State News

These Are Two of Our Favorite Things!

As we remind readers on a regular basis, Stone, Loughlin & Swanson is a Founding Sponsor and long-time supporter of Kids’ Chance of Texas, an organization whose mission is to create and support scholarship programs to provide educational opportunities for children in Texas who have had a parent catastrophically or fatally injured while in the course and scope of his or her employment. As participants in the Texas Workers’ Compensation system, we are particularly aware of the devastating toll such an injury takes on a family and, especially, the children. 

Please help us continue to help the kids by becoming a participant or sponsor and joining us for fun and camaraderie at The Cowboys Golf Club on October 28 for the Third Annual Kids’ Chance Texas Golf Tournament. 

All proceeds will fund Kids’ Chance of Texas scholarships which has awarded over $75,000 for the fall semester alone. Come help us reach our goal of raising $150,000 while enjoying the delightfully maddening frustration that only golfers can appreciate. 

There is still time to help the kids this month! For more information and to register as a player and/or sponsor, click here:

https://www.kidschanceoftexas.org/events/golf2022/

Copyright 2022, Stone Loughlin & Swanson, LLP

Remembering Gary Kilgore

We are saddened to announce that Gary Lynn Kilgore, long time Administrative Law Judge and Appeals Panel Judge, with the Texas Workers’ Compensation Commission and the Texas Department of Insurance-Division of Workers’ Compensation, passed away on September 23, 2022 at the age of 69. 

Mr. Kilgore attended college at the University of Virginia and earned his Juris Doctor in 1978 at the University of Texas School of Law. He served as managing partner of Garcia & Kilgore, attorneys, for over 16 years before joining the Texas Workers’ Compensation Commission where he served as an Appeals Panel Judge for 12 years. 

Thereafter, Gary heard cases as a Hearing Officer with the Division of Workers’ Compensation for 4 years before serving as Associate Director of Legal Services with the Office of Injured Employee Counsel, in which capacity he served for over 13 years. 

Mr. Kilgore returned to the Appeals Panel in 2019 prior to his retirement this year.

Those of us that knew Gary found him to be a wealth of knowledge regarding the workers’ compensation law and institutional system in Texas. He was an outstandingly gifted writer, a delightful conversationalist, and a student of the law and American and world history. We will miss you, Gary….

Copyright 2022, Stone Loughlin & Swanson, LLP

Although not exactly a broad sweeping reform of the Alabama Workers’ Compensation Act, the Alabama legislature recently amended the statutory definitions of  “employer” and “employee”.  

Effective July 1, 2022, a marketplace platform is no longer considered an “employer”, and a contractor that works for a marketplace platform is no longer considered an “employee” for purposes of workers’ compensation.  Under Alabama law, a marketplace platform is an entity that offers a digital network or mobile application that connects potential customers to service providers, and accepts service requests exclusively through the digital network.  Examples of marketplace networks Uber, DoorDash, and Buzd.  In order to be excluded from coverage, the marketplace platform and contractor must agree in writing that the contractor is an independent contractor, the platform cannot unilaterally prescribe specific hours during which the contractor must be available to accept service requests, the platform cannot contractually prohibit the contractor from accepting service requests for other platforms or engaging in another occupation or business, the platform cannot mandate furnished equipment or tools essential for the performance of the work (except as required by law or for safety reasons), and the contractor must bear substantially all of the expenses they incur in performing services.  

About the Author

This blog submission was written by Charley Drummond, an attorney with Fish Nelson & Holden, LLC, a law firm dedicated to representing self-insured employers, insurance carriers, and third-party administrators in all matters related to workers’ compensation.  Fish Nelson & Holden is a member of the National Workers’ Compensation Defense Network.  If you have any questions about this submission or Alabama workers’ compensation in general, please contact Mr. Drummond by e-mailing him at cdrummond@fishnelson.com or by calling him directly at (205) 332-3414.

According to People magazine, Q'orianka Kilcher has been charged with two felony counts of workers' compensation fraud.

Ms. Kilcher allegedingly injured her neck and right shoulder while filming Dora the Explorer and the Lost City of Gold, which was released in 2019. She saw the doctor a few times and then did not respond to the insurance company.  In October 2019, she allegedly requested authorization to see a doctor and told that doctor that she had been unable to accept work due to the severe neck pain. Despite this statement, it was found that she had worked as an actress on Yellowstone from July 2019 to October 2019. She apparently started receiving disability benefits five days after last working. 

There have been other instances of celebrities being accused of workers' compensation fraud.  For example, Brad Culpepper, a former NFL player, was suspected of workers' compensation fraud when he appeared on Survivor after his workers' compensation claim for injuries sustained while playing football. He was sued by his insurance company.

This just goes to show that anyone can be suspected of workers' compensation fraud if the facts are there.

Read more here:  https://highlights.hannabrophy.com/post/102hsre/even-actors-can-be-subject-to-workers-compensation-fraud

Independent Medical Review (IMR) is the process by which an injured worker may seek to overturn an adverse utilization review determination. Many among the Applicants’ bar in California will argue that only an employee may appeal the IMR determination. However, that is a misconception, likely driven by the rule that only an Applicant may seek IMR following a UR decision. Once an IMR determination is served, it is binding unless appealed timely on very limited grounds. LC 4610.6(h) outlines how to appeal an IMR determination and does not specify which party may file and it clearly does place any restrictions against any particular party seeking to appeal an IMR determination.

For the general practitioner, LC 4610.6(h) provides five grounds for appealing an IMR Determination within 30 days of service of an IMR determination. The determination of the administrative director shall be presumed to be correct and shall be set aside only upon proof by clear and convincing evidence of one or more of the following grounds for appeal:

(1) The administrative director acted without or in excess of the administrative director’s powers.

(2) The determination of the administrative director was procured by fraud.

(3) The independent medical reviewer was subject to a material conflict of interest that is in violation of Section 139.5.

(4) The determination was the result of bias on the basis of race, national origin, ethnic group identification, religion, age, sex, sexual orientation, color, or disability.

(5) The determination was the result of a plainly erroneous express or implied finding of fact, provided that the mistake of fact is a matter of ordinary knowledge based on the information submitted for review pursuant to Section 4610.5 and not a matter that is subject to expert opinion.

In the case of Jordan Stone v AchieveKids, Caps-Sig (2014 Cal. Wrk. Comp. P.D. LEXIS 663), the Board not only decided it was permissible for Defendant to appeal the IMR determination, the Board even granted Defendant’s appeal of an IMR determination.  Factually, the Stone case involved an initial IMR determination overturning utilization review’s denial a right knee cartilage transplant. Defendant appealed the IMR determination on the grounds that it was issued in excess of the Administrative Director’s powers described in LC 4610.6(h)(1) and that it contained plainly erroneous findings that were not subject to an expert’s opinion per LC 4610.6(h)(5).  

Defendant's IMR appeal was originally denied by the trial judge and reversed on appeal. The Board found that there was a "patent discrepancy" in stating that the requested surgery was not medically necessary in one section, but then stating that it was medically necessary in another section.  The issue was sent to an alternative/new IMR organization to conduct a neutral review. This is the appropriate remedy when an appeal of an IMR determination is granted (LC 4610.6(i)).

So, if you receive an IMR determination that overturns a UR decision look to the 5 grounds for appeal noted above.  If you have questions about how this can apply to your workers' compensation cases, email me or find your local Hanna Brophy attorney at www.hannabrophy.com.

Read more here:  https://highlights.hannabrophy.com/post/102hw9p/defendants-may-appeal-adverse-imr-determination

2

Two workers' compensation bills currently working their way through the California Legislature contain potentially conflicting language regarding the time period during which a claim administrator may investigate a claimed injury.

AB 1751, which is currently pending in the Senate Labor, Public Employment, and Retirement Committee, would postpone the expiration of the COVID presumptions originally created in 2020 to January 1, 2025. If this legislation is not passed, the COVID presumptions are scheduled to sunset at the end of 2022. The current version of the bill provides that "if liability for a claim of a COVID-19-related illness [brought by an active firefighter or other enumerated employee] is not rejected within 30 days after the date the claim form is filed pursuant to Section 5401, the illness shall be presumed compensable." (LC § 3212.87 (f))

The bill also addresses COVID claims brought by other employees who test positive during a COVID outbreak. LC § 3212.88 (f) provides that "if liability for a claim of a COVID-19-related illness is not rejected within 45 days after the date the claim form is filed pursuant to Section 5401, the illness shall be presumed compensable."

These two provisions potentially conflict with language contained in SB 1127 which is currently pending in the Insurance Committee. This bill would amend LC § 5402 (b)(2) to shorten the investigation period for firefighters and safety officers. The relevant language states "for injuries or illnesses defined in Sections 3212 to 3212.85, inclusive, and Sections 3212.87 to 3213.2, inclusive, if the liability is not rejected within 75 days after the date the claim form is filed pursuant to Section 5401, the injury shall be presumed compensable under this division."  

The two pieces of legislation create different timeframes within which a claim must be accepted. 

AB 1751 is scheduled for a hearing in the Senate Appropriations Committee on August 8. SB 1127 is scheduled for hearing in the Assembly Appropriations Committee on August 3. 

The legislature is scheduled to adjourn on August 31. 

Read more here:  https://highlights.hannabrophy.com/post/102hu6w/pending-covid-presumption-extension-bill-ab-1751-conflicts-with-sb-1127

ALASKA NEWS

This newsletter is to inform you of Senate Bill 131, and the changes that are coming to the Alaska Workers’ Compensation Act on January 1, 2023.

Permanent Partial Impairment

Most notably, for the first time in 22 years, the legislature is amending AS 23.30.190 to increase permanent partial impairment (PPI) benefits. Under the new law, you will need to multiply an injured worker’s impairment rating percentage by $273,000, rather than by $177,000 under the current law. This increase is effective on January 1, 2023, meaning that it will apply to injuries sustained on or after January 1, 2023. For dates of injury before January 1, 2023, you will continue to calculate PPI awards by multiplying the percentage of impairment by $177,000. For injuries on or after January 1, 2023, the PPI award will be the percentage of impairment multiplied by $273,000. The dollar amount is the only aspect of AS 23.30.190 that is changing, the rest of the law will remain intact.

Death Benefits

Changes to death benefits under AS 23.30.215 will also go into effect on January 1, 2023. Under the new law, benefits for reasonable and necessary funeral costs increase to $12,000. The amount payable to surviving widows/widowers, or surviving children increases from $5,000 to $8,000. SB 131 substantially increases the maximum payable allowable to a deceased worker’s dependent father, mother, grandchildren, brothers, and sisters. After January 1, 2023, beneficiaries under AS 23.30.215(a)(4) may receive up to $150,000.00 in death benefits. This represents a $130,000 increase from the current maximum of $20,000, which was set in 1968. SB 131 will create a new subsection to AS 23.30.215, which will permit death benefits to a child beneficiary until they are 23. This is a four-year increase in benefits under the current law, and it does not preclude children of deceased workers from receiving an additional four years of benefits during post-high school education under AS 23.30.395(8) The various changes to death benefits under AS 23.30.215 only apply to deaths that occur on or after January 1, 2023.

Written by: Kyla Block

A trip and fall. Injury by machinery. Exposure to asbestos leading to a diagnosis of mesothelioma. These are life-changing events for employees (and employers) that may lead to a slurry of workers’ compensation claims. When the worst happens to an injured employee and his or her family is left behind, the Workers’ Compensation Act details the steps employers, insurance carriers, and administrators must take, as well as what family can anticipate in the aftermath of loss. The Act explains the scope of death benefits, including the different kinds of beneficiaries that may exist and how they will be allocated compensation. Considering key litigation helps to demonstrate how the statutes are applied in practice.

Who Can Be a Beneficiary?

According to the Act, a beneficiary may be someone wholly dependent on the employee, or they may be only partially dependent. If only one person is deemed to be wholly dependent, then he or she will receive the entire share of benefits. The Act considers widows, widowers, and children to be whole dependents. If there are multiple individuals who are deemed to be wholly dependent, then the compensation they receive will be divided among them “according to the relative extent of their dependency (Section 97-39).”

Partial dependents, unlike whole dependents, receive benefits in proportion to the amount of support they received from the deceased employee at the time of his injury. If there are neither whole nor partial dependents, compensation is assigned to whoever may be “next of kin.” These may include adult children, brothers and sisters, or parents. Next of kin, in the absence of whole or partial dependents, will receive the full compensation owed in a lump sum. In the absence of next of kin or dependents of any kind, no compensation death benefits will be paid. However, the employer must still pay for funeral expenses.

What Compensation Do Beneficiaries Receive?

Typically, beneficiaries to the compensation of a deceased employee will be due 66 and 2/3 percent of the employee’s average weekly wages calculated at the time of his or her injury. Benefits will be paid at this rate for 500 weeks from the date the employee dies. However, dependent children will continue to receive benefits beyond 500 weeks until they reach 18 years. Finally, if the deceased’s widow or widower is physically or mentally unable to care for themselves as of the time the employee’s death, then the widow or widower will continue to receive benefits throughout life until or if they should remarry.

Examples from NC Case Law

Prior litigation highlights the nuances in how our courts consider and apply death benefits owed under the Act. For example, Deese v. Southern Law and Tree Expert Company (1982) provides guidance on what happens if the pool of eligible beneficiaries pass away. The North Carolina Supreme Court considered the case of Charles W. Deese, who died following his compensable injury. At the time of his death, Deese was married with three dependent children under the age of 18. As his children reached 18 years, they would become ineligible to receive further compensation. Deese’s family argued that the amount of compensation no longer paid to children who reached 18 years should be reassessed and lumped into the amount remaining for any children who had not yet reached adulthood. To reassess the amount owed to remaining dependents would essentially increase the amount remaining beneficiaries could claim. However, the Court found that the only timeline during which apportioned benefits could be changed would be within the first 400 weeks. The Court further noted that the Act is not intended to “provide…the equivalent of general accident, health, or life insurance.” Thus, the amount of death benefits owed to dependents cannot be reapportioned when the 400 weeks have elapsed, even if dependents age out and are no longer eligible to receive benefits.

Not just anyone can claim death benefits. The NC Supreme Court has made key decisions regarding who may–and may not–be considered a beneficiary. In Fields v. Hollowell & Hollowell (1953), the Court considered the possibility of awarding death benefits to a long-time unmarried partner. Following the death of the employee, William Edward McMillan, the Industrial Commission awarded death benefits to the deceased’s mother. Of note, McMillan’s mother was not reliant upon him financially–she was awarded benefits as “next of kin,” and not as a dependent. McMillan’s cohabitating partner, Julia Mae Fields, appealed on the grounds that she was dependent on the deceased and should receive death benefits. The Court found that not only was it “alien to the customs and ideas of our people” to allow the same benefits to a cohabitating couple as it would to a married one, but it would also pave the path to denigrate the rights of the “legitimate claims of helpless defendants.” The Court denied Fields’ claim for benefits, reversed the decision of the Court of Appeals, and remanded the case to the Industrial Commission to award its initial denial of her claims.

If death occurs following occupational illness instead of one-time accidental injury, prior litigation explains what beneficiaries and employers can anticipate. In the seminal case of Booker v. Duke Medical Center (1979), the NC Supreme Court considered the claims of the family of Michael Booker. Booker worked as a laboratory technician at Duke Medical Center. As a part of his job duties, Booker regularly handled unmarked blood samples contaminated with serum hepatitis. Several years into his employment, he contracted serum hepatitis. After filing a claim for workers’ compensation benefits, Booker subsequently died from his illness. The Industrial Commission granted death benefits to his surviving wife and four children. When Duke and the insurance carriers appealed, the Court of Appeals reversed the award. The case then went before the NC Supreme Court.

The Supreme Court considered whether serum hepatitis could be considered an occupational disease and under what statute Booker’s dependents could claim death benefits: the statute in effect at the time of Booker’s initial worker’s compensation claim, or the amended statute in effect at the time of his death. While the Court of Appeals argued that the statue governing death benefits should be the one in effect when Booker became sick, the Supreme Court stated that the determining statute should be the one in effect at the time of Booker’s death, since “these amendments were made applicable to cases originating on and after their effective date.” Additionally, the Supreme Court held that Booker’s disease was occupational, even though it was admittedly a disease that any person could contract. Key for the Supreme Court was expert testimony noting that, though serum hepatitis is not a disease specific to laboratory technicians, Booker’s occupational exposure to the disease vastly exceeded that of the general population, putting him at significant occupational risk. The Supreme Court reversed the decision of the Court of Appeals and returned the matter to the Industrial Commission to award benefits to Booker’s family.

In Conclusion

In Deese, the Court explained, “in all cases of doubt, the intent of the legislature regarding the operation or application of a…provision is to be discerned from a consideration of the Act as a whole–its language, purposes and spirit.” The Act details the circumstances under which someone can be considered a beneficiary and claim death benefits. When seeking clarity on how to file for and pay out death benefits claims due to compensable workplace injury or occupational disease, employers and beneficiaries should look to the statutes and existing prior case law to understand how courts will interpret and apply these regulations, as well as under what circumstances exceptions do and do not exist.

Simon Law Group, P.C.

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

314-621-2828

MISSOURI WORKERS’ COMPENSATION CASE LAW UPDATE

July 2022 – September 2022

Lamy v. Stahl Specialty Co., Case No. WD85163 (Mo. App. 2022)

FACTS:  The claimant filed a claim for an injury on August 26, 2016, to his left upper extremity. The employer referred the claimant to Dr. McNamara for left shoulder pain and numbness and tingling in his left hand. Dr. McNamara performed left shoulder surgery on October 11, 2016. In his notes from the February 13, 2017, appointment, Dr. McNamara indicated the claimant had left carpal tunnel syndrome that might require further treatment. The claimant’s attorney had the claimant examined by Dr. Stuckmeyer on November 9, 2017, who opined that the claimant had left carpal tunnel syndrome related to his work and might require further surgery. Thereafter, the claimant settled his August 2016 claim for 12.5% of the left shoulder. He initialed the Stipulation that he had full awareness of the consequence of the settlement and the ALJ approved the settlement on May 2, 2018.

The claimant filed a second claim on June 26, 2018, alleging injury to the left wrist on February 13, 2017, the date on which Dr. McNamara advised that the claimant still suffered from left carpal tunnel and required treatment. In his report dated August 19, 2019, he opined that the claimant’s left-hand complaints were related to his repetitive work that had been the subject of the August 2016 claim.

HOLDING:  The ALJ denied claimant’s February 2017 claim noting that the prevailing factor for claimant’s left carpal tunnel was the same prevailing factor that gave rise to the claimant’s 2016 claim which the claimant voluntarily settled, despite knowing that both physicians had diagnosed him with left carpal tunnel that might require surgery. The Commission affirmed the Judge’s decision and the claimant appealed.

The Court affirmed the decision of the Commission. The Court stated that the Commission did not commit legal error, when it found based on uncontested facts, that pursuant to Section 287.390, that the compromise settlement exhausted the Commission’s jurisdiction to reopen the August 2016 claim to consider the February 2017 claim. There was no showing of fraud or undue influence. The claimant knew he had a repetitive injury to his left wrist, a portion of his left upper extremity, when he entered the settlement for the August 2016 claim for repetitive injury to the left upper extremity.

Claimant Must Present Sufficient Evidence to Establish that a Work-Related Exposure is The Prevailing Factor Causing Occupational Disease

Hanes v. Department of Corrections, Missouri Office of Administration, CARO, and Treasurer of Missouri as Custodian of Second Injury Fund, Injury No. 08-124885

FACTS: At Hearing, the claimant testified that his for job from 1991 through 1998, he was in charge of taking inmates for medical procedures and that x-rays were involved 2-3 times per week from 1993 to 1998 but provided no additional detail. The claimant testified he was not provided protective gear in contrast to the testimony of Dr. Kibby who testified that the claimant told him he was protected. The Judge found the claimant did not establish the nature of the exposure and duration of the exposure, the frequency of the exposure, and the radiation levels which he may have been subjected. Dr. Kibby did not connect the claimant’s condition back to his job duties.

The Judge found the testimony of Dr. Parmet lacking in specificity and his ultimate opinion that the claimant had no other known cause of potential conditions which would lead to thyroid cancer did not establish that his job was the prevailing factor in causing his cancer.

HOLDING: The Judge found that pursuant to Section 287.067, the claimant failed to meet his burden of proof that he was exposed to an occupational disease which would require a demonstration of greater risk of exposure to the disease at work than other persons have in ordinary life, and also to show that the exposure was the prevailing factor in causing any illness. On appeal, the Commission affirmed the Award of the ALJ.

Claimant’s Bilateral Carpal Tunnel Syndrome Resulted from Longstanding Occupational Exposure from First Employer Despite Limited Exposure with Concurrent Second Employer

Porter v. St. Louis Post-Dispatch LLC/Lee Enterprise and CCL Label, Inc./CCL Industries Corp., Injury No. 17-013765

FACTS: On March 6, 2017, the claimant was employed by both the Post-Dispatch and CCL. The claimant began working for the Post-Dispatch in 2001. She worked at a machine that placed inserts in the newspapers. When the claimant first started working at the Post-Dispatch, she worked 40 hours or more a week. However, when she started working at LLC in 2012, she reduced her hours at the Post-Dispatch. The claimant worked over 40 hours a week at CCL. She would work 10 hours or overtime every 2 weeks. At CCL, the claimant inspected labels for medicine bottles and would only pick up a few labels at a time. She was also diagnosed with diabetes in 2016.

The claimant was working two jobs at the time she developed carpal tunnel symptoms, however, her job duties at the Post-Dispatch were much more strenuous and fast paced than those at CCL. The Post-Dispatch focused on the fact that the claimant was working part-time when she developed carpal tunnel symptoms. However, Dr. Schlafly testified that the claimant’s cumulated exposures for developing carpal tunnel syndrome increased while working at the Post-Dispatch as time progressed, even after her working hours reduced, because she continued to be exposed to the risk unabated.

The ALJ concluded that the claimant’s job duties at the Post-Dispatch were the prevailing factor in the development of bilateral carpal tunnel syndrome and therefore they were responsible for treatment and CCL did not have any liability.

HOLDING: The Temporary Award of the ALJ was appealed to the Commission. The Commission noted that Commission Rule 8CSR02-3.010 specifies when an Application to Review a temporary or partial Award may be filed. The rule allows a party who feels aggrieved by the issuance of a temporary or partial Award by an ALJ to petition the Commission to review the evidence upon the grounds that the applicant is not liable for payment of any compensation.

With respect to the Judge’s finding that “claimant’s diabetes was under control” was without support in the medical evidence, the Commission noted that Dr. Schlafly’s deposition testimony indicated that the employee’s diabetes was “well controlled as of the blood tests of February 10, 2017.”

Having reviewed the evidence and considered the whole record concerning the issue of liability, the Commission found that the Award of the ALJ was supported by competent and substantial evidence.

Evidence Must Persuasively Establish that Work Related Injuries Combine with Pre-existing Conditions to Render Claimant PTD

March v. Treasurer of the State of Missouri/Custodian of The Second Injury Fund, Case No. SC99381 (Mo. App. 2022)

FACTS: As a result of the primary 2015 occupational disease claim, the claimant underwent a repair a tear to his left rotator cuff, an injury to his right finger, and carpal tunnel. The claimant missed work due to these injuries but returned to work without restrictions. Before the claimant suffered the primary injury, he endured other health issues, including: morbid obesity, thyroid issues, hypertension, TIA, atrial fibrillation, asthma, a previous left rotator cuff tear, and a left leg laceration. The prior left leg laceration had created blood flow issues. The preexisting medical condition to the bilateral lower extremity included symptoms of edema and pain radiating down both legs into the ankles, secondary to morbid obesity and venous varicosities associated with obesity.

At the hearing, the claimant explained that after treating for his upper extremities, he was able to return to work. However, he stated that his leg conditions worsened due to standing at work. Both of the testifying experts, Dr. Hopkins and Dr. Waldschmidt agreed that standing for long hours during the course of employment aggravated and necessitated the claimant’s need for ablation and aggravated his preexisting venous condition in his lower extremities.

The claimant also offered at the Hearing the vocational report of Ms. Skahan who opined that the claimant was vocationally disabled due to the work injuries to his upper extremities in April 2015 and the progressive disabilities from his venous condition and aggravation from his work activities to the bilateral lower extremities around the same time frame of April 2015.

The ALJ determined that the greater weight of the testimony led her to conclude that the claimant had not met his burden of proof to establish Fund liability because the claimant’s lower extremity conditions which preexisted the work injury, were actively being treated and significantly deteriorated after the work-related accident. The Judge further found that there was no aggravation or acceleration of the work-related accident to combine to make the claimant permanently and totally disabled.

The Commission agreed that the Fund was not liable for PTD benefits because the claimant failed to meet his burden of persuasion. They were not persuaded that the combination of the claimant’s preexisting injuries and his primary injury resulted in the claimant’s PTD.

HOLDING: The claimant appealed, and the Court affirmed the Commission’s decision. The Court held the Commission appropriately found it was not persuaded that the combination of his preexisting disability and his primary injuries entitled him to PTD benefits because it was “equally likely” that his preexisting disabilities alone rendered him permanently and totally disabled.

No Fund Liability for PTD When Claimant Failed to Establish a New, Second Work Injury Combined with First Work Injury Alone Rendering Claimant PTD

Danner v. Missouri Department of Public Safety (settled), Missouri Office of Administration Caro (settled) and Treasurer of Missouri as Custodian of Second Injury Fund, Injury No. 14-050921

FACTS: The claimant and employer settled the claims for both the work injury of 6/4/2014 and the alleged work injury of 7/17/14 both involving the low back. Dr. Hopkins stated that based on the short period of time between the two injuries he believed that her low back injury on July 17, 2014, was a continuation of her first injury, just over one month prior. This statement was consistent with the expert medical testimony of Dr. Robson and Dr. Bailey who both opined that the 7/17/2014 incident was an aggravation or continuation of the 6/4/14 injury.

Therefore, at Hearing, the Judge stated that based upon the overwhelming majority of the expert’s medical evidence, the claimant failed to meet her burden that she suffered a new and distinct work injury on 7/17/14. Therefore, the Judge found that the 6/4/14 work injury in isolation was the prevailing factor in causing the claimant’s medical condition and disability.

The ALJ concluded that there was no work injury after 6/4/2014 that combined with a preexisting disability to result in the claimant’s permanent total disability. Therefore, the ALJ found that the claimant had failed to meet her burden that the Fund was liable for her PTD benefits.

HOLDING: On appeal, the Commission affirmed the decision of the ALJ. They noted that the Judge awarded compensation for the June 4, 2014 work injury. They also agreed with the Judge’s finding that the testimony of the employee and her experts, although unimpeached and found credible, failed to persuade the ALJ that the employee’s July 17, 2014 work event constituted a new and distinct injury separate from her prior work-related lifting injury of June 4, 2014. The Judge did not violate Section 287.800.2 by failing to weigh the evidence impartially or unfairly giving the benefit of the doubt to the Fund when it was found that the evidence the employee produced was insufficient to establish the elements of her claim.

The Commission relied on the recently decided case of March, (as discussed above) that stated that in order to establish a claim, the employee must not only meet her burden of production, but also the burden of persuasion. It noted that in March, the Court held that the fact that the Fund did not offer contradicting evidence and did not cross examine the employee, did not establish a presumptively valid claim and denied a post 2014 Fund claim for PTD.

Treasurer of the State of Missouri, as Custodian of The Second Injury Fund v. Van Horn, Case No. SD37311 (Mo. App. 2022)

FACTS: In January 2011, the claimant filed an amended Claim for Compensation alleging that he was injured in an “accident” on “11/18/2010” while “in the scope and course of employment” with the employer. At the time of the alleged injury, the employer did not have workers’ compensation insurance. Notice was sent to the employer’s last known address via certified mail that a final hearing was scheduled. The employer did not appear at the hearing.

The ALJ entered a final Award and found the claimant was injured while in the employment of the employer and that the employer was liable for all medical care and expenses resulting from the injury, totaling $34,345.00. Because the employer failed to maintain workers’ compensation insurance as required, the ALJ determined that the Fund was responsible for those expenses. The Judge also stated that the Fund “shall be entitled to reimbursement against the employer for all medical expenses incurred, and as is allowed by law”.

Thereafter, the Fund filed an “Application for Judgement on Certified Award from the Division” in Circuit Court, seeking reimbursement of the $34,345.00 from the employer pursuant to Section 287.220.5 and 287.500. Ten days later, counsel for the employer entered his appearance. On June 26, 2020, the reimbursement action was tried in the Circuit Court and a judgement was entered that same day in favor of the Fund against the employer’s business. On June 29, 2020, the Fund filed a Motion to Amend the Judgement to name the employer individually rather than his business because the Final Award found the employer liable as an individual. On August 30, 2020, the Court granted the Fund’s Motion and entered the Amended Judgement for the Fund and against the employer as an individual.

On August 10, 2021, nearly a year later, the employer filed his Rule 74.06 (b) Motion to Set Aside the Amended Judgement. After taking the matter under advisement, the Circuit Court entered a Judgement denying the Employer’s Rule 74.06 (b) Motion. The employer appealed.

HOLDING:  The employer asked the Court to set aside the Amended Judgement against him to reimburse the Fund in the amount of $34,345.00. The Court affirmed the Judgement of the Circuit Court. It found that the employer’s argument that the Division lacked subject matter jurisdiction or statutory authority was misdirected. The employer’s Rule 74.06 (b) Motion sought to set aside the Circuit Court’s Amended Judgement should have presented the argument regarding subject matter jurisdiction to the Circuit Court in the reimbursement action. The employer also argued that the Division denied the employer due process when it entered liability against him when the Division proceeded with the hearing without the Fund filing a pleading which notified the employer that the Fund held and pursued such a claim against the employer. However, the Court stated that after the initial judgement granting reimbursement was filed, notice of the Fund’s Motion to Amend the Judgement was sent to the employer’s counsel and again, the employer failed to raise a constitutional challenge at that time. After the Amended Judgement was entered, the employer did not appeal. Instead, the employer waited nearly a year to raise the due process challenge for the first time in his Rule 74.06 (b) Motion to Set Aside the Amended Judgement.

Employer Cannot Claim Sovereign Immunity as School District Under Work Comp Law   

Poke v. Independence School District, Case No. SC99384 (Mo. App. 2022)

FACTS: The claimant was employed as a custodian by the school district. He sustained an injury at work. He independently sought medical treatment and was diagnosed with a hernia. He initiated a workers’ compensation claim against his employer, the school district, who directed him to an authorized treatment provider who diagnosed inguinal tenderness. As requested, the claimant provided the authorized treatment provider with a urine sample. Thereafter, the employer discharged him because his urine sample tested positive for marijuana, violating the school district’s drug policy.

The claimant filed suit under Section 287.780 alleging that the employer’s stated basis for terminating his employment was pretextual and that he was actually discharged in retaliation for exercising his workers’ compensation rights. Subsequently, the school district filed a Motion for Summary Judgement, arguing it was entitled to sovereign immunity from the claimant’s workers’ compensation retaliation claim. The Circuit Court sustained the school district’s motion.

HOLDING: The claimant argued that because the legislature included the state and political subdivisions, such as school district, as employers for the purposes of the Workers’ Compensation Law, workers’ compensation retaliation claims are authorized against the school district. The Appellate Court stated that the issue before it was not whether the claimant had a valid claim for retaliation. Instead, they said the only issue is whether such General Assembly expressly waived whatever immunity the school district might have had, the judgement of the Circuit Court was reversed and the case was remanded for further proceedings.

In explaining its decision, the Court relied on the decision in Bachtel v. Miller County Nursing Home Dist., 110 SW 3d 799 (Mo. Banc 2003). The legislature (1) created a private right of action that can be brought against any employer who retaliates against an employee for exercising his or her workers’ compensation rights per Section 287.780; and (2) specifically included governmental entities in the workers’ compensation law’s definition of “Employer” under Section 287.030. The Court concluded that consequently, considered together, Sections 287.780 and 287.030 reflect legislative intent to waive the school district’s sovereign immunity for the claimant’s workers’ compensation retaliation claim.

Must Consider Number of Hours Needed to Qualify as Full Time Employee for Specific Employer When Calculating AWW

Kurbursky v. Independent In-Home Services LLC. and Treasurer of The State of Missouri – Custodian of Second Injury Fund, Case Nos. SD37103 & SD37104 Consolidated (Mo. App. 2022)

FACTS: The claimant was employed by the employer as a home healthcare worker. On August 15, 2012, the claimant was visiting a home of one of her patients when she hit her head on a canoe that was on top of a car in the patient’s driveway, causing her to fall on her back. At the hearing, the ALJ awarded the claimant PPD benefits and additional TTD benefits but determined the claimant had not met her burden of proof to obtain benefits for past or future medical care, Fund liability or PTD. The ALJ found Dr. Poetz’s testimony that the claimant was unemployable in the open labor market not credible and his disability ratings were substantially inflated, and that Mr. England’s vocational opinion was less than credible and was not persuasive because his opinion was based on substantial speculation regarding the effect of sleep deprivation and the impact daytime drowsiness would have on the claimant’s employment prospects.

The Commission affirmed the ALJ’s findings that the primary injury was compensable and on the issues of past and future medical care, nature and extent of PPD and the MMI date. The Commission modified the Award regarding the compensation rate, TTD benefits, and SIF liability. The Commission found Dr. Poetz’s PPD ratings and his opinions on the relationship between the claimant’s prior and preexisting injuries were persuasive, but that Dr. Poetz’s opinion on PTD was not persuasive. However, the Commission applied a 20% multiplicity factor to the ALJ’s PPD findings so that the claimant was entitled to enhanced PPD benefits from the Fund.

HOLDING: The Claimant appealed the Commission’s decision denying PTD benefits and challenged the Commission’s application of the law for calculating the average weekly wage for PPD benefits.

The Court noted that challenges to an Award, where the claimant failed to meet his or her burden of proof, are rarely successful on appeal. They noted that in this case, even assuming that the claimant produced competent and substantial evidence, the claimant still bore the burden of convincing the Commission to view the evidence in her favor. She failed to meet this burden. The Commission’s denial of PTD benefits, past medical care, and future medical care was affirmed.

Regarding the issue of the average weekly wage, the Court, however, agreed that the Commission incorrectly interpreted Section 287.250.3 by adding words to the statute and as a result, the Commission did not calculate the claimant’s average weekly wage based on the number of hours per week utilized by the employer to classify an employee as a full time or regular employee. Because the Commission failed to make actual findings on the average weekly wage of full time or regular employee engaged by this employer to perform work of the same or similar nature, and the number of hours required by this employer to classify an employee as a full time or regular employee, the Court reversed and remanded the case on this issue back to the Commission.

The Court affirmed the Commission’s final Award and all respects except for the calculation of PPD benefits. They reversed and remanded the case to the Commission to make actual findings on the correct average weekly wage to correctly calculate its Award.

TO: NWCDN STATE NEWS

FROM: Dill Battle, Spilman Thomas & Battle, PLLC

DATE: 09/26/2022

RE: West Virginia Workers' Compensation News – 4^th Quarter 2022

Intermediate Court of Appeals

The Intermediate Court of Appeals (ICA) started operations July 1, 2022, and has not issued any opinions. According to a report from the Workers’ Compensation Board of Review (BOR), since July 1, forty-two cases have been appealed to the ICA from the BOR.

 Supreme Court of Appeals

 The second term of the 2022 court year for the West Virginia Supreme Court of Appeals began September 7. The term ends in November. On September 19, 2022, the Court issued 18 memorandum decisions in workers’ compensation cases. http://www.courtswv.gov/supreme-court/opinions.html

On September 13, the Court held oral argument on a consolidated case in Charles Delbert v. Marshall County Coal Resources, Inc., No. 20-0537 and 21-0944. The case deals with W. Va. Code 23-4-16(e), which states that a claimant may only have one active request for a permanent disability award pending at any one time. Mr. Delbert filed an application for a PTD award. While the PTD issue was pending, he sought reopening of his Occupational Pneumoconiosis claim for additional PPD benefits and medical treatment. The claim administrator denied Mr. Delbert’s reopening request pursuant to W. Va. Code 23-4-16. Mr. Delbert argues that the claim administrator erred in denying medical treatment, when legislative policies mandate prompt medical treatment for OP. Because litigation is lengthy when seeking a PTD award, claimant asserts that the ruling is an absurd result. Mr. Delbert assets that W. Va. Code § 23-4-8d expressly allows for “a request for medical services, durable medical goods or other medical supplies in an occupational pneumoconiosis claim may be made at any time.” The second case is the employer’s appeal of Mr. Delbert’s PTD award, which was granted following litigation.

Reported Supreme Court Decisions

Timeliness of PTD Application

In Murray American Energy, Inc., v. Harshey, No. 20-0716, 2022 WL 4299577, (September 19, 2022) (memorandum decision), the issue before the Court was the timeliness of filing an application for permanent total disability benefits. Mr. Harshey was injured on January 20, 2012, when he was struck by a ram car. On March 7, 2014, he was granted a 14% permanent partial disability award for his psychiatric injuries. On November 10, 2015, the claims administrator granted a 39% permanent partial disability award for his physical injuries. The Office of Judges reversed the claims administrator’s November 10, 2015, decision and granted a 49% permanent partial disability award on November 15, 2017. On June 29, 2018, the Board of Review affirmed the Office of Judges’ Order. The decision was affirmed by the West Virginia Supreme Court on May 30, 2019. Murray American Energy, Inc., v. Harshey, No. 18-0676, 2019 WL 2406702 (W. Va. May 30, 2019) (memorandum decision). Less than a month after the Supreme Court’s decision, Mr. Harshey filed his Application for Permanent Total Disability Benefits on June 18, 2019, stating that he had been awarded a 49% and a 14% permanent partial disability award for his January 20, 2012, injury. The claims administrator denied the application for a permanent total disability award because it was untimely filed on July 5, 2019.

In its March 2, 2020, Order, the Office of Judges reversed the claims administrator’s denial of the claim and remanded the case with instructions to find Mr. Harshey’s application to be timely filed. The Office of Judges noted that West Virginia Code § 23-4-16(a)(1) provides that “in any claim that has been closed without the entry of an order regarding the degree of impairment, or in any claim closed on a no lost time basis, reopening requests must be filed within 5 years of the date of the closure. Only two reopening requests may be filed within that 5 year period.” Further, West Virginia Code § 23-4-16(a)(2) states “in any claim in which an award of permanent impairment has been made, reopening requests must be filed within 5 years of the date of the initial award. Only two reopening requests may be filed within that 5 year period.” Mr. Harshey was granted an initial permanent partial disability award on March 7, 2014. He filed his application for a permanent total disability award on June 18, 2019, clearly outside of the five year time period. Mr. Harshey argued his application should be considered timely based on equity and based on West Virginia Code § 23-4-16(e).

The Office of Judges found dispositive Mr. Harshey’s argument regarding West Virginia Code § 23-4-16(d). West Virginia Code § 23-4-16(e) states that “[a] claimant may have only one active request for a permanent disability award pending in a claim at any one time. Any new request that is made while another is pending shall be consolidated into the former request.” In the case at issue, Mr. Harshey was granted a 39% permanent partial disability award on November 10, 2015, at which point he was eligible to apply for a permanent total disability award. See W. Va. Code § 23-4-6(n)(1) (providing that in order to apply for a permanent total disability award, a claimant “must have been awarded the sum of fifty percent in prior permanent partial disability awards”). However, the decision was appealed to the Office of Judges, which reversed and granted a 49% permanent partial disability award. The employer then appealed the decision to the Board of Review and then to the Supreme Court. The Office of Judges rejected the employer’s argument that Mr. Harshey’s application for permanent partial total disability was untimely filed because he did not submit his application after the November 10, 2015, permanent partial disability award was granted. The Office of Judges reasoned that the November 10, 2015, 39% permanent partial disability award was a not final award because the decision was appealed and “there is no requirement which would cause the claimant to have to choose between whether he should forego his contention that he is entitled to a greater permanent partial disability award or whether an application for a permanent total disability award would be timely if the matter remains in litigation.” As the Office of Judges explained, “[s]ince the issue of the permanent partial disability award was not final, if the claimant had filed an application for a PTD award . . . then the application for PTD would not have been acted upon but would have been consolidated into the 39% PPD award issue.” Therefore, the Office of the Judges found that Mr. Harshey’s permanent partial disability award became final on May 30, 2019, when the West Virginia Supreme Court issued its ruling. Mr. Harshey filed his application for permanent total disability on June 18, 2019, and that application was received on July 5, 2019. Therefore, his application was timely and should be considered. The Board of Review adopted the findings of fact and conclusions of law of the Office of Judges and affirmed its Order on August 21, 2020.

The Supreme Court agreed with the reasoning and conclusions of the Office of Judges as affirmed by the Board of Review. West Virginia Code § 23-4-16(e) prevents a claimant from filing more than one claim for permanent disability at a time, whether that claim is for permanent total disability or permanent partial disability. Mr. Harshey in this case appealed his permanent partial disability award and was granted a greater award by the Office of Judges. The employer then appealed the decision to the Board of Review and the Supreme Court. In this time, the five year window for filing a claim for permanent total disability closed. However, as the Office of Judges found, the permanent partial disability award did not become final until the Supreme Court issued its ruling on May 30, 2019. See Murray American Energy, Inc., v. Harshey, No. 18-0676, 2019 WL 2406702 (W. Va. May 30, 2019) (memorandum decision). His application was timely filed because Mr. Harshey filed his application for permanent total disability less than a month later.

Compensability of CTS

In Bartram v. Coronado Group, LLC, No. 21-0479, 2022 WL 4299598 (W. Va. September 19, 2022) (memorandum decision), the issue before the Court was the compensability of carpal tunnel syndrome. Mr. Bartram was an equipment operator and alleged he developed carpal tunnel syndrome as a result of his job duties. A September 8, 2018, EMG, interpreted by Victor Jaramillo, M.D., showed entrapment neuropathy, mild on the left and moderate on the right, consistent with carpal tunnel syndrome. Cervical radiculopathy could not be ruled out. On February 21, 2019, Dr. Jaramillo found sensory deficit for pinprick and temperature in both hands and forearms upon examination. Tinel’s sign was positive in both wrists. He diagnosed polyneuropathy and carpal tunnel syndrome. C. Dale Cook, PA-C, with Family Healthcare Associates, Inc., saw Mr. Bartram on March 11, 2019, for bilateral hand pain and carpal tunnel syndrome. An EMG was positive for carpal tunnel syndrome. It was noted that Mr. Bartram was previously diagnosed with chronic lumbar pain and high cholesterol. The Employees’ and Physicians’ Report of Injury was completed on March 11, 2019, and indicates Mr. Bartram developed bilateral carpal tunnel syndrome as a result of his employment.

Mr. Bartram was a strip-mining equipment operator, and operated a loader, dozer, rock truck, and water truck. He also used hand tools. Samuel Muscari, D.O., opined Mr. Bartram developed carpal tunnel syndrome as a result of repetitive hand movements while operating heavy equipment. The employer presented evidence Mr. Bartram was a water truck operator, truck operator, loader operator, rock truck operator, and truck scale cleaner. He also picked up trash occasionally. Mr. Bartram drove a large rock truck with power steering and automatic shifting.

The employer also presented a Physician Review report by Rebecca Thaxton, M.D., in which she found that Mr. Bartram does not suffer from occupationally induced carpal tunnel syndrome. She noted that Mr. Bartram’s job duties involved driving various trucks and operating equipment. Mr. Bartram reported ten to twelve hours of continuous firm grip, bending, and rotating both wrists. She found that Mr. Bartram drove a large rock truck with power steering and shifting, and that there was no need to firmly grip the steering wheel because such trucks are manufactured to be easy to drive. The employer asserted that the wheel was as easy to turn as that in a normal vehicle. Further, Mr. Bartram’s job required a firm grip a few times a day. Mr. Bartram was required to occasionally tighten or loosen nozzles with wrenches but not frequently. Dr. Thaxton opined that Mr. Bartram’s job description was not consistent with an increased risk of development of carpal tunnel syndrome. The claims administrator rejected the claim on April 3, 2019.

Mr. Bartram testified in a September 17, 2019, deposition that he drove a water truck but had to run dozers and loaders sometimes. The loaders were operated with joysticks, and he had to operate one for six months when his water truck broke. Mr. Bartram stated that he also used hand tools to service equipment. Mr. Bartram testified that he currently has numbness and tingling in his hands that started three to five years prior. Mr. Bartram stated that he has high blood pressure and smoked cigarettes in the past. Mr. Bartram testified that his symptoms had not improved in the time that he had been off of work. A September 19, 2019, treatment note by Connie Cook, PA­C, indicates Mr. Bartram was seen for hand pain and was diagnosed with carpal tunnel syndrome.

Prasadarao Mukkamala, M.D., performed an Independent Medical Evaluation on September 23, 2020, in which he noted that Mr. Bartram stopped working due to back pain. He underwent left carpal tunnel release eight months prior. The symptoms ceased for two months and then returned. Mr. Bartram stated that his symptoms did not get better after he stopped working. Dr. Mukkamala opined that Mr. Bartram’s carpal tunnel syndrome was not the result of his occupational duties. He stated that the fact that Mr. Bartram’s symptoms did not improve when he quit working indicates his carpal tunnel syndrome was not the result of his occupational duties. Dr. Mukkamala opined that Mr. Bartram’s job duties do not involve the high force, repetitive movements and awkward positioning known to cause carpal tunnel syndrome. He noted nonoccupational risk factors in the form of obesity and generalized polyneuropathy.

The Office of Judges affirmed the claims administrator’s rejection of the claim in its November 30, 2020, Order. It found that the most comprehensive evaluation of record was the one performed by Dr. Mukkamala. Dr. Mukkamala stated that Mr. Bartram’s work activities were not the kind of forceful repetitive movements known to cause carpal tunnel syndrome. Further, Mr. Bartram’s symptoms did not improve when he ceased working. Dr. Mukkamala also noted that Mr. Bartram had confounding conditions in the form of obesity and polyneuropathy, which increase his risk for carpal tunnel syndrome. The Board of Review adopted the findings of fact and conclusions of law of the Office of Judges and affirmed its Order on May 20, 2021.

The Court agreed with the reasoning and conclusions of the Office of Judges as affirmed by the Board of Review. For an injury to be compensable it must be a personal injury that was received in the course of employment, and it must have resulted from that employment. Barnett v. State Workmen’s Comp. Comm’r, 153 W. Va. 796, 172 S.E.2d 698 (1970). West Virginia Code of State Rules § 85-20-41.5 provides that workers who perform high force, repetitive manual movements are at high risk for the development of carpal tunnel syndrome. West Virginia Code of State Rules § 85-20-41.4 states that confounding conditions, such as obesity, can precipitate carpal tunnel syndrome symptoms. The evidence indicates that Mr. Bartram’s work duties do not involve the kind of high force, repetitive movements known to cause carpal tunnel syndrome. Further, Mr. Bartram suffers from conditions known to contribute to the development of carpal tunnel syndrome.

Justice William R. Wooton dissented and would set the case for Rule 19 oral argument.