Power v. Aldridge, 854 So. 2d 554 (Ala. 2002) was controlling on the issue of what an employee must prove to establish a prima facie case of retaliatory discharge. The Court in Aldridge held that the employee must show the existence of an employment relationship, an on the job injury, knowledge of the injury on the part of the employer, and subsequent termination of employment based solely upon the employee’s on-the-job injury and the filing of a worker’s compensation claim. The Supreme Court noted that an employee may provide circumstantial evidence of a causal connection between his filing of a workers’ compensation claim and his termination by showing: (1) knowledge of the claim by those making the decision to terminate; (2) expression of a negative attitude toward the employee’s injured condition; (3) failure to adhere to an established company policy; (4) discriminatory treatment in comparison to similarly situated employees; (5) sudden changes in the employee’s work performance evaluations following a workers’ compensation claim; and (6) evidence that the stated reason for the termination was false.

The Supreme Court found that Isbell presented evidence of several of those factors, thus establishing a prima facie case of retaliatory discharge. The Supreme Court noted that once Isbell established a prima facie case, the burden then shifted to M & J to come forward with evidence that Isbell was terminated for a legitimate reason, which they did. At that point, the burden shifted back to Isbell to prove that the reason given by M & J was not true, but was a pretext for an otherwise impermissible termination. The Supreme Court ruled that Isbell had in fact presented sufficient evidence to show that the violation of M & J’s firearm’s policy was pretextual by showing that several other employees who had brought firearms into the M & J plant on other occasions without being terminated. Additionally, other employees testified that they were not aware that M & J even had a specific policy prohibiting firearms in the plant. Finally, M & J failed to prove that Isbell was ever told that he could be fired for bringing a firearm into the plant. As such, the Supreme Court reversed the Court of Appeals decision and remanded the case to the Court of Appeals to address whether the trial court erred when it re-instructed the jury after it returned an inconsistent verdict, and whether the punitive damages verdict was excessive.

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ABOUT THE AUTHOR

This article was written by Charley M. Drummond, Esq. of Fish Nelson, LLC. Fish Nelson is a law firm located in Birmingham, Alabama dedicated to representing employers, self-insured employers, and insurance carriers in workers’ compensation cases and related liability matters. Drummond and his firm are members of The National Workers’ Compensation Defense Network (NWCDN). The NWCDN is a national and Canadian network of reputable law firms organized to provide employers and insurers access to the highest quality representation in workers’ compensation and related employer liability fields. If you have questions about this article or Alabama workers’ compensation issues in general, please feel free to contact the author at cdrummond@fishnelson.com or (205) 332-3414.

We hope these are helpful.  There was one SD Supreme Court case and several department decisions.  If you have questions, please call me at 605-731-0228 or email me atcalarson@bgpw.com

South Dakota Supreme Court

Knapp v. Hamm & Phillips Service Company, Inc.,

Mike Simpson/Tim Gebhart and Rick Orr

Ervin Knapp worked for a construction company from 2005 to June 2008, while maintaining a South Dakota residence. In May of 2008, he applied with a job as a truck driver for Employer at Employer’s Marmarth, North Dakota office. Knapp was hired and assigned to drive truck hauling wastewater from oil fields in southwestern North Dakota and northwestern South Dakota. From June 26, 2008 until July 18, 2008, Knapp worked only in North Dakota. After July 18, 2008, Knapp spent 60 percent of his working time in North Dakota and 40% percent in South Dakota.

Knapp was injured while working in North Dakota on September 30, 2008. The insurer accepted the claim (under North Dakota workers’ compensation statutes) and Knapp was paid benefits. Knapp treated for his injuries in North Dakota and South Dakota. On September 2, 2009, insurer issued a denial letter claiming that Knapp’s continued symptoms were not cause by the work injury and benefits were discontinued.

On December 7, 2009, Knapp filed a petition for hearing in South Dakota. In May 2010, Employer filed a motion for summary judgment claiming that South Dakota lacked jurisdiction and if jurisdiction was found, res judicata applied since North Dakota already made a determination as to benefits. Knapp died in March 2011 due to causes unrelated to his work injury and Knapp’s wife, Sharon, filed a motion to substitute herself as a party. The South Dakota Department of Labor granted Sharon’s motion to substitute but ultimately dismissed the case. The South Dakota Supreme Court agreed with the dismissal as South Dakota was not the place of the employment relationship.

The South Dakota Supreme Court first looked at whether the South Dakota Department of Labor had jurisdiction to hear the claim by determining whether the Department’s scope of authority carried over into out-of-state injuries. The Court determined that an out-of-state injury may be compensable under South Dakota if the employment had asubstantial connection with South Dakota. The Court relied on the following factors to determine whether there was a substantial connection between the employment and South Dakota:

1 – the person is injured in the State; or

2 – the employment is principally located in the State; or

3 – the employer supervised the employee’s activities from a place of business in the State; or

4 – the State is that of the most significant relationship to the contract of employment with respect to the issue of workers’ compensation; or

5 – the parties have agreed in the contract of employment or otherwise that their rights should be determined under the workers’ compensation act of the State; or

6 – the State has some other reasonable relationship to the occurrence, the parties and the employment.

In other words, it depends on the facts. In this case the employment agreement was made in North Dakota, Knapp primarily worked in North Dakota, the injury occurred in North Dakota, and his employer was located in North Dakota. Therefore, North Dakota had jurisdiction but South Dakota did not. Remember, more than one state may have jurisdiction to hear a claim, but in this case, the claimant could not establish enough of a tie to South Dakota.

South Dakota Department of Labor

Jens Fuller v. Concrete Professionals and Acuity

Jody Speck/Mike McKnight

ALJ – Don Hageman

Claimant was hired by Employer on April 20, 2012. On May 14, 2012, Claimant and a co-worker set forms while preparing a driveway for a concrete pour. Claimant walked away from the worksite for a short period and upon return got into a physical fight with his co-worker. The ALJ determined that it was more likely than not that Claimant threw the first punch. Claimant was injured during the fight. Employer/Insurer denied benefits alleging willful misconduct under SDCL 62-4-37, which is a complete bar to comp benefits.

Under SDCL 62-4-37, Employer/Insurer has the burden of proving that the employee engaged in willful misconduct and that the employee’s injuries were "due to the employee’s willful misconduct." The Employer must only show that the misconduct was a substantial cause of the injuries, not the only cause.

The ALJ determined that Claimant provoked the altercation that resulted in his injuries. The ALJ also determined that the Claimant made no attempt to defuse the situation or retreat prior to engaging in a fist fight. These actions were a substantial factor in causing Claimant’s injuries and the ALJ determined that Claimant’s injuries were not compensable.

Donald Kryger v. City of Deadwood and SDML Workers Compensation Fund

Dennis Finch/Mike McKnight ALJ – Don Hageman

Claimant suffered a compensable lower back injury while working on October 16, 2002. Insurer sent Claimant a letter on December 16, 2002 stating that Claimant had been released from treatment and "we are closing your file." There was also language indicating Claimant could file a petition for hearing if he disagreed with the decision. Claimant suffered additional work-related injuries to his body and his lower back in the next eight years. Employer filed summary judgment arguing that Claimant is barred from receiving benefits for his lower back injury as his current symptoms relate to the 2002 injury and the two year statute of limitations ran.

The ALJ determined that the December 16, 2002 letter from Insurer, stating that Insurer was closing Claimant’s file, was not a denial in order to trigger the two year statute of limitations period under SDCL 62-7-35. Instead, the ALJ held that the three year statute of limitations period from the last payment of benefits was applicable since the letter did not deny any benefits but simply noted that Insurer was closing its file. The ALJ determined that a letter closing a file did not adequately inform the Claimant that no further benefits would be paid as needed to trigger SDCL 62-7-35. Since there were other factual questions, summary judgment was denied.

Gettert v. Horst Masonry Construction & Acuity

 Michael Hickey/Michael McKnight Judge Hageman

This is an interesting decision. The claimant had a compensable claim and benefits were paid. The claimant obtained additional treatment, but the provider turned the bills into his health carrier instead of work comp. The last payment of benefits by Acuity was on August 31, 2007. The additional treatment was paid by the health carrier after August 31, 2007. If it had been turned into work comp, it would have presumably been paid by Acuity.

Claimant filed a petition on August 19, 2011, which was more than three years since the last payment of benefits. Under SDCL 62-7-35.1, a claim is barred if three years have passed without payment of benefits. This statute only applies when a claim is not denied. Claimant argued it was a mistake that the health carrier and not work comp paid benefits after August 31, 2007. The department barred the claim for benefits as it was claimant’s responsibility to ensure the bills were provided to the correct entity.

Leckner v. Rochester Armored Car & General Casualty

 Michael Bornitz/Charles Larson Judge Hageman

The only issue was whether the claimant sustained a 15% or a 25% impairment. The surgeon provided a 25% impairment whereas Dr. Ripperda, in an IME, provided a 15% impairment. The department accepted the opinion of Dr. Ripperda over the treating doctor as it found Dr. Ripperda was more knowledgeable in assessing impairments than the operating surgeon.

Mack v. Nathan Hunke and Dakota Truck Underwriters

 Laura Brahms/Charles Larson Judge Runyan

This was a motion for partial summary judgment. Claimant sustained a compensable work injury and received treatment. Claimant fell down the stairs after his surgery, but did not tell the surgeon (he did report increased pain though). The surgeon testified on the claimant’s behalf and opined the work injury was a major contributing cause of the claimant’s problems and current need for treatment.

On cross-examination, the doctor admitted he knew nothing of the claimant’s fall, and that he expects his patients to tell him important information like a fall. This was critical because there was no way the doctor could opine on the cause of the claimant’s condition and need for treatment after the fall as he did not know what happened. Without information on the fall, he admitted he was in no position to provide a causation opinion after the date of the fall. Thus, the department limited the insurer’s exposure to a very short window and granted summary judgment to all benefits claimed after the day claimant fell.

Davis v. Dr. Pepper and Insurance Co. of Pennsylvania

 Russ Janklow/Dick Travis Judge Runyan

The issue was whether the claimant was permanently and totally disabled. The case turned on whether the claimant could be retrained. In PTD cases, the claimant must prove that retraining is not "feasible." The claimant had twice dropped out of college before his injury because he was failing his classes. He attempted to return to school after his injury and again failed out. Rick Ostrander testified that the claimant’s repeated failed attempts to get through school demonstrated that he could not be retrained. Jim Carroll testified on behalf of the employer and insurer and felt the claimant had a 50% chance at completing a retraining program as he passed a couple classes before dropping out the last time. The department rejected Carroll’s testimony and found retraining was not feasible as the claimant was not smart enough to complete school.

The other important point was that Carroll relied on an IME doctor’s work restrictions while Ostrander used the treating doctor’s work restrictions. The department accepted "the restrictions and opinions of [the treating doctor] as more credible…as the treating physician" was in a better position to provide restrictions for the claimant’s specific condition. Once again, the department sides with the treating doctor.

Hope this was helpful.  Another summary of case law and decisions will be coming soon, but feel free to contact me with any questions. 

An employee could not recover permanent partial disability for injury to two members in the same accident.  The employee’s injuries occurred before the operative date of the amendment to Neb. Rev. Stat. 48-121(5), which allowed recovery for a loss of earning capacity under certain circumstances where an employee sustains injury to two members in the same accident, rather than the prior recovery which was based on impairment and the established schedule.  The amendment was substantive and the LOEC option for recovery when two members are injured in the same accident is only available for injuries occurring after January 1, 2008.
Smith v. Mark Chrisman Trucking, 285 Neb. 826 (2013).


A claim by an employee injured by the willful negligence of the employer is subject to the exclusive remedy provision and the employee can only recover under the Workers’ Compensation Act.  In this case, the employer told the employee to shovel grain in a grain elevator.  The employee died of asphyxiation.  Though the Court found the employer’s actions to be egregious, the employee was limited to recovery for workers’ compensation and not in tort.
Estate of Teague v. Crossroads Co-Op Assn., 286 Neb. 1 (2013).

A settlement check sent 42 days after a release of liability form (for a settlement where Court review is not required) was filed with the compensation court was not subject to the 50% waiting time penalty for late payment after more than 30 days after the entry of an award, judgment, or decree.  The employee waives a right to penalty by filing the release.
Holdsworth v. Greenwood Farmers Co-op, 286 Neb. 49 (2013).

Plaintiff claimed bilateral shoulder injuries on the same date.  Defendant admitted bilateral shoulder injuries.  The parties stipulated that claimant sustained bilateral shoulder injuries, and said stipulation was incorporated in the trial court’s pretrial order.  However, upon review of the evidence, the trial court rejected the stipulation (and Defendant’s admissions) and found that the left shoulder was not compensable, and therefore, claimant was not permanently totally disabled.  The Court of Appeals reversed, indicating there was no good cause to reject the stipulation even if the evidence supported a finding the left shoulder was not compensable.  It remanded for a determination of the extent of any permanent disability as a result of the agreed-upon bilateral shoulder injury.
Cervantes v. Omaha Steel Castings Co., 20 Neb. App. 695 (2013).