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MISSOURI WORKERS’ COMPENSATION CASE LAW UPDATE

January 2025 – March 2025

 Claimant's Risk of Injury Failed to Meet the Test of Equal Exposure in Everyday, Nonemployment Life

Johnson v. OATS Inc., Injury No: 23-047500

FACTS: Claimant was a bus driver for Employer’s passenger transportation service. She kept Employer’s vehicle in her home’s driveway to avoid vandalism and gas theft, which had happened when Employer’s vehicles were parked elsewhere. Employer’s written policy required driver to conduct “pre-trip” vehicle maintenance. Claimant was performing this task on the morning of July 13, 2023, after a rainy night. She walked through the grass in her yard to retrieve plastic bags in her kitchen, where she intended to place the paper towels she had used to clean up sweet tea. The plastic bags were usually stored on Employer’s bus, but the bus supply had been depleted. Claimant’s canvas sports shoes, required by Employer, were wet due to her walking on the grass. Claimant testified that her water-soaked shoes caused her to slip and fall on her kitchen floor. As a result of the fall, she sustained fractures to her left wrist.

The main issue at the hearing was whether Claimant’s work event on July 13, 2023, arose out of  and in the course of her employment. The ALJ determined that the injury was compensable. Employer appealed.

HOLDING: In their review, the Commission reviewed Section 287.020.3 (2) and compared this matter to the Court’s decision in Johme v. St. John’s Mercy Health Care.

The Commission agreed with prior case law that the equal exposure consideration should center on whether Claimant was injured because she was at work, rather than simply while at work. They noted that the source of the risk in Johme was Claimant’s decision to twist while turning, which resulted in her injury. In applying the Johme analysis to this matter, the Commission stated that the risk source was slipping while walking on her kitchen floor in her home in wet shoes.

The Commission concluded that in this case, no aspect of Claimant’s job required her to go inside her home to retrieve plastic bags from her kitchen to clean Employer’s van. Claimant may have been doing something related or incidental to work; however, retrieving trash bags to clean up Employer’s van failed to meet the test of equal exposure. Claimant’s risk of slipping and falling on her kitchen floor was a risk to which Claimant was equally exposed in her everyday, non-employment life and therefore her injury was not compensable and the claim was denied.  

Please note that on February 6, 2025, the Commission vacated the Award upon approval of the parties’ settlement

Following Refusal of Claimant's Demand for Further Medical Care, Employer is Liable for Unauthorized Treatment if Reasonable and Necessary

Erwin v. Midway Arms, Inc, Case No. WD87161 (Mo. App. 2025)

FACTS: On January 3, 2017, Claimant suffered a low back injury while loading a truck with boxes. On January 12, 2017, he was first seen by “Doctor”, the authorized treating physician selected by Employer, who diagnosed a large L5-S1 herniation. After several follow-up visits and physical therapy, on June 7, 2017, Doctor concluded that Claimant had reached MMI. Thereafter, Claimant’s attorney sent multiple letters to Employer’s attorney demanding additional treatment as well as advising that Claimant had become “suicidal from his chronic back pain” and that he urgently needed additional treatment for both his back pain and psychiatric condition that had developed as a result of the back pain.

Employer’s attorney acknowledged the demand for treatment but advised that they wanted to conclude their investigation, including taking Claimant’s deposition. Following the deposition, Employer’s attorney sent a letter to Claimant’s attorney which stated that Claimant was at MMI based on Doctor’s medical report.

At the hearing, however, Doctor would later testify that Employer never notified him of Claimant’s attorney’s letters detailing Claimant’s worsening condition, new symptoms, and requests for additional medical care. Doctor testified he would have wanted to see Claimant immediately for the new complaints and suicidal ideation. In his deposition, Doctor ultimately concluded that it was reasonable for Claimant to seek treatment elsewhere after Employer refused to authorize further medical treatment.

Following the hearing, the ALJ ordered Employer to pay $114,950.23 for denied past medical expenses and sanctioned employer for its unreasonable and outrageous conduct by ordering the payment of “25% of all amounts awarded herein ($189,607.37), or $47,401.84, plus costs of $11,979.52 for total sanctions in the amount of $59,381.36.”

Employer appealed to the Commission, who reversed the ALJ’s award as to Employer’s responsibility for payment of past medical expenses, concluding that Claimant did not “sufficiently notify Employer” of the need for additional medical treatment—and reversed the ALJ’s Award of sanctions—concluding that Employer’s conduct did not fit the “unreasonable and outrageous” standard for awarding such sanctions.

HOLDING: Claimant appealed the decision of the Commission, and ultimately the Court awarded the past medical benefits but did not place sanctions on Employer.

The Court noted that in this case, the ALJ and the Commission both concluded that the treatment in question was both medically necessary and causally connected to the January 3, 2017 injury. That conclusion was not challenged on appeal. The only relevant issues before the Court was whether a demand for further treatment was made to the Employer; whether the demand was refused or ignored; and if the demand was refused or ignored, whether Claimant was required by law to update Employer on the course of his additional treatment.

Upon review of the record, the Court found that Claimant made multiple demands to the Employer to provide further medical aid and that Employer responded to those demands by both ignoring, and later, explicitly refusing to authorize additional medical treatment.

The Court concluded that because Employer’s August 21, 2017 denial letter to Claimant’s attorney constituted a complete and unconditional refusal of Claimant’s demand for further medical care, Claimant became free to select his own doctor for further treatment of the work-related injury, and Employer became liable for that treatment—so long as the treatment was later deemed reasonable and medically necessary. 

With regard to the issue of sanctions, the Court noted that Employer relied in good faith on the doctor’s medical opinion in his report dated June 7, 2017, when he concluded that Claimant had reached MMI. They noted that “Doctor was a moving target on his medical opinion” with regard to the opinions in his report compared to his testimony three years later. Employer was entitled to rely upon Doctor’s medical opinion, even though the new opinion on causation directly contradicted the opinions Doctor had previously held three years prior. Therefore, under these circumstances, the Employer’s conduct did not rise to the level of conduct necessitating sanctions.

If the Primary Injury Alone Renders Claimant PTD, then the SIF is Not Liable         

Balliu v. Treasurer of the State of Missouri-Custodian of the Second Injury Fund, Case No. WD87032 (Mo. App. 2025)

FACTS: In 1999, Claimant suffered a work-related bilateral hernia but did not pursue a claim. He returned to the same position without any formal restrictions or accommodations. In 2004, the Claimant suffered a right-sided hernia. After another successful hernia repair surgery, he continued to perform the same work tasks. On May 16, 2015, Claimant suffered the primary injury and was diagnosed with ilioinguinal neuralgia resulting from impingement of his ilioinguinal nerve. Despite treatment, Claimant’s condition did not improve. He reached MMI on October 20, 2015 and never returned to work due to his pain.

Claimant settled his 2015 claim against Employer for $84,141.12 for TTD, medical treatment, and a lump sum payment based on a stipulated PPD of 25% of the body. He then pursued a PTD claim against the SIF, contending that his 1999 hernia created disability that combined with his 2015 injury to leave him PTD.

Claimant presented an original IME report that determined that he suffered from ilioinguinal neuralgia and nerve pain in the area of his prior hernia repair surgeries on the right side, and that his 2015 primary injury was “the direct, proximate, and prevailing factor” causing his pain, and that the 2015 primary injury “in isolation alone” required work restrictions and accommodations. The IME physician rated Claimant’s primary injury at 25% of the body and concluded that Claimant would likely be unemployable as a result of the primary injury if his condition could not be improved. The physician also concluded that the “preexisting disability of the 1999 work-related injury directly and significantly aggravated and accelerated the subsequent work-related injury of May 6, 2015.”

Subsequently, the physician prepared an addendum IME report which stated that he believed Claimant’s 1999 hernia left him with 15% PPD of the body (“preexisting disability”) and made his 2015 injury more likely to occur. However, the addendum report concluded that “the restrictions for the May 6, 2015, work injury should be unchanged when considering his preexisting work injury of 1999.” Claimant also submitted the opinion of a vocational expert who considered the restrictions following Claimant’s 2015 primary injury alone to be totally disabling.

The ALJ determined that Claimant was not entitled to compensation from the SIF. The Commission adopted the ALJ’s findings.

HOLDING: Claimant appealed the decision to the Commission, which confirmed that the SIF was not liable for benefits and the Court affirmed.

The Court noted that Claimant did not contest that the 2015 primary injury—ilioinguinal  neuralgia—is the disabling injury. Instead, he argued that the scar tissue from the 1999 repair of the work-related hernia contributed to cause the ultimate ilioinguinal neuralgia condition. However, the Court stated that this is not a case in which the cause of the primary injury is contested; instead, the question is whether the condition of the 2015 primary injury—ilioinguinal

neuralgia—created physical restrictions of such magnitude that Claimant was no longer employable.

The Court found that the overwhelming evidence presented to the Commission is that the 2015 primary injury alone, no matter what caused it, created Claimant’s permanent total disability, so the SIF has no liability. The Court concluded that if the primary injury alone amounts to PTD, the SIF is not liable because the primary injury did not combine with preexisting disability to create PTD.

PTD Claim Against SIF Denied when Expert Included Nonqualifying Disability in Medical Opinion

Thomas v. Collins and Hermann, Inc. and Second Injury Fund, Case No. ED112795 (Mo. App. 2025)

FACTS: In 1993, Claimant sustained a right knee injury in Des Moines, Iowa, when he slipped on ice at work, and received benefits but did not seek a workers’ compensation settlement for this injury. In 1994, Claimant injured his left knee while working in Missouri and settled this claim for 25%  of the knee. The settlement stated that the SIF was liable for preexisting disability to his right knee at 25% PPD with a 15% loading factor.

Claimant continued to work for the next 20 years. He experienced increased bilateral knee complaints. On November 25, 2015, Claimant tore his left rotator cuff at work. He underwent surgical repair and in May 2016, Employer’s physician placed him at MMI and stated he could return to work without restrictions. Claimant returned to work but was placed on light duty. He was terminated from his employment in July 2016, and did not work thereafter.

Claimant went to a Hearing against Employer and the SIF. The parties asked the ALJ to determine whether Employer was liable for PPD or PTD benefits, and the nature and extent of the SIF’s liability.

Claimant’s medical expert assigned 40% PPD to Claimant’s left shoulder and 50% PPD for the Claimant’s knees, which he recognized was larger than the earlier settlement percentage, explaining that Claimant’s knees were considerably worse due to arthritis, which dated back to his 1993 and 1994 knee injuries. The expert also opined that if a vocational assessment was unable to identify a job for which Claimant was suited, he would find Claimant PTD because of the primary left shoulder injury “in combination with his preexisting medical conditions,” which included both knees. 

After the hearing, the ALJ found Claimant’s testimony credible and the experts persuasive. The ALJ determined Claimant sustained 32.5% PPD of the left shoulder and 12.5% PPD for psychiatric disabilities, all attributed to the primary injury for which Employer was liable. The ALJ found both prior knee injuries were work-related and resulted in 45% PPD to each knee. The ALJ recognized that Claimant settled his claim for both knees at 25% PPD but found that there was “no question his knees had gotten much worse since that time.” The ALJ then determined these disabilities qualified under the statute because they arose from work injuries and equaled more than 50 weeks. The ALJ concluded that Claimant was PTD due to a combination of his primary and preexisting injuries and disabilities, and found the SIF was liable for PTD benefits.

The SIF appealed to the Commission which found Claimant’s right knee disability was not a statutorily-defined compensable injury, and it was improperly included in the PTD analysis. The Commission determined Claimant did not allege that his Employer in Iowa nor his Iowa accident or injury were covered by the Missouri Workers’ Compensation law. The Commission also found Claimant presented no credible or persuasive evidence that his right knee injury was compensable under Iowa’s worker compensation law. Under strict construction, the Commission stated Claimant’s Iowa accident did not qualify for SIF liability because this injury in another state was not compensable under Section 287.020.

Because Claimant’s experts included the nonqualifying disability in forming their opinions, the Commission found Claimant failed to produce credible and persuasive evidence to make a compensable PTD claim against the Fund.

HOLDING: Claimant appealed the Commission’s decision but the Court confirmed the denial of benefits. The Court found that Claimant did not meet his burden in demonstrating his right knee disability was a compensable injury and since Claimant’s experts incorporated his nonqualifying preexisting right knee disability into their PTD opinions, it was immaterial whether his preexisting disabilities met the 50-week threshold to qualify for SIF benefits. Also, because Claimant did not raise to the ALJ or the Commission the legal assertion that he would be left without a remedy if SIF liability were denied despite being PTD, his claim was not preserved for appellate review.

The Statute Does Not Permit Prior Enhanced PPD for an Otherwise Nonqualifying Injury for SIF Liability

Walton v. Treasurer of Missouri as Custodian of Second Injury Fund, Case No. SD38504 (Mo. App. 2025)

FACTS: Claimant sustained three work-related injuries during his career as a diesel mechanic. The first injury occurred in 1992 when he injured his left shoulder resulting in 20% PPD to the left shoulder (46.4 weeks) paid by Employer. The second injury to his lower back occurred in 2005 and he received a settlement of 30% PPD of the body (120 weeks). Additionally, in a settlement with the SIF, the Fund paid 16.64 weeks of enhanced PPD. “Enhanced PPD” is a special or additional allowance for cumulative disabilities from multiple injuries.

In the SIF settlement, Claimant agreed that the 1992 left shoulder injury was worth 46.4 weeks; the 2005 lower back injury was worth 120 weeks; and the “synergistic effect” of these combined injuries (166.4 weeks) was 10%, equaling 16.4 weeks.

The third injury, the primary injury, occurred on July 17, 2017, when Claimant fell out of a truck, was knocked unconscious, suffered a concussion, and was diagnosed with scalp laceration, right shoulder strain, chronic right-sided lower back pain and right-sided sciatica. Claimant was later diagnosed with right cervical radiculopathy, impingement syndrome, various injuries to his biceps and neurocognitive disorder due to the concussion he sustained from the fall.

Dr. Mullins found PTD resulting from a combination of the 1992 left shoulder, 2005 lower back, and primary injuries. Specifically, Dr. Mullins found a “synergism” existed from the combination of the primary injury, which injured the right shoulder, and the preexisting 1992 left shoulder injury, because both shoulders were injured and unable to compensate for each other. While Dr. Mullins did not expressly assign “51.04 weeks” to the left shoulder in his report, Claimant argued that this total, represented by the 1992 left shoulder injury (46.4 weeks) and a portion of the enhanced PPD represented the left shoulder (4.64 weeks) was the basis for Dr. Mullins’s PTD determination.

Following the hearing, the ALJ issued an Award finding that Claimant failed to prove that he was entitled to PTD benefits. Specifically, the ALJ found that the left shoulder disability was 46.4 weeks—3.6 weeks short of the 50-week threshold required by statute. Claimant then appealed the Award to the Commission, arguing the ALJ erred by ignoring the enhanced PPD paid by the Fund.

The Commission affirmed the Award of the ALJ finding that it was supported by competent and substantial evidence, including Claimant’s own testimony that he did not have difficulty with his left shoulder prior to the primary injury, Dr. Koprivica’s rating of 46.4 weeks PPD to the left shoulder, Dr. Mullins’ reliance on said rating, and Dr. Lennard’s findings regarding the left shoulder.

HOLDING: Claimant appealed arguing that a portion of the prior enhanced PPD Award can be used to add additional weeks of compensation to an otherwise non-qualifying injury to determine whether such injury makes the 50-week threshold.

The Court looked at the language of the statute and noted that under strict construction the Commission was correct in finding that Claimant had a medically documented preexisting disability to his left shoulder that was a direct result of a 1992 left shoulder injury. However, standing alone, this preexisting disability was nonqualifying because it did not meet the 50-week threshold required by Subsection 3.

The Court concluded that because Section 287.220.3 does not permit a prior enhanced PPD Award to be used to add additional weeks of compensation to an otherwise non-qualifying injury, Claimant’s argument was denied and the Commission’s decision was affirmed.

In the past year, the Office of Workers’ Compensation, and the District of Columbia Court of Appeals, has heard and issued opinions on both brand new and old doctrines of law.  Ranging from medical marijuana reimbursement, to the “coming and going rule,” DC workers' compensation has and will continue to see shifts in trends under the District of Columbia’s Workers’ Compensation Act.

On January 3, 2024, the Compensation Review Board (“CRB”) issued a decision in Freeland v. Dominion Mechanical, Inc. holding that a claim for reimbursement for out of pocket expenses associated with medical marijuana is not permissible under the District of Columbia’s Workers’ Compensation Act.  The decision notes that allowing reimbursement of expenses related to medical marijuana is contrary to federal law.  This decision was not appealed. 

On June 6, 2024, the D.C. Court of Appeals (“the Court”) issued a decision in Rieger v. D.C. Department of Employment Services, reversing the decision of the CRB.  The Claimant, a midwife, worked at multiple locations on the medical campus, including the main hospital building, as well as the medical arts building.  While walking from one location to the other, the Claimant took her usual route and left the university property and turned onto a public street, when she collided with a jogger running on the sidewalk.  The claim was initially found to be compensable before the CBR reversed the decision.  The Court applied the positional risk test and opined that the injury was in the course of the Claimant’s employment as her work obligations placed her at the location in which she was injured.  The Court held that the claim was not barred by the coming and going rule and stated that once an employee arrives on the employer’s premises, the going and coming rule does not bar the claim even if the employee had not reached a specific worksite on the premise.  Additionally, the Court noted that the Claimant’s activity of walking on the public sidewalk between premises was foreseeable and a part of her regular duties.  

GARDNER V. DEPARTMENT OF MENTAL HEALTH AND ADDICTION SERVICES,         Conn.     (March 18, 2025)

The claimant sustained a compensable left hand injury on April 19, 2016. She underwent two surgeries to the hand. Dr. Ashmead, the treating physician, rendered an opinion on March 11, 2020 that the claimant had attained maximum medical improvement within an 8 percent rating for the left wrist. Also, Dr. Ashmead indicated the claimant continued to have work limitations and could not lift greater than 20 pounds. The respondents, based on Dr. Ashmead’s report filed a Form 36 seeking to establish maximum medical improvement and begin permanency payments. Claimant’s counsel, however, objected to the Form 36 contending that the claimant was entitled to ongoing temporary partial benefits and that the trial judge could, in his discretion, order temporary partial benefits under the provisions of General Statutes Section 31–308(b). The trial judge noted the claim was “novel” but concluded that the claimant had achieved maximum: improvement and that the Form 36 should be approved for permanency benefits. On appeal, the compensation review board affirmed the ruling of the trial Judge that permanency benefits were owed and not ongoing temporary partial benefits.   The Appellate Court affirmed the CRB decision, however, the Connecticut Supreme Court reversed that and concluded that a Judge has “the discretion to award a claimant, after he or she reaches maximum medical improvement, ongoing temporary partial benefits under Section 31-308(a) in lieu of permanent partial disability benefits under Section 31-308(b), up to the statutory maximum of 520 weeks.”

In our opinion, this is a significant  decision which increases possible exposures for temporary partial benefits and, in general, increases the settlement value of many cases where the claimant cannot return to work in their usual position.

COCHRAN V. DEPARTMENT OF TRANSPORTATION, 350 Conn.  844 (2024)

In this important decision, the Supreme Court held that a worker who is retired and took himself out of the workforce was entitled to a claim for total disability benefits made post-retirement.

The claimant sustained a compensable back injury in 1994. Surgery was performed in June 1994; a further back surgery was performed in April 1995. A voluntary agreement was issued and approved in 1995 for 29.5% of the lumbar spine.

On April 1, 2003 the claimant, at age 54, took an incentivized early retirement from the employer. The plaintiff had no intention of returning to work. In 2013 the claimant had back surgery with an allegedly unauthorized New York physician. A CME by Dr. Dickey in 2017 gave the “lightest” work capacity to the claimant. Dr. Sabella, a vocational specialist, found the claimant unemployable. The trial judge found the 2013 back surgery related and ordered a three month period of total disability following the 2013 surgery and ongoing total disability beginning on December 30, 2017. The CRB affirmed the decision. The Appellate Court reversed the Board decision; in doing so, the Court stated it had plenary review over the case (meaning that they did not have to defer to the CRB below regarding the application of the law). 

The Appellate Court’s decision stated that: “he elected to remove himself from the workforce where he had no intention of returning and more than 10 years later sought to obtain Section 31–307(a) benefits. We cannot conclude the plaintiff is entitled to Section 31–307(a) benefits when he removed himself from the workforce with no intention of returning.”  The Appellate Court found this to be an issue of first impression before the Court.

The Supreme Court reversed the Appellate Court and concluded that “the statute as written entitles all medically qualified claimants to receive total incapacity benefits, with no exception for those claimants who may also be voluntarily retired.” The Court also stated “evidence of willingness to work has never been required to establish eligibility for total incapacity benefits.” The Court held that total disability benefits serve a “dual-purpose: to compensate for both wage loss and loss of earning power.”

The respondents had also raised the issue on appeal as to whether payment of total disability benefits were owed since there was no finding that the surgery performed was reasonable, necessary and available in Connecticut. Since that issue had not been addressed by the Appellate Court, the Supreme Court remanded the case back to the Appellate Court to address that issue.

MARTINOLI V. STAMFORD POLICE DEPARTMENT, 350 Conn. 868 (2025)

The claimant sustained a compensable heart condition in January 1999. He retired at age 64 in October 1999. In 2015, at age 80, he sustained a stroke and claimed entitlement to total disability at that time. The Judge and CRB found the stroke related to the initial claim and awarded total disability benefits to the retiree. The Appellate Court, however, reversed and said a retiree was not entitled to claim total disability benefits post-retirement. On appeal to the Supreme Court, however, the Supreme Court reversed the Appellate Court and determined that voluntary retirees could receive total disability benefits.  The Court cited the companion case of Cochran V. Department of Transportation, 350 Conn. App. 844 (2024). (see above summary of Cochran). 

The case was remanded back to the Appellate Court to address two other issues raised on appeal by the respondents that had not been addressed by the Appellate Court.

NAPOLITANO V. ACE AMERICAN INSURANCE COMPANY, 350 Conn. 871 (2024)

This decision from the Supreme Court dealt with the issue of cancellation of a workers’ compensation policy and whether it complied with the terms of General Statutes Section 31-348; that statute indicates that cancellation of a policy is not effective until fifteen (15) days after the cancellation has been filed.  In this case the employer had a series of three workers’ compensation policies with the employer. Notice on March 28, 2018 was issued to the employer regarding an audit noncompliance charge.  On April 5, 2018 two notices were sent to the employer stating that the employer had not complied with requests for payroll information; the second notice on April 5, 2018 indicated that the coverage would terminate on April 25, 2018.  On April 10. 2018 the employer’s agent advised the employer that they were compliant.  An employee was injured on May 29, 2018; the carrier denied coverage and claimed that the policy had been cancelled.  At a formal hearing an ALJ found that there was no coverage based on the information NCCI reported; the ALJ did not address contractual claims at the formal hearing.  The employer and the second injury fund settled the compensation case with the claimant for $225,000.  The employer brought a civil action against the carrier asserting claims of breach of contract, bad faith, negligent misrepresentation and promissory estoppell.  At the trial level, a Judge granted a summary judgment motion filed by the plaintiff employer concluding that the notice of cancellation was not unambiguous and unequivocal as required to be effective.  Additionally, the carrier’s motion to strike a bad faith claim was granted.  On appeal, the Appellate Court reversed and concluded that the notice was unambiguous that the policy was going to be cancelled.  It determined that the notice was certain and unequivocal.  The Court also determined that the motion to strike the bad faith claim was error.  The Connecticut Supreme Court reversed the Appellate Court decision and found that the notice of cancellation was not sufficient to cancel the policy. The Supreme Court stated “we conclude, instead, that, when a court considers whether notice of cancellation made under a workers’ compensation insurance policy was sufficiently definite and certain, it must consider all relevant communications between the parties, rather than limit its analysis to the notice received by the chairperson under Section 31 – 348.” The Supreme Court concluded that the policy remained in place on the date of accident.

MORGAN V. SULZER PUMPS SOLUTIONS, INC., 6531 CRB-1-24-2 (January 22, 2025)

In this decision, the Compensation Review Board (“CRB”) held that the twenty-day period to appeal a finding to the CRB as set forth in Section 31-301(a) begins to run when the appellant’s aggrievement for appeal has been determined by way of finding, order, or decision.

The underlying claim proceeded through three formal hearing sessions, then a Finding and Award, which ordered the respondents to accept compensability of a right shoulder injury, was issued on December 21, 2023. The claimant filed a motion to correct the Finding and Award on January 3, 2024, and the motion was denied in its entirety on February 8, 2024. The respondents did not file a post-judgment motion, though they subsequently filed a petition for review on February 27, 2024.

The claimant filed a motion to dismiss the appeal as untimely. The CRB held that the following language of Section 31-301(a) was ambiguous as to whether an appellant’s appeal would be timely if taken within twenty days following a ruling on its counterparty’s post-judgment motion, given the appellant was aggrieved by a finding it did not seek to correct by way of motion: “If a party files a motion subsequent to the finding and award, order or decision, the twenty-day period for filing an appeal of an award or an order by the commissioner shall commence on the date of the decision on such motion.”

The CRB dismissed the respondents’ appeal as untimely, relying on its analysis in Gonzalez v. Premier Limousine of Hartford, 5635 CRB-4-11-3 (April 17, 2012) and the Connecticut Supreme Court’s analysis in Stec v. Raymark Industries, Inc., 299 Conn. 346 (2010) and Dechio v. Raymark Industries, Inc., 299 Conn. 376 (2010) in holding that the twenty-day timeframe set forth in Section 31-301(a) began to run for the respondents once its grievances for appeal had been determined, which occurred on December 21, 2023, the date the Finding and Award was issued.

MASSENA V. CITY OF STAMFORD, 6534 CRB-7-24-3 (February 21, 2025)

This case involved a heart and hypertension injury under General Statutes Section 7-433c for a firefighter with date of injury February 27, 2008.  The claimant worked for the City from 1989 to 2018.The claimant sought to preclude the respondent from raising issues regarding evidence of hypertension in the pre-employment medical exam and also sought to bar the respondents from inquiring of the treating physician regarding the issue.  The respondents had filed three timely Form 43’s but the claimant alleged that issues concerning the pre-employment exam had not been raised in the disclaimers.  The Judge denied the Motions to Preclude and the CRB affirmed finding that the language of the Form 43’s was sufficient.

Mahmutovic v. Washington County Mental Health Services, Inc., 2023 VT 37, 218 Vt. 184, 307 A.3d 868:

Claimant suffered a compensable work injury to his left knee. Claimant voluntarily left the employment of the Defendant and began work for a new employer. While employed at the new employer, Claimant lost time attending a medical appointment for the accepted work injury. The Vermont Supreme Court found that 21 V.S.A. § 640(c), which states that an “employer shall not withhold any wages from an employee for the employee’s absence from work for treatment of a work injury or to attend a medical examination related to a work injury,” shifts the burden of covering lost wages to the employee’s current employer. Therefore, the new employer was required to reimburse Claimant for his lost wages related to his work injury. Claimant also challenged the constitutionality of 21 V.S.A. § 640(c) based on his “protected property interest in recovering lost wages.” The Court ultimately found for the Defendant, ruling that Claimant did not have third-party stand to challenge the constitutionality of the statue as the damage was to that of the new employer.

Defendant represented by David Grebe and McCormick, Fitzpatrick, Kasper & Burchard, P.C.

Hill v. Agri-Mark, Inc., 2025 VT 3

Claimant had an accepted work injury but did not initially miss any time from work. After the injury, Claimant left his job with Defendant and began working for two new employers concurrently. Claimant then voluntarily resigned from one of these positions approximately one week prior undergoing surgery, which in turn triggered a period of disability. The Department of Labor found that pursuant to 21 V.S.A. § 650(a)(4) and Rule 8.1500, only wages from employment that Claimant was employed “at the time of injury or disability” were considered for the average weekly wage calculation. Claimant appealed this decision to the Vermont Supreme Court, arguing that all wages within the 26 week look-back period should be counted as “concurrent” employment, and that Rule 8.1500 narrowed 21 V.S.A. § 650(a)(4) and was not a valid exercise of the Department of Labor’s rulemaking authority. The Supreme Court affirmed the Department’s decision that Rule 8.1500 was not a narrowing of the statute and was a valid exercise of rulemaking authority. For employment to count as concurrent an injured worker must be employed at the time of injury or disability.

Defendant represented by David Grebe and McCormick, Fitzpatrick, Kasper & Burchard, P.C.

Estate of St. Germain v. Rutland Northeast Supervisory Union, No. 01-25WC (January 26, 2025)

Claimant was employed as the principal of high school within the Defendant’s district. Following a series of allegations of sexual harassment against Claimant, he was advised by the superintendent that his employment was in jeopardy. Approximately one year after the allegations Claimant committed suicide. Claimant’s Estate contended that the allegations, threat of losing his job, combined with pre-existing anxiety and depression was the cause of death. The Defendant filed for summary judgment based on 21 V.S.A. § 649, which states that “an employee’s willful intention to injure himself” bars recovery under the Workers’ Compensation Act. The Department denied summary judgment to the Defendant, noting an important distinction that 21 V.S.A. § 649 does not bar a workers’ compensation claim if the employment causes a mental injury, which is turn is alleged to be the cause of death.  

An Arkansas Court of Appeals recently made an important distinction between the causation evidence required to establish a natural consequence of a compensable injury/illness as opposed to the evidence required to establish that a claimant’s primary compensable illness/injury was the major cause of the permanent impairment resulting from the compensable consequence. Booneville Hum. Dev. Ctr. v. Foster v. Foster, 2024 Ark. App. 618. 

In Booneville v. Foster, the Court found substantial evidence supported the Full Commission’s determination that the claimant’s atrial fibrillation was a natural consequence of his compensable COVID-19 illness based on Foster’s testimony that he had not been diagnosed with atrial fibrillation before contracting COVID-19 along with a medical report from Foster’s family physician which stated he had a complicated course of COVID-19 that resulted in a deterioration of his health including diastolic heart failure, respiratory failure and atrial fibrillation among other complications. However, the Court did not find substantial evidence supporting the Commission’s finding that Foster was entitled to a 10% impairment rating for his atrial fibrillation because no additional evidence was proffered to establish that Foster’s COVID-19 illness was the major cause of his atrial fibrillation as opposed to other potential causes such as his preexisting history of hypertension and obesity. Therefore, the Court reversed the Commission’s 10% permanent impairment award and held that “evidence of a causal connection between Foster's COVID-19 illness and his atrial fibrillation [did] not automatically resolve the issue of Foster's entitlement to permanent benefits for atrial fibrillation.” Id. at 10. 

In the case of Tazewell County v. Illinois Workers' Compensation Commission, the Illinois Appellate Court addressed the issue of whether repetitive trauma resulting in pain from a pre-existing condition is compensable under the Illinois Workers' Compensation Act. The claimant, Dora Potts, worked as a dental hygienist for Tazewell County, performing duties that involved repetitive arm movements. In 2019, she began experiencing left shoulder pain while performing her work duties. Medical examinations revealed that she had a pre-existing rotator cuff tear, impingement syndrome, and arthritis, which were not caused by her work but were aggravated by it. All experts agreed that there was no structural change to the MRI or her condition. The only change was an increase in pain while doing her work related activities.

The court held that when a pre-existing asymptomatic condition becomes painful due to work-related repetitive trauma, and not due to the natural progression of the condition, the resulting pain is considered an aggravation of the pre-existing condition and is compensable under the Illinois Workers' Compensation Act.  The court found that the evidence in the record satisfied the claimant's burden of proving that her repetitive trauma and resulting left shoulder pain arose out of and in the course of her employment with Tazewell County.

The Appellate Court affirmed the decision of the Circuit Court, which had confirmed the Illinois Workers' Compensation Commission's award of benefits to the claimant. The court's rationale was that the symptomatic condition resulting from work-related activities is an aggravation of the pre-existing condition, even in the absence of an organic or structural change to the underlying condition.

Kisa P. Sthankiya

ksthankiya@rusinlaw.com

312-454-5127

In Town of Cicero v. Ill. Workers’ Comp. Comm’n, 2024 IL App (1st) 230609WC, the Illinois Appellate Court expanded the traveling employee doctrine to apply to employees who are injured leaving their worksite on their way to their employer-provided vehicle.

The court noted that determining whether an injury to a traveling employee arises out of and in the course of his employment is governed by different rules that other employees. The test for whether an injury to a traveling employee arises out of his employment is if he was injured while engaging in conduct that is “reasonable and foreseeable” by his employer.”

There was no dispute that the employee was a travelling employee while performing his inspection duties in the Town of Cicero. The question was whether he was a travelling employee at the time he was leaving  the worksite after obtaining his work phone, downloading his assignments, and attempting to make his way down a flight of stairs to his employer-provided vehicle. The court concluded that after he obtained his assignments and phone, he was performing actions incidental to his employment and a travelling employee.

 Kisa Sthankiya

ksthankiya@rusinlaw.com

312-454-5127 

In Illinois, we are seeing a trend with the Illinois Workers’ Compensation Commission awarding benefits under multiple provisions of the statute for conditions arising from the same date of injury. These awards are increasing the overall value of cases and creating a growing body of caselaw to support multiple avenues of recovery from the same injury.

In American Coal Company v. Illinois Workers’ Compensation Commission et al. 2024 IL App (5th) 230815WC, the Illinois Appellate Court found that an employee could receive permanent total disability benefits under 8(e)(18) and was also entitled to benefits under 8(d)(2), 8(c) and 8(e) for injuries resulting from the same date of accident. The employer stipulated that the employee was entitled to permanent total disability benefits for the loss of use of both eyes. Permanent total disability benefits are one of the maximum recoveries under the Illinois Workers’ Compensation Act entitling an employee to a substantial weekly benefit for life. The employee argued that he should also receive additional benefits under for losses under Section 8(d)(2), 8(a) and 8(e). Under Section 8(d) they award benefits for spinous fractures, 100% loss of use each eye under Section 8(c) and 60% loss of use of MAW under Section 8(d)(2). The court held that the employee was entitled to recover additional benefits under Section 8(d)(2), 8(c) and 8(e) for injuries to claimant’s hip, spine, abdomen, and psychological issues in addition to permanent total disability. They relied on a prior case,  Beelman Trucking v. Illinois Workers’ Compensation Comm’n, 233 Ill. 2d 364 (2009), where the supreme court held that the claimant could recover under  two sections of the Act also. (8(e)(18) and 8(e)(10)) They found that an award for the additional benefits would address his further diminished earning capacity as a result of the injury and adequately address the full scope of his injuries.

Kisa Sthankiya

ksthankiya@rusinlaw.com

312-454-5127

In Alabama, for an accident to be compensable, it must both arise out of and occur in the course of the employment. Unlike many states that employ a one part “but for” causation test (but for being at work, the accident would not have happened), Alabama’s test is two parts and both parts must be satisfied.

In the Course of

The “in the course of” part of causation test is typically easy to prove because it has to do with time and place.  If the accident occurred at work, then it will most likely be considered in the course of the employment. 

Arising Out of

The “arising out of” part of the test can be trickier to prove.  For this part of the test to be satisfied, the employee must be able to demonstrate a causal nexus between the job and the injury.  Another way to put it is that the employee would need to be able to prove that the accident occurred because he/she was placed at increased risk of it occurring because of the job.  This is why unexplained falls are not compensable in Alabama.  If the employee cannot prove what caused or contributed to the fall, then he/she cannot satisfy his/her burden of proving that it arose out of the employment.

Horseplay

When it comes to an accident and resulting injury being caused by employee misconduct such as horseplay, Alabama courts have generally held that indemnity benefits are not owed to the injured employee. 

In Walden v. Glaze & Son, the Court found that an employee who instigated or participated in horseplay from which an injury occurs is not entitled to compensation for the injury.  616 So. 2d 357 (Ala. Civ. App. 1992).  In Walden, the Court found that the worker was engaged in horseplay at the time of the injury because he was wrestling in a playful manner.

There may be situations where horseplay is determined to be compensable.  Examples of such situations include:

1.       If the injured employee was innocently injured through the horseplay of another employee(s).         

2.       If management was a willing participant or encouraged the horseplay.

3.       If management knew about the horseplay and allowed or otherwise implicitly consented to such conduct continuing.

Prevention

While it may sound like common sense, it is wise to have safety rules in place against horseplay.  Those rules should state that they are in place for the safety of all employees.  Safety training for employees and management should include instruction on horseplay prevention and it should be included in signage on the employer’s premises in large letters to demonstrate the importance of the rule.  Finally, any such behavior should never be ignored or overlooked.  Enforcement of the rule is every bit as important as having the rule in the first place.

Dual Benefit

While horseplay is a complete defense to workers’ compensation benefits, having a safety rule against such conduct that is communicated and uniformly enforced has the dual benefit of giving the employer a statutory safety rule violation defense.  Although it is only a defense to the payment of indemnity benefits, it does not hurt to have that to fall back on if the trial judge does not agree that the employee’s conduct rose to the level horseplay.

About the Author:    

This article was prepared by Mike Fish, an attorney with Fish Nelson & Holden, LLC, a law firm dedicated to representing self-insured employers, insurance carriers and funds, 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 article 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.

Noah Vollmer, Esq. Bleakley Bavol Denman & Grace

                The general understanding of Section 440.19, Florida Statutes, which sets forth the statute of limitations for workers’ compensation claims, is that an injured employee has two years from the date they knew or should have known that their injury arose out of work performed in the course and scope of their employment in which to file a petition for benefits. Thereafter, payment of any indemnity benefit or furnishing medical treatment tolls the limitations period for one year. In other words, the statute of limitations is two years from the date of accident or one year from the last provision of benefits, whichever is later.

                A pair of recent decisions from the First District Court of Appeal offer a new method of interpreting Florida’s statute of limitations. Both opinions arise from the same case, Ortiz v. Winn-Dixie, Inc. In this case, a Winn-Dixie employee tripped and fell while working in 2003, sustaining injuries to her right side which eventually resulted in having her right kidney removed. The carrier provided all necessary treatment and authorized Ms. Ortiz to treat with a new physician, Dr. Young, beginning in 2015. Ms. Ortiz treated with Dr. Young eight times between September 2015 and her last authorized appointment with Dr. Young in January 2019. Unbeknownst to the carrier, Ms. Ortiz had seen Dr. Young twice in August 2019 and again in April 2020. For reasons unknown, Dr. Young requested that these visits be billed to Ms. Ortiz’s personal health insurance. The Carrier contacted Dr. Young’s office in May 2020 and inquired about any recent dates of service. Upon learning of the August 2019 and April 2020 visits, the carrier filed a notice of denial which effectively deauthorized Dr. Young. Ms. Ortiz then filed a petition for benefits seeking authorization of a return appointment with Dr. Young, which the carrier denied on the grounds that the statute of limitations had expired, as more than one year had passed since the last provision of benefits in January 2019. The Judge of Compensation Claims sided with the carrier, and Ms. Ortiz appealed the ruling.

                In its initial opinion published in May 2023, the First DCA affirmed the trial court ruling and held that the August 2019 and April 2020 visits were not “authorized treatment” which would toll the statute of limitations because Ms. Ortiz did not establish that these visits were in connection to her compensable injuries. However, the Court went beyond this and offered a new framework for analyzing Florida’s statute of limitations. The Court stated that the initial two-year period following an accident serves as a “master timer” that stops for one year each time a benefit is provided. In other words, the “master timer” is a period of 720 days, and days are only subtracted from the 720 when it has been more than one year from the last provision of benefits. If an injured employee has not used all of their 720 days, the statute of limitations still has not expired, even if more than a year has passed since the last provision of benefits. Ms. Ortiz moved for rehearing, and the carrier notably requested affirmance of the decision but without the aforementioned statute of limitations analysis.

                Just recently, on December 23, 2024, the First DCA published its opinion on the motion for rehearing. To further add to the confusion, the First DCA granted the motion for rehearing, set aside the trial court order, and held that the statute of limitations had not expired in Ms. Ortiz’s case. The Court reasoned that the visits to Dr. Young in August 2019 and April 2020 were no different than the visits to Dr. Young that the carrier had authorized and paid for since 2015. The only difference here was that the August 2019 and April 2020 visits were billed to Ms. Ortiz’s personal insurance. The Court held that it is the furnishing of treatment—not the billing of treatment—which tolls the statute of limitations. Which insurance carrier gets billed for treatment has no legal bearing on the statute of limitations, and an injured employee cannot be prejudiced because of a billing issue.

                The majority opinion contains no mention of the “master timer” statute of limitations analysis. However, in a lengthy concurring opinion, Judge Tanenbaum (who authored both the Court’s original 2023 opinion and the opinion on the motion for rehearing) essentially doubled down on his “master timer” framework and again advocated for using this method to calculate when the statute of limitations expires. Notably, in a separate concurring opinion, Judge Bilbrey wrote that he “join[ed] the majority opinion in full,” that “Judge Tanenbaum’s concurring opinion … is not the opinion of this court,” and that Judge Tanenbaum’s “reasoning may be found to be persuasive or may be discarded.” Judge Tanenbaum countered that the Court did not adopt his analysis “not because it is not valid, but because Ortiz did not raise it.”

                Thankfully, the Court has (at least for now) retreated from the “master timer” statute of limitations analysis. However, as Judge Tanenbaum noted in his concurrence, several judges used this method to address statute of limitations issues between the first and second Ortiz opinions, and it is a near certainty that claimants’ attorneys will continue to advance this argument moving forward. Accordingly, while the conventional understanding of the statute of limitations set forth above remains the current state of the law, defense attorneys need to be aware of the “master timer” analysis in order to combat it.