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Alabama

FISH NELSON & HOLDEN, LLC

  205-822-6611

Joshua G. Holden   |     Bio

 jholden@fishnelson.com

  205-332-1428

Michael I. Fish   |     Bio

 mfish@fishnelson.com

  205-332-1448

Alaska

RUSSELL, WAGG, GABBERT & BUDZINSKI, PC

  907-258-5546

Michael A. Budzinski   |     Bio

 mbudzinski@rtwcg.com

  907-258-1747

Michelle M. Meshke   |     Bio

 mmeshke@rtwcg.com

  907-258-1747

Arizona

KLEIN, DOHERTY, LUNDMARK, BARBERICH & LAMONT, P.C

  602-279-0925

R. Todd Lundmark   |     Bio

 tlundmark@klbllaw.com

  602-279-9777

Arkansas

LEDBETTER, COGBILL, ARNOLD & HARRISON, LLP

  479-782-1493

James A. Arnold, II   |     Bio

 jaa@lcahlaw.com

  479-782-7294

LATEST NEWS

California

HANNA, BROPHY, MACLEAN, MCALEER & JENSEN LLP

  1-510-839-4804

Ericka D. Dunn   |     Bio

 edunn@hannabrophy.com

  415-281-4462

John L. Armanino   |     Bio

 jarmanino@hannabrophy.com

  415-543-9110

Leslie D. Tuxhorn   |     Bio

 ltuxhorn@hannabrophy.com

  510-839-1180

Colorado

RITSEMA & LYON, P.C.

  303-293-2337

Connecticut

POMERANZ, DRAYTON, & STABNICK

  860-657-9838

Jim Pomeranz   |     Bio

 jimp@pdslaw.com

  860-657-8000

LATEST NEWS

Delaware

HECKLER & FRABIZZIO

  302-573-4806

William D. Rimmer   |     Bio

 wrimmer@hfddel.com

  302-573-4800 Ext 4676

LATEST NEWS

Florida

THE BLEAKLEY BAVOL LAW FIRM

  813-221-3198

Robert J. Grace, Jr.   |     Bio

 rgrace@bleakleybavol.com

  (813) 221-3759

LATEST NEWS

Georgia

CASEY GILSON P.C.

  770-512-0070

Rayford H. Taylor   |     Bio

 rtaylor@caseygilson.com

  770-512-0300 Ext 529

Hawaii

AYABE CHONG NISHIMOTO SIA & NAKAMURA, LLP

  808-526-3491

LATEST NEWS

Idaho

GARDNER LAW OFFICE

  208-387-3501

Alan Gardner   |     Bio

 agardner@gardnerlaw.net

  208-387-0881

Michael McPeek   |     Bio

 mmcpeek@gardnerlaw.net

  208-387-0881

Susan Clark   |     Bio

 sclark@gardnerlaw.net

  208 387 0881

Illinois

MACIOROWSKI, SACKMANN & ULRICH, LLP

  312-627-0873

Robert Maciorowski   |     Bio

 rmacior@msulaw.com

  (312) 627-1522

LATEST NEWS

Indiana

RUDOLPH FINE PORTER & JOHNSON LLP

  765-362-7572

Diana L. Wann   |     Bio

 dlw@rfpj.com

  765-362-7553

Iowa

PEDDICORD WHARTON SPENCER HOOK BARRON & WEGMAN, L.L.P.

  515-243-2132

Mark A. Bosscher   |     Bio

 mark.bosscher@peddicord-law.com

  515-243-2100

LATEST NEWS

Kansas

HITE, FANNING & HONEYMAN L.L.P.

  316-267-7803

Jon E. Newman   |     Bio

 newman@hitefanning.com

  316-265-7741

Kim R. Martens   |     Bio

 martens@hitefanning.com

  316-265-7741

Kentucky

JONES HOWARD LAW PLLC

  859.594.4248

H. Douglas Jones   |     Bio

 djones@jdspllc.com

  859-594-4200

LATEST NEWS

Louisiana

DEGAN, BLANCHARD & NASH PLC

  504-529-3337

Sidney W. Degan, III   |     Bio

 sdegan@degan.com

  504-529-3333

LATEST NEWS

Maine

VERRILL DANA LLP

Elizabeth Connellan Smith   |     Bio

 esmith@verrilldana.com

  207-253-4456

Maryland

FRANKLIN & PROKOPIK

  410-752-6868 

Albert (Bert) Randall   |     Bio

 arandall@fandpnet.com

  410-230-3622

Massachusetts

CURTIN, MURPHY & O'REILLY P.C.

  617-574-1710

Thomas P. O'Reilly   |     Bio

 toreilly@cmopc.com

  617-574-1700

LATEST NEWS

Michigan

CHARFOOS REITER HÉBERT, P.C.

Minnesota

COUSINEAU MCGUIRE CHARTERED

  952-546-0628 

Jennifer Fitzgerald   |     Bio

 jmf@cousineaulaw.com

  952-525-6948

Mark A. Kleinschmidt   |     Bio

 mak@cousineaulaw.com

  952-525-6931

Thomas F. Coleman   |     Bio

 tfc@cousineaulaw.com

  952-525-6941

Thomas P. Kieselbach   |     Bio

 tpk@cousineaulaw.com

  952-525-6955

Whitney L. Teel   |     Bio

 wlt@cousineaulaw.com

  952-525-6940

Mississippi

WISE CARTER CHILD & CARAWAY P.A.

  601-968-5593

Andrew D. Sweat, Esq.   |     Bio

 ads@wisecarter.com

  601-968-5577

Jennifer H. Scott, Esq.   |     Bio

 jhs@wisecarter.com

  601-944-7722

Virginia S. Gautier, Esq.   |     Bio

 vsg@wisecarter.com

  601-968-5540

LATEST NEWS

Missouri

SIMON LAW GROUP, P.C.

  314-621-4646 

Loretta A. Simon   |     Bio

 lsimon@simongrouppc.com

  314-621-2828

Montana

Now considering firms for our network in Montana

Contact Kim Martens with suggestions!   |     Bio

 martens@hitefanning.com

  316-265-7741

Nebraska

RITSEMA & LYON, P.C.

  402-505-4631 

Jennifer Caswell   |     Bio

 caswelj@ritsema-lyon.com

  402-505-4630

Nevada

THORNDAL, ARMSTRONG, DELK, BALKENBUSH & EISINGER

  775-786-8004

Robert F. Balkenbush   |     Bio

 rfb@thorndal.com

  775-786-2882

LATEST NEWS

New Hampshire

BERNARD & MERRILL, PLLC

  603-626-8490 

Donna M. Daneke   |     Bio

 ddaneke@bernard-merrill.com

  603-622-8454

Eric Bernard   |     Bio

 eric@bernard-merrill.com

  603-622-8454

Kevin Stuart   |     Bio

 kevin@bernard-merrill.com

  603-622-8454

LATEST NEWS

New Mexico

Now Considering Firms for our Network in New Mexico

Contact Kim Martens with suggestions!   |     Bio

 martens@hitefanning.com

  316-265-7741

New York

HAMBERGER & WEISS

  (716) 852-0003

Mark W. Hamberger   |     Bio

 mhamberger@hwcomp.com

  716-852-5200, ext. 300

Ronald E. Weiss   |     Bio

 rweiss@hwcomp.com

  585-262-6390, ext. 100

Susan R. Duffy   |     Bio

 sduffy@hwcomp.com

  716-852-5200, ext. 318

LATEST NEWS

North Carolina

TEAGUE CAMPBELL DENNIS & GORHAM, LLP

  919-873-1814 

Melissa R. Cleary   |     Bio

 mcleary@tcdg.com

  919-873-0166

Bruce A. Hamilton   |     Bio

 bhamilton@tcdg.com

  919-873-0166

North Dakota

Now Considering Firms for our Network in North Dakota

Contact Kim Martens with suggestions!   |     Bio

 martens@hitefanning.com

  316-265-7741

Ohio

CALFEE, HALTER & GRISWOLD LLP

  216-241-0816 

Donald E. Lampert   |     Bio

 dlampert@calfee.com

  216-622-8200

William L. S. Ross   |     Bio

 wross@calfee.com

  216-622-8200

Oklahoma

JACQUE BRAWNER DEAN LAW, PLLC

  405-285-2339

Oregon

CUMMINS, GOODMAN, DENLEY & VICKERS, P.C.

  503-476-8201

George W. Goodman.   |     Bio

 gwg@cumminsgoodman.com

  503-476-8200

Matthew F. Denley   |     Bio

 mfd@cumminsgoodman.com

  503-476-8200

LATEST NEWS

Pennsylvania

CONNORS LAW LLP

  610-524-0600

Kevin L. Connors   |     Bio

 kconnors@connorslawllp.com

  610-476-4059

Rhode Island

CURTIN, MURPHY & O'REILLY P.C.

  617-574-1710

Thomas P. O'Reilly   |     Bio

 toreilly@cmopc.com

  617-574-1700

LATEST NEWS

South Carolina

SOWELL GRAY STEPP & LAFFITTE, LLC

  803-231-7874 

Grady Beard   |     Bio

 gbeard@sowellgray.com

  803-231-7824

South Dakota

BOYCE, GREENFIELD, PASHBY & WELK, LLP

  605-334-0618 

Charles A. Larson   |     Bio

 calarson@bgpw.com

  605-336-2424

Michael S. McKnight   |     Bio

 msmcknight@bgpw.com

  605-336-2424

Tennessee

WIMBERLY LAWSON WRIGHT DAVES & JONES, PLLC

  931-372-9181

Texas

STONE LOUGHLIN & SWANSON, LLP

  512-343-1385 

Dan Price   |     Bio

 dprice@slsaustin.com

  512-343-1300

David L. Swanson   |     Bio

 dswanson@slsaustin.com

  512-343-1300

Erika Copeland   |     Bio

 ecopeland@slsaustin.com

  512-343-1300

Erin Holmes   |     Bio

 eholmes@slsaustin.com

  512-343-1300

Erin Shanley   |     Bio

 eshanley@slsaustin.com

  512-343-1300

James Loughlin   |     Bio

 jloughlin@slsaustin.com

  512-343-1300

Jane Lipscomb Stone   |     Bio

 jstone@slsaustin.com

  512-343-1300

Matthew P. Heagerty   |     Bio

 mheagerty@slsaustin.com

  512-343-1300

Utah

SCALLEY READING BATES HANSEN & RASMUSSEN, P.C.

  801-531-7968 

Ford G. Scalley   |     Bio

 bud@scalleyreading.net

  801-531-7870

LATEST NEWS

Vermont

MCCORMICK, FIRZPATRICK, KASPER & BURCHARD PC

  802-863-3494 

Keith J. Kasper   |     Bio

 kjk@mc-fitz.com

  802-863-3494

Virginia

FRANKLIN & PROKOPIK

  703-793-0298 

Lynn McHale Fitzpatrick   |     Bio

 lfitzpatrick@fandpnet.com

  703-793-1800

LATEST NEWS

Washington

CUMMINS, GOODMAN, DENLEY & VICKERS, P.C..

  503-476-8201

George W. Goodman   |     Bio

 gwg@cumminsgoodman.com

  503-476-8200

Matthew F. Denley.   |     Bio

 mfd@cumminsgoodman.com

  503-476-8200

LATEST NEWS

Washington D.C.

FRANKLIN & PROKOPIK

  301-766-4676 

John P. Rufe   |     Bio

 jrufe@fandpnet.com

  301-745-3900

West Virginia

SPILMAN THOMAS & BATTLE, PLLC

  304-340-3801 

H. Dill Battle III   |     Bio

 hdbattle@spilmanlaw.com

  304-206-1986��

Wisconsin

LINDNER & MARSACK, S.C.

  414-273-1986

Daniel M. Pedriana   |     Bio

 dpedriana@lindner-marsack.com

  414-273-3910

Douglas M. Feldman   |     Bio

 dfeldman@lindner-marsack.com

  414-273-3910

Wyoming

RITSEMA & LYON, P.C.

  970-204-9058

Douglas L. Stratton   |     Bio

 Doug.Stratton@Ritsema-Lyon.com

  970-204-4579

LATEST NEWS

Similar to the decision which was discussed on our blawg on November 7, 2014, the Court of Civil Appeals again held in Ex Parte Lost River Oilfield Services, LLC, that out-of-state injuries will only be compensated by Alabama’s Act when specific conditions are met. Jurisdiction will not exist over a claim for workers’ compensation benefits for employment which is principally located in another state unless the employee shows that the workers’ compensation laws of that state are not applicable to the employer. Kenneth Bailey, an Alabama resident, filed a Complaint for workers’ compensation benefits under the Alabama Workers’ Compensation Act in Mobile County, Alabama, for an injury he suffered while working for Lost River Oilfield Services in Texas. In his Complaint, Bailey specifically cited Ala. Code § 25-5-35(d)(2), which provides that employees are entitled to benefits under the Act for injuries sustained out-of-state when the employee was working under a contract of hire made in Alabama in employment not localized in any state. Bailey provided evidence indicating that steps were taken in Alabama which led to the employment contract with Lost River. He did not, however, provide evidence that the employment was not localized in any state or that the employer was not subject to the workers’ compensation laws of Texas. Lost River filed a motion to dismiss for lack of jurisdiction and submitted affidavit testimony providing that Lost River did not do business in Alabama and did not think it could be sued in Alabama simply because an employee they hired to work in another state was originally from Alabama. The trial court denied Lost River’s motion to dismiss, so Lost River petitioned the Court of Civil Appeals for a writ of mandamus directing the trial court to dismiss the action for lack of subject matter jurisdiction. The Appeals Court considered evidence indicating that, at the time of the alleged injury, Bailey worked at Lost River’s place of business in Texas, that he lived in a residence provided by Lost River at the work site, that Bailey’s work days began and ended at the site, and that the injury itself occurred on the site. There was no indication that Bailey ever worked in Alabama for Lost River or that he was working anywhere other than Texas at the time of his alleged injury. Aside from arguing that the events leading up to his contract of employment with Lost River occurred while he was in Alabama, Bailey failed to offer any evidence showing that his employment was not localized in Texas. The Court therefore found that Bailey’s employment was principally localized in Texas, and, as a result, Ala. Code § 25-5-35(d)(2) was not applicable. The Court also noted that Bailey presented no evidence, and did not even raise the issue, as to whether or not the workers’ compensation laws of Texas would apply to his injury. For these reasons, the Court of Appeals granted Lost River’s petition and directed the trial court to dismiss the action for lack of subject matter jurisdiction. __________________________________ About the Author This blog post was written by Trey Cotney, Esq. of Fish Nelson & Holden LLC, a law firm dedicated to representing employers, self-insured employers and insurance carriers in workers’ compensation matters. Fish Nelson & Holden is a member of The National Workers’ Compensation Network (NWCDN). If you have any questions about this article or Alabama workers’ compensation issues in general, please feel free to contact the author at tcotney@fishnelson.com or any firm member at 205-332-3430.

Ex parte Dalton Logistics

Petition for Writ of Mandamus

On November 7, 2014, The Alabama Court of Civil Appeals granted Dalton Logistics Petition for Writ of Mandamus. The Choctaw County Circuit Court had denied Dalton Logistics summary judgment motion, which asserted the Alabama court did not have subject matter jurisdiction over the injury that occurred in North Dakota. The Alabama Court of Civil Appeals ordered that the matter be remanded to the trial court and that the trial court enter an order dismissing the case for lack of subject matter jurisdiction.

The employee was a resident of Alabama and was informed of job openings with Dalton Logistics in North Dakota. The employee was sent "paperwork" via facsimile, which he completed and sent back to Dalton Logistics in North Dakota. Dalton Logistics arranged transport for the employee to North Dakota. Upon arrival, Dalton Logistics housed the employee in a "man camp" located in North Dakota. From the "man camp" Dalton Logistics would transport the employee to various work sites in North Dakota. Dalton Logistics did withhold Alabama income taxes from the employee’s check. The employee would work in North Dakota for 20 days and then Dalton Logistics would provide transportation back to Alabama where the employee would stay for 10 days, performing no work for Dalton Logistics.

The employee was injured on a job site in North Dakota. Dalton Logistics did not file the initial report of injury with North Dakota’s workers’ compensation investigative and adjudicatory entity within 7 days. The employee subsequently filed for workers’ compensation benefits under Alabama law.

In ruling in favor of Dalton Logistics, the Alabama Court of Civil Appeals stated that Ala. Code 1975, §25-5-35(d)(1)-(4) addresses claims due to injury which occurred outside of Alabama. Generally, if injured outside of Alabama, and the employee would have been entitled to benefits had he been injured in Alabama, Alabama benefits are owed provide that several alternate conditions are met.

The first condition to consider is: was the employee’s employment principally localized in Alabama. In order to be principally localized in Alabama, or another state, the employer must have a place of business in the specific state, and the employee regularly works out of that place of business, or if the employee is domiciled and spends substantial part of the employee’s working time in service of the employer in that specific state.Associated Gen. Contractors Workers Comp Self Ins. Fund v. Williams, 982 So. 2d 557, 560 (Ala. Civ. App. 2007). In this case, the Alabama Court of Civil Appeals ruled that the employee was transported to North Dakota, housed in North Dakota during working periods and traveled to North Dakota locations to perform work for Dalton Logistics. While the employee was provided transport to Alabama he did not perform work for Dalton Logistics while in Alabama. In addition, the fact that Alabama income taxes were withheld did not establish the employment was principally localized in Alabama, as no work was performed in Alabama. Therefore, the employment in this case was principally localized in North Dakota.

The Alabama Court of Civil Appeals next analyzed was the employee working under a contract for hired entered into in Alabama, and, if so, 1) was the employment principally localized in any state, 2) was the employment principally localized in a stated but the employer was not subject to that state’s workers’ compensation laws and 3) was the employment outside the United States. There was no disputed that the employee was working under a contract for hire entered into in Alabama and the Court had already found the employer was principally localized in North Dakota. Therefore, they looked to see if Dalton Logistics was subject to the workers’ compensation laws in North Dakota. The employee cited N.D Cent Code §65-08-01 to support his contention that coverage was not afforded under North Dakota law. However, the Alabama Court of Civil Appeals stated that the North Dakota statute merely addressed that injuries sustained outside the state may nonetheless be compensable, which does not apply to injuries that occurred in North Dakota as the case before them. The employee next asserted that by failing to file paperwork in North Dakota within 7 days, Dalton Logistics implicitly recognized that North Dakota benefits where not available. The Alabama Court of Civil Appeals disagreed with this assertion based on the fact that the North Dakota Workers’ Compensation Act has built in sanctions for this situation. N.D. Cent. Code §65-05-01.4. In ruling that the employee had not proven Dalton Logistics was not subject to North Dakota worker’s compensation laws, they cited Barry v. Baker Elec. Coop., Inc., 354 N.W. 2d 666 (1984) (North Dakota law, not Minnesota, applied to claim stemming from injury due to conduct in North Dakota by a Minnesota-domiciled employee of a Minnesota employer). The Court stated "the Barry court expressly noted that ‘North Dakota has a long-standing and strong public policy interest in making workers’ compensation the exclusive remedy against an employer in the case of an injured employee.’" As a result, the Alabama Court o Civil Appeals found that the fact the contract for hire was entered into in Alabama alone did not support the trial court’s decision that it had jurisdiction over the case under the Alabama Worker’s Compensation Act.

________________________________________

ABOUT THE AUTHOR

The article was written by Joshua G. Holden, Esq. a Member of Fish, Nelson & Holden, LLC, a law firm dedicated to representing employers, self-insured employers and insurance carriers in workers’ compensation and related liability matters. Mr. Holden is AV rated by Martindale-Hubbell, which is the highest rating an attorney can receive. Holden and his firm are members of The National Workers’ Compensation Defense Network (NWCDN). The NWCDN is a national and Canadian network of reputable law firms organized to provide employers and insurers access to the highest quality representation in workers’ compensation and related employer liability fields.

If you have questions about this article or Alabama workers’ compensation issues in general, please feel free to contact the author atjholden@fishnelson.com or 205-332-1428.

Unless you have been cryogenically frozen in carbonite for the past 3 months, you have probably heard about the recent opinion released by Miami-Dade Circuit Judge Jorge Cueto which declared the Florida Exclusivity Doctrine unconstitutional.  His 22 page opinion (Padgett v. State of Florida No. 11-13661 CA 25) attacked the erosion of the Florida workers’ compensation system as a whole and asserted that the value of the benefits available to claimants did not justify thequid pro quo tort liability protections afforded employers.  The purpose of this article is to provide a general outline of what lead to Judge Cueto’s opinion and to consider its effect on a national scale.

Accident and Injury

The employee, Elsa Padgett, was an account clerk who tripped over some boxes that were left on the floor by a co-worker.  She reportedly fell on her hip and sustained significant injury to her shoulder.  After undergoing replacement surgery for her shoulder, she claimed that the resulting pain forced her to retire. 

Procedural Background

Padgett opted to file a negligence lawsuit against her employer.  In its Answer, the employer asserted the Exclusivity Doctrine (§440.11, Fla. Stat. 2003) as an affirmative defense.  Padgett then amended her Complaint to add a Count for Declaratory Relief asking the Court to declare the Florida Exclusivity Doctrine in violation of the U.S. and the Florida Constitutions.  Once Florida Worker’ Advocates (FWA) and Workers Injury Law & Advocacy Group (WILG) joined the party as interveners, the employer strategically withdrew its Exclusivity Doctrine defense and the negligence action was severed from the Declaratory Relief portion of the lawsuit.  The Florida Attorney General opted not to intervene in order to defend the constitutionality or validity of the Exclusivity Doctrine.  However, she did file a responsive pleading pointing out various procedural and substantive defects in the case.  FWA and WILG next sought a summary judgment but Judge Cueto denied the motion on the grounds that there was no longer a present justiciable controversy.  Padgett then intervened in the Declaratory Relief action which presented a controversy upon which Judge Cueto could rule (Florida empowers a judge to decide an issue if that issue is capable of repetition in the future and might evade review).

Erosion of Benefits

In his written opinion, Judge Cueto noted that the system of workers’ compensation is supposed to be the result of a compromise wherein employees receive immediate access to indemnity and medical benefits through a no-fault insurance system and employers are insulated, with limited exceptions, from tort liability.  He then pointed out that the benefits afforded employees had been greatly reduced as the result of the 2003 amendments that eliminated permanent partial disability benefits, put a 5 year cap on permanent and total disability benefits, capped said benefits at age 75, and apportioned medical care by requiring contribution in the form of co-pays by the employee after reaching maximum medical improvement.   Judge Cueto concluded that the Florida workers’ compensation system no longer provided adequate indemnity and medical benefits for injured workers and that preventing them from pursuing a tort remedy was a violation of due process.

Ruling

Judge Cueto ruled that the Florida Exclusivity Doctrine was unconstitutional on August 13, 2014.  One week later, he denied a motion for rehearing filed by the Attorney General’s office.

Appeal

The Attorney General appealed Judge Cueto’s ruling to the Third District Court of Appeal on August 26, 2014.  The case is now calledFlorida v. Florida Workers’ Advocates.  Should the District Court of Appeal decide to rule, its decision could become the law for the Third District, and possibly followed by the other Florida districts.  The Third District Court declined to certify the case directly to the Supreme Court and the District Court of Appeal also denied that request.  The Attorney General’s initial Brief is due on or before December 4, 2014.

According to Casey Gilson attorney Rayford Taylor, who practices in Georgia and Florida, there is a legitimate chance that Judge Cueto’s ruling will be treated merely as an advisory opinion rather than a declaratory judgment.    None of the Interveners established that they had been injured or prejudiced by the Exclusivity Doctrine, or by the provisions they cited as a basis for a challenge to the statute.  The issue may need to be addressed again the next time an employee sues an employer in tort and the employer asserts the Exclusivity Doctrine as a defense.

Other Constitutional Attacks in Florida

The Padgett case is not the first time this particular claimant’s attorney has taken the offensive against the Florida Workers’ Compensation Act on constitutional grounds.  According to attorney Rob Grace, who practices with the Bleakley Bavol firm in Florida, this same attorney has filed a number of these suits around the state during the last five years. Padgett just happened to be one where a judge accepted his argument.  The attorney filed a similar suit in Broward County which was dismissed approximately five years ago.  At the same time, the attorney had another comparable suit (Stahl v. Tenet Health Systems, Inc.) in Dade County which he lost at the Third District Court of Appeals level. 

The Florida Supreme Court is currently considering a couple of other cases involving constitutional attacks on the state’s workers’ compensation system.  In the case ofWestphal v. City of St. Petersburg, The Court has before it an appeal from a firefighter who was injured and left with no income after his temporary indemnity benefits expired.  His authorized doctors took him out of work and he was not eligible for additional benefits until the doctors placed him at maximum medical improvement.  The firefighter is challenging the constitutionality of the statutory limit on the payment of temporary total disability benefits.

In the case of Castellanos v. Next Door Company, the Florida Supreme Court is considering an appeal challenging the constitutionality of the statute that provides for the calculation of attorneys’ fees in workers’ compensation matters, based solely on a statutory percentage of benefits achieved by the attorney.

Other States

Although it has not yet risen to the level of a national trend, several other states have seen constitutional attacks on certain aspects of their respective workers’ compensation systems. 

In California, the constitutionality of the workers’ compensation lien system was recently raised in the case ofAngelotti Chiropractic v. Baker

Approximately 20 years ago, the entire Texas Workers’ Compensation Act withstood a constitutional challenge and, more recently, the Texas Office of Injured Employees Counsel released a few reports last year that pointed out the inequities of the alternative dispute resolution program. 

In Tennessee, there have been some unsuccessful constitutional attacks on other parts of the workers’ compensation statute (i.e. multipliers and the Medical Impairment Registry program) but not the Exclusivity Doctrine. 

Approximately 6 years ago In Alabama, an employee filed a motion seeking to have the $220 cap for permanent partial benefits deemed unconstitutional.  The judge denied the motion but stated in his Order that the cap set 23 years prior basically guarantees poverty for claimants and their families.  The judge further stated that "the trial courts see these workers leave our courtrooms week after week, without the ability to support themselves or their families."  The judge deemed the cap unfair but not unconstitutional and called upon the Alabama Legislature to make the change.  Several legislative attempts at increasing the cap have been made since that time but all have been unsuccessful. 

Moral of the Story

According to Rob Grace, “my prediction is that, in the end, nothing will come ofPadgett.  Maybe I will be proven wrong but I find it difficult to believe that our supreme court is going to basically throw out the entire workers’ compensation statute.”  Rayford Taylor agrees with Grace.  According to Taylor, “I do not see how mere allegations that certain provisions are different from what they once were invalidates the tort immunity of an employer whose only offense was complying with the statute.”  Even if Grace and Taylor are correct, there remain lessons that can be learned from the Padgett opinion and other such cases.  The more you reduce benefits to employees, the more susceptible to constitutional attacks your workers’ compensation system becomes.  In his now already infamous opinion, Judge Cueto referred to a First District Court of Appeal comment on the “minimum” requirements necessary for a workers’ compensation system to pass constitutional muster.  InBradley v. Hurricane Restaurant (an 18 year old case that interestingly involved both attorneys Taylor and Grace), the Court stated that workers’ compensation law continues to be a “reasonable alternative to tort litigation” when it “provides injured workers with full medical care and benefits for disability (loss of wage earning capacity) and permanent impairment regardless of fault, without the delay and uncertainty of tort litigation.”  In Judge Cueto’s opinion, the Florida system does not meet this minimum.  Does yours?

________________________________________

About the Author

This article was written by Michael I. Fish, Esq. of Fish Nelson & Holden LLC, a law firm dedicated to representing employers, self-insured employers and insurance carriers in workers’ compensation matters. Fish Nelson & Holden is a member of The National Workers’ Compensation Network (NWCDN). If you have any questions about this article or Alabama workers’ compensation issues in general, please feel free to contact the author atmfish@fishnelson.com or any firm member at 205-332-1448.

On October 10, 2014, the Alabama Court of Civil Appeals released its opinion in the case ofArthur Barney v. Elizabeth Bell, as personal representative of the estate of Maurice Bell, deceased, and William Clay Teague. This case was before the Court for a second time, because Barney filed an Application for Rehearing after the Court ruled against Barney on July 18, 2014. A summary of the facts of the case and the Court of Appeals’ first opinion can be foundhere. On rehearing, the Court reversed itself and the trial court, holding that Barney’s attorneys were not entitled to summary judgment on Barney’s claim that they committed malpractice by retaining an excessive attorney’s fee on the workers’ compensation claim. The Court also held that Barney was entitled to partial summary judgment on that claim. The Court entered judgment in favor of Barney in the amount of $6,375.00, and remanded the case to the trial court for a determination of whether Barney is entitled to additional compensatory of punitive damages.

In reaching its decision, the Court noted that the attorneys failed to present any expert testimony regarding the reasonableness of their fees, and that they were therefore not entitled to summary judgment on Barney’s malpractice claim. The Court further noted that there was no factual dispute as to whether the attorneys breached the standard of care, thus committing malpractice, by keeping too much of Barney’s workers’ compensation settlement for their fee.

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ABOUT THE AUTHOR

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

Today the Alabama Workers’ Comp Blawg celebrates another birthday. We would like to take this time to thank all of our readers who have helped to makehttp://www.alabamaworkerscompblawg.com a go to reference for Alabama workers’ compensation over the last 7 years!

On August, 8, 2014, the Alabama Court of Civil Appeals released its opinion inFab Arc Steel Supply, Inc. v. Timothy Dodd wherein it reversed a permanent and total disability award. Among the several issues on appeal, the Court considered whether there was enough evidence to support a finding that an L-1 herniation that was asymptomatic for more than a year following the accident was causally related to the accident. The Court also considered whether a determination of permanent disability could be made when the employee was not yet at maximum medical improvement (MMI). In addition, the Court considered whether a termination for misconduct could be considered a constructive refusal of suitable employment for purposes of denying temporary total disability (TTD) benefits.

L-1 Herniation

On appeal, the employer relied on the testimony of neurosurgeon, Dr. James White. At his deposition, Dr. White testified that he could not connect the herniation to the accident since the symptoms of lower back pain radiating into the lower extremities did not begin for over a year following the accident. In affirming the Trial Court on this issue, the Court of Appeals acknowledged that such a delay in symptoms certainly weakens the inference that a post-accident appearance of an injury is related to an accident. However, the Court relied on the fact that a herniation is the type of injury that results from trauma, that late symptoms did not rule out the accident as the cause, and that no doctor attributed the herniation to any other cause such as a degenerative condition.

MMI

Since the employer denied that the L-1 herniation was related to the accident, it refused to provide any of the recommended treatment associated with the injury. Dr. White testified that he recommended surgery and/or injections. At trial, the employee testified that he wanted to have the surgery. On appeal, the employer asserted that, if the herniation was determined to be related, then the employee could not be considered to be at MMI and, thus, any determination of permanent disability was premature. The Court of Appeals agreed and reversed the permanent and total disability award. The Court further ordered that the recommended treatment be provided and that the issue of permanent disability be readdressed once the employee was placed at MMI.

Constructive Refusal of Suitable Employment

At trial, the employer presented evidence that the employee was terminated due to insubordination and argued that his conduct amounted to a constructive refusal of suitable employment. The employer took the position that it should not be responsible for paying TTD benefits when it made a job available that fell within the physical limitations assigned by the treating physician but then the employee basically got himself fired. The Trial Court determined that the employer’s reasons for terminating the employee were without merit. The Court of Civil Appeals declined to reverse the Trial Court on that determination and, therefore, could not reverse the determination that TTD was owed.

My Two Cents:

Although the Court of Appeals refused to reverse the Trial Court on the TTD issue, it did not assert that the "constructive refusal of suitable employment" argument was improper. This leaves the door open in the future for this argument to be made whenever an employee is fired due to misconduct.

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About the Author

This article was written by Michael I. Fish, Esq. of Fish Nelson & Holden LLC, a law firm dedicated to representing employers, self-insured employers and insurance carriers in workers’ compensation matters. Fish Nelson & Holden is a member of The National Workers’ Compensation Network (NWCDN). If you have any questions about this article or Alabama workers’ compensation issues in general, please feel free to contact the author atmfish@fishnelson.com or any firm member at 205-332-1448.

Hooks v. Coastal Stone Works, Inc.

Released September 5, 2014

The Alabama Court of Civil Appeals ruled that an officer of a corporation must take action to revoke previous certification of exemption from workers’ compensation coverage pursuant to § 25-5-50(b).

On May 24, 2006, Hooks, along with two other officers of Coastal Stone Works, Inc., signed a certificate of exemption to be exempted from coverage under the Alabama Workers’ Compensation Act pursuant to § 25-5-60(b). On November 23, 2011, Hooks was injured and sought benefits under the Alabama Workers’ Compensation Act and filed suit. Coastal Stone Works, Inc. file a motion for summary judgment, which was ultimately granted the second time it was filed. It’s position was Hooks exempted himself in 2006 and never revoked the exemption. Hooks asserted that, if he did not file a certification of exemption each year, the exemption automatically revoked itself. There was no dispute that Hooks did not sign or file anything other than the certification of exemption submitted in May of 2006.

Hooks argued that § 25-5-60(b) states an officer of a corporation may elect annually to be exempt from coverage on the workers’ compensation act. Hooks interpreted this section to require him to annually elect to be exempted from coverage and if he did not the exemption was automatically revoked. Coast Stone Works, Inc. argued that this the provision goes on to state that the exemption may be revoked upon an officer filing a written certification electing to be covered. Coastal Stone Works, Inc. argued that this showed that the legislature intended the requested exemption to remain in effect until the officer revoked the exemption in writing.

The Court of Civil Appeals agreed with Coastal Stone Works, Inc. and stated that if the legislature had intended the exemption to revoke each year unless the officer requested the exemption again it would not have provided the method for revoking the exemption. The Court of Civil Appeals opined that § 25-5-60(b) required an officer to take action to revoke the previous certification of exemption as opposed to the revocation being automatic unless they file another certification of exemption.

MY TWO CENTS:

Any time you are dealing with an injury involving an officer of a corporation make sure to verify that they never submitted a written certification of exemption to the carrier and the Alabama Department of Labor.

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ABOUT THE AUTHOR

The article was written by Joshua G. Holden, Esq. a Member of Fish, Nelson & Holden, LLC, a law firm dedicated to representing employers, self-insured employers and insurance carriers in workers’ compensation and related liability matters. Mr. Holden is AV rated by Martindale-Hubbell, which is the highest rating an attorney can receive. Holden and his firm are members of The National Workers’ Compensation Defense Network (NWCDN). The NWCDN is a national and Canadian network of reputable law firms organized to provide employers and insurers access to the highest quality representation in workers’ compensation and related employer liability fields.

If you have questions about this article or Alabama workers’ compensation issues in general, please feel free to contact the author atjholden@fishnelson.com or 205-332-1428.

In an effort to reduce painkiller abuse and misuse, the Drug Enforcement Agency (DEA) announced last week that it is reclassifying hydrocodone as a Schedule II Controlled Substance. Under the new regulation, which will go into effect on October 5, 2014, doctors will no longer be able to call in prescriptions for drugs like Lortab and Vicodin. Additionally, patients will only be allowed one 90-day prescription per doctor visit, and will have to actually see their doctor in person before obtaining a refill. According to DEA Administrator Michele Leonhart, "Almost seven million Americans abuse controlled-substance prescription medications, including opioid painkillers, resulting in more deaths from prescription drug overdoses than auto accidents." The official DEA release can be found here.

My Two Cents

The effects of the new regulation on employers could be two-fold. Employers can most likely expect an increase in claims management costs associated with more frequent doctor visits for injured workers who are in long-term opiate therapy. However, the new regulation could also greatly reduce the financial burden placed on employers by "pill mills" that dole out drugs like candy after seeing a patient only once or twice. In either case, employers and claims managers need to be aware of the new regulation to ensure that the medical providers they select to care for injured workers comply with these guidelines.

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About the Author

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

On August 22, 2014, the Alabama Supreme Court released an opinion wherein it considered whether an adult child can be considered a partial dependent for purposes of receiving death benefits. InDonna Banks v. Premier Service Company, Inc., it was stipulated by the parties that the 22 year old child received regular financial support from her father prior to his death. The Trial Court noted in its final order that the adult child was not working but pursuing a double major at college. Since there was no evidence that the adult child was physically or mentally handicapped, the Court held that she did not qualify as a partial dependent. The Court of Appeals agreed noting that the same would hold true even if the adult child was totally dependent upon a deceased worker for support.

Practice Pointer:

The Court noted that the Alabama Workers’ Compensation Act provides that a child is considered a dependent until the age of 18. This is different that the recognized age of majority in Alabama which is 19. When determining the dependency status of a teen, it is important that you apply the correct cut off age.

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About the Author

This article was written by Michael I. Fish, Esq. of Fish Nelson & Holden LLC, a law firm dedicated to representing employers, self-insured employers and insurance carriers in workers' compensation matters. Fish Nelson is a member of The National Workers' Compensation Network (NWCDN). If you have any questions about this article or Alabama workers' compensation issues in general, please feel free to contact the author at

mfish@fishnelson.com or any firm member at 205-332-1448.

Flanagan Lumbar Co., Inc. v. Tennison

Released August 22, 2014

The Alabama Court of Civil once again ruled that devices to be considered "other apparatus" set out in §25-5-77(a) of the Alabama Workers’ Compensation Act should be decided on a case by case basis. The Court of Civil Appeals pointed out that the Alabama Supreme Court has previously ruled in Ex parte Mitchell, 989 So. 2d 1083, 1092 (Ala. 2008) that the definition of "other apparatus" is an item that is "(a) reasonably necessary and (b) intended to improve the injured employee’s condition, to prevent the further deterioration of the employee’s condition, or to relieve the employee from the effect of his condition by restoring the employee to a basic level of appearance or functioning. The determination of what constitutes a reasonably necessary ‘other apparatus’ should be made on a case-by-case basis."

Tennison had settled his worker’s compensation claim for a back injury with Flanagan Lumbar and medical benefits were to be left open. Tennison’s authorized treating physician was Dr. John Roberts. At some point during treatment Dr. Roberts recommended pool therapy. However, Tennison indicated that this made his condition worse so he stopped going. Some time later Tennison presented to Dr. Robert’s and asked that he prescribe a walk-in bathtub for Tennison’s home. Tennison told Dr. Robert’s he had not had an actual bath in 3 years and was unsteady stepping in and out of the regular tub in his home. He also told Dr. Robert’s the water would benefit him and allow him to do his general strengthening exercises at home rather than go to water therapy. Based on this request Dr. Robert’s recommended that the walk-in tub be approved as reasonably necessary. Dr. Robert’s stated in his letter to the carrier that he felt the walk-in tub would help prevent falls getting in and out of the tub and that because of Tension’s disability and de-conditioned body the walk-in tub was reasonable. Flanagan Lumbar refused to approve the walk-in tub and Tennison sought relief from the Circuit Court of Limestone County. The trial court reviewed deposition testimony from Tennison as well as deposition testimony from Dr. Roberts and found that the walk-in tub met the definition of "other apparatus" and, therefore, should be paid for by Flanagan Lumbar. Flanagan Lumbar appealed the decision which the Alabama Court of Civil Appeals reviewed de novo, having to give no weight or deference to the trial court’s findings of fact based on the only evidence presented being via deposition and not live testimony.

On appeal the Alabama Court of Civil Appeals stated that the walk-in tub in this case did meet the definition of "other apparatus" because Dr. Robert’s testified that the walk-in tub was not solely to allow Tennison a access to the bath, unlike like the scooter lift in Ex parte Mitchell. In this case Dr. Robert’s testified that the walk-in tub was a method to prevent falling and water therapy could assist with back pain. Therefore, a walk-in tub could meet the definition of "other apparatus" and did in this case. However, the Court of Civil Appeals then turned to whether substantial evidence was presented to support that the tub was reasonably necessary to 1)improve Tennison’s condition, 2) to prevent the further deterioration of his condition, or 3) relieve him from the effect of his condition by restoring him to basic level of function and appearance.

The Court of Civil Appeals stated that the walk-in tub would not improve his condition based on Dr. Robert’s testimony that he did not believe anything would improve Tennison’s condition. Dr. Robert’s stated that the tub would be helpful to provide potential and temporary pain relief but the Court of Civil Appeals stated that this does not constitute improving someone’s condition. The Court of Civil Appeals also pointed out that reducing the fall risk would not meet the standard in order to establish improving one’s condition.

They then turned to whether it would prevent Tennison’s condition from deteriorating. Dr. Robert’s testified that if Tennison did not get the tub his condition would probably not deteriorate. While Dr. Robert’s testified that it would help prevent Tennison from falling, there was no evidence to support that presented at trial. In fact, the Court of Civil Appeals pointed out that Flanagan Lumbar had present an alternative transfer bench that costs much less than the $18,500.00 walk-in tub.

The Court of Civil Appeals went on to find that the potential temporary symptom relief would not rise to the level of restoring Tennison to the basic level of function and appearance. While Dr. Robert’s testified that it might be helpful from a hygienic standpoint, there was no testimony that Tennison’s showers were inadequate for this.

As a result, the Alabama Court of Civil Appeals ruled that a walk-in tub can meet the definition of "other apparatus" but in this case the evidence did not establish that the walk-in tub was reasonably necessary.

Judge Terry Moore wrote in concurrence to point out that he questioned whether the case should be reviewed de novo and whether the tub actually met the definition of "other apparatus." Judge Moore pointed out further evidence to support his concurring opinion which included Tennison testifying that pool therapy had made his back worse so he stopped going, as well as Dr. Robert’s testifying that the walk-in tub would not be big enough to perform the strengthening exercises, which Tennison claims was the reason for getting the walk-in tub. Judge Moore also pointed out the Dr. Robert’s recommendation for the walk-in tub was based solely on the employee’s request for the tub as opposed to medical reasons that would meet the requirements set out inEx parte Mitchell. Therefore, Judge Moore did not feel the walk-in tub in this case would meet the definition of "other apparatus" as the majority opinion stated. However, he did agree that if it did meet the definition sufficient evidence was not presented to establish it was reasonably necessary.

MY TWO CENTS:

When dealing with a recommendation for a medical device/aid requested pursuant to the "other apparatus" provision of §25-5-77(a) make sure the authorized treating physician gives a detailed explanation of his reason behind ordering the device and not just that he or she believes it is reasonably necessary.

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ABOUT THE AUTHOR

The article was written by Joshua G. Holden, Esq. a Member of Fish, Nelson & Holden, LLC, a law firm dedicated to representing employers, self-insured employers and insurance carriers in workers’ compensation and related liability matters. Mr. Holden is AV rated by Martindale-Hubbell, which is the highest rating an attorney can receive. Holden and his firm are members of The National Workers’ Compensation Defense Network (NWCDN). The NWCDN is a national and Canadian network of reputable law firms organized to provide employers and insurers access to the highest quality representation in workers’ compensation and related employer liability fields.

If you have questions about this article or Alabama workers’ compensation issues in general, please feel free to contact the author atjholden@fishnelson.com or 205-332-1428.

On August 22, 2014, the Alabama Court of Civil Appeals released its opinion inTotal Fire Protection, Inc. v Jonathan Jean, affirming the Trial Court’s order denying Total Fire Protection’s Motion to Terminate Medical Benefits based on the Last Injurious Exposure Rule. Jean injured both of his wrists in April 2005 while working for Total Fire Protection (TFP). Jean’s authorized treating physician performed surgery on both of his wrists, including the placement of hardware in the right wrist. Five months later, the Trial Court approved a settlement of indemnity and vocational benefits, with future medical benefits remaining open. After the settlement, Jean went to work for another employer. In June of 2006, TFP filed a Motion to Terminate Medical Benefits, asserting that Jean had developed carpal tunnel syndrome as a result of his job with his subsequent employer, and that TFP was no longer responsible for Jean’s medical treatment under the Last Injurious Exposure Rule. The Trial Court granted TFP’s motion.

In April of 2008, Jean filed a Motion for Relief from the June 2006 Order terminating his medical benefits, seeking to hold TFP responsible for further treatment. The Trial Court granted Jean’s motion, and entered an order reinstating Jean’s medical benefits, and TFP appealed.

On November 13, 2008, the Court of Appeals dismissed TFP’s appeal because it determined that it had been taken from a non-final judgment, since the Trial Court had not adjudicated TFP’s liability for all of the employee’s medical issues, most specifically his alleged carpal tunnel syndrome, and that the Trial Court had not issued findings of fact and conclusions of law in its June 16, 2008 judgment as required under the Alabama Workers’ Compensation Act. After the appeal was dismissed, TFP moved the Trial Court to include findings of fact and conclusions of law in its judgment, which the Trial Court never ruled on. On May 30, 2012, TFP filed another motion to terminate Jean’s medical benefits, asserting identical grounds set out in the 2006 Motion. The parties then deposed the authorized treating physician and submitted his deposition transcript to the Trial Court. On August 9, 2013, the Trial Court entered a judgment finding that there was no conclusive evidence that Jean ever developed carpal tunnel syndrome and that the pain in his right wrist was directly related to the original injury with TFP. The Trial Court Ordered TFP to pay for Jean’s surgery to remove the hardware in his wrist and other treatment related to the original injury. TFP then appealed again, asserting that the Trial Court exceeded its discretion in granting Jean’s Motion for Relief from the June 2006 Order, and the Trial Court had no basis for setting aside that Order.

In its recent opinion, the Court of Appeals affirmed the Trial Court’s decision, stating that the September 2005 settlement became a binding judgment with the same affect as any other final judgment, and that the settlement preserved Jean’s right to future treatment for any injuries sustained in the April 2005 accident. The Court of Appeals further pointed out that those rights could only be extinguished through the procedures set out in the Alabama Workers’ Compensation Act. §25-5-56 of the Act allows a party to have a settlement vacated within six months after settlement only for fraud, undue influence, or coercion. A settlement may also be set aside on other grounds, as provided in the Alabama Rules of Civil Procedure. However, the Court of Appeals pointed out that TFP did not assert any of the procedural grounds outlined in the Rules of Civil Procedure nor did they assert fraud, undue influence or coercion. The Court noted that this case is the first attempt by an employer to use the Last Injurious Exposure Rule to terminate its agreed liability for future medical expenses via post judgment practice, and that TFP had not been able to cite any case in which such a procedure had been followed or approved. While the 2006 settlement explicitly left the issue of future medical benefits open so that the Court retained jurisdiction over any controversy that might arise as to further treatment, the Alabama Workers’ Compensation Act requires that an employer disputing its liability for an injury must file a Complaint so that the issue can be resolved by trial in which both parties have a chance to present evidence. Citing the holding inEx parte Publix Supermarkets, Inc., the Court noted that just as a trial court may not award an employee medical benefits based on an allegation and a motion, a trial court cannot terminate an employee’s right to medical benefits based on allegations in a motion. The Court of Appeals therefore held that the June 2006 Order terminating Jean’s medical benefits violated Jean’s due process, and was therefore, void.

Turning to TFP’s substantive argument that the Trial Court misapplied the Last Injurious Exposure Rule, the Court held that when an employee experiences expected ongoing symptoms from an original compensable injury as a result of routine physical activities in his subsequent employment, in the absence of evidence of some additional harmful change to the underlying anatomical condition of the employee, those expected ongoing symptoms will be treated as a recurrence of the symptoms from the original injury, and not an aggravation of the original injury. Under those circumstances, the Court found that while the repetitive gripping and grasping in Jean’s new employment increased his pain and swelling in his wrist on a temporary basis, the fact that it did not cause any permanent worsening of his baseline physical condition required a finding that he had experienced a recurrence of the 2006 injury, and not an aggravation or new injury with his subsequent employer.

My Two Cents

This decision provides guidance for employers when there is a dispute as to whether medical treatment continues to be owed. According to this holding, the employer needs to file a Complaint and ask for a trial on the merits rather than filing a motion. In any case where the Last Injurious Exposure Rule applies, the employer would also need to add the subsequent employer as a defendant in the lawsuit.

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About the Author

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

On August 22, 2014, the Alabama Court of Civil Appeals released its opinion inGoodyear Tire & Rubber Co. v. Stephen Bush. Bush alleged on February 11, 2011, he was walking down some stairs when he stumbled and fell onto his right knee. He then climbed back up the stairs and notified his supervisor of the accident, which both Bush and his supervisor reportedly laughed off. Bush did not report that he had injured his knee at that time, but he apparently told his supervisor that his knee was swollen and painful a few weeks later. Goodyear denied Bush’s workers’ compensation claim based on Bush’s alleged failure to provide timely and adequate notice of the injury, and Bush filed suit.

The parties proceeded to trial in May 2013. Following trial but before the trial court entered judgment, the parties reached a settlement agreement, which they presented to the trial court for approval in July. The trial court determined that the settlement was not in Bush’s best interest because it would have closed his medical benefits, and rejected the settlement. A few days later, the trial court entered judgment in favor of Bush. The trial court ultimately found that Bush’s testimony that he reported pain and swelling within 90 days of the accident more credible than his supervisor’s testimony that Bush never reported the injury. The court also found that Bush’s right knee injury had limited him to working light duty jobs which required no stooping, squatting, kneeling, climbing or lifting over twenty pounds, and that those restrictions prevented him from returning to work as an automobile mechanic, which was his primary occupation for over forty years. The trial court rejected Goodyear’s argument that Bush’s compensation should have been limited to that set out in the schedule for the leg, and concluded that Bush was permanently and totally disabled. Goodyear appealed, asserting that the trial court exceeded its discretion in refusing to approve the settlement. Goodyear also asserted that the trial court erred (1) in finding that Bush provided adequate notice of his injury, (2) in finding that Bush’s compensation was not limited to the schedule for the leg, and (3) in finding that Bush was permanently and totally disabled.

In regard to the Trial Court’s rejection of the settlement, the Court of Appeals stated that when a settlement is approved by an Alabama Department of Labor Ombudsman, it may only be set aside upon a showing of fraud, coercion or undue influence within 60 days of the settlement. However, when a settlement is presented to the circuit court for approval, it is the duty of the trial judge to ensure that the settlement is in the employee’s best interest. The Court of Appeals held that since the parties chose to submit the settlement to the court for approval, the trial judge had discretion to determine whether the settlement was in Bush’s best interest, and that the judge did not abuse his discretion by rejecting the settlement.

In regard to Goodyear’s notice defense, the Court of appeals stated that while the Act requires notice of an accident, case law indicates that the pertinent inquiry is whether the employer has received actual notice of the injury, such to enable the employer to provide immediate medical diagnosis and treatment in an effort to minimize the seriousness of the injury and facilitate the earliest possible investigation of the facts surrounding the injury. The appellate court noted that Goodyear did not argue that Bush’s alleged notice was insufficient to put Goodyear on inquiry notice. The Court of Appeals stated that since the trial judge had the opportunity to hear and observe the witnesses first hand, the fact that it found Bush’s testimony credible was sufficient to support a finding that Bush gave proper notice of his injury.

However, the Court of Appeals reversed the trial court’s finding that Bush was permanently and totally disabled, because the trial court failed to make a finding that the effects of Bush’s knee injury extended to and affected the use and efficiency of other parts of his body. Citing Advantage Sales of Alabama, Inc. v Clemons, the Court of Appeals reiterated that if the employee does not prove that the injury to the scheduled member prevents him from using the uninjured parts of his body, the injury shall be classified as a permanent partial disability as a matter of law, and no evidence of vocational disability is to be considered.

My Two Cents

The Court of Appeals’ reliance on Advantage Sales of Alabama, Inc. v Clemons is good news for employers, as it resolves what is somewhat of a chicken-egg argument. Employees’ attorneys have long argued that permanent total disability was effectively an exception allowing compensation outside of the schedule. However, as this ruling points out, an inquiry into the effects of the scheduled-member injury on the other parts of the body is necessary before a determination of whether evidence of vocational disability can even be considered. Assuming totally or virtually totally disabling pain or psych are not issues, even if an employee has a severe knee injury, his compensation is limited to 200 weeks unless the effects of his knee injury somehow extend beyond his leg and permanently affect the efficiency of other body parts.

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About the Author

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

On July 18, 2014, the Alabama Court of Civil Appeals released its opinion in Arthur Barney v. Elizabeth Bell, as personal representative of the estate of Maurice Bell, deceased, and William Clay Teague. In the underlying action, Barney sued two Montgomery attorneys for legal malpractice arising out of a personal injury and workers’ compensation claim they handled for Barney. Barney was injured in a work-related car accident in July of 2010. He retained the two attorneys to represent him in his claim against his employer for workers’ compensation benefits, and in a negligence claim against the driver of the other vehicle who caused the accident. Pursuant to Code Section 25-5-11, an employer or its insurer is entitled to reimbursement of workers’ compensation benefits it has paid if the claimant also recovers damages from a third-party. However, the Act provides that the employer’s right to reimbursement is subject to a portion of the employee’s attorney’s fees incurred obtaining a settlement or judgment against the liable third party. The employer’s pro-rata share of attorney’s fees is an amount proportional to the reduction in the employer’s liability, and is generally equal to the contingency fee agreement that the attorney has with the claimant.

Barney settled his workers’ comp claim for $42,500, of which the attorneys received a 15 percent fee in the amount of $6,375. However, as a material term of that settlement, the employer’s insurer reserved its rights to full reimbursement of over $65,000 in workers’ compensation benefits that it had paid Barney from any recovery Barney might later obtain as a result of the negligence action against the third party. The third party’s insurer later settled with Barney in the amount of $45,000. Since Barney had signed a 50 percent contingency fee agreement with his attorneys for handling the personal injury case, his attorneys forwarded half of the $45,000 settlement to the insurer. The attorneys then retained the other $22,500 as their fee, pursuant to their agreement with Barney. Barney then filed suit against the attorneys, alleging legal malpractice. Barney alleged that his attorneys had charged him excessive attorney’s fees in violation of Alabama law, and that they also retained some of his money for their own benefit. Specifically, Barney alleged that the insurer agreed to reduce its subrogation interest to $22,500, and that the attorneys were only entitled to $11,250 pursuant to their 50% contingency agreement. Additionally, Barney alleged that his attorneys were not entitled to retain the $6,375 attorney fee they had collected on the workers’ compensation settlement, because they had been fully compensated in the third-party case.

One of the defendant attorney’s testified that he had received a letter from an attorney informing him that he could not retain the $6,375 fee based on the holding inBynum v. City of Huntsville. However, the defendant attorney stated that he was not aware of the holding in that case, and that he did not believe he had to refund the fee to Barney unless a Court ordered him to do so. The insurer’s claims adjuster admitted in deposition that she agreed to accept half of the third party recovery in satisfaction of its statutory reimbursement of subrogation rights. However, the totality of her testimony suggested that she understood that the defendant attorneys were entitled to the other half of the $45,000 settlement, as the employer’s pro-rata share of Barney’s attorney fees.

At trial, the defendant attorneys offered the claims adjuster’s testimony, and moved for summary judgment on the grounds that the insurer did not compromise its claim, and that they were therefore entitled to the fees they had collected. The trial Court granted their motion, effectively dismissing Barney’s malpractice claims, and Barney appealed. The Court of Appeals found that the insurer did not compromise its reimbursement claim. The Court of Appeals agreed with the trial Court’s finding that the insurer’s agreement to accept $22,500 was actually an agreement to accept the full $45,000, and then pay the 50% pro-rata share to Barney’s attorneys. Therefore, the attorneys were permitted to keep the other $22,500 as their fee. However, the Court of Appeals stated that the case of Bynum v. City of Huntsville required that the Court should credit the proceeds of the third-party settlement against any workers’ compensation benefits awarded before assessing attorney’s fees, in order to prevent a claimant from paying exorbitant attorney’s fees to an attorney who prosecutes both the worker’s compensation claim and a third party claim. Since the amount of the third-party tort case settlement exceeded the amount of the workers’ compensation settlement, the attorneys were not entitled to retain the attorney’s fees they had collected on the workers’ compensation case after they received their fee on the tort claim. Therefore, the Court of Appeals reversed that portion of the trial Court’s Order, directing the trial Court to enter a judgment for compensatory damages in the amount of $6,375.00 on Barney’s malpractice claim, and to determine what, if any, punitive damages Barney is entitled to.

My Two Cents

This case raises several interesting issues. While the defendant attorneys were apparently wrong in retaining the $6,375 fee from the workers’ compensation claim based on the holding inBynum v. City of Huntsville, the Court’s conclusion that it amounts to malpractice is a bit of a stretch. Alabama law requires that an attorney shall be required to use such reasonable care and skill and diligence as other similarly situated legal service providers in the same general line of practice in the same general area ordinarily exercise in a like case. Attorneys are required to use a reasonable level of skill to research and discover the rules. While every attorney is expected to knowcommonly known rules of law, they are not required to know every rule of law orevery case on a particular issue.

Another interesting issue is whether this holding has any implications in cases where a claimant retains one attorney to handle his workers’ compensation case, and another to handle a related tort case. It would hardly seem fair to deprive one attorney of a fee for handling a worker’s compensation case, just because another attorney received a hefty fee on a related tort case.

However, this ruling may be good news for employers in some cases. If the employer knows that the claimant’s attorney cannot take a fee on the workers’ compensation claim due to a situation similar to the one inBarney, the employer should theoretically be able to obtain a better settlement. For instance, if the claimant settles a case for $100,000, he typically only gets $85,000 after 15% attorney fees are deducted. However, if the attorney cannot take a fee, that same case could probably be settled for $85,000, because the attorney fee would not be deducted, leaving the claimant with the same amount of money.

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ABOUT THE AUTHOR

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

In Ex Parte Diamond Scaffold Services Group, Inc., the employee filed suit for workers’ comp benefits in Washington County, Alabama. Diamond objected asserting that Washington County was not a proper venue since the accident occurred in Mobile County and it did not conduct business in Washington County. In support of its request that the case be transferred to Mobile County, Diamond submitted evidence that the company was doing work as a subcontractor for ThyssenKrupp, and, although ThyssenKrupp did business in both Washington and Mobile County, the accident occurred in Mobile County.

The employee responded with evidence that ThyssenKrupp did business in Washington County, but the employee did not present any evidence indicating that Diamond also did business in Washington County. In any event, the trial court denied Diamond’s change of venue request. Diamond then filed a Petition for a Writ of Mandamus asking that the trial court’s order be set aside and for the case to be transferred to Mobile County.

The Appeals Court noted that when a defendant is a corporation, like Diamond, venue is proper in the county where the accident occurred, where the defendant’s principal office is located, or where the plaintiff resides if the defendant conducts business in that county. The Appeals Court noted that the plaintiff presented no evidence to the trial court that Diamond was conducting business in Washington County, and it was undisputed that the accident occurred in Mobile County. Although the plaintiff pointed out that ThyssenKrupp conducted business in Washington County, the Appeals Court noted that Diamond was the only defendant in the lawsuit, and therefore, the locations where ThyssenKrupp did business was irrelevant. The Court stated that Diamond was an agent of ThyssenKrupp, and held that it was shown no authority which would allow an action against an agent in any county where its principal does business. The Court noted that such a rule could yield shocking results. Specifically, the Court explained that ThyssennKrupp was an international corporation doing business at locations throughout the world, and it would make no sense to hold that an agent such as Diamond, which does business only in one county, might be subject to being sued anywhere its principal does business.

The Appeals Court ruled that there was nothing in the record which would allow the case to proceed against Diamond in Washington County, and ordered the trial court to transfer the case to Mobile County. In effect, employers who are subcontractors for larger companies are not automatically subject to suit in every county where the larger companies’ do business.

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About the Author

This blog post was written by Trey Cotney, Esq., of Fish Nelson & Holden LLC, a law firm dedicated to representing employers, self-insured employers and insurance carriers in workers’ compensation matters. Fish Nelson & Holden is a member of The National Workers’ Compensation Network (NWCDN). If you have any questions about this article or Alabama workers’ compensation issues in general, please feel free to contact the author attcotney@fishnelson.com or any firm member at 205-332-3430.

On July 25, 2014, the Alabama Court of Civil Appeals considered an interesting scenario where the trial judge granted an employee’s motion to strike the employer’s defenses to compensability that were asserted in its Answer and then entered an Order requiring the employer to pay for disputed medical treatment. The court also denied the employer’s motion for an independent medical examination. As a result, the employer petition the Court of Appeals for a writ of mandamus as to all three rulings.

The genesis for the above referenced flurry of motions, was a general denial filed by the employer in its Answer. This means that the employer disputed each and every allegation in the Complaint and admitted nothing. The employee took issue with the inconsistent nature of denying all allegations in the Complaint while, at the same time, paying indemnity and medical benefits, and asserting a statutory right to an IME. Basically, it was the position of the employee that the employer could not, on one hand, deny the claim while, on the other hand, treat it as accepted.

In Alabama, if the compensability of a claim is denied, then medical treatment cannot be compelled until the issue of compensability has been determined by either a trial on the merits or by way of a successful motion for summary judgment. Rather than proceed with either of these two options, the employee sought to simply have the denial itself removed from the Answer thus clearing the way for the judge to order that medical treatment be provided. While the employee gets creativity points for this approach, the Court of Appeals pointed out that the Alabama Workers’ Compensation Act and the Alabama Rules of Evidence prohibit an employee from using the payment of indemnity and/or medical benefits against an employer as an admission of compensability. Further, the employee was unable to provide any legal support for the proposition that filing a motion for an IME amounted to an admission of compensability. Since there was no apparent inconsistency between the employer’s Answer and its subsequent actions, the Court of Appeals granted the petition as to the struck defenses and the order to compel medical treatment. However, it denied the petition as to the employer’s IME request.

My Two Cents:

Even when a claim is denied and indemnity benefits are not provided, employers often times continue to provide medical care until a final ruling is made by a judge. When this option is exercised, it allows employers to retain control of the medical treatment, just in case they eventually lose. It also allows the employee to continue to receive medical treatment during the litigation process. If the Court of Appeals had ruled differently in this case, it would have likely had a chilling effect on the payment of early medical benefits. This was a good ruling for employers and employees alike.

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About the Author

This article was written by Michael I. Fish, Esq. of Fish Nelson & Holden LLC, a law firm dedicated to representing employers, self-insured employers and insurance carriers in workers’ compensation matters. Fish Nelson is a member of The National Workers’ Compensation Network (NWCDN). If you have any questions about this article or Alabama workers’ compensation issues in general, please feel free to contact the author atmfish@fishnelson.com or any firm member at 205-332-1448.

 

Earlier this month, we reported on a case where a trial court denied an employer’s motion to transfer venue based on the doctrine of forum non conveniens. The Alabama Court of Civil Appeals subsequently denied the employer’s petition for a writ of mandamus noting that such a petition is an extraordinary remedy and will only be granted if the trial court clearly abused its discretion. That opinion was clearly an example of when the first to file was rewarded by filing first.

More recently, the Court of Civil Appeals released an opinion on July 11, 2014, wherein it, again, refused to grant the employer’s petition for a writ of mandamus. This time, it was the party that placed second in the race to the courthouse that ended up winning the venue battle.

Specifically, the employer filed a workers’ compensation complaint in Mobile County. The employee then filed a motion to transfer the action to Clarke County based, in part, on the doctrine of forum non conveniens. It was undisputed that the employer’s principal place of business was in Mobile County and that the employee had been transferred to a Mobile hospital on the day of the accident. It was further undisputed that the employee resided in Clarke County at the time of the accident and on the date of filing the lawsuit, the accident occurred in Clarke County, and that at least some of the employee’s medical treatment and therapy occurred in Clarke County. There was a dispute as to whether or not there existed any witnesses to the accident.

Based on the foregoing, the trial judge granted the employee’s motion and transferred the matter to Clarke County. In denying the employer’s petition, the Court of Appeals noted that it could not find that the trial court exceeded its discretion in transferring the action.

My To Cents:

Although this appears on its face to be a different result than the case reported on earlier this month, the Court of Appeals’ basically ruled the same way. In both cases, the Court held that the trial court did not abuse its discretion.

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About the Author

This article was written by Michael I. Fish, Esq. of Fish Nelson & Holden LLC, a law firm dedicated to representing employers, self-insured employers and insurance carriers in workers’ compensation matters. Fish Nelson is a member of The National Workers’ Compensation Network (NWCDN). If you have any questions about this article or Alabama workers’ compensation issues in general, please feel free to contact the author atmfish@fishnelson.com or any firm member at 205-332-1448.

Beginning July 1, 2014, the maximum worker’s compensation payable was raised to $794 per week and the minimum was raised to $218 per week. This change was based on the Commissioner of Labor’s determination that the State’s average weekly wage was $794.27, and the change is effective for any injury occurring on or after July 1, 2014.

With Tennessee implementing its new administrative system this week, Alabama is now one of the only states left to use state courts to adjudicate its workers’ compensation cases. For that reason, if more than one venue is proper, it is still possible to gain a strategic advantage in Alabama by filing the lawsuit first.

Case in point, the Alabama Court of Civil Appeals released its opinion in Ex parte Blair Logistics, LLCon June 27, 2014. In Blair, the Court considered a situation where the plaintiff filed a complaint for workers’ compensation benefits in Jefferson County. A little over 7 months later, the employer filed a motion to have the venue transferred to Chilton County. The employer claimed that it was entitled to the transfer based on the doctrine of forum non conveniens which allows for such transfers for the convenience of the parties and witnesses or if it betters serves the interests of justice.

In support of its motion, the employer pointed out that the plaintiff was living in Chilton County at the time of the accident and at the time the complaint was filed. It also noted that the plaintiff received some medical treatment in Chilton County including the initial treatment following the accident. Finally, the employer stated that the accident occurred at the plaintiff’s home in Chilton County and that it intended to call as witnesses certain Chilton County residents such as the plaintiff’s wife and some medical service providers.

The plaintiff supported his objection to the motion by noting that the employer’s principal place of business was in Jefferson County and that the depositions of the employer representatives and the plaintiff had already taken place in Jefferson County. Further, the plaintiff pointed out that all of the relevant medical treatment had occurred in Jefferson County. Finally, the evidence revealed that there existed an employment contract that provided that all disputes be resolved in Jefferson County.

Based on the above facts, the trial court denied the employer’s motion and the employer filed a petition for a writ of mandamus. Such a petition is an extraordinary remedy and will only be granted if the trial court clearly abused its discretion.

The Court of Appeals noted that it was conceded by the parties that both venues were proper. It further noted that the employer had the burden of proving that the inconvenience and expense of defending the action in Jefferson County was so great that the plaintiff’s right to choose the venue should be overcome. In other words, the employer had to prove that Chilton County was significantly more convenient than Jefferson County.

With facts obviously supporting the convenience of the parties and the interests of justice for both counties, it could not be said that the trial court abused its discretion in denying the motion. As such, the employer’s petition was denied.

MY TWO CENTS:

When you have multiple proper venues, it is a good idea to look at the pros and cons of each venue early on. The Alabama Workers’ Compensation Act provides that either party can file the lawsuit. Since the party seeking a venue transfer has the burden of proving that another venue is significantly more convenient, it is better to be the party that initially filed the lawsuit. In the above case, had the employer filed in Chilton County, the plaintiff (or in that case, the defendant) would not likely have been successful in having the case transferred to Jefferson County. In fact, in either scenario, had the trial court granted the motion to transfer venue, the Court of Civil Appeals would likely have granted a petition for writ of mandamus and ordered the trial court to reverse its decision since, at least based on the above facts, it is unlikely that either party could have satisfied its burden of proof.

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About the Author

This article was written by Michael I. Fish, Esq. of Fish Nelson & Holden LLC, a law firm dedicated to representing employers, self-insured employers and insurance carriers in workers’ compensation matters. Fish Nelson is a member of The National Workers’ Compensation Network (NWCDN). If you have any questions about this article or Alabama workers’ compensation issues in general, please feel free to contact the author atmfish@fishnelson.com or any firm member at 205-332-1448.

On June 13, 2014, the Alabama Court of Civil Appeals issued its opinion in Alabama Forrest Products Industry Workmen’s Compensation Self Insurer’s Fund v. Harris. In 1990, Harris sustained a severe work-related injury to his pelvis and right leg. As a result of his injuries, Harris was permanently and severely limited in his lifting, bending, stooping, squatting, climbing, and walking. Those limitations allegedly prevent him from performing ordinary activities of daily living without assistance. Since his injury, Harris’s daughter had been assisting him in getting in and out of bed, using the bathroom, bathing, dressing, administering his medications, and preparing meals. In the fall of 2011, Harris sent notice to his employer’s insurer, Alabama Forrest Products, that he wanted his future son-in-law to replace his daughter as his designated care giver. However, Alabama Forrest Products later discovered that the future son-in-law was employed full time in another town, and stopped paying him to take care of Harris. Harris then filed a declaratory judgement action, requesting that the trial Court order Alabama Forrest Products to reinstate the payments.

Alabama Forrest Products took the deposition of Harris’s authorized treating physician, who stated that Harris continued to require assistance with activities of daily living. The doctor also testified that although the attendant care provided by Harris’s daughter in the past had not improved his underlying physical condition and further attendant care would not improve his condition, it did allow and would continue to allow Harris to maintain his function and prevent deterioration of his condition. The doctor further testified that without in home attendant care provided by his family, Harris would have to be admitted into a skilled nursing facility. Based on the testimony of Harris’s family members and his doctor, the trial Court ordered Alabama Forrest Products to reinstate the payments, and Alabama Forrest Products appealed.

On appeal, Alabama Forrest Products argued that an injured employee has no right to payment for attendant care based on the holdings inOsorio v. K & D Erectors, Inc. and Ex parte City of Guntersville, which previously held that employers were only responsible to reimburse an employee for services designed to improve his condition. Harris argued that the case ofEx parte Mitchell overruled Osorio, in that it held that preventive and functional aids aimed at preventing the deterioration of an employee’s condition or improving his function are also compensable.

In its analysis, the Court of Appeals noted that Alabama Administrative Code Rule 480-5-5-.30 provides that authorized services by non-professional family members may be reimbursable when certain conditions are met. Based on this, the Court of Appeals upheld the trial Court’s decision and ordered Alabama Forrest Products to reinstate payment to Harris’s family for his in-home care.

MY TWO CENTS

Given the potential impact this decision on the cost of workers’ compensation claims, I expect that Alabama Forrest Products will petition the Supreme Court for review. If this decision stands, it could increase the costs of many workers’ compensation claims by over $21,000 per year (based on current minimum wage). One possible end-around that the Court of Appeals mentioned, but did not address (because the issue was not raised), would be to challenge the Department of Labor’s authority to promulgate and enforce the provisions of Rule 480-5-5-.30. The Alabama Workers’ Compensation Act does not explicitly provide for non-medical treatment such as the services at issue in this case, so the question is whether the Act gives the Department of Labor the authority to require benefits that were not specifically enumerated by the legislature in the Act.

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ABOUT THE AUTHOR

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

Guyoungtech USA, Inc. v. Dees

On June 6, 2014 the Supreme Court of Alabama issued a lengthy opinion covering many issues related to a Retaliatory Discharge case tried in Conecuh County Circuit Court.

Dees, the employee, was injured on March 14, 2011, 4 months after she was hired. Shortly before hiring Dees HMMA reduced its orders from Guyoungtech. In November of 2010 Guyoungtech laid off 300 employees and then another 212 in May of 2011. Dees was one of the layoffs in May of 2011. As a result Dees filed the retaliatory discharge claims alleging she was fired because of her workers’ compensation in violation of § 25-5-11.1 of the Alabama Workers’ Compensation Act. The jury order Guyoungtech to pay $1,000,000.00 in compensatory damages and $2,500,000.00 in punitive damages. The Trial Judge remitted the damages to $300,000.00 in compensatory damages and $900,000.00 in punitive damages. Dees accepted the remitted amounts and Guyoungtech appealed the decision.

Guyoungtech argued that Dees was part of a corporate layoff and not terminated, but was definitely not terminated as a result of her workers’ compensation claim. Dees argued that Guyoungtech used the layoff as a mask to conceal the wrongful termination. Dees pointed to the proximity in time and a safety director denying knowledge of her injury which seemed implausible. The Supreme Court noted that mere proximity of time is typically not enough to establish sufficient evidence in a retaliatory discharge claim. However, the jury could have found the safety director’s testimony that she/he did not know about the injury was not credible. That, in addition to the proximity was sufficient for the jury to find liability and the Supreme Court stated they were not in a position to substitute their judgment for the jury.

However, the errors as it related to the damages resulted in the Supreme Court reversing liability and ordering a new trial.

In regards to the lost wages component of the compensatory damages, the Supreme Court pointed out that no expert testified as to Dees’ lack of employability, or restricted access to the labor market, as a result of her termination. They stated that Dees’ testimony that she was under treatment and restrictions and hampered in looking for work does not provide evidence that the discharge itself rendered her less employable. The Supreme Court stated that the extent of her disability and its effect on her ability to work was part of the workers’ compensation trial, which was severed from the discharge trial, and not at issue in the discharge case. The Supreme Court then pointed out that Guyoungtech had given her a letter stating she was laid-off, and not fired, so there was no stigma of being terminated when she went to secure employment. Therefore, no evidence was present to show the termination caused Dees to be less marketable in the work force.

As to the mental anguish component of the compensatory damages, the Supreme Court pointed out the broad discretion given to the jury in determining mental anguish. However, the Supreme Court pointed to two other decisions where the employee presented evidence of mental health medication, mental health treatment, divorce, loss of home and/or inability to pay bills where one employee was awarded $30,000.00 for mental anguish and the other was award $75,000.00. The Supreme Court stated that Dees only presented evidence of concern for the stability of her marriage. Dees did not present evidence that she had lost her home, could not pay bills, or that she required mental-health treatment.

The Supreme Court also opined that the trial court erroneously admitted Mortality Tables into evidence. Guyountech argued that Dees life expectancy was not relevant to the discharge claim, as Dees offered no evidence she could never work again. The Supreme Court pointed out that Mortality Tables are admissible when there is evidence that the plaintiff suffers from permanent personal injury.Drummond Co. v. Self, 622 So. 2d 336, 337 (Ala. 1993). The Supreme Court stated that the trial court was in error when it instructed the jury to use the mortality tables if they were reasonably satisfied that the injuries were permanent when there was no expert medical testimony that the injuries were permanent.

The verdict form did not itemize the compensatory damages and both, lost wages and mental anguish, were infected by the error of allowing the mortality table into evidence. As such, the error constituted grounds for reversal.

The Supreme Court then pointed out that for a jury to award punitive damages there must be compensatory damages.Life Ins. Co. of Georgia v. Smith, 719 So. 2d 797, 806 (Ala. 1998). Based on the reversal of the compensatory damages the punitive damages were due to be reversed as well. However, the Supreme Court offered guidance to the trial court upon remand as to the issue of punitive damages. At the trial level Dees’ argument for punitive damages was based on Guyountech’s failure to report some smaller workers’ compensation claim despite Dees’ claim being properly reported. The Supreme Court stated that punitive damages for the purpose of punishing a defendant for harm it did to others, not the plaintiff, is not supported by case law.Philip Morris USA v. Williams, 549 U.S. 346, 354, (2007). As a result, the Supreme Court pointed out that punitive damages must be based on harm to Dees, not potential harm to other individuals not a party to the litigation.

As a result of the error involving the compensatory and punitive damages a new trial was necessary because the question of damages and liability were too intertwined for the jury to just consider the issue of damages.

MY TWO CENTS

It is always important to sever your workers’ compensation trial from the discharge trial to assure there is no confusion that the disability, or inability to work due to the disability, should not be considered when determining damages in the discharge trial. Even if the judge instructs the jury not to consider the disability you can almost be sure that it will factor in if they are allowed to hear it. This will help keep the focus of the damages in the discharge trial on the termination only.

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ABOUT THE AUTHOR

The article was written by Joshua G. Holden, Esq. a Member of Fish Nelson, LLC, a law firm dedicated to representing employers, self-insured employers and insurance carriers in workers’ compensation and related liability matters. Mr. Holden is AV rated by Martindale-Hubbell, which is the highest rating an attorney can receive. Holden and his firm are members of The National Workers’ Compensation Defense Network (NWCDN). The NWCDN is a national and Canadian network of reputable law firms organized to provide employers and insurers access to the highest quality representation in workers’ compensation and related employer liability fields.

If you have questions about this article or Alabama workers’ compensation issues in general, please feel free to contact the author atjholden@fishnelson.com or 205-332-1428.

In Ex parte Schnitzer Steel Industries, Inc., released on September 27, 2013 (summarized on our blog September 28, 2013), the Alabama Supreme Court granted the employer’s petition for writ of mandamus and held that the post-accident report was prepared in anticipation of litigation and, therefore, was considered work product and not discoverable.

On May 30, 2014, the Alabama Supreme Court decided not to get involved in a work product issue inEx parte USA Water Ski, Inc. and denied the petition for writ of mandamus filed by USA Water Ski, Inc. The issue came before the Supreme Court previously when USA Water Ski, Inc filed a petition for writ of mandamus in June of 2013. In June the Supreme Court found that the post accident report at issue was work product and directed the trial court vacate its order that USA Water Ski, Inc. produce the report. Upon remand additional evidence came to light suggesting the post accident report was not prepared in anticipation of litigation. The trial court once again ordered that USA Water Ski, Inc. produce the post accident report. USA Water Ski, Inc. once again file a petition for writ of mandamus and this time the Supreme Court denied the petition without an opinion. However, Chief Justice Moore wrote a concurring opinion. According to Chief Justice Moore a writ of mandamus is not proper in the context of discovery issues and the Supreme Court should not get involved. Chief Justice Moore opined that the trial court is in a better position to deal with discovery issues and petitions for writ of mandamus require the need for extraordinary remedy which is normally not present in discovery issues.

My Two Cents:

It seems that once the trial court orders a party to produce a post accident report the Supreme Court is most likely going to defer to the trial court’s opinion and not get involved. For this reason it is important for employers to establish the reason behind the creation of the post accident report. As the Supreme Court ruled in Ex parte Schnitzer Steel Industries, Incthe report does not have to be solely prepared in anticipation of litigation but there must be evidence that the employer could have reasonably assumed litigation was expected, and for that reason, as well as standard procedure or other reasons, prepared the post accident report. If the employer can establish this at the trial level the post-accident report should not be discoverable. However, if the trial court orders that it be produced the Supreme Court has indicated that they are not likely going to get involved in discovery issues.

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ABOUT THE AUTHOR

The article was written by Joshua G. Holden, Esq. a Member of Fish Nelson, LLC, a law firm dedicated to representing employers, self-insured employers and insurance carriers in workers’ compensation and related liability matters. Mr. Holden is AV rated by Martindale-Hubbell, which is the highest rating an attorney can receive. Holden and his firm are members of The National Workers’ Compensation Defense Network (NWCDN). The NWCDN is a national and Canadian network of reputable law firms organized to provide employers and insurers access to the highest quality representation in workers’ compensation and related employer liability fields.

If you have questions about this article or Alabama workers’ compensation issues in general, please feel free to contact the author atjholden@fishnelson.com or 205-332-1428.

On May 16, 2014, the Alabama Court of Appeals released its opinion in Jesse Stutts, Inc. v. William Hughey overruling a trial court’s finding that the employee’s new injury was a direct and natural result of his prior compensable injury. In Alabama, if an employee’s injury is found to be the direct and natural result of a previous compensable workers’ compensation injury, then the previous employer may be responsible for benefits resulting from the new injury, even if it the injury did not occur while working for the employer. However, when it cannot be shown that the first injury was the direct cause of the second injury, then the employee cannot recover additional compensation benefits for the new injury from the original employer.

Hughey, the employee in the case at hand, injured his back while working for Jesse Stutts, Inc., in 2002, and Stutts remained responsible for medical treatment for that injury. In 2011, while working for Cracker Barrel, Hughey claimed that he fell and re-injured his back due to his leg giving out. He also claimed that his leg weakness was related to his 2002 accident and that he had fallen numerous times as a result of the weakness. From the very beginning, Hughey wanted Stutts to pay for the treatment he would need for this new injury. For reasons unknown, he never sought benefits from Cracker Barrel.

At trial, the medical evidence made no clear connection between Hughey’s legs giving out and his 2002 injury. Although it was suggested that the 2002 injury could result in weakness, there was no medical evidence directly connecting Hughey’s new injury to his 2002 accident. However, despite the evidence, the trial court found that Hughey’s 2011 fall was the direct and natural result of his 2002 injury.

On Appeal, Stutts argued that Hughey had not presented substantial evidence to support the trial court’s decision, and the Court of Appeals agreed. It was noted that there was evidence suggesting that Hughey’s legs were weak and that they would give out on him at times, causing him to fall. However, the Court also noted there was no medical evidence supporting Hughey’s contention that the weakness was the cause of his new injury. In addition, the Court pointed out that Hughey had sustained other falls and incidents which were just as likely to have caused Hughey’s condition.

The Court of Appeals found that the trial court’s determination that Hughey’s fall was the result of his 2002 injury was speculation and not supported by the evidence, and therefore, overruled the trial court’s decision.

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About the Author

This post was written by Trey Cotney, Esq. of Fish Nelson LLC, a law firm dedicated to representing employers, self-insured employers and insurance carriers in workers’ compensation matters. Fish Nelson is a member of the National Workers’ Compensation Network (NWCDN). If you have any questions about this article or Alabama workers’ compensation issues in general, please feel free to contact the author at tcotney@fishnelson.com or any firm member at 205-332-3430.

The Alabama Legislature recently passed HB-107, which would amend § 25-5-56 of The Alabama Workers’ Compensation Act. HB-107 was introduced by District 55 Representative Rod Scott (D) on January 14, 2014. The legislature passed the bill in March, and it has been sent to Governor Bentley for his signature. Under current law, if an employee dies as the result of an accident occurring in and arising out of his employment, the employer must pay burial expenses up to a maximum of $3,000.00. If Governor Bentley signs HB-107, the maximum burial expense would be increased to $6,500.00.

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ABOUT THE AUTHOR

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

On May 19, 2014, The New Mexico Court of Appeals ruled that Redwood Fire & Casualty must reimburse an injured mechanic for the cost of marijuana he was prescribed for pain due to his on-the-job injury. Gregory Vialpando injured his lower back in 2000 while working for Ben’s Automotive Services. Vialpando’s physician stated that Vialpando’ resulting pain was among the most intense, frequent and long-lasting out of thousands of patients the doctor had treated. In 2013, the workers’ compensation board approved Vialpando to use marijuana as treatment, but Redwood objected to reimbursing him for the cost of the drug due to its illegal status under federal law. While New Mexico passed theLynn and Erin Compassionate Use Act in 2007, legalizing the use of cannabis for treatment of debilitating medical conditions,The Controlled Substances Act of 1970 still classifies marijuana as a Schedule I drug under federal law with "no acceptable medical use", and makes its sale, possession, and distribution illegal. The Court of Appeals stated in its decision that neither Redwood nor Ben’s cited to any specific federal law that they would violate by reimbursing Vialpando for his herbal purchases.

MY TWO CENTS

It is unclear exactly what positions Ben’s Automotive and Redwood took at trial. However, it would appear that there are valid arguments to support denying reimbursement. By paying for Vialpando’s marijuana, Redwood would arguably be enabling Vialpando to purchase drugs that are illegal under federal law and, therefore, could arguably be considered to be conspiring to violate federal law. Section 846 of theControlled Substances Act of 1970 provides that any person who conspires to commit any other drug offense shall be subject to the same penalties as those prescribed for the offense itself. If reimbursing a person for buying drugs amounts to conspiracy to violate The Controlled Substances Act, Redwood’s concerns would certainly be understandable. Additionally, from Redwood’s perspective, insurance policies are contracts, so contract defenses would apply. Illegality is a defense to a breach of contract claim, so Redwood may have a valid defense in that regard, depending on what state’s law governs the insurance contract.

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ABOUT THE AUTHOR

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

 

The Court of Appeals recently reversed a trial court’s decision awarding benefits outside of the statutory schedule inAmerican Cast Iron Pipe Company v. Sharon Blackmon. The Court also reversed the trial court’s decision to grant the employee an additional authorized treating physician after she had already chosen a doctor from a panel of 4.

Blackmon worked as a pipe processor for ACIPCO, and sustained injuries to her wrist in 2008 and to her ankle in 2010. There was no dispute that the injuries were compensable, but there was disagreement over whether Blackmon’s injuries were subject to the statutory schedule.

At trial, Blackmon testified that her wrist pain did not normally extend to or affect other parts of her body, but that the pain would sometimes run up her arm. As for her ankle injury, the evidence indicated that prolonged standing would cause aching, but it did not prevent her from taking care of herself. There was no evidence that the ankle injury affected other parts of Blackmon’s body.

The trial court considered evidence provided by Blackmon’s vocational expert, and found that Blackmon suffered a 35% permanent partial disability, and awarded benefits outside of the statutory schedule. The court also granted Blackmon’s request that ACIPCO provide her treatment with a new physician of her choice.

On appeal, ACIPCO argued that the evidence did not support the trial court’s decision to award benefits outside of the statutory schedule and that the trial court should not have considered vocational evidence. The Court of Appeals agreed and stated that injuries may only be removed from the schedule when the effects of an injury to a scheduled member extend to other parts of the body and interfere with their efficiency. The Court found no substantial evidence indicating that the effects of either scheduled injury extended to or interfered with other parts of Blackmon’s body. The Court also noted that vocational evidence is generally irrelevant when compensation is limited to the statutory schedule.

The Court also agreed that ACIPCO should not have to provide Blackmon with yet another treating physician. The evidence was clear that Blackmon had already exercised her right in selecting a new treating physician from a panel of 4, and the Court held that she was not entitled to another new doctor.

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About the Author

This post was written by Trey Cotney, Esq. of Fish Nelson LLC, a law firm dedicated to representing employers, self-insured employers and insurance carriers in workers’ compensation matters. Fish Nelson is a member of the National Workers’ Compensation Network (NWCDN). If you have any questions about this article or Alabama workers’ compensation issues in general, please feel free to contact the author at tcotney@fishnelson.com or any firm member at 205-332-3430.

The Alabama Court of Civil Appeals recently released an opinion wherein it considered the difference between a temporary flare versus a permanent aggravation of a preexisting condition. InMadison Academy v. Hanvey, the plaintiff, worked as a janitor on the defendant’s campus. In May and June 2011, Hanvey was exposed to chemicals at work which aggravated her respiratory system. The symptoms continued to get worse over the next few months.

It was not until September 2011 that Hanvey was finally diagnosed with a rare disease known as myesthenia gravis (MG). Her doctors treated the disease, and by March 2012, Hanvey’s symptoms were gone and her condition was stable. Although MG cannot be cured, it can be controlled with the right medication. The medical evidence showed that Hanvey’s MG existed before her exposure to the chemicals at work and was not caused by the exposure. Her doctors stated that the preexisting condition was temporarily aggravated by the chemicals, but not worsened.

The trial court found that Hanvey was totally and permanently disabled due to her exposure to the chemicals at work. On appeal, Madison Academy argued that the root of Hanvey’s disability was her MG which the evidence indicated was not caused by her employment. And since the temporary flare up had resolved, they believed they were no longer responsible for providing benefits under the Act.

The Appeals Court noted that Hanvey’s MG was aggravated, but found that there was no evidence that the chemicals had worsened the underlying condition. Once the temporary aggravation had resolved, Hanvey was back to her baseline condition and no longer entitled to benefits since there was no permanent injury. Therefore, the Court reversed the trial court’s award of permanent and total disability benefits.

My Two Cents:

The Court of Appeals has made it very clear that employers in Alabama will not be responsible for disability stemming from preexisting conditions which are not permanently worsened by a work accident. In cases where the employment temporarily exacerbates a preexisting condition, the employer is only responsible for providing benefits for the temporary disability period caused by a work accident. Any other resulting disability from the natural progression of an underlying or preexisting condition is not compensable.

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About the Author

This post was written by Trey Cotney, Esq. of Fish Nelson LLC, a law firm dedicated to representing employers, self-insured employers and insurance carriers in workers’ compensation matters. Fish Nelson is a member of the National Workers’ Compensation Network (NWCDN). If you have any questions about this article or Alabama workers’ compensation issues in general, please feel free to contact the author at tcotney@fishnelson.com or any firm member at 205-332-3430.

Sheila W. Austin, as admin. of the estate of Rose W. McMillan v.

Providence Hosp. and Sedgwick Claim Management. Services, Inc.

Released March 21, 2014

The deceased employee’s representative appealed Summary Judgment entered by the Mobile Circuit Court in favor of the employer and its claims administrator. The underlying case was based on a breach of contract claim filed by the estate against the employer and administrator. The alleged breach of contract was based on an agreement to settle future medical benefits.

On October 27, 2011, the parties agreed to settle McMillan’s future medical benefits for $75,000.00. However, McMillan was a eligible for Medicare so the parties submitted the Medicare Set-Aside proposal to CMS for approval. On November 29, 2012 CMS determined that of the $75,000.00, $35,951.00 had to be reserved for future medical care and drug expenses. The parties had agreed that the settlement was to be court approved. However, on December 9, 2012, McMillan passed away before the court could approve the settlement. Providence and Sedgwick indicated that the settlement would not be honored because it had not been approved by the court. As a result, Austin filed the breach of contract claim.

The Trial Court entered summary judgment in favor of the employer and administrator based on the exclusivity provision of the Alabama Workers’ Compensation Act. The Trial Court also concluded that the agreement was not valid because it had not been approved and could not be made valid due to the employee’s death. The Trial Court specifically said that because future medical benefits are payable without time limitation any lump sum payment would reduce the benefits available and require court approval.

Austin argued on appeal the agreement to settle was a binding contract and survived the death of McMillan pursuant to §§ 6-5-462 and 6-5-465, Ala. Code 1975. Austin argued that the agreement became unconditional after CMS approved the medicare set-aside proposal and it was not required to be court approved because the settlement exceeded the monetary value of the future medical benefits as determined by CMS. As a result, Austin argued that § 25-5-56, Ala Code 1975, did not require approval of the settlement by the court.

The Court of Civil Appeals did not address Austin’s argument because Austin failed to address the Trial Court’s primary ground for entering summary judgment, the exclusivity provision. The Court of Civil Appeals stated that Austin failed to argue or explain how the subject claim would fall outside of the exclusivity provision. The Court of Civil Appeals stated that because the Trial Court had an alternate basis for granting summary judgment, if the appellant fails to show error as to each basis, the appellant waives any argument on those grounds and this results in an automatic affirmance of the judgment.

My Two Cents:

While the Court of Civil Appeals did not actually rule on Austin’s argument, I find it interesting that they chose to write an opinion pointing out the exclusivity provision and breach of contract. This is the first time I have seen the exclusivity provision and breach of contract mentioned at the same time. The exclusivity provision prevents recovery by any other method, unless provided for under the Act, for injury caused by an on-the-job injury. § 25-5-52, Ala. Code 1975. The question created by this case is, does a breach of contract claim qualify as a claim based on the workers’ compensation injury? The argument could definitely be made that once a valid contract to settle is entered into, that an attempt to recover under the theory of contract is no longer based on the injury itself. This would then fall outside of the exclusivity provision.

In this case it does not appear there was a valid contract to enforce because the parties had agreed to have it approved by the court making the contract contingent upon court approval. Had that not been the case, the fact that the payment was in excess of what CMS determined necessary to cover future medical benefits may have resulted the agreement not being continent upon court approval. § 25-5-56 only requires court approval when settlement is for an amount less that the amount stipulated by the Alabama Workers’ Compensation Act. Therefore, if there had not been a contingency the estate might have succeeded in arguing the exclusivity provision does not apply to a breach of contract claim because the recovery is based on the contract and not the workers’ compensation injury.

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ABOUT THE AUTHOR

The article was written by Joshua G. Holden, Esq. a Member of Fish Nelson, LLC, a law firm dedicated to representing employers, self-insured employers and insurance carriers in workers’ compensation and related liability matters. Mr. Holden is AV rated by Martindale-Hubbell, which is the highest rating an attorney can receive. He is the immediate past chair of the ABA/ TIPS Workers’ Compensation and Employers’ Liability Committee.

Holden and his firm are members of The National Workers’ Compensation Defense Network (NWCDN). The NWCDN is a national and Canadian network of reputable law firms organized to provide employers and insurers access to the highest quality representation in workers’ compensation and related employer liability fields.

If you have questions about this article or Alabama workers’ compensation issues in general, please feel free to contact the author atjholden@fishnelson.com or 205-332-1428.

On March 14, 2014, the Alabama Court of Civil Appeals released its opinion in the case ofMichael Brown v. Dixie Contracting Company and Salter’s Exterminating Company, Inc. In that case, Brown sued Dixie and Salter’s for injuries he allegedly suffered in an automobile accident while working for them. The vehicle that Brown was driving at the time of the accident was owned by the owner of Dixie. Dixie and Salter’s are related companies, as the owner of Dixie was a majority shareholder in Salter’s. The two companies operated out of the same building, and they shared a secretary and receptionist. Salter’s performed termite inspection and extermination services, and Dixie would often repair termite damage discovered through Salter’s inspections. Brown alleged Dixie and Salter’s were essentially the same company, and that his injuries occurred in and arose out of his employment with both defendants. Dixie contended that Brown did not work for Dixie, and Salter’s contended that Brown was an independent contractor.

Brown testified that at the time he was hired, the owner of Dixie never specified whether Brown was being hired as an employee or independent contractor. He also testified that he did not sign a contract with Salter’s or Dixie. Brown testified that he considered himself to be an employee and that his supervisor told what time to be at work and when he could leave. Brown testified that his supervisor would tell him on any given day whether he was to sell pest control services or was to work construction. Brown testified that on some days he would sell pest control services for Salter’s, and on other days, he would perform construction work for Dixie. Brown further testified that when performing inspections for Salter’s, he was instructed to call Dixie if any termite damage was located so that Dixie could quote the repairs. Salter’s payroll records listed Brown as a 1099 "employee" who was to be paid a "draw" against commissions and sales. However, those same records indicated that Brown was actually paid at a flat rate of $80.00 per day for sales work, while he was paid at an hourly rate for construction work he performed for Dixie. Brown’s supervisor testified that he had hired Brown to work for Salter’s as a subcontractor in sales, but that Brown was also an "at will employee" that could be terminated for any reason. He testified that Brown was required to report to work by 8:00 a.m. each day. The defendants produced evidence that Brown was always paid by Salter’s and never by Dixie, and that Brown only performed construction work after the accident. However, Brown’s evidence also established that several other employees performed work for Dixie but were paid by Salter’s.

The trial court found that Brown was an independent contractor of Salter’s and that Brown did not perform any work for Dixie until after the alleged accident occurred. Based on this, the trial court denied workers’ compensation benefits. Brown appealed on the grounds that the trial court’s order did not include adequate findings of fact and conclusions of law, and was not supported by substantial evidence. The Alabama Court of Appeals agreed that the findings of fact and conclusions of law set out by the trial court were insufficient, which allowed them to look to the record in order to determine whether substantial evidence supported the trial court’s determination. The Court of Appeals noted that the primary factor in determining whether a worker is an employee or an independent contractor is whether the purported employer has reserved the right to control the manner in which the worker performs the duties of the work. In order for a worker to be considered an employee, the prospective employer must retain the right to direct not only what shall be done but also how it shall be done. The Court further pointed out that the four factors to be considered in determining whether an "employer" has retained the right of control include: (1) direct evidence demonstrating a right or an exercise of control; (2) the method of payment for services; (3) whether equipment is furnished; and (4) whether the other party has the right to terminate the employment. However, the Court also pointed out that no one fact by itself can create an employer/employee relationship, and that the retention of control necessary to establish such a relationship is determined on a case-by-case basis considering the totality of the evidence.

Based on the evidence, the Court of appeals found that Salter’s controlled nearly every aspect of Brown’s employment. Salter’s controlled whether Brown would perform tasks in pest control sales or construction as Salter’s or Dixie needed. Salter’s controlled the manner in which Brown would be paid for the different jobs he did and capped his weekly pay at $400.00. Salter’s provided the very equipment he was driving at the time of the accident. There was no contract between Brown and his employers that would prevent Brown from quitting his job at any time. Based on the totality of the evidence, the Court found that the trial court’s Order was not supported by substantial evidence, and that Brown was an employee. The case was then remanded to the trial court to determine the amount of workers’ compensation benefits Salter’s owes to Brown.

MY TWO CENTS

Employers need to be aware that paying a contractor via a 1099 as opposed to a W-2 does not necessarily preclude the contractor from recovering workers’ compensation benefits in the event of an injury. As this case demonstrates, if an employer retains the right to set the employee’s schedule, dictates which tasks he is to perform on any given day, provides his equipment, and pays him like a salaried or hourly employee, the contractor will be considered an employee.

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ABOUT THE AUTHOR

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

St. Louis attorney, J. Bradley Young, recently posted an interesting blog article entitledThis Story Shows Why Employers are Frustrated with Workers Comp Judges. In the article, he reported on a New Jersey case in which the claimant was involved in a car accident while driving off of her employer’s property. She was actually in the process of turning out of the employer’s property at the time of the collision. The Coming and Going Rule would have been an excellent defense except for the fact that it was established that the rear bumper of the car was still hanging over the employer’s property at the time of impact. Since New Jersey is a Positional Risk Doctrine state, it was easy for the employee to win once the Court determined that she was, at least partially, on her employer’s property. In Positional Risk Doctrine states, the employee only need show that the accident would not have happened but for her employment. In other words, if she had not been leaving work that day, the accident would have never happened.

MY TWO CENTS:

If this had happened in Alabama, the result would have been different. Assuming that the Alabama judge also agreed that a hanging bumper thwarted the Coming and Going Rule, the employee would still have had her work cut out for her. The reason being that Alabama is an Increased Risk Doctrine state. This means that the employee must prove that the employment somehow increased the risk to the employee of such an accident occurring. Since car accidents happen to people on and off the job, she would have had to show that the employer’s exit was located in a place that made her more susceptible to getting hit. Of course, if that was the case, the employer would have wanted to accept it as a workers’ compensation matter in order to be afforded the protections of the Exclusivity Doctrine.

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About the Author

This article was written by Michael I. Fish, Esq. of Fish Nelson LLC, a law firm dedicated to representing employers, self-insured employers and insurance carriers in workers’ compensation matters. Fish Nelson is a member of The National Workers’ Compensation Network (NWCDN). If you have any questions about this article or Alabama workers’ compensation issues in general, please feel free to contact the author atmfish@fishnelson.com or any firm member at 205-332-3430.

Ex parte Southern Erectors, Inc.

Petition for Writ of Mandamus

On February 21, 2014, the Alabama Court of Civil Appeals granted Southern Erectors, Inc.’s (SEI) Petition for Writ of Mandamus. The trial court had denied SEI’s summary judgment motion that was based on the Alabama court not have subject matter jurisdiction over the on the job injury that occurred in Kansas. The Alabama Court Civil of Appeals agreed with SEI and remanded the case with an order to dismiss the workers’ compensation case based on lack of subject matter jurisdiction.

The employee lived in Alabama and learned of a job opening in 2010 with SEI in Wyoming. He left Alabama and traveled to Wyoming for the job. The plaintiff worked on several different job sites in various states over the year for SEI. In February of 2011, the employee, while in Alabama, learned of another job with SEI in Kansas. Once he was told the date he should arrive he left and, upon arrival, completed a new application, Kansas Employee’s Withholding Certificate and stayed in a Kansas Hotel while performing the job. On March 14, 2011 the employee was injured while performing his job in Kansas. He was provided benefits under Kansas Workers’ Compensation and even completed a Kansas Workers’ Compensation form.

On March 13, 2013, the employee file suit for workers’ compensation benefits under the Alabama Act. In agreeing with SEI and ordering that the workers’ compensation claim be dismissed, the Alabama Court of Civil Appeals stated that the trial court did not have subject matter jurisdiction over the claim. The Court of Civil Appeals pointed out that in order for an out of state injury to be compensable under the Alabama Workers’ Compensation Act the requirements of §25-5-35(d) must be met. Subsection (2) and (3) of this section applicable to this case state that benefits are owed for an injury that occurs out side of this state if benefits would have been owed had the injury occurred in Alabama, provided that at the time of injury (2) he was working under contract for hire made in this state in employment not principally localized in any state, and (3) he was working under a contract of hire made in this state in employment principally localized in another state whose workers’ compensation law was not applicable to his employer. The Court of Civil Appeals found that the employee impliedly accepted the job offer by traveling to Kansas.See Ex parte Robinson, 598 So. 2d 901, 904 (Ala. 1991). Therefore, the employee was under a contract for hired entered into in Alabama. However, the Court of Civil Appeals stated that this conclusion does not automatically mean that the Alabama Workers’ Compensation Act applies. See Ex parte Fluor Corp., 960 So. 2d 701 (Ala. Civ. App. 2006). §25-5-35(d)(2)&(3) requires that the court also consider the principal location of the employment as defined in §25-5-35(b). The Supreme Court stated inEx parte Flour Corp. that principally localized pursuant to §25-5-35(b) merely means the employee worked for the employer at a designated place within a state.

The Court of Civil Appeals considered the following factors to determine the principal location of employment in the present case: (1) the application was completed in Kansas, (2) work was being performed in Kansas at the time of injury, (3) he was living in a Kansas hotel at the time of the accident, (4) he completed Kansas tax withholding forms and (5) SEI was operating out of Kansas for that job creating a place of business there. For these reasons, the Court of Civil Appeals found that the employee’s employment was principally localized in Kansas. Therefore, §25-5-35(d)(2) would not apply because SEI was principally localized in Kansas and §25-5-35(d)(3) would not apply because there was no evidence that Kansas workers’ compensation laws were not applicable to SEI.

The Court of Civil Appeals rejected the employee’s argument that the employer had to have a permanent and continuous presence in the state to establish a principal location in the state (the employee had cited an Alabama Federal case that used this language but that case applied to venue and not §25-5-35(d)).

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ABOUT THE AUTHOR

The article was written by Joshua G. Holden, Esq. a Member of Fish Nelson, LLC, a law firm dedicated to representing employers, self-insured employers and insurance carriers in workers’ compensation and related liability matters. Mr. Holden is AV rated by Martindale-Hubbell, which is the highest rating an attorney can receive. He has been selected as a "Rising Star" by Super Lawyers. He is the past Chair of the ABA/ TIPS Workers’ Compensation and Employers’ Liability Committee. Holden and his firm are members of The National Workers’ Compensation Defense Network (NWCDN). If you have questions about this article or Alabama workers’ compensation issues in general, please feel free to contact the author atjholden@fishnelson.com or 205-332-1428.

The Annual Midwinter Conference will be held this year in Chicago from March 13 until March 15 at the Conrad Chicago Hotel. It is a jointly sponsored by the ABA Tort Trial & Insurance Practice Section and the Section of Labor an Employment Law.

The Seminar begins on Thursday afternoon to allow for morning travel and will finish up at mid-day on Saturday with a presentation on mediation and negotiation techniques presented by the National Association of Workers’ Compensation Judges and the College of Workers’ Compensation Lawyers.

New this year will be several sessions specifically designed for the Medical community such as back-to-back sessions on Thursday,The Litigators Guide to Understanding Medicine and Evaluating & Treating Back Painand Healthcare Reform’s Impact Nationally and on Workers Compensation, and a presentation on Friday,CMS Regulations and Medicare Legislation.

This not to be missed program is open to all. The stellar speakers will discuss rainmaking, social media and ethical considerations, MSAs, healthcare reform’s impact on workers’ compensation, insurance premium fraud, opioid use and abuse, best practices, negotiation and mediation techniques, and diagnostic medicine.

Following this blockbuster program, the College of Workers’ Compensation Lawyers

will hold their annual dinner on Saturday evening. This is an invitation only event and

tickets are required.

For more information, please feel free to contact Mike Fish or Josh Holden. Both are former ABA TIPS Committee Chairs and would be happy to assist you. Contact information below.

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Mike Fish and Josh Holden are both members of Fish Nelson LLC, a law firm dedicated to representing employers, self-insured employers and insurance carriers in workers’ compensation matters. Fish Nelson is a member of The National Workers’ Compensation Network (NWCDN). If you have any questions about this post, please feel free to contact Mike atmfish@fishnelson.com or 205-332-1448 or Josh atjholden@fishnelson.com or 205-332-1428.

On January 24, 2014, the Supreme Court of Alabama affirmed the Circuit Court of Shelby County Alabama’s decision, without opinion, in the case ofVinson v. G & R Mineral Services, Inc. However, Chief Justice Roy Moore pinned an interesting dissent. The employee, David Vinson, Jr., sought employment with G & R, a contractor that provided services to Chemical Line Company of Alabama in Calera. G & R then directed Vinson to a temporary employment agency, Diversified Sourcing Solutions (DSS), to apply for the job. Vinson was then hired by DSS to work for G & R at the Chemical Lime baghouse, where his job involved changing out lime filters. On his second day of employment, Vinson allegedly inhaled lime dust, had to be hospitalized, and never returned to work. Vinson sought workers’ compensation benefits from DSS. However DSS’s workers’ compensation carrier later became insolvent, so the Alabama Insurance Guarantee Association (AIGA) assumed responsibility for paying for Vinson’s care. AIGA eventually discontinued the payment of benefits, and Vinson then filed a lawsuit against G & R seeking workers’ compensation benefits. However, G & R’s workers’ compensation carrier convinced Vinson to dismiss the action on the grounds that DSS, and not G & R, was Vinson’s employer.

Vinson then filed an action for negligence against G & R. G & R moved for summary judgment, asserting that it was a "special employer" of Vinson, and was therefore immune from tort liability. Vinson moved to strike G & R’s special employer defense. The trial court found that DSS was merely a temporary employment agency and that Vinson had an implied contract of special employment with G & R. Based on these findings, the trial Court entered summary judgment in favor of G & R. On appeal, Vinson argued that G & R’s insistence in the workers’ compensation case that it was not his employer, created a genuine issue of fact as to whether it should be considered Vinson’s employer in the negligence case. In support of that position, Vinson produced a letter to the Mine Safety and Health Administration (MSHA) from G & R’s safety officer stating that Vinson was an employee of DSS and not G & R, and that DSS was paying Vinson’s workers’ compensation benefits. Despite this evidence, the Supreme Court upheld the trial Court’s ruling.

In his dissent, Judge Moore stated that G & R’s opportunistic switch from non-employer to employer was sufficient to raise a factual question as to whether G & R was a special employer immune from tort liability under the exclusivity provisions of the Act. Judge Moore stated that since that question was not one purely of law, but of fact, reasonable persons might draw different conclusions as to whether G & R was a special employer. Based on that, Judge Moore stated that the issue of whether G&R was a special employer should have been one decided by the jury.

MY TWO CENTS

Although Judge Moore was the only judge that dissented, I believe that the principals of judicial estoppel support his opinion. A party is generally precluded from taking a position in a case which is contrary to a position they have taken in earlier legal proceedings. Employers need to be aware that if they deny that they are the employer, they may be estopped from seeking protection under the exclusivity provisions of The Alabama Workers’ Compensation Act in the event a tort claim is later brought by the employee. Therefore, it is critical that employers and their attorneys consider the pros and cons of pleading tort immunity at the outset of any case.

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ABOUT THE AUTHOR

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

Now that I have your attention, let me elaborate. An Australian federal employee was on a business trip when she met up with a man and had sex with him in her hotel room. While engaged in the act of intercourse, a light fixture above the bed fell onto her face causing injury to her nose and mouth. In addition to her claim for physical injuries, the claimant alleged depression.

The administrative tribunal denied benefits because it determined that sex is not an ordinary incident of an overnight stay such as showering, sleeping, or eating.

A Federal Court Judge overturned the decision analogizing the sex act to playing a game of cards. In his opinion, if she had been injured while playing cards in her room it would be compensable and, therefore, she should also be compensated for her sex injuries. There was no comment on how a light fixture might come loose while playing cards but, then again, there was also no comment on how the light fixture came loose during the sex act.

Fortunately for the employer, the High Court agreed with the rational of the administrative tribunal and ruled that benefits were not owed. The Australian Employment Minister hailed the ruling as a victory for common sense.

 

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About the Author

This article was written by Michael I. Fish, Esq. of Fish Nelson LLC, a law firm dedicated to representing employers, self-insured employers and insurance carriers in workers’ compensation matters. Fish Nelson is a member of The National Workers’ Compensation Network (NWCDN). If you have any questions about this article or Alabama workers’ compensation issues in general, please feel free to contact the author atmfish@fishnelson.com or any firm member at 205-332-3430.

On September 27, 2013, the Alabama Supreme Court released its opinion in Ex parte Schnitzer Steel Industries, Inc. wherein it addressed the discoverability of post-accident investigation reports.   The subject report was prepared following a workplace accident resulting in an amputation. The trial court initially ruled that the report was privileged and not discoverable. The judge later reversed that ruling and ordered that the report be produced. The employer then petitioned the Alabama Supreme Court for a writ of mandamus directing the judge to vacate the order.

On appeal, the employer argued that the report was prepared in anticipation of litigation and, thus, protected as work product.  On the flip side, the employee argued that the employer conducted post-accident investigations and prepared reports containing the findings of the investigation for all accidents regardless of whether or not there was any anticipation of litigation.

In this case, the employer’s workers’ compensation manager testified that there was no written policy that a post-accident investigation be undertaken and that such a report is only prepared when litigation is anticipated. The employer’s safety director, however, testified that the report was prepared in the normal course of business and to address safety concerns and not in anticipation of litigation. The Court resolved the inconsistencies between the two deponents by pointing out that, while it is necessary for the report to be prepared in anticipation in order to be afforded the protection of the work product doctrine, it does not have to be the sole reason.   Since it was reasonable under the circumstances for the employer to assume that litigation could be expected, the Court granted the petition  and issued the writ directing the trial court to vacate its order granting the motion to compel the discovery of the report.

My Two Cents:

This opinion makes it very clear that employers must reasonably expect future litigation when preparing investigative reports in order to enjoy the protections of the work product doctrine.  A standard post-accident investigation report may end up being discoverable unless it can be shown that there was some perceived threat of a lawsuit at the time the report was created.  For this reason, it is advisable to do something different than your standard operating procedure when you do expect litigation such as involve an attorney in the investigation phase of a claim.

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About the Author

This article was written by Michael I. Fish, Esq. of Fish Nelson LLC, a law firm dedicated to representing employers, self-insured employers and insurance carriers in workers’ compensation matters. Fish Nelson is a member of The National Workers’ Compensation Network (NWCDN). If you have any questions about this article or Alabama workers’ compensation issues in general, please feel free to contact the author atmfish@fishnelson.com or any firm member at 205-332-3430.

On September 20, 2013, the Alabama Court of Civil Appeals released its opinion in the case of Malone v. Steelcase, Inc., dealing with the applicability of § 25-5-57(c)(3) of The Alabama Workers’ Compensation Act. § 25-5-57(c)(3), known as the set-off statute, provides that an employer is allowed a set-off against compensation benefits owed to an injured employee when the employer continues the salary of the employee during the period in which benefits are owed. Malone suffered an injury to her lower back occurring in and arising out of her employment with Steelcase, but she was able to return to her job earning wages equal to those she was earning prior to the injury. The trial court awarded permanent partial disability benefits for a 25% disability to Malone’s body as a whole, in the amount of $81.54 per week. However, the trial court also awarded Steelcase an offset in the amount of $67.30 per week for wages Steelcase paid to Malone after she was placed at maximum medical improvement, pursuant to § 25-5-57(c)(3). Malone appealed, and the Court of Appeals reversed the trial court’s decision.

Malone argued that § 25-5-57(a)(3)i, which is often referred to as the "return to work statute" was controlling, and that under that statute, her compensation for her injury was to be based on her physical disability rating, without consideration for loss of earnings capacity. Malone argued that under that statute, Steelcase was not entitled to a set-off, because § 25-5-57(c)(3) did not apply to her situation. In reaching its decision, the Court of Appeals stated that it agreed with Malone, because when two statutes conflict, the "more specific" statute is controlling, and § 25-5-57(a)(3)i is the more specific statute. The Court further stated that § 25-5-57(a)(3)i would be rendered meaningless under the interpretation of the set-off statute advocated by Steelcase. The Court of Appeals noted that benefits awarded in cases where the return to work statute applies, like scheduled benefits, should be awarded regardless of whether an employee is receiving full wages.

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MY TWO CENTS:

The Court of Appeals’ analysis begs the question: So exactly when does the set-off statute apply? The Court of Appeals’ ruling is interesting in that it found that § 25-5-57(a)(3)i would be rendered meaningless if the employer was allowed an offset against an award for wages paid in situations where the employee is earning wages equal to her pre-injury wage. The decision further implies that the set-off statute does not apply in scheduled member injury cases either, for the same reason. The only other statute that applies to permanent partial disability awards is § 25-5-57(a)(3)g, which provides that an employee’s compensation for injury is equal to 66 2/3% of the difference between her average weekly earnings at the time of the injury and the average weekly earnings she is able to earn in her partially disabled condition. It certainly seems that if the legislature intended that the set-off statute only apply to awards made under § 25-5-57(a)(3)g that the statute would clearly and unambiguously state as much. However, the answer is contained in the statutory language concerning the employer continuing the salary of the employee. It appears that the Court of Appeals’ interpreted it to mean when the employer continues thefull salary of the employee. In other words, when the employer is paying the employee herfull wages for either performing less work, or for performing a less demanding job, the employer is entitled to a set-off, but when the employee is performing her regular job for her regular wages, the employer is not entitled to a set-off.

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ABOUT THE AUTHOR

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

On September 9, 2013, the Alabama Court of Civil Appeals released its opinion inSouthernCare, Inc v. Margaret Cowart wherein it reaffirmed that a mere possibility does not establish medical causation. Although it affirmed the trial court’s finding of medical causation, it reversed the permanent and total disability award and remanded it for the trial court to determine the level of disability.

The facts before the Court involved a preexisting back injury and then 4 separate accidents injuring the lower back over a 3 year period with SouthernCare, Inc. Prior to a 2004 fall on the job, Cowart had a preexisting back injury but she had been working without restriction. After the 2004 fall and injury, Cowart had periods of disability but returned to full duty. She then had 2 incidents in 2005 and 2 in 2007 where she felt pain in the same region and of the same nature as she did after the 2004 fall. After the 2007 injury was determined not to be work related by the employer, Cowart returned to work but testified that she worked in constant pain. Cowart suffered another accident on the job injuring the same area of the back but testified that the pain was even more excruciating this time.

Cowart was seen by several different doctors and all the medical records indicated that the tests were unremarkable and that Cowart’s symptoms were degenerative or related to fibromamyalgia and not work related. After the June 2007 injury Cowart was treat by Dr. James White. Dr. White opined that without further testing he could not say if stenosis was causing the symptoms or if there was a herniated disk below the stenosis. Dr. White also testified that without further testing he could not say if the injury was work related. He did testify that the back pain could be due to fibromyalgia but the fact that Cowart did not have radiating pain prior to the first fall in 2004 indicated that fibromyalgia was not causing the current symptoms.

The trial court considered the medical records, Dr. White’s testimony and heard the plaintiff’s testimony in a compensability hearing and found the injury compensable and ordered the tests requested by Dr. White. The trial court later held a disability hearing with the only testimony being the employer’s vocational expert, which resulted in a permanent and total disability award. The employer then appealed the compensability decision and the permanent and total disability award.

The Court of Civil Appeals reviewed the testimony but did not re-weigh the evidence as it related to the decision on medical causation and permanent and total disability. The Court noted that the applicable standard for medical causation set forth by the Alabama Supreme Court was the evidence must establish more than a mere possibility that the injury was caused by the work place accident.Ex parte Southern Energy Homes, 873 So. 2d 1116, 1121-22 (Ala. 2003). The court also stated the "expert medical testimony is not always required to establish medical causation; however, an employee’s testimony, while not always insufficient alone to establish medical causation, cannot establish medical causation when ‘the evidence as a whole weighs heavily against finding the [employee’s] testimony alone to be substantial evidence of medical causation.’"Id at 1122. In the instant case the Court of Appeals noted that the only record that specifically said the injury was not related was from a doctor that reviewed the wrong MRI after the first 2007 incident. In addition, Cowart’s doctors stated that her symptoms were related to degenerative problem and/or fibromylgia. The Court then turned to the only detailed opinion on the subject of medical causation, Dr. White’s deposition testimony. This testimony stated that without further testing he could not say if the symptoms were related to the falls at work or not but that it was not until after the fall that Cowart reported radiating pain. The Court of Appeals then turned to Cowart’s testimony to determine if, when viewed with all the evidence, it could provide substantial evidence as to medical causation. Cowart’s testimony was that prior to the 2004 fall her fibromylgia had seldom caused her to miss work. She also testified that after the first fall she had returned to work at full duty with several subsequent incidents causing severe pain in the same region of her back. Cowart further testified that after the first incident in 2007 she returned to work but was in constant pain. The Court of Appeals pointed out that the trial court may infer medical causation from circumstantial evidence that indicates the employee was working normally before the incident, but afterwards the symptoms appeared and continued. Based on this, the Court of Appeals found that substantial evidence was present for the trial court to find medical causation.

The Court of Appeals did find that there was not sufficient evidence to support the permanent and total disability award. They pointed to Cowart’s testimony that she had been able to perform her duties despite her pain, her testimony that she desired to return to work and the employers vocational expert stating she had transferable skills and no loss of earnings capacity. Based on this, the Court of Appeals found there was not sufficient evidence to support a permanent and total disability award and the trial court should review the evidence again to determine the level of disability.

Of Note:

It has long been the position of the Alabama Appellate Courts that they are not to re-weigh the evidence in a workers’ compensation appeal. However, Judge Moore, in his concurring opinion, stated that when the legislature eliminated the certiorari review of workers’ compensation case in 1992 and created the substantial evidence standard, the standard of review for an appeal also changed. Judge Moore stated that the prior standard of review applicable to certiorari review only required support by any evidence, not substantial evidence. Therefore, by changing to the substantial evidence standard the legislature intended to change the standard of review and allow the Court of Appeals to re-weigh the evidence. Judge Moore also asserted that, under the current ruling by the Alabama Supreme Court, the Court of Appeals cannot re-weigh the evidence and must leave the trial court’s ruling alone if there is any evidence that supports the trial court’s ruling, which is the same as the certiorari review pre 1992 amendment. With the legislature creating the substantial evidence standard, Judge Moore opined that the Court of Appeals should be allowed to re-weigh the evidence to establish if there is substantial evidence and not just any evidence to support the decision.

ABOUT THE AUTHOR

The article was written by Joshua G. Holden, Esq. a Member of Fish Nelson, LLC, a law firm dedicated to representing employers, self-insured employers and insurance carriers in workers’ compensation and related liability matters. Mr. Holden is AV rated by Martindale-Hubbell, which is the highest rating an attorney can receive. He is the current Chair of the ABA/ TIPS Workers’ Compensation and Employers’ Liability Committee. He is also on the Board of the Alabama Workers Compensation Organization and a member of numerous other associations and organizations. Holden has been selected as a "Rising Star" by Super Lawyers.

Holden and his firm are members of The National Workers’ Compensation Defense Network (NWCDN). The NWCDN is a national and Canadian network of reputable law firms organized to provide employers and insurers access to the highest quality representation in workers’ compensation and related employer liability fields.

If you have questions about this article or Alabama workers’ compensation issues in general, please feel free to contact the author atjholden@fishnelson.com or 205-332-1428.

On August 16, 2013, The Alabama Court of Civil Appeals released its opinion in the matter ofDuBose Construction Company, LLC v. James Simmon. This was the third time this case had come before the Court. The subject injury was to the employee’s right knee which occurred as the result of a fall at work. At trial, the judge found the matter compensable and assessed a 15 percent permanent partial loss of the employee’s ability to earn. The employer appealed on the grounds that the judge should not have considered evidence of vocational loss or assessed a whole body impairment where the injury was to a scheduled member. The Court of Civil Appeals agreed and reversed the judgment. Four months later, the trial court dismissed the case in its entirety. After a failed attempt at mediation, the employee filed a petition for writ of mandamus asking the Court to order the trial court to vacate its dismissal. The Court granted the petition. The employer then filed a petition for a writ of mandamus to the Alabama Supreme Court in an effort to have the Court of Civil Appeals’ mandamus order vacated. That petition was denied.

The evidence at trial revealed that the employee had a torn medial meniscus in his right knee. While performing an arthroscopy, the treating physician discovered that the employee also had chondromalacia which was described as a wear and tear, arthritic issue. Upon reaching maximum medical improvement, the employee was released to return to work at full duty with zero restrictions and no medical impairment. In his trial deposition, the treating physician testified that any complaints of pain would be due to the arthritic issue.

At trial, the employee testified that his knee injury caused him to walk with a limp and that his back was off balance. On remand, the trial judge relied on this testimony to remove the knee injury from the schedule and consider evidence of vocational disability. The employer then appealed on the grounds that the employee’s testimony failed to prove that his knee injury had any effect on other parts of his body.

The Court of Civil Appeals agreed with the employer. In reversing and remanding the matter, the Court relied on theDrummond test. In Ex parte Drummond, the Court adopted the following test: If the effects of the loss of the member extend to other parts of the body and interfere with their efficiency, the schedule allowance for the lost member is not exclusive. In applying this test, the Court noted that the employee never actually testified that he was having lower back problems. The evidence further revealed that the employee never received any medical treatment for any other body parts. In fact, his treating physician testified that the employee never complained about any body part other than his knee.

In reversing and remanding the matter, the Court instructed the trial court to determine what, if any, disability the employee had to his right leg.

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About the Author

This article was written by Michael I. Fish, Esq. of Fish Nelson LLC, a law firm dedicated to representing employers, self-insured employers and insurance carriers in workers’ compensation matters. Fish Nelson is a member of The National Workers’ Compensation Network (NWCDN). If you have any questions about this article or Alabama workers’ compensation issues in general, please feel free to contact the author atmfish@fishnelson.com or any firm member at 205-332-3430.

 

 

On August 9, 2013, the Alabama Court of Civil Appeals released its decision inDevero v. North American Bus Industries, in which it upheld summary judgment in favor of North American Bus Industries (NABI) for various tort claims Devero alleged arose out of his employment with NABI.

In February of 2005, Devero and seven other employees of NABI filed a lawsuit in the Circuit Court of Calhoun County, Alabama against NABI and two other defendants, PPG Industries and E.I. DuPont de Nemours, asserting claims of fraud, negligence, wantonness, failure to warn, civil conspiracy, and infliction of emotional distress stemming from alleged exposure to hazardous chemicals in the workplace at NABI. In January of 2006, the trial court entered an Order stating that all of the plaintiff’s claims against NABI were governed by the exclusivity provisions of the Alabama Workers’ Compensation Act. The trial court ordered Devero to restructure his Complaint to state claims under the Act. Devero then filed a new Complaint for workers’ compensation benefits, asserting that he had been exposed to toxic chemicals, deadly solvents, and spray paint particles that had damaged his internal organs and caused him to develop peneumoconiosis. NABI filed an Answer denying all of Devero’s allegations and then moved for summary judgment, asserting that there was no evidence that Devero had been exposed to any toxic substances at work, and that there was no evidence to indicate that Devero suffered from any illness or occupational disease related to his employment. In support of its Motion for Summary Judgment, NABI submitted Devero’s deposition testimony, the medical records of Devero’s personal physician, and hospital records pertaining to Devero’s treatment for his alleged peneumoconiosis.

After consideration of all the evidence, the trial Court granted NABI’s Motion for Summary Judgment, finding that Devero had not presented any evidence of legal or medical causation for his alleged injuries and/or occupational disease. However, the trial Court’s Order did not contain specific findings of fact and conclusions of law addressing whether Devero was suffering from an injury or disease that occurred in and arose out of his employment with NABI.

Devero appealed. On appeal, the Court of Civil Appeals held that an Order granting a Motion for Summary Judgment in a workers’ compensation case need not contain findings of fact and conclusions of law, thus overturning a prior case ofFarris v. St. Vincent’s Hospital, 624 So. 2d 183 (Ala. Civ. App. 1993). Devero also continued that the trial Court erred in failing to allow him to proceed with his tort claims, which he alleged were outside the scope of the Alabama Workers’ Compensation Act. However, the Court of Appeals held that although Devero’s claims against NABI involved allegations of intentional or reckless conduct, those claims dealt with workplace conditions "within the bounds of an employer’s proper role", and therefore, those claims were precluded by the exclusivity provisions of the Alabama Workers’ Compensation Act.

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ABOUT THE AUTHOR

The article was written by Charley M. Drummond, Esq. of Fish Nelson, LLC. Fish Nelson is a law firm located in Birmingham, Alabama dedicated to representing employers, self-insured employers, and insurance carriers in workers’ compensation cases and related liability matters. Drummond and his firm are members of The National Workers’ Compensation Defense Network (NWCDN). The NWCDN is a national and Canadian network of reputable law firms organized to provide employers and insurers access to the highest quality representation in workers’ compensation and related employer liability fields.

If you have questions about this article or Alabama workers’ compensation issues in general, please feel free to contact the author atcdrummond@fishnelson.com or (205) 332-3414.

The EEOC filed lawsuits this past May, claiming that employers had violated the Genetic Information Nondiscrimination Act (GINA) and the Americans with Disabilities Act (ADA) when they required applicants to submit to post-job-offer medical exams. Though GINA and ADA do not bear directly on workers’ compensation issues, they do affect post-job-offer medical examinations which are often important aspects of workers’ compensation claims.

In EEOC v. Fabricut, Inc. and EEOC v. Founders Pavilion, Inc., the employers allegedly required applicants to undergo medical examinations, which included questions about family medical histories. In both cases, the employers may have withdrawn job offers based on the applicants’ answers to these questions. In doing so, the EEOC claimed the employers violated GINA, which prohibits an employer from requesting, requiring or purchasing genetic information from applicants, including family medical histories.

Notably, the ADA and GINA do not prevent employers from requiring applicants to undergo any medical examinations, but they do limit the scope of such exams. Employers may require a medical examination that is designed to detect disabilities that would directly affect an applicant’s ability to perform the physical duties of a job. Based on the results of this type of limited medical exam, the applicant may be found physically incapable of safely performing the duties of the job, and unless a reasonable accommodation can be made, the employer may withdraw a job offer.

Practice Pointer:

Employers and their counselors should review post-offer medical examinations, if any, and make sure the exam is limited to gathering information that is relevant to the physical requirements of the job. If the post-offer exam asks about family medical history or conditions that would not affect an applicant’s ability to perform the job, then the exam may result in violations of the ADA and GINA. If testing is done by a private doctor or clinic, then employers should verify that prohibited information is not being requested on their behalf.

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About the Author

This blog post was written by Trey Cotney, Esq. of Fish Nelson LLC, a law firm dedicated to representing employers, self-insured employers and insurance carriers in workers’ compensation matters. Fish Nelson is a member of The National Workers’ Compensation Network (NWCDN). If you have any questions about this article or Alabama workers’ compensation issues in general, please feel free to contact the author at tcotney@fishnelson.com or any firm member at 205-332-3430.

The Alabama Court of Civil Appeals recently affirmed a trial court’s determination of disability which was based on the employee’s subjective complaints of pain and her appearance of physical disability during trial. InStericycle, Inc. v. Sonja Patterson, the trial court assigned a 57% permanent partial disability rating for a back injury sustained while loading a truck. On appeal, Stericycle contended that the trial court’s medical-causation and disability determinations were not supported by substantial evidence.

The Court of Appeals first addressed the issue of medical causation, holding that the parties stipulated that medical causation was not an issue before the trial court. The Appeals Court found the technical wording and structure of the stipulations supported the notion that the parties agreed the employee’s injury was caused by the accident. Furthermore, defense counsel did not challenge the trial court’s Order which clearly stated the parties had stipulated that causation was not an issue. As a result, the Appeals Court found no error in the trial court’s interpretation of the stipulation.

The Appeals Court then addressed the trial court’s assignment of a 57% disability rating. The evidence presented at trial indicated the employee’s treating physicians and physical therapists believed she was displaying symptom magnifications, which they define as reports of pain that exceed the objective medical findings. The medical evidence and thorough diagnostic studies provided little explanation for the employee’s pain, and she was given a full work release, without limitations, and a 0% impairment rating.

However, the employee continued to report severe pain and physical disability. At trial, the court noted the employee walked with a significant limp and moved around the courtroom as though she was much older than 44, her actual age. The trial court found the employee’s subjective complaints to be credible in spite of the significant medical evidence that showed otherwise.

In affirming the trial court’s determination of disability, the Appeals Court recognized its duty to uphold a decision that is supported by consideration of the totality of evidence. Though it was in striking contrast to medical evidence, the Appeals Court held that the employee’s subjective reports of pain and physical presentation of disability were sufficient grounds to support the trial court’s determination of disability.

My Two Cents:

This decision is a testament to the power of perceived credibility in workers’ compensation cases. As evidenced in the opinion, a trial court’s confidence in well-informed scientific and medical evidence can be stifled by an employee with a convincing demeanor. As such, there is significant value in developing credibility, or lack thereof, in the eyes of a court.

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About the Author

This blog post was written by Trey Cotney, Esq. of Fish Nelson LLC, a law firm dedicated to representing employers, self-insured employers and insurance carriers in workers’ compensation matters. Fish Nelson is a member of The National Workers’ Compensation Network (NWCDN). If you have any questions about this article or Alabama workers’ compensation issues in general, please feel free to contact the author at tcotney@fishnelson.com or any firm member at 205-332-3430.

The Supreme Court of Alabama recently addressed preemption of the Alabama Workers’ Compensation Act by the Federal Longshore and Harbors Workers’ Compensation Act (LHWCA) inFernando Rodriguez-Flores v. U.S. Coatings, Inc., where an employee sought Alabama workers’ compensation benefits in state court for alleged injuries he sustained while painting in a dry dock on the coast. The employee also filed tort actions for retaliatory discharge and fraud based on a co-employee’s handling of the claim.

The employee recognized that the LHWCA prohibits tort claims against an employer in state court if the basis of the tort is within the scope of the LHWCA. However, the employee cited a narrow exception that allows such actions in state court when the employer intended to harm the employee. The employee further contended that the LHWCA remedies for retaliatory discharge would be inadequate when compared to state law remedies, which allowed for punitive damages.

The trial court dismissed the fraud and retaliatory discharge claims, agreeing with U.S. Coatings that the tort claims were preempted by the exclusivity provisions of the LHWCA.

On appeal, the Supreme Court recognized that there existed a "twilight zone" of concurrent jurisdiction between the LHWCA and the Alabama Act, wherein the location of a work accident provides the employee the option to pursue benefits under federal or state law. In doing so, the Supreme Court also recognized that state law would be preempted by federal law, if the laws were in conflict.

The Court identified a clear conflict between the LHWCA, which prohibits lawsuits against a co-employee, and Alabama common law, which allows for them. Because of this conflict, the Court held that the state law was preempted by the Federal law. The Court further held that U.S. Coatings did not intend to harm the employee, so the action did not fall within the exception. As a result, the Court affirmed the dismissal of the fraud claim.

As for the retaliatory discharge claim, the Court recognized that both the Alabama Act and the LHWCA provided relief for employees who are fired for claiming workers’ compensation benefits, and therefore, the laws were not in conflict. The Court did note that Alabama provides for punitive damages in retaliatory discharge actions, but that the LHWCA does not. However, this discrepancy in potential remedies did not create a conflict between the substantive causes of action. The Court held that the legislative history and interpretation of the LHWCA supports the notion that the federal law shall supplement state law, if possible, and if no conflict exists between the laws, the employee may pursue the action under state law. As a result, the Court held that the employee’s retaliatory discharge claim brought under state law should not have been dismissed and remanded the case back to the trial court.

My Two Cents:

The Alabama Supreme Court made it clear that a work related accident occurring in the twilight zone of concurrent jurisdiction between the LHWCA and the Alabama Act may be compensated by either set of laws. The restriction that the Court enforced supports the long standing preemptive theory, whereby federal law will trump state law when they are in actual conflict. Interestingly, as held in this case, a significant discrepancy in the potential remedies available to an employee will not result in a conflict between a state law and a federal law which address the same cause of action.

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About the Author

This blog post was written by Trey Cotney, Esq. of Fish Nelson LLC, a law firm dedicated to representing employers, self-insured employers and insurance carriers in workers’ compensation matters. Fish Nelson is a member of The National Workers’ Compensation Network (NWCDN). If you have any questions about this article or Alabama workers’ compensation issues in general, please feel free to contact the author at tcotney@fishnelson.com or any firm member at 205-332-3430.

On July 19, 2013, the Alabama Court of Civil Appeals released its opinion in Gore v. Lafarge North America, Inc. wherein it addressed the trial judge’s ability to assign a disability rating that is lower than the impairment rating issued by the authorized treating physician. In Alabama, a judge is not limited by the impairment rating when assigning a disability rating. Although it is common for trial judges to use the impairment rating assigned by the doctor as a minimum, it is unusual to see a disability rating that is lower than the impairment rating.

In Gore, the plaintiff claimed that he was permanently and totaling disabled as a result of rocks falling on him while at work injuring his neck and other parts of his body. Initial treatment provided by the employer did not reveal any injuries and the plaintiff was returned to work at light duty and given pain medication. The plaintiff then went to see his own doctor but did not indicate he had treated with the employer’s doctor. As a result, the plaintiff secured pain mediation from both doctors which was an obvious credibility issue. Discovery later revealed that, prior to the accident, the plaintiff had been off of work for other injuries, including his neck, and was receiving narcotic pain medication up to 4 days prior to the alleged accident. During that period of time he was also off work as a result of being convicted for doctor shopping to secure multiple prescriptions for Xanax. The evidence at trial also revealed that the plaintiff was not truthful in regards to prior neck problems. The plaintiff testified that he never had prior neck pain but his supervisor testified that the plaintiff had been off work, or unable to perform his work, on numerous occasions complaining about his neck, back, shoulder and foot. Medical records also revealed prior medical treatment for back and neck pain. The plaintiff ultimately underwent surgery performed by the authorized treating physician to remove several disk and bone spurs as a result of arthritis at almost every level and a pinched nerve. The initial fusion was unsuccessful and a revision was performed. He was ultimately placed at MMI with light duty restrictions and given a 20% impairment rating to the body. The authorized treating physician testified that, based on the provided history, the accident did cause the pinched nerve, however, it was very challenging to separate degenerative from acute.

The trial Court found that the plaintiff was suffering from similar symptoms prior to the accident evidenced by short term disability 3 times over a 5 year period and narcotic pain medication as recently as 2 months before the accident. The trial Court also questioned the plaintiff’s credibility based on inconsistent testimony regarding prior injuries and his criminal convictions for DUI in the past and the conviction for doctor shopping. The trial Court found that the plaintiff proved that he had an on the job injury but found that it only resulted in a permanent partial disability. The trial Court opined that the plaintiff’s past medical condition accounted for some of the disability and the degenerative conditions could have resulted in the current injuries and/or need for treatment. As a resulted, the judge reduced the doctor’s 20% impairment rating to a 10% disability rating to account for the preexisting condition causing some of the current disability and not the on the job accident.

On appeal the plaintiff argued that the preexisting condition should not have been considered because he was performing his job normally at the time of the accident. He argued that because the accident was one factor of the disability he met his burden of proof since the accident did not have to be the sole cause of the permanent and total disability. The Alabama Court of Civil Appeals agreed that this met the standard for medical causation but stated that the extent that the accident contributed to the disability was the issue. The Appeals Court stated that the preexisting neck injury was not latent or asymptomatic and, therefore, the preexisting condition was the cause of a portion of the disability and was in fact affecting his ability to work at times prior to the accident. The Court of Appeals ruled that the evidenced supported the Trial Court’s finding that a portion of the 20% disability issued by the doctor was not the result of the accident but was the result of the preexisting degenerative condition.

Of note, the Court of Appeals stated that the evidence was sufficient to deny benefits altogether because of the plaintiff’s inability to work on various occasions leading up to the accident but the employer did not cross appeal that issue.

The Court of Appeals remanded the case to the trial Court for a determination on whether the plaintiff suffered any loss of ability to earn because he had not been able to return to work following his injuries.

My Two Cents

: Just because the preexisting condition does not prevent the employee from performing his job prior to the accident do not ignore it. If the preexisting condition is causing, or partially causing, the disability complained of, the Judge can attribute some of the disability to the preexisting condition, and reduce the disability attributed to the work injury.

ABOUT THE AUTHOR

The article was written by Joshua G. Holden, Esq. a Member of Fish Nelson, LLC, a law firm dedicated to representing employers, self-insured employers and insurance carriers in workers’ compensation and related liability matters. Mr. Holden is AV rated by Martindale-Hubbell, which is the highest rating an attorney can receive. He is the current Chair of the ABA/ TIPS Workers’ Compensation and Employers’ Liability Committee. He is also on the Board of the Alabama Workers Compensation Organization and a member of numerous other associations and organizations. Holden has been selected as a "Rising Star" by Super Lawyers.

Holden and his firm are members of The National Workers’ Compensation Defense Network (NWCDN). The NWCDN is a national and Canadian network of reputable law firms organized to provide employers and insurers access to the highest quality representation in workers’ compensation and related employer liability fields.

If you have questions about this article or Alabama workers’ compensation issues in general, please feel free to contact the author atjholden@fishnelson.com or 205-332-1428.

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

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

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

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

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

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

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ABOUT THE AUTHOR

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

On June 21, 2013, the Alabama Court of Civil Appeals released its decision in the case ofSamuel Roblero v. Cox Pools of the Southeast, Inc. In that case, the Court of Appeals upheld the trial court’s ruling that uninsured motorist settlement proceeds that Roblero received after a work related motor vehicle accident were subject to the employer’s subrogation rights. The facts of the case before the court were that on May 10, 2010, the employee, Samuel Roblero, had been involved in a motor vehicle accident occurring in and arising out of his employment with Cox Pools. The driver of the other vehicle involved in the accident was at fault, but he was uninsured. The vehicle Roblero was driving was owned by Cox Pools, and the employer had a policy of uninsured motorist insurance covering that vehicle with policy limits of $3,000,000. Cox Pools had paid Roblero over $20,000.00 in TTD benefits and had expended more than $47,000.00 for Roblero’s medical treatment. Roblero settled his claim for uninsured motorist benefits with the UM carrier for $30,000.00. Then, Roblero filed a Complaint seeking workers’ compensation benefits from Cox Pools, alleging that he had suffered a permanent disability as a result of the accident. Cox Pools then filed a Motion for Summary Judgment seeking dismissal of Roblero’s workers’ compensation claim on the basis that he was estopped from recovering workers’ compensation benefits because it would result in an impermissible "double recovery" for the same injury. Cox Pools also asserted subrogation rights to the $30,000.00 that Roblero had received in uninsured motorist insurance benefits. The trial Court conducted a hearing on Cox Pools’ Motion for Summary Judgment and ruled that Cox Pools had a right to subrogate against the $30,000.00 Roblero received from the uninsured motorist settlement. Additionally, the trial court dismissed Roblero’s workers’ compensation claim because it found that Cox Pools was not allowed the opportunity to participate in the settlement with the uninsured motorist insurer.

Roblero appealed, but he failed to assert that the trial Court erred in determining that the uninsured motorist insurance settlement was subject to Cox Pools subrogation rights. Instead, he argued that the court "improperly grouped" the credit for compensation benefits with the subrogation allowed against medical expenses, and that the court improperly dismissed his claim for workers’ compensation benefits. In its decision, the Court of Appeals noted that § 25-5-11 of The Alabama Workers’ Compensation Act clearly allows an injured employee to maintain a third party action and an action for workers’ compensation benefits at the same time, and that dismissal of Roblero’s claim was therefore improper. The Court of Appeals reversed the portion of the trial Court’s order dismissing Roblero’s workers’ compensation claim, but upheld the portion of the judgment determining that the uninsured motorist benefits were subject to Cox Pools’ subrogation rights since Roblero failed to argue that issue on appeal.

My Two Cents:

The trial court’s ruling on Cox Pools’ subrogation rights would have most likely been reversed as well if Roblero had argued that issue on appeal. The Court noted the case ofBunkley v. Bunkley Air Conditioning, Inc., 688 So.2d 827 (Ala. Civ. App. 1996) was controlling on the issue, and that case held that uninsured motorist benefits were not subject to an employer’s subrogation rights. The Court of Appeals went to great lengths to point out that Roblero failed to make this argument on appeal, thus waiving that argument.

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ABOUT THE AUTHOR

The article was written by Charley M. Drummond, Esq. of Fish Nelson, LLC. Fish Nelson is a law firm located in Birmingham, Alabama dedicated to representing employers, self-insured employers, and insurance carriers in workers’ compensation cases and related liability matters. Drummond and his firm are members of The National Workers’ Compensation Defense Network (NWCDN). The NWCDN is a national and Canadian network of reputable law firms organized to provide employers and insurers access to the highest quality representation in workers’ compensation and related employer liability fields.

If you have questions about this article or Alabama workers’ compensation issues in general, please feel free to contact the author at cdrummond@fishnelson.com or (205) 332-3414.

Office Max, Inc. v. Academy, Ltd. - Released May 17, 2013

This case stems from a workers’ compensation case involving an employee of Office Max. The employee claimed that in 2002 and 2005 she injured her knees and shoulders, respectively, while working in the line and scope of her employment with Office Max. On three occasions, June 2008, March 2010 and July 2010 the employee sought orders compelling Office Max to provide medical treatment, which were granted. Office Max responded to the second motion arguing that the employee suffered a new injury, or aggravation of a preexisting injury, to her knees and shoulders while working for her new employer, Academy, Ltd. Pursuant to the Last Injurious Exposure Rule, Office Max argued that Academy was responsible for the medical treatment and any disability benefits related to the current treatment and injury. Office Max brought Academy into the action and Academy responded with a motion for summary judgment. Academy argued that the employee suffered a recurrence of the injuries she originally incurred while employed by Office Max. At the same time the employee filed a fourth motion to compel Office Max to provide further surgery on the left knee. The trial court granted the Motion for Summary Judgment and the Motion to Compel.

Under the Last Injurious Exposure Rule liability falls on the employer or carrier covering the risk at the time of the most recent injury with a casual connection to the disability. In order to determine this, the court must decide if the second injury is a new injury, an aggravation of a prior injury, or a recurrence of an old injury. If deemed a recurrence, then the first employer/carrier is responsible. However, if the second injury is a new injury or aggravation of the first injury, the second employer/carrier is responsible. A recurrence is found to have occurred when the second injury does not even slightly contribute to the disability. This is supported when the employee suffers injury, followed by a period of work with continued symptoms and then suffers a second event causing a second period of disability. An aggravation is deemed to have occurred when the second injury contributed independently to the final disability.

In regards to the shoulders, prior to starting employment with Academy in 2007, the employee suffered from tendinitis in both shoulder that lead to a diagnoses of a rotator cuff tear in the right shoulder. This lead to surgery in January 2007 and a determination that the plaintiff suffered from a 8% impairment rating in October 2007. In November of 2008, over one year after starting her job with Academy, the employee reported increased symptoms in her right shoulder which was ultimately determined to be another rotator cuff tear requiring surgery. After that surgery it was determined that the employee had a 9% impairment. The authorized treating physician testified that this would certainly be an aggravation. The Alabama Court of Civil Appeals found that the doctor’s testimony, coupled with the increased impairment would amount to substantial evidence supporting a finding that the employee suffered an aggravation and that Academy was responsible for the medical bills and indemnity benefits.

As to the knee, the evidence showed that, prior to her employment with Academy, the employee had no significant abnormalities. However, after her employment with Academy an MRI revealed a medial meniscal tear. The employee also testified that during her employment with Academy her job duties aggravated her knee condition. Given the new damage and the employee’s testimony, the Court of Civil Appeals again found that there was substantial evidence supporting a finding that the employee suffered an aggravation and Academy was responsible for the medical bills and indemnity benefits.

The Court of Civil Appeals found that the trial court erred in granting the motion for summary judgment in favor of Academy noting that the trial court must decide which employer is responsible given that the facts support that the employee suffered a compensable injury.

The Court of Civil Appeals also found that the order compelling Office Max to pay for medical treatment was premature and reversed it as well.

Of note the Presiding Judge, J. Thomas and Judge P.J. Thompson, wrote specially to highlight the problem created by these situations and called for a legislative amendment to address the issue.

My Two Cents

: Depending on the facts and circumstances of a particular case, it may be advisable to consider paying for medical treatment pending a judicial determination of responsibility so that you do not lose control of the medical treatment (SeeFlour Enterprises, Inc v. Lawshe blog posting, February 6, 2009). In the event that the judge eventually agrees that the other employer is responsible, then full reimbursement will also likely be ordered. However, if you are not successful, then you will have maintained control of the medical treatment.

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ABOUT THE AUTHOR

The article was written by Joshua G. Holden, Esq. a Member of Fish Nelson, LLC, a law firm dedicated to representing employers, self-insured employers and insurance carriers in workers’ compensation and related liability matters. Mr. Holden is AV rated by Martindale-Hubbell, which is the highest rating an attorney can receive. He is the current Chair of the ABA/ TIPS Workers’ Compensation and Employers’ Liability Committee. He is also on the Board of the Alabama Workers Compensation Organization and a member of numerous other associations and organizations. Holden has been selected as a "Rising Star" by Super Lawyers.

Holden and his firm are members of The National Workers’ Compensation Defense Network (NWCDN). The NWCDN is a national and Canadian network of reputable law firms organized to provide employers and insurers access to the highest quality representation in workers’ compensation and related employer liability fields.

If you have questions about this article or Alabama workers’ compensation issues in general, please feel free to contact the author atjholden@fishnelson.com or 205-332-1428.

Reps. Dave Reichert (R-WA) and Mike Thompson (D-CA) introduced the Medicare Secondary Payer and Workers’ Compensation Settlement Agreement Act (H.R. 1982) into the House of Representatives May 15, 2013.

The bill establishes clear and consistent standards for the administrative process which provides for reasonable protection of the injured worker and Medicare. Supporters indicate that it will benefit injured workers, employers and insurers by creating certainty as well as allowing the settlement process to move forward without the delays that parties are currently presented with.

The legislation is supported by the American Insurance Association, the American Bar Association, the National Council of Self-Insurers, Property Casualty, Insurers Association of America, UWC- Strategic Services and the Workers Injury Law and Advocacy Group (WILG).

The bill will likely be referred to the Ways & Means Committee for consideration.

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ABOUT THE AUTHOR

The article was written by Joshua G. Holden, Esq. a Member of Fish Nelson, LLC, a law firm dedicated to representing employers, self-insured employers and insurance carriers in workers’ compensation and related liability matters. Mr. Holden is AV rated by Martindale-Hubbell, which is the highest rating an attorney can receive. He is Chair of the ABA/ TIPS Workers’ Compensation and Employers’ Liability Committee. He is also on the board of the Alabama Workers Compensation Organization and a member of numerous other associations and organizations. Holden has been selected as a "Rising Star" by Super Lawyers.

Holden and his firm are members of The National Workers’ Compensation Defense Network (NWCDN). The NWCDN is a national and Canadian network of reputable law firms organized to provide employers and insurers access to the highest quality representation in workers’ compensation and related employer liability fields.

If you have questions about this article or Alabama workers’ compensation issues in general, please feel free to contact the author atjholden@fishnelson.com or 205-332-1428.

On April 19, 2013, the Alabama Court of Civil Appeals released its opinion in McAbee Construction, Inc. v. Elvin Allday. At trial, the employee presented evidence that he had worked as a boilermaker since 1986. During that time, he had sustained multiple work related injuries to his back and shoulders. However, the evidence revealed that the employee had fully recovered from those injuries and was working without restriction. During a temporary shutdown of the mill operated by his regular employer, the employee took a job with McAbee Construction and claimed a work accident resulting in injury after only 5 days with his new employer. Initially, the employee claimed only arm and shoulder problems but, a few days later, also claimed back pain. Eventually, the employee underwent a two-level lumbar fusion and a decompressive laminectomy. At trial, the judge considered medical testimony stating that the employee could have experienced the same problems even without a new accident based on his medical history. There was also evidence that the FCE was rendered invalid by symptom magnification. Ultimately, the judge determined that the back injury was compensable and awarded permanent and total benefits for the lifetime of the employee.

On appeal, the Court of Civil Appeals determined that there existed substantial evidence to support the permanent and total verdict and, therefore, affirmed that aspect of the judgment. In doing so, it addressed a few issues of interest.

Notice

On appeal, the employer asserted that the employee did not provide proper notice of his back injury. The Court of Civil Appeals noted that only notice of the accident is required and that notice of the exact nature of the injury that flows from the accident is not required.

Depression

the employer also asserted that the judge improperly related the employee’s claims of depression to the accident because the employee had failed to allege depression in his complaint. The Court of Civil Appeals noted that, while the judge’s order made reference to the testimony of a psychologist, it was for the purpose of explaining the symptom magnification referenced in the FCE. Specifically, it was the opinion of the psychologist that depression can cause or contribute to symptom magnification.

AWW

At trial, the employee testified that he chose to work only 40 weeks a year in order to spend more time with his family. As a result, the judge elected not to use one of the three predesignated methods set forth in the Alabama Workers’ Compensation Act for computing AWW. Rather, the judge took the amount earned by the employee in the one week he worked for his employer, multiplied it times 40 weeks, and then divided it by 52 weeks. The Court of Civil Appeals agreed that judge’s method was equitable to both parties and was an acceptable deviation from the standard three methods.

Lifetime Benefits

The employer asserted and the employee conceded that it was improper for the order to state that benefits were owed for the employee’s lifetime. Therefore, the case was remanded to the judge to revise the order to state that benefits were only owed for the duration of the employee’s permanent disability.

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About the Author

This article was written by Michael I. Fish, Esq. of Fish Nelson LLC, a law firm dedicated to representing employers, self-insured employers and insurance carriers in workers’ compensation matters. Fish Nelson is a member of The National Workers’ Compensation Network (NWCDN). If you have any questions about this article or Alabama workers’ compensation issues in general, please feel free to contact the author atmfish@fishnelson.com or any firm member at 205-332-3430.

On March 1, 2013, the Alabama Court of Civil Appeals released its opinion in Ex Parte Russell Threadgill wherein it denied in part and granted in part the employee’s petition for mandamus relief.

At trial, the employee claimed that he had two accidents. His first accident allegedly resulted in injuries to his back, left leg, right arm, and right shoulder. His second accident allegedly resulted in injuries to his left ankle and right shoulder. The employee testified that his second accident was the direct and natural consequence of injuries resulting from the first accident. Specifically, he claimed that the tingling and numbness in his left leg from the first accident caused him to fall. The employer presented medical evidence that rebutted the employee’s claims by demonstrating that the employee had not been experiencing those problems prior to the second accident. The judge ultimately held that the employee’s second accident was not a direct and natural consequence of his previous injuries. Additionally, the judge found that the second accident was not compensable because the employee could not show that his employment caused him to roll his ankle and fall.

The Court of Civil Appeals agreed that substantial evidence supported the trial judge’s finding that the employee’s job did not cause the second accident and that the second accident was not a direct and natural consequence of his previous injuries.  However, the Court found that the trial judge erred  in denying benefits for the right shoulder injury solely on the grounds that the second accident was not compensable. The Court stated that evidence indicated the shoulder injury may have been the result of the first accident and that the trial judge failed to resolve that dispute. The trial judge was therefore directed to determine whether or not the right shoulder injury was the result of the first accident.

My Two Cents:


Because the Court granted the employee’s petition in part, the trial judge will likely do one of two things: Either find the shoulder injury was the result of the first accident and award benefits or find that the shoulder injury was not the result of the first accident and deny benefits.

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About the Author   
 
This blog post was written by Trey Cotney, Esq. of Fish Nelson LLC, a law firm dedicated to representing employers, self-insured employers and insurance carriers in workers’ compensation matters. Fish Nelson is a member of The National Workers’ Compensation Network (NWCDN). If you have any questions about this article or Alabama workers’ compensation issues in general, please feel free to contact the author at tcotney@fishnelson.com or any firm member at 205-332-3430.

On February 15, 2013, the Alabama Court of Civil Appeals released its opinion in CVS/Caremark Corp. v. Gloria Washington wherein it addressed  the affirmative defense of judicial estoppel in the workers’ compensation context. Specifically, the Court noted the availability of the defense but only when properly pled. 

The Court of Appeals had previously addressed the issue in White Tiger, Inc. v. Paul Clemons (released January 13, 2012).  In that case, the Court ruled that a claimant’s assertion that he was available and able to do some work at his unemployment hearing, did not prevent him from being awarded permanent and total disability benefits in his workers’ compensation case.  The Court noted that being willing and able to do some work does not necessarily mean that you are able to secure employment that you are physically able and qualified to do. In the workers’ compensation case the plaintiff testified that he could not secure work because of his disability but he would give it a shot if someone hired him for a job he was qualified to do. For this reason the Court held that the two statements, in separate judicial proceedings, did not contradict one another in order to satisfy the necessary criteria for judicial estoppel to apply. 

In the more recently decided Washington case, the Court held that the employer waived its right to assert judicial estoppel as a defense by not affirmatively asserting or pleading it.  The Court further noted that the employee would have been judicially estopped from prevailing on a claim for permanent and total disability benefits based on the Court’s rationale in Clemons.  The Court distinguished the two cases because the employee in Washington testified in her workers’ compensation case that she could not work at all because of her pain and she had not sought employment.  The employee further admitted that she misrepresented her condition and ability to work in her claim for unemployment benefits. Unlike the Clemons case, in which the plaintiff testified he would give it a shot if he was hired in a position he was qualified for in the workers’ compensation case, the employee in Washington testified that she could not work and had not sought work because her injury/pain prevented her from working at all. Therefore, the two statements were in direct conflict of one another.  

Practice Pointer: Judicial estoppel is a viable defense in workers’ compensation cases but only if it is affirmatively pled.   

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ABOUT THE AUTHOR 

The article was written by Joshua G. Holden, Esq. of Fish Nelson, LLC, a law firm dedicated to representing employers, self-insured employers and insurance carriers in workers’ compensation matters. Fish Nelson is a member of The National Workers’ Compensation Defense Network (NWCDN). If you have questions about this article or Alabama workers’ compensation issues in general, please feel free to contact the author at jholden@fishnelson.com, 205-332-1428 or any firm member at 205-332-3430.

On February 8, 2013, the Alabama Court of Civil Appeals released its opinion in Ex Parte Johns & Kirksey, Inc. wherein it denied an employer’s petition for a writ of mandamus.  In its petition, the employer had sought relief from an interlocutory order finding that alleged cumulative trauma back and leg injuries were compensable.   

At trial, the employee presented evidence that he sustained a work related back injury and underwent surgery in November 1996. The employee returned to work, performing at full-duty after his recovery. In 2008, the employee began to have trouble with his back and right leg and claimed the new problems were the result of repetitive manual labor resulting in a cumulative-trauma injury. In particular, the employee presented evidence that he spent 60% to 80% of his time at work performing manual labor such as heavy lifting and installing roofs which required repetitive bending, stooping, squatting and kneeling. Additionally, a physician stated that the employee’s job duties were at least a contributing cause of his injuries.   

The employer offered testimony that the employee only spent 50% of his time performing manual labor, with half of that falling in the light or medium-duty range.  

In denying the employer’s petition, the Court of Appeals noted that the evidence presented at trial supported a finding that the employee proved both medical and legal causation by clear and convincing evidence. As such, the employer could not establish a clear legal right to the relief sought.   

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About the Author           

This blog post was written by Trey Cotney, Esq. of Fish Nelson LLC, a law firm dedicated to representing employers, self-insured employers and insurance carriers in workers’ compensation matters. Fish Nelson is a member of The National Workers’ Compensation Network (NWCDN). If you have any questions about this article or Alabama workers’ compensation issues in general, please feel free to contact the author at tcotney@fishnelson.com or any firm member at 205-332-3430.

In Alabama, an aggravation of a preexisting condition can be treated as a new injury if the claimant was working without restriction prior to the accident date or date of last exposure to cumulative trauma. This is similar to the law in Iowa. Recently, an Iowa workers’ compensation matter (McQuown v. Brecht Trucking, Inc.) was initially decided in favor of the employer based, in large part, on medical testimony distinguishing between aggravation and symptoms. According to the testifying doctor, an aggravation means that an underlying situation was made to be medically worse, which is different than merely experiencing symptoms of a preexisting condition while performing work duties.

Iowa Workers' Compensation cases can go through several levels of appeal. The above case was first tried before a Deputy Workers Compensation Commissioner who issued an arbitration decision in favor of the employer. The case was then appealed to the Iowa Workers Compensation Commissioner which reversed the arbitration decision. The employer now has the option of appealing the matter to the Iowa District Court.

My Two Cents: 

Although this is an Iowa case, it is a must read for anyone that handles Alabama workers’ compensation matters. It presents an interesting argument which employers and treating physicians should consider when presented with an aggravation claim.

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About the Author  

This article was written by Michael I. Fish, Esq. of Fish Nelson LLC, a law firm dedicated to representing employers, self-insured employers and insurance carriers in workers’ compensation matters. Fish Nelson is a member of The National Workers’ Compensation Network (NWCDN). If you have any questions about this article or Alabama workers’ compensation issues in general, please feel free to contact the author at mfish@fishnelson.com or any firm member at 205-332-3430.

Membership in the Alabama Workers’ Compensation Organization offers a number of professional and social opportunities. Among these is the popular 3 day Annual Spring Conference usually held in early May. If you pay your dues by January 31st the 2013 Spring Conference is FREE.

A link to the application is below.

http://awcotoday.com/tyfoon/site/fckeditor/file/2013AWCOMembershipApplication.pdf

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About the Author

This article was written by Michael I. Fish, Esq. of Fish Nelson LLC, a law firm dedicated to representing employers, self-insured employers and insurance carriers in workers’ compensation matters. Fish Nelson is a member of The National Workers’ Compensation Network (NWCDN). If you have any questions about this article or Alabama workers’ compensation issues in general, please feel free to contact the author at mfish@fishnelson.com or any firm member at 205-332-3430.

Effective January 1, 2013, the standard mileage reimbursement rate for Alabama was increased to 56.5 cents per mile.

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About the Author

This article was written by Michael I. Fish, Esq. of Fish Nelson LLC, a law firm dedicated to representing employers, self-insured employers and insurance carriers in workers’ compensation matters. Fish Nelson is a member of The National Workers’ Compensation Network (NWCDN). If you have any questions about this article or Alabama workers’ compensation issues in general, please feel free to contact the author at mfish@fishnelson.com or any firm member at 205-332-3430.

On December 14, 2012, the Alabama Court of Civil Appeals released its opinion in Goodyear Tire & Rubber Company v. Marvin Wilson. On appeal, was the trial court’s holding that the employee’s current complaints of back pain were caused, at least in part, by a 1986 lumbar back strain. The 1986 claim resulted in a 1987 lawsuit which was subsequently settled with future medical benefits remaining open. Per the authorized treating physician, he had been treating the employee from time to time from 1987 until the present. However, it was his opinion that the employee’s current complaints were likely due to his degenerative arthritis rather than the original compensable lumbar strain. In holding the employer to be responsible for the current care, the trial judge noted that the physician could not rule out with certainty that the lumbar strain did not, at least, contribute to the employee’s degenerative arthritis. In reversing the trial court, the Court of Appeals noted that the physician’s testimony only provided a mere possibility that the current back pain and the 1986 injury were related. As such, the trial judge’s holding was not considered to be supported by substantial evidence.

My Two Cents: At the trial of this case, it was assumed that the burden of proof was on the employer to prove that the current complaints of pain were not related to the previously accepted and compensable injury. However, it should be noted that it is always the burden of the employee to prove, by a preponderance of the evidence, that the complaint for which he or she seeks medical treatment arose out of and in the course of his or her employment.

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About the Author

This article was written by Michael I. Fish, Esq. of Fish Nelson LLC, a law firm dedicated to representing employers, self-insured employers and insurance carriers in workers’ compensation matters. Fish Nelson is a member of The National Workers’ Compensation Network (NWCDN). If you have any questions about this article or Alabama workers’ compensation issues in general, please feel free to contact the author at mfish@fishnelson.com or any firm member at 205-332-3430.

Beginning July 1, 2012, the maximum worker’s compensation payable will be $771 per week and the minimum will be $212 per week. This change is based on the Director of Industrial Relations’ determination that the State’s average weekly wage was $770.80, and the change is effective for any injury occurring on or after July 1, 2012.

On May 4, 2012, the Alabama Court of Civil Appeals released its decision in the case of Denmark v. Industrial Manufacturing Specialists, Inc. In that case, the Court addressed whether a 16 year old boy who suffered an ankle injury was entitled to double compensation, and whether he was entitled to be compensated according to the schedule for his leg or only for his foot. Lucas Denmark worked part time for IMS, cutting metal-bar stock using a band saw. In March 2006, he and another employee were loading bar stock onto a table, when some of it fell on his left ankle. Denmark had surgery and a metal plate was inserted in his ankle. Although he was eventually released to return to work without any restrictions, Denmark continued to complain of pain that radiated both down to his foot and up his leg. A Circuit Court Judge in Morgan County found that Denmark suffered a 10% partial loss of use of his left foot, and that since IMS had already paid TTD benefits in excess of the value of the 10% PPD, Denmark was not entitled to any additional compensation for his injuries. The trial Court also found that IMS had violated child labor laws by employing Denmark to operate a band saw, but found that he has not entitled to double compensation because there was no nexus between operating the saw and the injury.

Denmark appealed, asserting that the trial Court erred in failing to award him compensation for the partial loss of use of his leg as opposed to just his foot, and that it further erred in failing to award double compensation pursuant to § 25-5-34 after finding that IMS employed him in violation of child labor laws. Denmark argued that since his ankle is above his foot and the pain extended to his leg, he should be compensated for the partial loss of use of his leg. Denmark argued that the Court’s holdings in Boise Cascade Corp. v. Jackson, 997 So.2d 1026, 1032 n. 8 (Ala.Civ.App. 2000), Wolfe v. Dunlop Tire Corp., 660 So.2d 1345 (Ala.Civ.App. 2005), and Simpson v. Dallas Selma Cmty. Action Agency, 637 So.2d 1360 (1994) dictated that an injury extending from a larger scheduled member into a smaller scheduled member must be compensated as an injury to the larger member. However, the Court noted that according to § 25-5-57(a)(3)a.15 of the Act, the amputation of a leg between then knee and ankle shall be considered the equivalent of the loss of the foot. Since there was no evidence that Denmark’s pain extended up his leg beyond his knee, and based on the logic of § 25-5-57(a)(3)a.15, the trial Court properly found that Denmark’s injury was one limited to the foot, and not the leg.

However, the appellate Court reversed the trial Court’s decision regarding double compensation. There was no dispute that minors are prohibited from operating saws, and there was no dispute that moving large pieces of bar stock to put them into the saw was part of Denmark’s job. As such, the Court found that although Denmark was not actually operating the band saw at the time of the accident, Denmark was entitled to double compensation because he was working at a job that he was prohibited from doing due to his age.

An employee had an injury while working for Tyson Poultry in Arkansas. He was placed under light-duty restrictions by his physician, and Tyson accommodated those restrictions. While on light duty assignment, he got into an argument with his female supervisor and called her a pretty harsh explicative (in cartoon language: f@#* you b&!%#) . The employee was suspended for a few days and, when he returned, he was fired for insubordination and gross misconduct. Tyson cut off the employee’s TTD benefits when he was fired citing Arkansas law which allows an employer to suspend benefits if the worker refuses suitable work that accommodates his injuries. An administrative law judge denied the employee’s claim for further benefits. The Workers’ Compensation Commission reversed the ALJ’s decision, ruling that the employee was entitled to benefits. An appellate court then reversed the Commission, again, denying benefits. The case eventually went to the Arkansas Supreme Court, which held that the employee’s misconduct was just that, and did not constitute a refusal of suitable work. The Court found that after committing the misconduct, the employee returned to work, and it was Tyson’s option to fire him or allow him to continue the light duty assignment, so the employee was entitled to continue receiving TTD benefits for the remainder of the period of disability.

MY TWO CENTS

Although this is an Arkansas case, the applicable law is similar to the law that would be applied in Alabama. As was demonstrated in this case, a good faith argument can certainly be made that TTD should be cut off when an employee is basically trying to get fired. Of course you will need a good set of facts in order to be able to satisfy an Alabama Circuit Court Judge that the employee’s misconduct/insubordination was intentional.

September 5, 2013

Commission Keeps Claimant's Counsel and Recording Devices out of Employer's Medical Evaluations  

by Merrilee Harrell 

A recent decision of the Alaska Workers’ Compensation Appeals Commission concluded that claimant’s counsel may not attend and record an employer’s independent medical evaluation (EME) unless the examining physician consents. InASRC Energy Services, Inc. v. Kollman, AWCAC Decision No. 186 (August 21, 2013), the Commission reversed an interlocutory decision of the Alaska Workers’ Compensation Board that injured worker Jeffrey Kollman may record an EME and have a witness present despite the objection of the employer’s physicians. Kollman v. ASRC Energy Services, Inc., AWCB Decision No. 13-0076 (June 27, 2013). The Board had relied onLangfeldt-Haaland v. Saupe Enterprises, 768 P.2d 1144 (Alaska 1989), which held that a civil litigant had a right to record a court-ordered Rule 35 medical evaluation and have his attorney present during the evaluation. On appeal, the Commission noted that Civil Rule 35 is significantly different from AS 23.30.095(e) of the Alaska Workers’ Compensation Act. AS 23.30.095(e) states that “The employee shall... submit to an examination by a physician or surgeon of the employer’s choice...” which, the Commission noted, leaves the choice of EME physician exclusively with the employer. A Rule 35 medical evaluation, in contrast, may be ordered by a judge “only on motion for good cause shown and upon notice... to all parties and shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made.” 

The Commission also noted that Langfeldt-Haaland was a 3-2 decision that explicitly limited its holding to Civil Rule 35 medical evaluations. The majority had argued the importance of allowing counsel to “observe shortcomings and improprieties during the examination which could be the subject of inquiries on cross-examination at trial; and ... [to] object to questions posed to the plaintiff during the examination that concern privileged information.” The dissenting judges pointed out that “adopting such a rule could have a chilling effect on otherwise reputable physicians performing medical examinations.” The Commission found the dissent’s position more persuasive, and also took into account a survey of SIME physicians that showed a significant percentage of the physicians surveyed would decline to perform evaluations if they were required to allow the evaluation to be witnessed and recorded. Requiring EME evaluations to be witnessed and recorded would thus have a chilling effect on the employer’s choice of physician if the employer’s choice was limited by such a requirement.  

The commission emphasized that the plain language of AS 23.30.095(e) gives the employer the exclusive choice of EME physician, noting that the statute “does not say that the choice of an EME physician is exclusively the employer’s, provided that the employer chooses a physician who would allow witnessing and recording of the EME.” The commission concluded that such a restriction would interfere with the employer’s choice of physician as contemplated by AS 23.30.095(e). Kollman has appealed the Commission’s ruling to the Alaska Supreme Court.


Russell, Wagg, Gabbert & Budzinski510 L Street, Suite 300Anchorage, AK  99501-1952907-258-1747

========RWGB seeks to provide the latest information on workers' compensation law in Alaska. The information provided above is based upon the decision of the Alaska Workers' Compensation Appeals Commission and is subject to change on appeal. RWGB will issue an updated newsletter should the Alaska Supreme Court overrule the Commission's decision.

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Our network is based upon personally referenced and extensively vetted defense firms with a reputation for excellence.  We are currently actively seeking a firm to represent our network in Arizona, and value any suggestions you may have as either an employer or an adjuster/risk administrator dealing with workers' compensation claims in Arizona.

If you have had an excellent experience with a firm or attorney that you trust as counsel in Arizona, please let us know!  You can contact Kim Martens at: martens@hitefanning.com

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The Division of Workers’ Compensation’s Medical Unit has made changes to the Qualified Medical Evaluator (QME) panel request process as a result of Senate Bill 863. Emergency QME regulations introduce the following new requirements for QME panel requests:

Click here for more info.

On Jan. 1, six sets of emergency regulations that implement SB 863 became effective. Those regulations remain in effect until July 2, and then expire by operation of law unless the Division of Workers’ Compensation (DWC) files a certificate of compliance with the Office of Administrative Law (OAL) by 5 p.m. on July 1, or requests a readoption of the emergency regulations.
Click here for more info.

February 12, 2013

 ISSUE 1:   

SUPREME COURT SAYS FUENTES “A”

ISSUE 2:
WILKINSON DEAD


FUENTES

Until May 3, 2007, the question of how to compute the value of an award after apportionment under L.C. 4663 / 4664 had been answered / unanswered since April 19, 2004.

The first major landmark in this area was an en banc decision in the Escobedo case rendered April 19, 2005 (petition for Writ of Review later denied). A couple of months later, another en banc decision issued in Nabors on June 9, 2005. This decision would later be overturned by a 1st District Court of Appeal (DCA) decision one year later, June 8, 2006.

In between the 2 decisions in Nabors, the 5th DCA rendered its decision in Dykes on December 20, 2005. In short, the Dykes formula for computing the value of an award after apportionment was the polar opposite of the en banc decision in Nabors. The DCA opinion in Nabors agreed with Dykes.

On August 30, 2006, another panel of justices in the 1st DCA, different from the Nabors panel, issued an opinion inBrodie, basically agreeing with Nabors and Dykes in principle, but changing the formula a little.

A day later, the 3rd DCA weighed in with a 44 page opinion in 4 consolidated cases, referred to as Welcher. This opinion, in no uncertain terms, disagreed with Dykes and Nabors, and found that the original majority opinion in the Nabors en banc set forth the correct formula. 

Given this great disparity in the interpretation of the new apportionment law, the Supreme Court granted review inWelcher and companion cases on November 15, 2006.

In related matters, the 3rd DCA, in a published opinion in Kopping dated 9-11-06, had confirmed that the L.C. 4664(b) presumption is indeed a conclusive presumption. The injured worker may not even offer evidence of medical rehabilitation following the prior award. However, the court also clarified that the burden is on the CA to prove overlap. Prior cases (Strong, Sanchez) had burdened the injured worker with disproving overlap.

On May 3, 2007, the Supreme Court issued its decision in Welcher/Brodie et al. Given the circumstances in the several cases before it, the Court addressed calculation of the level of permanent disability after apportionment under L.C. 4664 and also after apportionment under L.C. 4663.

In short, the Court retained what had become known as Fuentes Formula A, which in workers' compensation parlance became "subtracting percentages, not money". That is to say, if the current overall level of disability is 71%, and the employee had a prior award of 63%, the "new" disability would be 8% (71-63). Or, if the overall level of disability is 50%, but only 70% of the causation of disability is industrial and 30% of the causation is non-industrial, the disability is 35% (.7 x 50).

WILKINSON

When L.C. 4750 was repealed 4-19-04, the “(Bauer) Wilkinson Doctrine” – which held that when a worker sustains two or more injuries to the same part of the body [while employed by the same employer], and the condition resulting from the several injuries becomes permanent and stationary at the same time, the worker would be entitled to one over-all level of permanent disability without apportionment – became ancient history.

L.C. 4750 had allowed apportionment for “pre-existing” disability.  L.C. 4663 requires apportionment of permanent disability based on CAUSATION.  One of the apportioned CAUSES of current disability may be a prior injury which had not yet resulted in a definable disability which “pre-existed” the subject injury.

So concluded the WCAB (en banc) in Benson v. WCAB  72 CCC 1620, a decision affirmed by First DCA 74 CCC 113.  On April 29, 2009, the Supreme Court denied review.

February 12, 2013

NOTE:  A Board Panel Decision issued on 7-24-12 in the case Anderson v. Jaguar ADJ716686 on this issue.  The Board determined that estimating future SAWW increases at 3% each year was in the best interest of the injured worker.

Labor Code Sec. 4453(a)(10) provides for certain increases to the statutory AWE structure for TD payments and Labor Code Sec.4659(c) provides for certain increases in life pension and total permanent disability payments based upon the "state average weekly wage" (SAWW).  SAWW is a number compiled by the United States Department of Labor based on the average weekly wage of California employees covered by unemployment insurance for the 12 months ending March 31 of the calendar year (preceding the year in which the injury occurred).

As of March 31, 2006, the SAWW for the 12 months preceding was $880.00 per week.  As of March 31, 2005, the SAWW was $838.42.  This results in a 4.96% increase in SAWW from 2005 to 2006.

Labor Code Sec. 4453(a)(10) provides that for injuries occurring on or after 1-1-05, for purposes of computing temporary disability indemnity, earnings shall be taken at not less than $189.00, nor more than $1,260.00.  (There was no change in this structure for injuries on or after 1-1-06) However, this subsection further provides:

"Commencing on January 1, 2007, and each January thereafter, the limits specified in this paragraph shall be increased by an amount equal to the percentage increase in the state average weekly wage as compared to the prior year."

The effect of this (4.96%) increase is that for injuries occurring on or after 1-1-07, for purposes of computing temporary disability indemnity, AWE shall be taken at not less than $198.37 (1.0496 x $189.00), nor more than $1,322.50 (1.0496 x $1,260.00).  This results in a so-called "Minimum TD Rate" of $132.25 per week ($198.37 x 2/3), and a "Maximum TD Rate" of $881.67 per week ($1,322.50 x 2/3)).

The SAWW as of 3-31-07 was $914.60 reflecting a 3.93% increase over 3-31-06. This 3.93% increase becomes effective 1-1-08. As of then, for purposes of computing temporary disability indemnity rates, AWE shall be taken at not less than $206.18 (1.0393 x 198.37) and not more than $1,374.47 (1.0393 x 1,322.50). These changes result in so-called "Minimum TD Rate" of $137.45 / wk and a so-called "Maximum TD Rate" of $916.32.

Of course, these increases in the statutory AWE structure may affect temporary disability indemnity rates for "older" injuries also.  See Labor Code Sec. 4661.5.

While the SAWW increased the statutory AWE structure in Labor Code Sec. 4453(a)(10), it actually increases the amount of the life pension or total permanent disability payment under Labor Code Sec. 4659(c).

This subsection provides:

"For injuries occurring on or after January 1, 2003, an employee who becomes entitled to receive a life pension or total permanent disability as set forth in subdivisions (a) and (b) shall have that payment increased annually commencing on January 1, 2004, and each January 1 thereafter, by an amount equal to the percentage increase in the "state average weekly wage" as compared to the prior year."

Past SAWW increases were 1.97% effective 1-1-05 and 4.01% effective 1-1-06.  There was no SAWW increase effective 1-1-04.

As an example, assume an employee with real life earnings of $904.00 per week was injured 1-2-03.  His statutory AWE for TD was $903.00/wk [Labor Code Sec. 4453(a)(8)], yielding a TD rate of $602.00/wk.  If he was declared 100% PD as of 12-31-03, his permanent total disability indemnity rate would be $602.00 [L.C. 4453(a)(8)].  Note that if his injury had occurred prior to 1-1-03, this would have been his weekly rate for life.  Crutcher v. WCAB 46 CCC 843.  However, for this 1-2-03 injury, Labor Code Sec. 4659(c) applies.

As there was no SAWW increase effective 1-1-04, his weekly rate remained $602.00/wk throughout 2004.  As of 1-1-05, the weekly rate would have had to increase to $613.86/wk (1.0197 x $602.00); as of 1-1-06, the weekly rate would have had to increase to $638.48 (1.0401 x $613.86); and as of 1-1-07, the weekly rate had to increase to $670.15/wk (1.0496 x 638.48).  As of 1-1-08, the weekly rate will have to increase to $696.49 (1.0393 x 670.15).

For injuries after 1-1-03, where the permanent disability is less than 100%, but 70% or more, life pension payments would not yet have commenced.

 

If you have any questions, please email them to tbyrne@hannabrophy.com.

For the past several years, partner Tony Macauley has authored a workers' compensation article for the ABA Tort Trial & Insurance Practical Law Journal.  This year's article, Recent Developments in Workers' Compensation and Employers' Liability Law, was co-authored by Hanna Brophy associates Darren Chan and Natasha Dighe.  The piece provides an overview of recent case law across twenty different states.
View Article

Ever since the en banc opinion in Aldi v. Carr, McClellan, et al, (2006) 71 CCC 783 (W/D 71 CCC 1822), it has been clear that the revised permanent disability rating schedule adopted January 1, 2005 applies to injuries sustained prior to January 1, 2005, UNLESS the injured worker can establish that one of the exceptions set forth in the third sentence of 4660(d) is applicable. This sentence reads: The revised schedule will apply to pre-January 1, 2005 injuries:

"when there HAS BEEN either no comprehensive medical-legal report or no report by a treating physicianindicating the existence of permanent disability, or when the employer IS not required to provide THE notice required by Section 4061 to the injured worker." (Emphasis added)

The principles of Aldi were reaffirmed in a published opinion from the Third Appellate District in Chang v. WCAB (7-24-07) 72 CCC 921.

This third sentence of 4660(d) has fostered much litigation over the last several years. Issues included the question whether a "comprehensive medical-legal report" could be any such report or only one which indicates the existence of permanent disability. Another major issue was: what does "is not required to provide the notice required by Section 4061" mean? But perhaps a bigger question was what does “indicating the existence” mean.


DEFINING THE EXCEPTIONS

BAGLIONE / PENDERGRASS

On April 6, 2007, the WCAB issued two en banc (4-3) decisions addressing two questions. In the first of these,Baglione v. Hertz 72 CCC 444, the question analyzed was what kind of medical report had to be written before 1-1-05. Would “any” comprehensive medical legal report, e.g. L.C. 4060, suffice? The Board found that not just "any" comprehensive medical-legal report before 1-1-05 would suffice to trigger the 1997 Schedule. In the battle over "to comma or not to comma", it was determined that to invoke this exception, the medical-legal report must also "indicate the existence" of permanent disability.

Also on April 6, 2007, the Board issued its decision in Pendergrass v Duggan Plumbing 72 CCC 456. This case concerned the "notice required by Section 4061". Some had argued that the duty to provide a 4061 notice arose with the first payment of temporary disability indemnity. The argument continued that therefore if TDI was paid before 1-1-05, a 4061 notice was required before 1-1-05, and therefore the 2005 Schedule for Rating Permanent Disability should NOT apply. The majority disagreed. Where payment of temporary disability indemnity starts before 1-1-05 and continues until 1-1-05 or later, there is no requirement to provide a 4061 notice until the last payment of TDI is made, the majority stated:

 "...[I]f the last payment of temporary disability indemnity was made for any period of temporary disability ending before January 1, 2005, then the 1997 Schedule applies to determine the extent of permanent disability, pursuant to section 4660(d), because section 4061 requires the employer to provide the injured worker with a notice regarding permanent disability "[t]ogether with the last payment of temporary disability indemnity ...," (Emphasis added)

The principles of Baglione and Pendergrass have been reaffirmed in two published cases. On May 23, 2007, the decision in Costco v. WCAB (Chavez) 72 CCC 582 issued from the First DCA. On July 24, 2007, the decision inEnergetic Painting v. WCAB (Ramirez) (7-24-07) 72 CCC 937 issued from the Third DCA. Also see W/D and non-published cases: Bryer (9-27-07); City of Galt (Ramos) (9-21-07); Lyngso Garden Materials v. WCAB (Ruiz) 72 CCC 1097; Zenith v. WCAB (Watts) 72 CCC 1135.

A couple of questions not addressed by any of these decisions are:

 

    1. Does the term "report by a treating physician" include secondary physicians or is it limited to PTP's?

 

    1. What if payment of TDI begins before 1-1-05, then stops (e.g. return to work) before 1-1-05, then resumes before 1-1-05, and continues until after 1-1-05? Clearly the "last payment" of TDI will be after 1-1-05. However, was not a 4061 notice required at the time of the first stop? See Hernon v. County of Santa Clara,  BPD  SJO 0257327  2009 Cal Wrk, Comp. P.D. LEXIS 454

 

WHAT EXACTLY DOES “INDICATING THE EXISTENCE OF PERMANENT DISABILITY MEAN?

The first case decided by a DCA on this issue was Vera v.WCAB 72 CCC 1115. The court had concluded that a medical condition had to be permanent and stationary before there could be an "indication".

In an opinion from the 2nd DCA in Genlyte Group v. WCAB (Zavala), 73 CCC 6, certified for publication on January 3, 2008, that Court stated:

 “[T]he Vera court’s conclusion miss[es] the mark. ... The language of the statute is not limited to what the Vera court properly describes as the typical final or permanent and stationary report....

 [I]n an appropriate case a physician is not precluded from reporting that permanent disability exists prior to the time the injured worker (sic) has reached permanent and stationary status or the extent of ratable permanent disability is known....”

The Court went on to cite several circumstances where the existence of permanent disability may be indicated before the injured worker’s condition becomes permanent and stationary. These included cases of insidious and progressive occupational disease, or severe burns or loss of sight or limbs, or where the injured worker becomes entitled to vocational rehabilitation.

Several decisions since January 2008 have favored the Genlyte rationale over Vera while none have favored Veraover Genlyte. In fact, the Genlyte decision was considered a change in the law and "good cause" to reopen a ces previously decided based on Vera, Avila - Gonzalez 75 CCC 1069. See Tenet v. WCAB (Reddick) 73 CCC 329 (in 10-04, QME advised: P&S if no surgery; expected PD if surgery done); Virginia Surety v. WCAB (Wragg) 73 CCC 75 (In 12-04, PTP advised: Wragg "will be left with some measure of permanent residual disability and limited functional capacity resulting from said industrial injury.); Zenith v. WCAB (Cugini) 73 CCC 81 (On remand to WCAB, instruction to follow Genlyte rationale). There were also numerous Board Panel decisions following Genltye.

Prior to Genlyte, there were there were a variety of Board Panel decisions and Writ Denied cases with similar views as to the meaning of "indicating the existence of permanent disability". The following is a sampling of these and related earlier decisions. In a W/D of 6-14-07 in Xerox v. WCAB (Blair) (6-14-07) 72 CCC 1044, where there had also been a 4061 notice issued before 1-1-05, the WCJ found that a PR-2 reporting loss of cervical motion after surgery was "an indication" of the existence of permanent disability. Also, presumed medical-QIW status [L.C. 4636(c)] was another "indication". As for QIW status, see also Panel Decisions in Compton (8-14-06); Mancinas (3-8-06); andCamacho (11-20-05). In Zurich v. WCAB. (Nunes) (W/D 3-1-07) 72 CCC 368, the WCJ had used the 2005 Rating Schedule. On reconsideration, the WCAB determined that a medical report of 9-27-04 showing that the IW had a herniated disc, footdrop, used a cane, and needed surgery constituted an "indication" of the existence of PD, and therefore the 1997 schedule should apply.

What about a surgery already done prior to 1-1-05? In Owens (2007)(W/D) 72 CCC 148 and in Helm (2007)(W/D) 72 CCC 962, carpal tunnel surgery done in 2003 did not "indicate" PD, but in Conroy (BPD 10-13-06), the Board held that virtual ACL reconstruction surgery itself (done 10-21-04) was an indication of the existence of PD, in part, because there was some indication in the AMA Guides that such a procedure would probably result in ratable permanent disability. And in Santa Rosa School District v. WCAB (Hagle) (W/D 8-29-07) a total hip replacement done in 5-04 (which would yield a WPI of 15-30 under the AMA Guides) was determined a sufficient "indication" of the existence of permanent disability to apply the 1997 schedule even though the condition had not become P&S before 1-1-05. Also, in City of Vacaville v. WCAB (Lee) (W/D) 71 CCC 1853, when the PTP reported on 12-30-04 that indeed the IW would have permanent disability, but his condition would not become P&S for 2-4 months, the Board found this report to be an "indication", and the 1997 schedule applicable. On the other hand, in SCIF v. WCAB (Echeverria) 72 CCC 33, the Court of Appeal found the WCAB decision to apply the 1997 schedule not supported by substantial evidence where the PTP signed a statement prepared by the IW's attorney on 12-15-04, to wit: "I believe permanent disability is within reasonable medical probability emanating from this injury." Similary, in HSR, Inc. v. WCAB (Mariscal) (non-published 9-24-07), the Sixth DCA found a "check the box" report before 1-1-05 inadequate to establish an "indication".

 

© 2011 Hanna, Brophy, MacLean, McAleer, & Jensen, LLP. All Rights Reserved.

The California Third District Court of Appeal, following oral argument, granted Defendant County of Sacramento’s Petition for Writ of Review on a Labor Code section 3208.3 good faith personnel action defense argued by Elizabeth Trimm of the Sacramento office on April 22, 2013.
Click Here for Full Article

Hanna Brophy Attorney Christian Kerry wins Appellate Court Decision - Labor Code §4850 benefits are subject to the 104-week cap set forth in Labor Code §4656(c)(2)  County of Alameda (Knittel) v. WCAB - Read more about this significant victory for California public entities here.
Article on Decision

Senate Bill 863 was signed into law by Governor Brown on Sept. 18, 2012,. Many of its provisions take place January 1, 2013.  The bill makes wide-ranging changes to California's workers' compensation system, including increased benefits to injured workers and cost-saving efficiencies. Click on our Power Point Presentation in the Updates Section of our website for a complete discussion of the changes. Hanna Brophy Clients: please contact your local Hanna Brophy office or email this website for the next Hanna Brophy in-person presentation of SB 863 changes and strategies  http://www.hannabrophy.com

The Division of Workers’ Compensation announced that Patricia Clisham and Barbara Henk will begin work as prehearing administrative law judges in 2014.  Ms. Clisham is a former administrative law judge with the OAC and currently works as a workers’ compensation defense attorney.  She is a past recipient of the Colorado Bar Association’s Lansford Butler award and the Professionals in Workers’ Compensation Outstanding Defense Attorney Award.  Judge Henk is a current OAC administrative law judge where she has sat on the bench for the past 19 years.  Judge Henk previously represented both claimants and respondents while in private practice.  As prehearing administrative law judges, Ms. Clisham and ALJ Henk will preside over prehearing conferences, settlement conferences, and arbitrations.

Congratulations to Lynn Lyon, Sue Reeves, and Tama Levine for being selected toThe Best Lawyers in America® 2014 in Workers' Compensation Law - Employers. Special recognition goes to Tama Levine for her selection asBest Lawyers® 2014 "Lawyer of the Year” Denver Workers’ Compensation Law – Employer.(Copyright 2013 by Woodward/White, Inc., of Aiken, SC)  Only a single lawyer in each practice area and designated metropolitan area is honored as the “Lawyer of the Year,” making this accolade particularly significant.  Congratulations to Lynn, Sue and Tama!

Ritsema & Lyon is proud to announce U.S. News & World Report selected us as a 2014 Tier 1Best Lawyers® “Best Law Firm” in Workers’ Compensation Law – Employer.  This is the second year Ritsema & Lyon received this recognition.  Here is just one sampling of some of the great things our clients had to say: “Ritsema & Lyon is the household name for workers’ compensation law in the community. Their attorneys are of the utmost quality with customer service being a top priority… They are truly a top notch firm.”  We are deeply appreciative to our clients for their feedback.  We strive to provide this type of service to each and every client.  Receiving recognition based on such positive feedback is a great honor!

Sue Reeves recently received a favorable decision from ICAP. At hearing, the ALJ viewed video images of claimant that were not received into evidence. The ALJ ultimately denied and dismissed claimant’s claim. On appeal, the claimant argued the ALJ erred when he viewed the video that was not in evidence and requested a new hearing with an ALJ who wasn’t “tainted.” Sue successfully argued claimant was not prejudiced by the ALJ viewing the video. Section 8-43-310, C.R.S. provides the Panel is to “disregard any irregularity or error of the director or the panel unless it affirmatively appears that the party complaining was damaged thereby.” Here, claimant could not explain how she was harmed by the ALJ’s examination of the video, thus the error did not justify any further relief to the claimant. The Panel also determined in light of both the medical evidence and the inconsistencies involved in claimant’s claim that the ALJ’s determination of non-compensability was justified by substantial evidence.
Moody v. Penrose Hospital, W.C. No. 4-885-820-01 (ICAO, August 6, 2013).

Tama Levine successfully defended a penalty claim. Claimant sought penalties for violation of W.C.R.P. 16, but only included general penalty allegations in his application for hearing. Tama argued claimant failed to state the penalty with specificity, as required by § 8-43-304(4), C.R.S. The ALJ agreed and dismissed claimant’s penalty claim. The Panel agreed with Tama’s arguments, holding the ALJ did not err by denying a penalty based on the deficient pleading by claimant. To the extent claimant alleged a violation of the procedures established in W.C.R.P. 16 governing denials, claimant was required to cite to the specific procedure involved. This is a requirement of §8-43-304(4) and the OAC application instructions.
Lovett v. Stroup Insurance Services, Inc., W.C. No. 4-808-092-04 (ICAO, August 30, 2013).

Tama also won in the Court of Appeals, successfully limiting the scope of an ATP’s referral. Claimant developed sleep difficulties but the ATP did not consider it related to the compensable injury. The ATP referred claimant to another physician for medication adjustment. That interim physician referred claimant to a sleep specialist for further treatment of his sleep problems. Claimant sought to have the sleep treatment covered as part of his claim. Tama successfully argued the original referral to the interim physician was limited to medication adjustment and any further referrals were outside the scope of authorized treatment.
Weaver v. ICAO, No. 12CA2121 (Colo. App., August 29, 2013)(not selected for publication)

Ritsema & Lyon will be hosting a Colorado Back to Basics Workers' Compensation seminar on Tuesday, November 5, 2013, from 9:00 a.m. to 3:00 p.m.  This seminar is designed for adjusters who are new to Colorado workers' compensation law and provides a general overview of the basics for adjusting Colorado claims.  Space for this seminar is limited to provide an appropriate learning environment.  Please RSVP to Jennie Smith atjennie.smith@ritsema-lyon.com or 303.297.7275.

Alana McKenna and Paul Feld successfully argued to the Court of Appeals that the ALJ misapplied the firefighter cancer presumption of compensability.  At hearing, Alana and Paul presented evidence that claimant’s risk of melanoma from non-work related factors was greater than that presented by his employment as a firefighter, and therefore the presumption was overcome.  The ALJ rejected the argument, noting that respondent had not proved a specific proof of an outside cause.  The ICAP affirmed.  At the Court of Appeals, Alana and Paul argued that by requiring the employer to prove a specific cause, the presumption has become akin to a strict liability statute.  The Court agreed.  The presumption of compensability created by § 8-41-209 is a rebuttable presumption.  An employer can overcome the presumption with evidence that a claimant’s injury more likely than not arose from a source outside the workplace.  Respondent presented evidence concerning claimant’s increased risk for the development of melanoma from factors outside his employment.  Further, claimant’s expert echoed the opinions of respondent’s expert regarding claimant’s increased risk.  These opinions reflected and supported the view that firefighting was a lesser melanoma risk than this claimant’s other known exposures and risks.  The Court held that this was sufficient evidence of “alternative causation.”  The Court finally held that the ALJ applied the wrong standard by holding respondent to a strict liability standard rather than the standard required by the rebuttable presumption.

Town of Castle Rock v. ICAO, No. 12CA2190 slip op. (Colo. App. July 3, 2013).

Eliot Wiener was also successful in front of the Court of Appeals, arguing that the ALJ’s denial and dismissal of claimant’s occupational disease claim was proper.  Claimant alleged an occupational disease to her neck/cervical spine caused by her job activities, which included overhead reaching and lifting.  At hearing, the respondent’s expert testified that claimant’s work conditions did not cause or contribute to her spinal condition.  The expert relied on a video of a co-worker performing claimant’s job duties.  Claimant’s supervisor testified that the video was an accurate depiction of claimant’s duties.  Although respondent initially indicated it would not introduce the video into evidence, it was submitted as part of respondent’s expert report, and the ALJ considered it as part of the evidence. The ALJ found that claimant failed to prove a compensable occupational disease.  The Court of Appeals affirmed.  Concerning the video, the Court held that claimant failed to make timely objections to its admission.  As such, any such objection could not be raised for the first time on appeal.  Because the ALJ also took into consideration the type of work claimant performed and found that claimant’s work activities were the activities of daily living and not likely to cause claimant’s condition, substantial evidence supported the ALJ’s findings.  The Court noted that while its decision may be precedential for those with facts similar to claimant’s, it did not preclude any claimant with a cervical spine injury from suffering a subsequent compensable occupational disease.

Johnson v. State of Colorado, No. 12CA2092 (Colo. App. June 27, 2013) (not selected for publication).

Remember that the recently-passed legislation goes into effect on July 1st.  The changes now require respondents to produce the entire claim file within 15 days after the date of mailing of a written request for the file.  This includes all medical records, pleadings, correspondence, investigation files, investigation reports, witness statements, information addressing designation of the authorized treating physician, and wage and fringe benefit information, regardless of the format. 

Generally, claim notes are included as part of the file and must be exchanged.  Claim notes often contain privileged information, including reserve information, attorney-client communications, and adjuster work product.  However, the scope of these privileges varies depending on the circumstances of the communication and the posture of the claim at the time the claim note is entered.  Be careful what you disclose – if you don’t claim a privilege it may be waived throughout the course of the claim. 

The Division has released the updated maximum benefit rates for injuries occurring on or after July 1, 2013.  These maximums affect TTD, disfigurement, statutory indemnity cap amounts, and other important areas.  Be sure to check out the full list at the Division’s website: http://www.colorado.gov/cdle/dwc.

Doug Stratton recently obtained a decision denying chiropractic care, physical therapy, and pool therapy as not reasonably necessary maintenance medical treatment.  Claimant was placed at MMI in 2004, and received extensive maintenance care.  In 2012, she sought additional chiropractic treatment and physical therapy.  The medical evidence showed that claimant’s condition had not improved despite years of therapy.  Respondents’ expert testified that claimant’s ongoing complaints were related to an underlying psychological condition and/or psychosocial stressors, not to her work-related condition.  Based on the evidence, ALJ Cannici found that any ongoing need for treatment was not reasonable, necessary, or related to her work injury, and denied her request for further maintenance medical benefits.


Lynn Lyon recently won a full contest claim in front of ALJ Cannici.  Claimant alleged he injured his low back while transporting a patient down a flight of stairs.  A co-worker testified claimant grimaced and acted as though he was in pain during this activity.  Respondents obtained pre-injury medical records showing claimant had been treating for the same complaints prior to the alleged incident.  Respondents’ experts concluded the complaints and treatment before and after were essentially the same and there was no evidence of a new injury.  At hearing the  claimant tried to convince the  ALJ he had fully recovered  from the  pre-injury problems, but the testimony was inconsistent with the medical records. ALJ Cannici denied and dismissed the claim.

Ronda Cordova successfully defended an occupational disease claim.  Claimant worked as a forklift operator for 15 years.  In 1994, he sustained a wrist injury for which he had surgery, including placement of pins to stabilize the wrist.  At the time, his physicians opined that his wrist condition would eventually worsen, resulting in arthritis and the need for a wrist fusion.  In 2012, claimant was operating his forklift when his wrist popped and his hand went numb.  Claimant thereafter alleged that his job duties operating a forklift caused him to develop arthritis in the wrist.  At hearing, Dr. Goldman testified that forklift operation is not typically the kind of job that would fall into the cumulative trauma or occupational illness thresholds found in W.C.R.P. Rule 17 Cumulative Trauma Conditions Medical Treatment Guidelines and that there is no support in the occupational medicine and epidemiology literature that a forklift operator is at an increased risk of developing scaphoid lunate arthritis as compared to the general population.  ALJ Cannici found Dr. Goldman’s testimony persuasive and denied and dismissed claimant’s claim.

Colorado Super Lawyers magazine recently named Paul Feld, Tom Kanan, Paul Krueger, Tama Levine, Lynn Lyon, Sue Reeves, Fred Ritsema, and Eliot Wiener as Super Lawyers, and Matt Hailey, Kelly Kruegel, and Mimi Metzger as Rising Stars.  Of the 15 workers' compensation defense attorneys, 11 are from Ritsema & Lyon, and our attorneys account for more than 33% of all attorneys, claimant or respondent, listed as Super Lawyers or Rising Stars.  Congratulations to all!

Cheryl Martin recently won a full-contest claim. Claimant alleged she sustained an injury while “log rolling” patients to change their bedding. The injury was un-witnessed. Claimant alleged she called her supervisor the next morning from home to report the injury and the supervisor told her to fill out the paperwork for her injury when claimant came in to work her next shift. However, claimant’s supervisor testified that claimant did not know if she was hurt at work when she reported the injury. In addition, when claimant called in sick, surveillance video captured her running multiple other errands and even climbing under the hood of an SUV to see if she could fix the engine. The ALJ ultimately found claimant not credible primarily because she lied when she called in sick.  He also credited the supervisor for her consistent note-taking and accuracy which was corroborated by claimant’s own text messages. The claim was denied and dismissed.

 

John Steninger successfully argued for dismissal of a claim based on the statute of limitations. Claimant alleged he sustained a work-related injury to his foot for which he was hospitalized. Respondents filed a notice of contest, and claimant did not file an application for hearing until three years after the date of injury. Claimant alleged the statute of limitations was tolled due to his hospitalization after the injury and based on alleged misleading statements from the adjuster. However, the ALJ found that the adjuster did not misrepresent her employment as an insurance adjuster or otherwise engage in any misconduct or deceptive practice that could form the basis for equitable tolling of the statute of limitations. The claim was denied and dismissed.

 

Kyle Thacker won an order allowing respondents to withdraw their admission of liability. Claimant alleged he injured himself while doing pull-ups in a stairwell during a lull in his work. He claimed doing pull-ups was part of his stretching routine, which was encouraged by his employer. Respondents filed an admission of liability, but later sought to withdraw it on grounds that doing pull-ups was not part of claimant’s job duties. Claimant’s supervisor testified that claimant’s pull-ups did not benefit employer in any way. The ALJ credited the supervisor’s testimony and found that performing pull-ups was not a strict employment requirement and did not confer a specific benefit to the employer. The ALJ further found that claimant severed the employment relationship because performing a pull-up was not incidental to his regular conditions of employment and was a significant deviation from his assigned duties. Respondents were allowed to withdraw their admission of liability and cease TTD.

 

Tom Kanan won a full contest in Colorado Springs involving a delivery truck driver who complained of progressively debilitating hand and elbow pain.  Claimant frequently lifted, moved, reached for, grasped and carried packages during work. Claimant’s primary care doctor believed his pain was work-related.  Respondents’ IME could find no properly diagnosable condition pursuant to the Cumulative Trauma Medical Treatment Guidelines that would support claimant’s occupational disease claim. Although claimant’s supervisor testified that he was often in pain at the end of his shift, the ALJ, after taking judicial notice of the Medical Treatment Guidelines, found that without a specific diagnosed cause of claimant’s pain there was insufficient proof of a work-related disease, and that no specific accident was shown to have caused his continuing, disabling symptoms, even after he quit working. Therefore, the claim was denied and dismissed.

We are extremely proud to announce that Tama Levine has agreed to merge her firm, Blackman & Levine, with Ritsema & Lyon!  Tama is a well-known and experienced workers’ compensation defense attorney whose reputation is outstanding.  She has been listed inAmerica’s Best Lawyers and as a Colorado Super Lawyer for several years, and will be a true asset to our clients.  The firm name will remain Ritsema & Lyon, and Tama will practice out of our Denver office beginning February, 2013.  

Eliot Wiener and Michael Maglieri successfully appealed an ALJ’s decision in a horseplay/scope of employment claim.  Claimant, a security guard, was injured while jumping from rooftop to rooftop of the building in which he worked.  The ALJ originally found that claimant was within the scope of his employment and that his actions did not arise to the level of horseplay or constitute a deviation from his work duties.  The ICAO agreed that claimant’s actions did, in fact, constitute horseplay which removed him from the course and scope of his employment, holding that there was no evidence to support the ALJ’s conclusion that his job duties required claimant to jump from rooftop to rooftop at the time he was injured.  This is an impressive victory for Eliot and Mike, given the factual nature of the ALJ’s original determination.  The case is Orist v. G4S Secure Solutions (USA), Inc., W.C. No. 4-866-126 (ICAO January 4, 2013).


Kim Starr won a full contest mold exposure claim.  The 61 year old claimant alleged mold exposure causing hypersensitivity pneunmonitis, a significant pulmonary condition.  Respondent presented evidence from a local pathologist and a world renowned pathologist from New York that claimant’s condition involves usual interstitial pneumonia.   Claimant’s experts, local physicians with occupational/pulmonary expertise, opined that claimant’s condition was hypersensitivity pneunmonitis and was inconsistent with usual interstitial pneumonia.   These physicians opined that since claimant reported exposure to mold at her work place and because there was no history of mold exposure elsewhere, claimant’s medical condition resulted from mold exposure at work.  Respondent’s industrial hygienist testified that claimant was not exposed to harmful amounts of mold at work.  The ALJ determined that because the mold exposure could not be fairly traced to claimant’s employment, it was almost impossible to say that claimant was not equally exposed to molds outside of the workplace, and denied compensability.

Bobby Wren recently won a full contest claim involving bilateral shoulder injuries with multiple surgeries.  Claimant alleged he was injured in 2010 when lifting a chair over his head.  He delayed seeking treatment for nearly a year after the injury.  After obtaining claimant’s extensive prior medical records, respondents discovered that claimant never mentioned the alleged work-related injury to any treating physician during nearly two years of treatment.  He did, however, consistently refer to a 2005 mountain biking shoulder injury as his only prior injury.  Respondents’ expert testified that claimant’s prior medical history, combined with his complete failure to mention the work incident to any treating physician, made it not medically probable that he injured his shoulder as a result of the work injury. The ALJ completely discredited claimant’s testimony and evidence in light of the prior medical records and respondents’ expert’s testimony, and denied and dismissed the claim.

Paul Krueger was successful in a recent claim involving out-of-state jurisdiction.  Employer is based in Colorado, but worked on job sites in North Dakota.  Claimant was severely injured in a work-related accident in North Dakota, and employer sought to have the injury covered.  Respondents presented evidence that claimant was not hired in Colorado nor did he ever work in Colorado.  Rather, the evidence showed that the only time claimant was in Colorado was when he had a layover at DIA on his way to the job site in North Dakota.  The ALJ found that the fact that claimant’s employment paperwork (completed in North Dakota) was faxed to employer in Colorado was insufficient to show that claimant was hired in Colorado, and therefore claimant’s injury did not fall under Colorado’s jurisdiction.

We are pleased to announce Matthew Hailey will be joining Ritsema & Lyon in the Denver office beginning February 4, 2013.  Matt is a former shareholder of Treece Alfrey Musat, P.C., where he practiced workers' compensation defense for the past 12 years.  He has been named as a Rising Star by Colorado Super Lawyer since 2009.  We are excited to have Matt join the R&L family and believe his work will be of the same high caliber you have come to expect from all the attorneys at Ritsema & Lyon.

The Division of Workers’ Compensation announced proposed changes to W.C.R.P. 5 and 10.  The change to Rule 5 would eliminate the requirement to send a Final Payment Notice.  The change to Rule 10 strengthens language concerning costs and the duties of the parties during the Medical Utilization Review process.  A public hearing will be held on January 29, 2013 at 10:00 at the Division.  For more information, visit the Division’s website.

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Rayford H. Taylor
Of Counsel
Casey Gilson P.C.
Six Concourse Parkway, Suite 2200
Atlanta, Georgia 30328
770-512-0300 -Ext. 529
770-512-0070 -Fax
rtaylor@caseygilson.com
www.caseygilson.com

Reid v. Metropolitan Atlanta Rapid Transit Authority ("MARTA")

(07/16/2013, Georgia Court of Appeals)

 

Georgia Court of Appeals rules that claims seeking only alleged past due benefits or penalties are not subject to the two-year statute of limitations.  Employee allowed to pursue claim for alleged past-due penalties on late-paid indemnity benefits eight years prior.

 

Mr. Reid was injured at work in October, 1999, and filed a claim for benefits with the State Board of Workers' Compensation.  MARTA did not controvert the claim and began paying him temporary total disability ("TTD") benefits, and ultimately made a total of 32 payments.  It was undisputed that 12 of those payments were untimely or late.  The claimant returned to work on June 10, 2002, at which time the payment of TTD benefits was suspended.

In May, 2010, Mr. Reid's attorney sent a letter to MARTA requesting it pay the statutory penalty due on the 12 late TTD payments.  MARTA declined, asserting that demand for payment was barred by the applicable statute of limitations.  The matter went to a hearing on the payment of statutory penalties.  The administrative law judge denied Mr. Reid's request, finding the claim constituted a "change in condition" and was therefore barred under the two-year statute of limitations.  The ALJ's ruling was affirmed by the appellate division of the State Board, which was also affirmed by the Fulton County Superior Court.  The Georgia District Court of Appeals reversed the ruling that the two-year statute of limitations was applicable, as the employer/insurer had failed to pay the late payment penalties nearly ten years earlier.  The Court found that since the employee was not seeking to recover statutory late payment penalties because of his physical or economic condition, but because the penalties constituted benefits due him under the law.  Therefore, the two-year statute of limitations did not apply.

This opinion appears to contain two important issues.  One is that the two-year statute of limitations may not apply in any case in which an employee is seeking to recover all benefits "due," rather than additional benefits due as a result of either the accident or a change in condition.  This would arguably encompass late payment penalties, missed TTD checks, correct calculation of AWW or TTD rate, even if a substantial period of time (in this case, ten years) had passed since the last payment.  Whether or not this decision allows for the resurrection of any "unsettled" or "unresolved" claim based upon the failure of the employee to receive the benefits or penalties is not clear.  It should also be noted that Mr. Reid's initial indemnity claim with the State Board remained pending and was not closed.  In the future, such claims should proceed to hearing, or be dismissed to minimize the potential for extremely old claims being reasserted.

The other interesting issue is whether or not payment or an award of the late payment penalties somehow resurrects the two-year statute of limitations for an additional "change in condition" claim. 

In reaching its conclusion, the Appellate Court indicated that under the statute's current language, an employer is precluded from asserting the statute of limitations as a defense to any subsequent attempt by an employee to recover payment of compensation which has accrued and owed him as a matter of law but which was wrongfully withheld by the employer.  The Court also noted that applying the statute could lead to some results which may be considered absurd.  However, that absurdity needed to be addressed by the Legislature, rather than by the Courts.

At this point, it should be assumed an effort will be made to get the Supreme Court of Georgia to take this case for review.  If it is presented to the Supreme Court for consideration, the ruling could have far-reaching effects on the system here in Georgia.

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Rayford H. Taylor
Of Counsel
Casey Gilson P.C.
Six Concourse Parkway, Suite 2200
Atlanta, Georgia 30328
770-512-0300 -Ext. 529
770-512-0070 -Fax
rtaylor@caseygilson.com
www.caseygilson.com

Heritage Healthcare of Toccoa v. Ayers

(07/16/2013, Georgia Court of Appeals)

 

Georgia Court of Appeals upholds employee's counsel's right to assessed attorney's fees from employer/insurer on past due indemnity benefits, late payment penalty, and future indemnity benefits based on employer's conduct.

 

The employee reported an alleged work injury immediately after its occurrence on October 26, 2010.  Her employer fired her the next day and rejected her request for disability benefits.  On November 23, 2010, the employee filed a request for a hearing requesting income benefits and medical benefits, along with late payment penalties, assessed attorney's fees, and expenses of litigation.

The employer never controverted the claim, and on March 11, 2011, the employer's workers' compensation carrier paid the employee a lump sum for twenty weeks of past due benefits.  The carrier then then began paying weekly benefits.  On September 27, 2011, two days before a scheduled final hearing, the carrier paid the employee a lump sum as a late payment penalty for the March 11, 2011 benefits payment.

The final hearing took place before an administrative law judge ("ALJ") on September 29, 2011 for resolution of the employee's claim for assessed attorney's fees.  The ALJ rejected the employee's claim for fees and employee appealed to the State Board.  The State Board ruled that the employee was entitled to assessed attorney's fees and to reasonable expenses of litigation.  Additionally, the Board found that although the employer did not contest the late payment penalty, it delayed paying the penalty without reasonable grounds and assessed attorney's fees were also warranted on those funds.

The case eventually reached the Court of Appeals which ruled that not only was the employee's attorney entitled to assessed attorney's fees on the past due benefits, but also the penalty benefits paid by the employer.  In addition, the employee's counsel was entitled to receive an attorney's fee of 25% of the employee's weekly benefit for each week in the future up to four hundred weeks, unless the weekly benefit was terminated sooner.

The Appellate Court held that while the Board did correctly assess attorney's fees on the past benefits and on the penalty, it erroneously failed to award attorney's fees on the future weekly benefits pursuant to the statute.

In reaching its conclusion, the Appellate Court recognized that O.C.G.A. §§ 34-9-108(b)(1) and 34-9-108(b)(2) established the right of the employee to have assessed attorney's fees against the employer's insurer based upon the late payment and the resulting non-compliance with O.C.G.A. § 34-9-221.  The Court recognized that it was appropriate to assess a "reasonable Quantum Meruit fee" of 25% (in this case) on future benefits because the responsibility for the claimant's attorney's fees should be shifted from the claimant to the employer's insurer because of the conduct of the employer or its insurer.

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Rayford H. Taylor
Of Counsel
Casey Gilson P.C.
Six Concourse Parkway, Suite 2200
Atlanta, Georgia 30328
770-512-0300 -Ext. 529
770-512-0070 -Fax
rtaylor@caseygilson.com
www.caseygilson.com

Georgia Workers' Compensation Law was amended by the Georgia Legislature, and the amendments take effect this year.  The bill was recently signed by Governor Deal.

House Bill 154 made the following changes:

            1.  Amendments to Section 34-9-200(a) O.C.G.A. provide that for all injuries sustained after June 30, 2013, employers will only have to provide medical benefits for a maximum of 400 weeks for all injuries which are not designated to be catastrophic.

            2.  Section 34-9-203(c) O.C.G.A. has been amended to require employer/carriers make mileage payments to claimants within 15 days of receipt of the mileage reimbursement request and documentation.

            3.  Lump sum payments will be based upon a present value calculation of 5% per annum, instead of 7%, pursuant to Section 34-9-222(a) O.C.G.A.

            4.  Section 34-9-240 O.C.G.A. was amended to address return-to-work issues.  An employee released to return to work has to try the job for at least 8 cumulative hours or one scheduled work day, whichever is greater.  If the employee does not perform the job for 15 days before stopping, weekly benefits have to start again and the employer has to prove the employee is not entitled to continue receiving indemnity benefits.  If the employee tries the job for less than 8 cumulative hours or one scheduled work day, or refuses to work, the employer may cease benefits and the burden shifts to the employee to prove he cannot perform the job to restart indemnity benefits. 

            5.  The maximum TTD rate was increased from $500 to $525 in Section 34-9-261 O.C.G.A., and the maximum TPD rate was increased from $334 to $350 in Section 34-9-262 O.C.G.A.

732177-1

Rayford H. Taylor
Of Counsel
Casey Gilson P.C.
Six Concourse Parkway, Suite 2200
Atlanta, Georgia 30328
770-512-0300 -Ext. 529
770-512-0070 -Fax
rtaylor@caseygilson.com
www.caseygilson.com

Zheng v. New Grand Buffet, Inc., (03/20/2013)

The appellate court ruled the employee could not unilaterally change her treating physician before asking the State Board for such authority when there is a valid physician panel in place for that employer

Zheng sustained a compensable injury on May 27, 2010, and began receiving medical care and income benefits.  Her employer suspended Zheng's income benefits on October 1, 2010, asserting that Zheng  underwent a change in condition for the better based on a regular duty work release from her authorized treating physician ("ATP").  Zheng disputed that she had undergone a change in condition for the better and sought reinstatement of her income benefits, payment of certain medical expenses, permission to change her ATP, a late penalty, and an assessment of attorney fees.

The administrative law judge ("ALJ") found the employer's suspension of benefits "was not improper" in view of an August 24, 2010, statement from the ATP that he anticipated she would be able to return to work on August 31, 2010.  The work release was prospective, however, depending on test results and an evaluation, and Zheng did not return to the doctor on August 31, 2010, as scheduled.  Instead, Zheng elected to see another physician of her own choosing.  After reviewing evidence from the physicians who saw Zheng before and after, the ALJ reinstated Zheng's income benefits as of October 1, 2010, concluding that the employer did not establish by a preponderance of the evidence that she had a change in condition for the better that allowed her to return to work without restrictions.

The ALJ also found the employer had a panel of physicians and that the employer's manager had explained the panel's function to Zheng when she had been rehired two months before she was injured.  Zheng had received treatment from the three physicians on the panel:  Dr. Chang, Dr. Wu, and Dr. Armstrong.  However, instead of returning to Dr. Armstrong, she changed physicians on her own without Board approval.  Because the employer had been providing appropriate medical treatment, it did not lose control of her treatment and was not responsible for paying the new physicians' expenses.  The ALJ denied Zheng's request that one of her new physicians be designated as her ATP, finding that the employer should first have the opportunity to offer treatment by another physician of the employer's choice.  Finally, finding that the case was closely contested on reasonable grounds, the ALJ denied the employee's request for attorney fees and penalties.

Both sides appealed the ALJ's decision to the Appellate Division of the State Board of Workers Compensation, which adopted the ALJ's findings of fact and conclusions of law.  Both parties appealed this decision to the superior court, which conducted a hearing.  The superior court did not issue an opinion within 20 days of the hearing, and thus the Board decision was affirmed by operation of law.

On appeal, the appellate court affirmed the ALJ's rulings because there was evidence of a valid panel, the panel had been explained to the employee, and she went to an unauthorized physician without permission of the employer/carrier.  The employee's remedy was to petition the State Board for a change, rather than seeking treatment on her own.

 

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Rayford H. Taylor
Of Counsel
Casey Gilson P.C.
Six Concourse Parkway, Suite 2200
Atlanta, Georgia 30328
770-512-0300 -Ext. 529
770-512-0070 -Fax
rtaylor@caseygilson.com
www.caseygilson.com

SunTrust Bank v. Travelers Prop. Cas. Co. of Am., (03/28/2013)

An insurer cannot have its timely workers' compensation lien extinguished merely by the employee and the tort defendant agreeing the employee was not fully compensated

The worker was injured in the course of his employment following a motor vehicle collision.  He received workers' compensation benefits before filing suit against two third-party tortfeasors.  Although the insurer timely intervened in the suit to protect its workers' compensation subrogation lien, the worker and the tortfeasors settled the case for a confidential lump sum without the insurer's knowledge, participation or consent.  Among other terms, the settlement agreement included a conclusory statement that the proceeds of the settlement did not fully and completely compensate the worker for his injuries.  The insurer filed its motion to enforce its subrogation lien, which the trial court granted. 

On appeal, the estate administrator contended the trial court erred in finding the terms of the settlement agreement did not extinguish the insurer's right to enforce its subrogation lien.  The court disagreed and held the insurer had the right to intervene and the trial court was required to conduct a hearing on whether the worker was fully compensated, so that the insurer could attempt to enforce its subrogation lien.

 

720428-1


Rayford H. Taylor
Of Counsel
Casey Gilson P.C.
Six Concourse Parkway, Suite 2200
Atlanta, Georgia 30328
770-512-0300 -Ext. 529
770-512-0070 -Fax
rtaylor@caseygilson.com
www.caseygilson.com

 

Garcia v. Shaw Indus., Inc., (03/29/2013)

Employer found not liable for intentional infliction of emotional distress and defamation for reporting employee's possible fraud to State Board of Workers' Compensation

A former employee filed an action against a former employer for intentional infliction of emotional distress (IIED) and defamation.

The employee was not a citizen of the United States, but entered the country legally with a border-crossing card.  The employee was not authorized to work in the United States, but obtained employment using the name, Social Security number, and personal information of another person, whose identity the employee paid to use. 

The employee fell and injured her back at work.  After treatment, she returned to light duty work and filed a claim for benefits.  During that period, the employer became aware of the employee's situation and immigration status.  The employer terminated the employee, but continued to provide medical treatment and TPD benefits.

The employer filed a complaint with the State Board's fraud and compliance unit.  The employee was later arrested on warrants for forgery and possession of fraudulent documents after her deposition in the workers' compensation case was completed.  The employer cooperated with the State Board, and arranged for the State Board to arrest her after the deposition.  The employee filed her IIED suit, which was dismissed.

On appeal, the employee contended the trial court erred in granting summary judgment to the employer on her IIED claim, because there was evidence the employer set her up for arrest causing her severe emotional distress.  The appellate court concluded the employer's conduct did not rise to the level of extreme and outrageous conduct necessary for an IIED claim.  Even if the employer knew the employee was operating under an alias, it was not malice for the employer to want to bring the illegal behavior to an end.  In addition, when the employer filed an administrative fraud complaint with the Georgia State Board of Workers' Compensation, it truthfully and accurately related the facts.

 

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Rayford H. Taylor
Of Counsel
Casey Gilson P.C.
Six Concourse Parkway, Suite 2200
Atlanta, Georgia 30328
770-512-0300 -Ext. 529
770-512-0070 -Fax
rtaylor@caseygilson.com
www.caseygilson.com

Dixie Roadbuilders, Inc. v. Sallet, (10/26/2012)

An Employer's Voluntary Payment of Benefits May Not Establish an Employer's Entitlement to Workers' Compensation Immunity

The deceased employee worked for an asphalt company and had gone to a convenience store associated with the asphalt company and used by employees.  The employee was killed during a shooting at the convenience store.  Mr. Sallet's adult children filed a wrongful death action against the employer. The employer sought dismissal because it had workers' compensation immunity.

The trial court found a factual question existed as to whether workers' compensation applied to the deceased employee's injuries and that plaintiffs could challenge the applicability of workers' compensation to those injuries, notwithstanding the employer's voluntary workers' compensation payment of the deceased employee's funeral expenses. 

The court found a genuine issue of material fact existed as to whether the deceased employee had left work for the day or was merely on a break when he went to the convenience store.  Further, a genuine issue of fact existed as to whether the deceased employee's trip to the store was a deviation from his employment and, therefore, a personal pursuit.

The court found a factual question existed as to whether workers' compensation applied to Mr. Sallet's injuries, and the plaintiffs could challenge the applicability of workers' compensation to those injuries, notwithstanding Dixie Roadbuilders' voluntary workers' compensation payment of Sallet's funeral expenses. 

After the shooting, Dixie Roadbuilders filed a claim with its workers' compensation insurance carrier.  In response to this claim, the carrier made a payment directly to the funeral home for Sallet's funeral expenses and a payment to the State Board of Workers' Compensation pursuant to O.C.G.A. § 34-9-265(f). The plaintiffs, however, neither sought workers' compensation benefits from Dixie Roadbuilders nor requested it file the claim with its insurance carrier. They did not know the funeral costs had been paid by Dixie Roadbuilders' carrier but believed those costs had been paid by a friend of Sallet.

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Rayford H. Taylor
Of Counsel
Casey Gilson P.C.
Six Concourse Parkway, Suite 2200
Atlanta, Georgia 30328
770-512-0300 -Ext. 529
770-512-0070 -Fax
rtaylor@caseygilson.com
www.caseygilson.com

Arby's Rest. Group, Inc. v. McRae, Supreme Court of Georgia (11/05/2012)

Georgia Supreme Court Upholds an Employer's Right to Access a Workers' Compensation Claimant's Medical Records and to Discuss Case with Physician

The employee filed a claim and received workers' compensation benefits. The State Board granted the employer's motion to dismiss the employee's hearing request or for an order authorizing the treating physician to communicate with the employer's representative. The employee refused to sign the authorization and her hearing was cancelled.

The issue before the supreme court was whether O.C.G.A. § 34-9-207 required an employee who filed a claim under the Georgia Workers' Compensation Act, O.C.G.A. § 34-9-1et seq., to authorize her treating physician to engage in ex parte communications with her employer or an employer representative in exchange for receiving benefits for a compensable injury.  The supreme court concluded the trial court erroneously held that an employee was not required to authorize such communications. The employer could seek relevant protected health information informally by communicating orally with the employee's treating physician. 

Section 34-9-207, by its plain language authorized a treating physician to disclose not just tangible documents, but also information related to the examination, treatment, testing, or consultation concerning the employee. The supreme court further concluded that "information" under § 34-9-207 included oral communications. The supreme court also noted that § 34-9-207 did not require the physician agree to be interviewedex parte, but allowed the physician to have his own counsel or the employee or her counsel present.

Under Georgia law, an employer in a workers' compensation case is entitled to seek from any physician who has examined, treated, or tested the employee all information and records related to the examination, treatment, testing, or consultation concerning the employee. O.C.G.A. § 34-9-207(a).  The employee is deemed to have waived any privilege or confidentiality concerning any communications related to the claim or history or treatment of injury arising from the incident that the employee has had with any physician, including, but not limited to, communications with psychiatrists or psychologists. This waiver applies to the employee's medical history with respect to any condition or complaint reasonably related to the condition for which such employee claims compensation.

Any privilege the employee may have in protected medical records and information related to a workers' compensation claim is waived once the employee submits a claim for workers' compensation benefits, is receiving weekly income benefits or the employer has paid any medical expenses. The occurrence of any one of these triggering events waives the employee's privilege in confidential health information and the information may be released by a treating physician.

 

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Rayford H. Taylor
Of Counsel
Casey Gilson P.C.
Six Concourse Parkway, Suite 2200
Atlanta, Georgia 30328
770-512-0300 -Ext. 529
770-512-0070 -Fax
rtaylor@caseygilson.com
www.caseygilson.com

Medical Ctr., Inc. v. Hernandez, (11/21/2012)

Employees Traveling Long Distance to a Work Site May Not Be Entitled to Workers' Compensation Benefits under the "Continuous Employment" Doctrine

Hernandez and Alvarez-Hilario were employed by Atlanta Drywall, LLC, which was a subcontractor for Rightway Drywall, Inc. Near the beginning of January 2010, the two employees began working on a church construction project in Columbus, Georgia. Hernandez and Alvarez-Hilario lived in Savannah and would make the four-hour drive to Columbus early on Monday mornings, work ten-hour days through the week, and then on Saturdays drive back to Savannah to spend the weekends at home. They were paid only for the hours they actually worked on the job site, and were not paid for travel time. While they were in Columbus for the work week, Rightway arranged and paid for their lodging at a local motel, and would later recoup those expenses from Atlanta Drywall.

On the morning of Monday, February 8, 2010, Hernandez and Alvarez-Hilario left their homes in Savannah to drive to work in Columbus. They were passengers in a personal truck driven by a co-worker. When they were approximately five minutes away from the job site, they were involved in an accident and the truck overturned.  Alvarez-Hilario died as a result of the accident and Hernandez was hospitalized for weeks with serious injuries.

In general, accidents or injuries occurring while employees are traveling to and from work do not arise out of and in the course of employment.  In this case, Hernandez and Alvarez-Hilario were not yet engaged in their employment at the time of the accident. Rather, they were traveling to the work site when the accident occurred.  The Administrative Law Judge ("ALJ") found the injuries sustained while traveling to work did not arise out of or in the course of their employment, and denied benefits.

On appeal, employees argued their injuries should nevertheless be held compensable under the continuous employment doctrine. Under prior cases, any continuous employment coverage would have existed only when they were back in the general proximity of the place where they were employed and "at a time they were employed to be in that general proximity."  Although Hernandez and Alvarez-Hilario were arguably in the general proximity of the construction site at the time of the accident, it was undisputed they had not yet arrived at the site and had not yet resumed performing the duties of their employment.

The court distinguished earlier cases which found injuries to be compensable under the continuous employment doctrine. The court noted those cases involved employees who, unlike Hernandez and Alvarez-Hilario, were already in the midst of their employment duties for the pertinent time period.

At the time of the accident, Hernandez and Alvarez-Hilario were not engaged in any construction work.  The hazards they encountered on the roadway were in no way occasioned by their jobs as construction workers, and since there was no causal connection between their employment and the accident their injuries did not arise out of [their] employment.

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Rayford H. Taylor
Of Counsel
Casey Gilson P.C.
Six Concourse Parkway, Suite 2200
Atlanta, Georgia 30328
770-512-0300 -Ext. 529
770-512-0070 -Fax
rtaylor@caseygilson.com
www.caseygilson.com

JMJ Plumbing v. Cudihy, (11/30/2012)

The State Board's Denial of Workers' Compensation Based on Employee's Failure to Prove Compensable Injury Upheld on Appeal

Cudihy worked for JMJ as a plumber. On September 2, 2008, while performing a digging task on the job, Cudihy felt a sharp pain in his back that radiated to his leg. He took a break for a few minutes, then went back to work. Cudihy did not report the injury to his employer, and continued to perform his regular work duties.

After work, Cudihy went to "Physician's Immediate Med" for treatment. He told the treating physician he had developed back pain over the weekend and experienced pain while digging that morning. He was diagnosed with muscle spasms and prescribed muscle relaxers. He sought further treatment in January 2009 and was diagnosed with low back pain. He went to a chiropractor in March 2009, where he was diagnosed with muscle spasms. In May and June 2009, he saw an orthopedist, who diagnosed him with possible disk herniation. On June 3, 2009, the orthopedist recommended that Cudihy be placed on light duty work and that he might need surgery.

On June 25, 2009, Cudihy first reported the injury to JMJ, which placed him on light duty work full-time.  Cudihy continued to work at JMJ on light duty until August 2009, when he was terminated for reasons unrelated to his injury.

Cudihy subsequently applied for workers' compensation benefits, alleging a June 25, 2009 injury date.  JMJ controverted the claim but, after a hearing, an ALJ awarded Cudihy disability income and medical benefits.  The ALJ found, among other things, that Cudihy had sustained a work-related injury to his back on September 2, 2008 and, citing the "new accident" theory (regarding a gradual worsening of condition) found that he had sustained a work-related injury on June 25, 2009.

The State Board vacated the ALJ's award and denied Cudihy's claim. The Board found the preponderance of the evidence did not support the ALJ's finding that Cudihy had sustained a new accident on June 25, 2009 related to his work. The Board found Cudihy had not established or reported the occurrence of an initial work injury, making the theory of a fictional new injury (on June 25, 2009) inapplicable; and, no disability manifested on the designated new accident date of June 25, 2009, inasmuch as that date did not represent the date Cudihy's condition had worsened as a result of his work activities to the point he could no longer perform his job. The Board noted Cudihy had continued working beyond that date (June 25) and he had acknowledged that he was capable of working as a plumber at the time he was terminated. The Board also found that no September 2, 2008 injury was compensable because: (a) Cudihy did not establish that he sustained a work injury on September 2, 2008; and (b) Cudihy did not give adequate notice of a work injury to JMJ.

The Board found he failed to show he sustained a new accident on June 25, 2009. The Board cited, among other things, evidence that:  Cudihy had injured his back during the weekend preceding September 2, 2008; when seeking medical treatment on September 2, 2008, he did not indicate that he was injured on the job, even when specifically asked. He admitted he had not sustained any injury on June 25, 2009. He did not become unable to work on June 25, 2009, as he  continued working until August 12, 2009, when he was fired for unrelated reasons. By his own admission, at the time of his termination he was physically capable of continuing to perform his job. He worked as a plumber after his termination, and his work activity did not worsen his condition. There was also evidence Cudihy suffered no injury on the job after September 2, 2008, that his symptoms were the same on September 2, 2008 as they were at the time of the administrative hearing, and that all of his pain was attributable to the September 2, 2008 accident.

For accidental injury to be compensable under the Workers' Compensation Act, the injury must … occur in the course of the employment … [and] arise out of the employment.  Whether an injury arose out of and in the course of employment is an issue of fact. 

The Appellate Court noted the Board's findings, when supported by any evidence, are conclusive and binding. Because some evidence supported the Board's findings that Cudihy had failed to prove that he was injured on the job and that he continued to perform his job duties until he was forced to stop work due to a gradual worsening of his condition, defeated his workers' compensation claim. The Board's Decision was upheld on appeal.

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Rayford H. Taylor
Of Counsel
Casey Gilson P.C.
Six Concourse Parkway, Suite 2200
Atlanta, Georgia 30328
770-512-0300 -Ext. 529
770-512-0070 -Fax
rtaylor@caseygilson.com
www.caseygilson.com

Carr v. FedEx Ground Package Sys., Inc., (10/02/2012)

Statutory Employer Entitled to Workers' Compensation Immunity Following Settlement of Case Between Employee and Immediate Employer

This was an action for personal injuries, which Lester Carr sustained while working at a FedEx facility. His wife, Charlene Carr - individually and as his guardian and the conservator - appealed from a grant of summary judgment to FedEx Ground Package System, Inc. ("FedEx"). Fed Ex contended the action was barred by the exclusive remedy provision of the Workers' Compensation Act. 

On July 2, 2007, Lester Carr was seriously injured in a fight with a FedEx employee at a FedEx facility. At the time, Lester Carr was at the facility pursuant to his work as a truck driver for J. Wigg Trucking, Inc., a sole proprietorship owned by Jethro Wiggins ("Wiggins") that had a contract to provide trucking services to FedEx.

In a separate proceeding, Charlene Carr obtained workers' compensation benefits on Lester Carr's behalf from Wiggins.  Charlene Carr then filed the instant personal injury action against FedEx, alleging negligent hiring, supervision and retention, as well as failure to maintain safe premises. The trial court granted summary judgment to FedEx on the ground that FedEx was a statutory employer immune from liability under the exclusive remedy provision of the Workers' Compensation Act.

O.C.G.A. § 34-9-8(a) provides that "[a] principal, intermediate, or subcontractor shall be liable for compensation to any employee injured while in the employ of any of his subcontractors engaged upon the subject matter of the contract to the same extent as the immediate employer." O.C.G.A. § 34-9-8(a) applies only where the principal has contracted to perform certain work for another and has subcontracted some or all of that work.

On appeal, Charlene Carr contended that genuine issues of material fact existed as to whether Lester Carr's injuries were compensable under workers' compensation as arising out of and in the course of his employment. The court noted it is undisputed that Lester Carr obtained workers' compensation benefits for those injuries under a settlement with his immediate employer, Wiggins.  Because Lester Carr settled his workers' compensation claim, his representative cannot avoid summary judgment by arguing a genuine issue of material fact existed regarding the compensability of his injuries.

Since FedEx was Lester Carr's statutory employer at the time of the injury, it was entitled to workers' compensation immunity following settlement of his case.

 

703206-1

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Rayford H. Taylor
Of Counsel
Casey Gilson P.C.
Six Concourse Parkway, Suite 2200
Atlanta, Georgia 30328
770-512-0300 -Ext. 529
770-512-0070 -Fax
rtaylor@caseygilson.com
www.caseygilson.com

Smith, et al. v. Ellis (09/10/2012)

A co-employee may be sued in tort even after the claimant settles his Workers' Compensation claim if the co-employee was acting outside employment when he injured the claimant.

An employee who was accidentally shot in the thigh by a co-worker, entered into a "no liability" settlement with his employer that was approved by the State Board of Workers' Compensation. He then brought a negligence action against the co-worker.  The trial court entered summary judgment in favor of the co-worker on grounds the tort suit was barred by Workers' Compensation Act's exclusive remedy provision.  Employee appealed. Upon an equal division of the Judges of the Court of Appeals, the case was transmitted to the Supreme Court.

The Supreme Court of Georgia held that:

(1)         a "no liability" settlement barred employee from bringing an action for the same injury against an employee of the same employer;

(2)         the phrase "employee of the same employer" means a person who is acting as an employee rather than as a third party to the employment relationship at the time of the injury in question; and

(3)         fact question regarding whether co-worker was acting in the scope of employment precluded summary judgment in favor of co-worker.

In February, 2009, Smith and Ellis were both employed by The Knight Group, a company that builds and sells new houses.  Smith was assigned to work at the Westcott Place subdivision in Dawsonville, and Ellis was assigned to the Red Hawk Ridge subdivision in Cartersville.

On February 12, Ellis called Smith to arrange a meeting so that he could borrow one of Smith's tools for his personal use.  Ellis also wanted to shoot some new guns he had purchased.  The next morning, the two men met at a house that Smith was finishing in Westcott Place. Ellis made one phone call regarding a problem with the house and then followed Smith through a couple more houses for which Smith was responsible before they went to lunch around 11:00 a.m. Smith and Ellis returned to the subdivision at 1:00 p.m., where Smith continued to work. Ellis had no work to do and left that part of the property to avoid being seen by one of his supervisors, since he was not supposed to be at Westcott Place. Later, Ellis began firing his new rifle while Smith organized his work tools next to his truck. The rifle jammed three times.  Ellis successfully cleared the first two rounds, but he accidentally shot Smith in the right thigh when he tried to clear the third round. The bullet went through Smith's right leg and into his left leg, causing serious injury.

The Knight Group fired both men shortly after the shooting.  Smith filed a workers' compensation claim against the employer, alleging his injury was compensable because it arose out of and in the course of his employment. The Knight Group ultimately agreed to pay Smith $6,000 in exchange for his stipulation that he had not sustained a compensable injury. Pursuant to O.C.G.A. § 34-9-15(b), the "no liability" settlement was submitted to and approved by the Workers' Compensation Board, which issued an award denying the employer's liability on June 4, 2009.

Nine months later, Smith sued Ellis for negligence, and Smith's wife sued for loss of consortium. The Supreme Court recognized that if the victim is a co-employee, the Workers' Compensation Act may protect employees who commit torts of all varieties in the course of their employment. The question in this case was whether the Act protects an employee tort-feasor when the tort Is committed outside the course of the tort-feasor's employment.

The answer to that question was a factual matter, so the trial court's judgment granting summary judgment to Ellis was reversed, and the case remanded to the Court of Appeals with directions that it be remanded to the trial court for further proceedings.

 

681014-1

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Rayford H. Taylor
Of Counsel
Casey Gilson P.C.
Six Concourse Parkway, Suite 2200
Atlanta, Georgia 30328
770-512-0300 -Ext. 529
770-512-0070 -Fax
rtaylor@caseygilson.com
www.caseygilson.com

Decostar Industries, Inc., et al. v. Juarez

Factual findings of the State Board of Workers' Compensation will be upheld if supported by any evidence, and the Board's ruling will not be reversed on appeal based solely on the facts.

The record reflects Ms. Sonia Juarez began working on Decostar's production line in 2006.  Her duties included moving automotive bumpers weighing approximately 15 pounds from the floor to a chest-level bench; using a blade to cut two holes in them; sanding them; placing them at a separate work station; and later placing them into a mold.  In August 2009, she began to experience pain in her right shoulder and arm, and reported it to her employer.  Because Decostar did not offer medical treatment, she saw her own general practice physician, Dr. Gonzalez, who referred her to an orthopedist, Dr. Anthony Colpini.  Dr. Colpini, on January 20, 2010, placed Juarez on work restrictions.  He concluded that her injuries, while not caused by work, were aggravated by her job duties.

Ms. Juarez resigned on April 13, 2010 because of the injury to her right shoulder.  She saw Dr. Robert Karsch  who diagnosed her with, among other things, rotator cuff tendinopathy and impingement syndrome, finding that the direct cause of her shoulder injury and pain was the repetitive nature of her job, as opposed to being an aggravation of a pre-existing condition.  Dr. Duncan Wells, on behalf of Ms. Juarez, issued an opinion agreeing with Dr. Karsch that the injuries were a direct result of her job duties.

After a hearing, an administrative law judge (“ALJ”) concluded Ms. Juarez aggravated a long-standing right shoulder condition by performing her repetitive job duties; but she was not entitled to temporary total disability benefits from the date of her resignation because light-duty work remained available to her; she was not entitled to change her treating physician from Dr. Colpini to Dr. Karsch; and Decostar was only responsible for MRI expenses.  Juarez appealed, and the Board's appellate division adopted the ALJ's decision.  Juarez then appealed to the superior court, which, after a hearing, found in her favor, reversing the findings of the Board's appellate division.

On appeal to the District Court, Decostar argued the trial court's decision to designate the claim as a new injury rather than an aggravation of a pre-existing injury resulted from its improper reinterpretation of evidence and misapplication of the standard of review.

The ALJ in the case chose to believe Dr. Colpini, although his testimony was contradicted by other evidence.  The District Court ruled because courts reviewing a decision of the Appellate Division are not authorized to weigh the evidence in the first instance or substitute their own findings of fact for those of the Appellate Division, the superior court had no authority to interfere with the decision of the Appellate Division.  The ALJ and appellate division were authorized to conclude Ms. Juarez had a pre-existing condition that was aggravated by her job duties.  Thus, the trial court erred when it found that the record contains “no evidence” that Juarez suffered from medical conditions that predate her work for Decostar.  We reverse.

The District Court reversed the Superior Court's ruling and upheld the ALJ and the Appellate Division's denial of Ms. Juarez's claims.

 

671260.1

 

 

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Rayford H. Taylor
Of Counsel
Casey Gilson P.C.
Six Concourse Parkway, Suite 2200
Atlanta, Georgia 30328
770-512-0300 -Ext. 529
770-512-0070 -Fax
rtaylor@caseygilson.com
www.caseygilson.com

Michael Caputo v. ABC Fine Wine & Spirits

On March 3, 2010, Claimant, an electrician for the Employer, fell and hit his head on the floor while cutting down shelving with a saw in the Employer's store.  Claimant was diagnosed with left temporal hemorrhage, seizure disorder possibly secondary to the left temporal hemorrhage, and toxic encephalopathy secondary to the left temporal hemorrhage.  There was no dispute Claimant was on the Employer's premises and performing his job duties when injured.

 

Claimant filed a petition for benefits seeking a determination that the accident was compensable, TTD benefits, penalties, interest, attorney's fees, and costs.  The Employer/Carrier (E/C) denied the claim on the basis that Claimant's fall resulted either from a pre-existing or idiopathic condition.

 

Although Claimant recalled working that day, he had no recollection of how the accident occurred.  Claimant's independent medical examiner (IME) opined that, rather than a seizure or fainting spell, Claimant's head impacting the floor caused Claimant's closed-head injuries.  The doctor was unable to state within a reasonable degree of medical certainty whether any factor related to employment caused the fall.  The E/C's IME also opined that the blow to Claimant's head was from the floor, and not the fall, and caused his brain to hemorrhage.  In February, 2008 Claimant fell in the shower, resulting in a 10-second loss of consciousness, head trauma, and concussion.

 

The JCC denied compensability of Claimant's injury.  The JCC found that no objective medical evidence supported a finding that the work performed caused Claimant to fall because "neither [IME] could opine with certainty whether the seizure precipitated the fall or occurred as a result of the fall."  Although the JCC specifically rejected the E/C's defense that Claimant had a pre-existing condition which predisposed him to falling, the JCC found the Claimant's fall was idiopathic, and was not caused by the employment.

 

The First District held that in the absence of any evidence which could support a finding there were competing causes of Claimant's accidental injuries, the JCC erred in ruling his injuries were not compensable.  It was undisputed Claimant's closed-head injuries resulted from Claimant's head impacting the floor while Claimant was removing shelving from the Employer's store.  Further, the JCC found Claimant had no pre-existing conditions which may have caused Claimant to fall.  In the absence of competing causes of Claimant's accidental injuries, the Court found the Claimant satisfied the major contributing cause requirement when evidence showed he was removing shelving in the Employer's store at the time of the accident and suffered closed-head injuries as a result of the accident.

 

In the absence of any other ascertainable cause, Claimant established a sufficient connection between his work and the accident in question by producing evidence that he was cutting down shelving with a saw in the Employer's store, performing one of his job duties.  Thus, the JCC erred in ruling that Claimant's injuries were not compensable.

 

 

668686.1

Rayford H. Taylor
Of Counsel
Casey Gilson P.C.
Six Concourse Parkway, Suite 2200
Atlanta, Georgia 30328
770-512-0300 -Ext. 529
770-512-0070 -Fax
rtaylor@caseygilson.com
www.caseygilson.com

Flores v. Dependable Tire Co., Inc.

The Court of Appeals held the evidence was sufficient to support Workers’ Compensation Board’s finding that claimant did not sustain a change in condition based on injuries sustained in an intervening motor vehicle accident while leaving a doctor’s appointment related to his compensable work-related back injury.

Employer sought judicial review of Workers’ Compensation Board’s finding that automobile accident did not break the chain of causation of claimant’s work-related back injury, and that his condition was directly and causally related to the work injury.

The record establishes that Flores sustained a compensable on-the-job injury on February 12, 2008, when he injured his back while lifting a large tire.  He did not return to work.  His claim was accepted by the employer, Dependable Tire Co., Inc., which paid indemnity benefits to Flores.

On November 18, 2008, as Flores was leaving a doctor’s appointment related to the February compensable injury, the vehicle in which he was riding was struck from the rear, and he was slammed into the dashboard, causing him to lose consciousness.  The vehicle in which Flores was traveling was provided by the employer.  Although Flores testified that he did not choose the transport service provided to him, there was evidence the employer’s insurance company provided the vehicle because his attorney requested it and that the employer was not involved in scheduling Flores’s appointments.  As a result of the collision, Flores complained of pain in this neck and back, as well as in his chest, abdomen, pelvis and knees.  He was diagnosed as having acute chest, abdomen, and pelvic blunt trauma, neck sprain, and acute contusions to both knees.

In April of 2009, Flores returned to the treating physician, but did not report the November automobile accident to him.  Nevertheless, the doctor noted that Flores again reported his pain level as an eight out of ten; that the accident aggravated Flores’s neck and back injuries; but that his diagnosis of lumbar disk herniation and cervical disk herniation was the same before and after the accident.

Affirming the ALJ’s award, the Board concluded the accident did not break the chain of causation of Flores’s injury and that his condition was directly and causally linked to the work injury.  The Board adopted the ALJ’s conclusions without expressly analyzing the issue of whether the accident should be considered work-related.

655105-1

Hearn v. Dollar Rent A Car, Inc., et al.

Court ordered Employer/Insurer to issue settlement check to Claimant but without listing Medicare as a co-payee when release recognized Claimant’s responsibility to pay Medicare lien.

Minnie Hearn filed her complaint against DTG, York, and Dollar based upon a dispute as to whether a $20,000 settlement check should include Medicare as a payee.  The settlement arose from a November 28, 2002 automobile accident in which the driver of a car rented from DTG struck Hearn’s vehicle.  DTG “contractually retained York as an independent Third Party Administrator (“TPA”) to handle claims in Georgia against DTG’s renters.”

During settlement discussions between Hearn’s attorney and a claims adjuster with York, the issue of Medicare’s involvement arose.  According to the claims adjuster, she relied upon the attorney’s representation that Medicare did not have an enforceable lien when she agreed not to include Medicare as a payee on the check.

The attorney’s version was that “from day one” he and the claims adjuster both knew Hearn had been on disability and that Medicare paid some of her bills relating to the accident.  In support, he pointed to the medical bills he provided to the claims adjuster in May of 2004 indicating Medicare had made adjustments, write-offs, and payments.

On October 5, 2004, the claims adjuster offered in writing to settle Hearn’s claim for $20,000.  There was no mention of Medicare being an additional payee on any settlement check in this letter.  Hearn signed the release, which included her agreement to indemnify against “all further liability, loss, damage, claims of subrogation and expense.”  She also agreed to release “known and unknown liens including Medicare.”  After returning the executed release to the adjuster, the settlement check included Medicare as a payee.

Under Medicare statutory and regulatory framework, York faced potential liability for both the amount of any Medicare lien and double the amount if Hearn failed to satisfy any such lien within 60 days of receiving the settlement check.  The adjuster stated the potential liability was the basis for adding Medicare to the settlement check.  Hearn sued to require another check be issued without Medicare being listed as a payee.

After reviewing and considering the Medicare reimbursement statutes and regulations relevant to the specific facts of this case, the Court concluded that public policy does not preclude a court from enforcing an agreement to omit Medicare as a co-payee on a settlement check where, as here, the plaintiff signed a release that acknowledged her responsibility to pay any Medicare claim and agreed to indemnify the released parties.

655131-1

Rayford H. Taylor
Of Counsel
Casey Gilson P.C.
Six Concourse Parkway, Suite 2200
Atlanta, Georgia 30328
770-512-0300 -Ext. 529
770-512-0070 -Fax
rtaylor@caseygilson.com
www.caseygilson.com

Harris v. Eastman Youth Development Center

The Court of Appeals held that whether claimant’s low-back pain was compensable wasnot an issue before ALJ at hearing on claimant’s request to have work-related injury declared catastrophic, so ALJ erred in determining that issue.

In June 2002, Harris was employed as a cook at the Eastman Youth Development Center when she was kicked in the left knee by a resident. The injury initially kept her out for six weeks, but she eventually returned to work on light duty. Approximately four to five months later, the pain in her knee worsened, and she developed low-back pain. The treating physician determined that her low-back pain was related to the alteration of her gait as a result of the knee injury. She stopped working in April 2003 and underwent two procedures to her knee. The treating physician ultimately recommended a total knee replacement and hoped the surgery would alleviate the pain in Harris’s knee and back.

After undergoing the total knee replacement surgery in 2007, Harris continued to experience worsening low-back pain and sought treatment. In March 2010, Harris again sought a catastrophic designation of her claim and continued payment for the weight-loss program. The

ALl denied both requests and, in doing so, also determined that any degeneration of Harris’s back as a result of the knee injury had been resolved by the knee surgery and that the Employer was no longer responsible for Harris’s low-back pain. The ALl further determined the continuing pain in Harris’s back was attributable to her “morbid obesity”. Therefore, the back injury was not causally related to the knee injury.

On appeal, the Appellate Court agreed with Harris that the ALl erred by making a determination as to the compensability of her low-back pain when that issue was not before the ALl Because there is no evidence Harris “had notice and an opportunity to be heard on the issue of compensability, or gave implied consent to trial of that issue, the ALI erred as a matter of law in making factual findings on that issue.”

On remand, the ALI was instructed to make a determination as to whether Harris’s claim met the criteria of a catastrophic injury. The ALI was advised to decide that issue without addressing the

compensability of her low-back pain which the Court noted the ALI had previously determined was compensable.

659080

No items found.

Kathleen Clearly v. Decatur Memorial Hospital

 

The petitioner was claiming that she needed a lumbar fusion as a result of an accident at work.  We prevailed at the Commission, and on December 13, 2011, the Circuit Court of Macon County confirmed the Commission’s decision, denying the petitioner’s request for a lumbar fusion, ongoing TTD and permanency.  There we successfully convinced the Arbitrator, the Commission and the Circuit Court Judge to adopt the opinion of Dr. Pineda, the independent medical evaluator, over the treating physician.  The petitioner never returned to work. (Decided February 24, 2010)

 

 

Dominique Kay v. Northern Illinois Medical Center and Centegra Health System,

 

The petitioner was alleging that Northern Illinois Medical Center was the employer and the only party entitled to protection under the Workers’ Compensation Act, alleging that Centegra Health System was liable for her injury under common law based on a negligence theory.  She was also alleging that she was permanently and totally disabled as a result of her employment and entitled to $66,560.00 for 2-1/2 years in temporary total disability benefits and then $26,624.00 a year in permanent total disability benefits.  At the time of the injuries, the petitioner was 37 years of age.  The Arbitrator found there was dual employment between Centegra Health System and Northern Illinois Medical Center resulting in each entity receiving the necessary protection under the Workers’ Compensation Act, in a sense throwing out the common law negligence case in the Circuit Court based on duel employment.  The Arbitrator denied the 2-1/2 years of temporary total disability, awarding the petitioner 60% loss of use of a man for her multiple surgeries ($138,240.00) as opposed to the $66,560.00 in temporary total disability benefits and the $1,011,712.00 in permanent total disability benefits.  The petitioner’s settlement demand in the civil case was $6 million.  The petitioner has never returned to work. (Decided December 27, 2010)  The petitioner has now appealed that decision.

 

 

Brett E Hill v. Tate & Lyle

 

The Arbitrator awarded $97,938.43 in medical bills, $23,953.00 in temporary total disability benefits and $69,079.62 in permanency representing 30% loss of use of the right arm and 25% of the left arm for repetitive trauma injuries.  On review, the Commission reversed the Arbitrator’s decision finding the petitioner failed to prove his condition of ill-being was causally related to his employment.  On April 17, 2012, the Appellate Court affirmed the “no award” of the Commission.

 

 

Jeff Hayes v. Henry Pratt

 

The petitioner was claiming that working as a Rubber Mold Operator caused or contributed to a heart attack and that a slow medical response caused the petitioner to develop anoxia to the brain.  Our trial presentation proved the claims had no merit through testimony by occurrence witnesses and Dr. Fletcher.  The arbitrator denied the claim.  On July 7, 2011, the Commission affirmed that denial.

 

 

Maria Colon v. Aldi

 

A cashier claimed carpal tunnel syndrome due to repetitive activity and a torn rotator cuff due to a specific incident.  Based on testimony by a district manager about the adoption of safe work practices, the arbitrator denied the carpal tunnel claim on October 24, 2012.  The Workers’ Compensation Commission affirmed.

 

Frank Bird v. Eagle Wings

 

The petitioner was seeking an order from the Arbitrator compelling the company to authorize a wrist fusion and to award 95 weeks of temporary total disability benefits.  The case was tried and the Arbitrator found there was no causal relationship between the petitioner’s undisputed accident and the need for a wrist fusion.  He also denied the temporary total disability benefits.  On November 28, 2012, the Commission affirmed that denial. 

 

 

Courtney Carter v. Gottlieb Hospital

 

This was a disputed case that was tried.  The petitioner was seeking 191 weeks of temporary total disability benefits and authorization for right knee surgery which they were trying to relate to an August 29, 2009 accident.  On July 17, 2012, we received a favorable decision from the Arbitrator finding that the petitioner failed to prove that she sustained a compensable accident arising out of her employment.

 

 

Larry Matson v. City of Waukegan

 

The Arbitrator awarded the petitioner $88,199.35 in medical expenses, $19,933.44 in temporary total disability benefits and $88,765.59 in permanency representing 30% of a person for a spinal fusion.  In total, the decision amounted to $196,898.29. We appealed, and in June of 2012, the Commission reversed that decision and reduced the Arbitrator’s decision from $196,898.29 to $22,191.38.  The petitioner appealed to the circuit court where the matter is now pending.

 

 

Ann Morgan v. Tate & Lyle

 

The Arbitrator denied the petitioner’s repetitive trauma carpal tunnel claim.  On June 21, 2012, the Commission affirmed the Arbitrator’s denial finding that the petitioner failed to prove that the carpal tunnel syndrome was causally related to her employment.  (Decided June 15, 2012)

 

 

Patsy Burns v. Naperville Community Unit School District 203

 

The primary issues were whether the petitioner’s accidental fall was compensable and whether her foot conditions which had been surgically treated by Dr. George Holmes, were causally related to the accident.  We took the position the fall did not arise out of the employment but rather was a personal risk due to her shoe wear. In the alternative, we argued that any award should be commensurate with the opinion of our Section 12 examiner, Dr. Samuel Vinci, who found the petitioner had a preexisting degenerative and hereditary condition which was only temporarily aggravated by her fall.  

 

Arbitrator Kinnaman decided the petitioner's accident was compensable, finding the petitioner's sandal stuck to the carpeting which in turn caused her to fall. However, she agreed with our position the petitioner had sustained only a temporary aggravation of her preexisting congenital condition as a result of her accident.  She found no basis for awarding TTD benefits and limited the permanency to 5% of a foot. Furthermore, since she did not find any causal relationship between the accident and the petitioner’s multiple surgeries, any potential exposure for reimbursing the husband's insurance carrier for the medical bills it had paid was eliminated. 

 

Both sides filed reviews; we wanted to preserve the accident defense for appeal. After briefing and oral argument, the Commission issued a decision affirming the arbitrator’s decision in its entirety.  The petitioner chose to forego further appeal. 

 

 

Carrie Bond v. PPG

 

At arbitration, the petitioner was alleging that as a result of her 37 years of employment, she sustained repetitive trauma to her upper extremity.  The respondent at the time objected to the petitioner’s testimony going back 37 years, arguing that the statute of limitations precluded her from going back more than three years.  The Illinois Workers’ Compensation Commission affirmed the arbitrator’s decision, finding that the petitioner was entitled to go back 37 years in describing her repetitive trauma.  On April 17, 2013, the Circuit Court of Macon County reversed the Illinois Workers’ Compensation Commission, finding that this was a case of first impression in holding that in repetitive trauma cases, the three year statute of limitations does apply.  Therefore, the petitioner could only describe previous work activities going back three years from the date of accident. 

 

 

 

Theresa Garrett v. Decatur Memorial Hospital

 

The petitioner alleged that she sustained accidental injuries to her back requiring a lumbar fusion.  The petitioner never returned to work from the injury in question.  At arbitration, we successfully argued that the petitioner returned to her pre-injury status after the work related injury, negating her claim for lost time, permanency or additional medical benefits, including the cost of the fusion surgery.  The Illinois Workers’ Compensation Commission affirmed the favorable award and the Appellate Court of Macon County also confirmed eve n though the petitioner never returned to work and was alleging that she is permanently and totally disabled.

 

Mustafa Alassady v. Berner Foods (Nationwide)

 

 This was a disputed case, where the petitioner was seeking two years of temporary total disability benefits and an order compelling the employer to authorize a spinal fusion.  The case proceeded to trial on December 22, 2011.  We called four witnesses and after hearing from the petitioner the Arbitrator denied the petitioner’s claim finding the petitioner not credible.  As a result of that finding the Arbitrator went on to find that the petitioner failed to prove that he had sustained an accident that arose out of and in the course of his employment and denied the petitioner’s request for temporary total disability benefits, surgery and permanency.  The petitioner filed a Petition for Review with the Commission, which affirmed the Arbitrator’s decision.  The petitioner appealed to the Circuit Court, which also confirmed the Commission’s decision denying his claim.  The petitioner has now appealed to the Appellate Court.

INDIANA WORKER’S COMPENSATION UPDATE
AUGUST 2012
Recent changes at the Indiana Worker’s Compensation Board are immediately affecting the handling of claims and filing of forms by Indiana adjustors. Out of state adjustors must be especially careful to stay attuned to Board activity by regularly visiting the Indiana Worker’s Compensation Board’s website at http://www.in.gov/wcb/. Also, be sure you are registered on the Board’s electronic notification list in order to receive updates.

FULL TIME COMPLIANCE OFFICER
The Board now has a full-time compliance officer, Alan Buckley. He is charged solely with analyzing forms and submissions and determining if there is any basis for levying a fine under the Board’s authority. The Board’s representative will carefully scrutinize the completion of forms, timing of filing forms, and information contained in the forms in order to determine if the Board can impose monetary fines associated with the filing of the forms (any such fines will generate funds for the operation of the Board and its staff). So be aware and be careful. Some of the topics presented follow:

NEW FORMS FOR DENIAL OF CLAIM OR EXTENSION OF TIME TO CONTINUE INVESTIGATION
Notice of Denial of Benefits (State Form 53914) and Notice of Inability to Determine Liability/Request for Additional Time (State Form 48557).
These forms have been modified to convey the medical-only aspect of a claim. The Board’s intention is to avoid issuance of penalties on cases which appear to have not been timely filed when the delay was for a medical-only period which preceded a period of disability. The new forms gather information which would make these reasons readily identifiable and preclude assessing fines which will be appealed by the employer/carrier.
(Make copies of these forms and begin using immediately…. Must be in use by September 27, 2012)

TERMINATION OF BENEFITS, FORM 38911
These forms are being scrutinized and returned for failure to complete the dates. The last date TTD was paid must be stated.

UTILIZATION REVIEW
The Board made clear that utilization review is acceptable in certain cases. It should not be used to limit valid medical care but may be used to keep medical treatment from getting out of hand. Carefully consider why you are having a case reviewed and determine if your reason falls within this latter category. Be mindful of the fact that if a test/procedure is recommended by an authorized physician, the Board will attach significant deference to that recommendation, and any decision to deviate from the test/procedure will be closely scrutinized.

BOARD “HOLD” POLICY ON LITIGATED CASES
The Board has authorized its hearing officers to designate a case for the newly-created “Hold Docket.” On this docket a case will not be set for hearing and will be reviewed once a year for a status report. Either party may request it be removed from the hold docket and placed back in the hearing stream. There is a specific pleading for this. Cases which may be placed in this “hold” position fall into the following categories:
1) Medicare – pending CMS approval or future medical evaluation or appeal.
2) Authorized Medical Care is being provided on an ongoing basis and benefits are being paid.
3) Protective Filings – A case is filed to protect the statute of limitations but is being handled elsewhere, i.e., Longshoreman’s Act cases.
4) Second Injury Fund Cases.

CHANGES EFFECTING UR/ODG USE AND CHARGES FOR BOARD OMBUDSMEN AS MEDIATORS
The following additions to the Indiana Administrative Code have been implemented and effect UR/ODG use and charges for board ombudsmen serving as mediators.
(11) Utilization review. The board recognizes the Utilization Review Accreditation Commission's (URAC) Workers' Compensation Management 2008 guidelines to medical utilization practices, as well as the Official Disability Guidelines (ODG) published by the Work Loss Data Institute and the American College of Occupational and Environmental Medicine (ACOEM) guidelines. Recommendations from these, and other, reputable sources may be offered as one (1) form of evidence regarding appropriate medical care; however, it will not be considered as conclusive evidence by the single hearing member or the full board.
(Worker's Compensation Board of Indiana; 631 IAC 1-1-32; filed May 4, 2012, 10:15 a.m.: 20120530-IR-631110357FRA)
631 IAC 1-1-33 Fees for mediation by the board
Authority: IC 22-3-4-4.5
Affected: IC 22-3-1-3; IC 22-3-4-5
Sec. 33. The charge for mediation by a qualified employee of the board shall be a flat fee of three hundred fifty dollars ($350) for five (5) hours of mediation, with an hourly rate of fifty dollars ($50) for each hour thereafter. No travel expenses will be paid by the parties. (Worker's Compensation Board of Indiana; 631 IAC 1-1-33; filed May 4, 2012, 10:15 a.m.: 20120530-IR-631110357FRA)

Questions: 
Contact: Diana L. Wann
Phone: (765) 362-7553
dlw@rfpj.com

Interim Commissioner Named
The Governor has named the senior Deputy, Michelle (Miki) McGovern, as the new acting Workers’ Compensation Commissioner effective immediately.  She will remain in this capacity until the Governor formally appoints a new Workers' Compensation Commissioner subject to confirmation by the Senate.

This should immediately address the backlog of decisions that has accrued over the several weeks since Commissioner Godfrey resigned.  During that time, Deputy Commissioners have not issued arbitration decisions based upon a concern that there would be no certainty as to whether or not those decisions would have reflected final agency action in the absence of a Commissioner, thereby causing problems with the handling of appeals.  Going forward, Acting Commissioner McGovern will handle or direct all inter-agency appeals, and it is anticipated that arbitration decisions will start issuing immediately.


Call Mark Bosscher or Lee Hook with any questions @ 515-243-2100.  We’d be happy to help, whether it be a quick or a complex issue!

Iowa Supreme Court Schedules Special Evening Session

Des Moines, February 24, 2014 —On Tuesday evening, March 4, the Iowa Supreme Court will hear oral arguments in the case of Godfrey v. State of Iowa, et al., beginning at 7:00 p.m. in the Supreme Court Courtroom on the fourth floor of the Judicial Branch Building, 1111 East Court Avenue, Des Moines. The evening session is an opportunity for central Iowa residents, who may not be able to attend the court's regular morning and afternoon sessions, to watch the court conduct oral arguments.

Attorneys' briefs for the case and a guide to oral arguments are posted on the Iowa Judicial Branch website at:

http://www.iowacourts.gov/About_the_Courts/Supreme_Court/Evening_Oral_Arguments_Des_Moines/index.asp

Proceedings will be streamed live from the Iowa Judicial Branch web site at:http://www.iowacourts.gov/About_the_Courts/Supreme_Court/Oral_Argument_Videos/.

In this case, the Iowa Supreme Court will be asked if tort claims against state officials must be brought under the Iowa Tort Claims Act, Iowa Code chapter 669. The statute provides that if the actions of state employees that are the basis of the claim were within the scope of their employment, the employees have immunity and the State of Iowa will be substituted as defendant for the individual employees.

Plaintiff Christopher Godfrey is serving a statutory six-year term as Iowa's Workers' Compensation Commissioner. His term is due to expire April 30, 2015. He has sued the State of Iowa and several individuals, including Governor Terry Branstad and Lt. Governor Kim Reynolds, on a variety of claims, including violation of his constitutional rights, defamation, and intentional interference with contract.

Under Iowa Code section 669.5, the Iowa attorney general certified that defendants' actions were within the scope of their employment with the state. Based on the attorney general's certification, the individual defendants asked the district court to substitute the State of Iowa as the sole defendant in the case. The district court concluded that chapter 669 mandated a finding that the attorney general's certification on scope of employment was conclusive, requiring the court to substitute the State of Iowa for individual defendants. Plaintiff Godfrey contends the district court was wrong to dismiss the individual defendants from the case.

On appeal of the district court's ruling, issues before the Iowa Supreme Court include:

I. Does the attorney general's certification pursuant to Iowa Code section 669.5(2)(a) conclusively establish that a state employee was acting within the scope of his or her employment (and therefore the action is deemed to be an action against the state and the state is substituted as the defendant in place of the employee) or is the attorney general's certification subject to the court's (or a jury's) independent review?

II. If the attorney general's certification does conclusively establish that a state employee was acting within the scope of employment, then does the application of section 669.5(2)(a) result in an unconstitutional deprivation of plaintiff's due process rights?

A public reception with the supreme court justices will follow the oral arguments.

For more information, visit http://www.iowacourts.gov/About_the_Courts/Supreme_Court/

New Deputy Commissioner Announced

Joseph L. Walsh has been hired as a Deputy Workers’ Compensation Commissioner with the Iowa Division of Workers’ Compensation.  He will commence his duties with the division on January 17, 2014.  Mr. Walsh has previously been in private practice as a workers’ compensation and employment law attorney in Des Moines, Iowa and has served as the Deputy Director of Iowa Workforce Development  from 2007 to 2010.  Mr. Walsh most recently held the position of Chief Administrative Law Judge for Iowa’s Division of Unemployment Insurance Appeals.  Mr. Walsh is a 1993 graduate of Drake University with Cum Laude Honors and a 1996 graduate with Honors of the Drake University School of Law.

Call Mark Bosscher or Lee Hook with any questions @ 515-243-2100.  We’d be happy to help, whether it be a quick or a complex issue!

Loparex, LLC and Sentry Insurance v. James Bates, Court of Appeals of Iowa, No. 3-593 / 13-0121

 

The Claimant was injured when his left hand was caught in a machine. He underwent several surgeries which resulted in the amputation of two fingers. He subsequently developed complex regional pain syndrome (CRPS). He experienced abnormal sensations and sensitivity to touch. He also suffered from severe depression as a result of the injury. Due to this, he was proscribed a variety of medications which he contended made him drowsy.

 

The agency entered a decision finding the Claimant to be permanent and totally disabled, which was affirmed by the District Court on appeal. The case was then appealed on the findings that the drowsiness complaints were related to the work injury, as well as the award of permanent total disability benefits. The Court reviewed these issues for substantial evidence.

 

The Court found that there was evidence in the record to support the employer’s assertions that the Claimant was not credible, his partner stood much to gain by testifying on his behalf, the medical records did not contain consistent claims of sleepiness, the Claimant was diagnosed with sleep apnea which improved with therapy, he did not lose weight or avoid alcohol as instructed to help with drowsiness, a subsequent on the job injury was not caused by drowsiness as he claimed and that the Claimant had a history of carelessness at work. However, the Court went on to state that this didn’t mean the record lacked substantial evidence to support the finding of a causal connection. Ultimately the Court relied on the references in the medical records to medications causing drowsiness to find substantial evidence and chose not to reweigh that evidence.

 

The Court next took up the issue of permanent total disability and indicated that it would only overturn the Commissioner’s finding if it was “irrational, illogical or wholly unjustifiable”. The Court opined that they might draw different inferences in regards to Claimant’s permanent disability based upon the records as a whole, the Court could not say that the findings made by the Commissioner lacked substantial evidentiary support or that his determination was irrational, illogical or wholly unjustifiable. As such, the finding of the Commissioner was affirmed.

 

Iowa Newspapers, Inc. and AIG v. Michelle Watson, Court of Appeals of Iowa, No. 3-783 / 13-0334

 

On December 19, 2008, the Claimant injured her left side in the course of her employment when she slipped on ice. At first, the Claimant did not think the injury was significant, but it later led to back pain, burning and numbness, headaches, interrupted sleep and depression. In May of 2009, the Claimant ended her employment with Iowa Newspapers as it became too difficult to work.

 

The Claimant filed a petition for workers compensation benefits and a hearing was held on September 10, 2010. The agency found that the Claimant’s condition arose out of her work injury, that her healing period ended as she was at MMI and that she was permanently and totally disabled. The decision was appealed and affirmed by both the Commissioner and the District Court.

 

The decision was appealed by the employer on the grounds that the agency erred in finding the Claimant’s injury was related to her fall, her healing period and ended and that she was permanently and totally disabled. The Court opined that their review was for substantial evidence, and though there was conflicting medical evidence, the Court found substantial evidence supported the finding of the agency and affirmed the decision. 

 


Call Mark Bosscher or Lee Hook with any questions @ 515-243-2100.  We’d be happy to help, whether it be a quick or a complex issue!

Mike Brooks, Inc. and Great West Casualty Co. v. James David House, Court of Appeals of Iowa, No. 3-624/13-0303

 

The Claimant began his employment with Mike Brooks, Inc. on July 26, 2005 as a commercial truck driver. On March 7, 2007 he suffered a back injury after slipping on ice in the truck loading area. Dr. was seen by orthopedic surgeon Dr. David Hatfield, who prescribed physical therapy. After 2 ½ months, the Claimant passed a DOT physical and was returned to work. After continued back pain, he underwent surgery with Dr. Hatfield on January 31, 2008. He returned to work 6-8 weeks later, but continued to feel pain. Dr. Hatfield recommended that he cease working, and on November 13, 2008, performed an anterior fusion and then a posterior fusion the next day.

 

The Claimant filed a petition with the Agency on December 16, 2009 alleging the back injury of March 7, 2007. At hearing on December 8, 2012, the Claimant testified about an incident on January 4, 2008 where he pushed a heavy door and felt a burning sensation in his back. In the arbitration decision, the deputy awarded permanent total benefits. The deputy found the record did not support the employer’s position that the January 2008 injury was distinct from the March 7, 2007 injury. In regards to the permanent total disability, the deputy concluded that the Claimant could no longer drive a truck and his restrictions precluded him from returning to work as a millwright or welder.

 

After affirmance by the Commissioner, the employer appealed on the basis of error in finding a causal connection between the Claimant’s March 7, 2007 injury and his disability, that the evidence did not support a finding of permanent total disability and that the deputy ordered an incorrect commencement date for permanent benefits.

 

The Court first took up the issue of whether the Claimant’s March 7, 2007 injury was the cause of industrial disability. Specifically, the Court addressed the employer’s argument that the Claimant’s January 2008 door pushing incident was the cause of his subsequent back surgeries and claimed disability. The Court first noted that medical causation is a question of fact vested in the discretion of the agency and the agency’s decision would not be overturned if supported by substantial evidence.

 

In reviewing the record, the Court found the Claimant’s severe pain, surgeries and inability to work due to back pain occurred after the January 2008 incident, as he was working without complaint for several months subsequent to the March 2007 slip and fall injury. The Court also found that the expert testimony regarding causation did not support the finding that the March 2007 injury caused the Claimant’s disability. Specifically, the Court found that Dr. Hatfield’s opinion, which causally related the Claimant’s surgeries and disability to the March 2007 slip and fall, was based upon incomplete information as it appeared Dr. Hatfield was never made aware of the Claimant’s January 2008 incident and therefore could only relate the Claimant’s complaints to the March 2007 injury. The Court also found the opinion of Dr. Kuhnlein, who opined that the increase in severity after the January 2008 incident was a sequela of the original injury, was also faulty as it was based on the previous opinion of Dr. Hatfield which lacked an adequate history.

 

The Court found that the opinions of Dr. Kunhleing and Hatfield were not based on awareness of all the facts in the case, and as such, were not reliable. As the opinions were not reliable, they could not form the basis for substantial evidentiary support for the Agency’s decision. The Court then reversed and remanded the decision of the Agency. As the Court reversed on the grounds of causation, there was no need to discuss the additional issues raised on appeal.

 

 

Quaker Oats Company and Ace Cigna v. Larry Farar, Court of Appeals of Iowa, No. 3-654 / 13-0195

 

The Claimant began his employment with Quaker Oats in 1975. He worked numerous jobs, all of which involved heavy lifting and use of ladders and stairs. In 1996, the Claimant began to experience knee pain after sustaining a knee injury running a rail car. In 1997, his knee pain worsened and he was diagnosed with chronic right patellofemoral syndrome. These injuries were initially accepted, but in 1999, the employer declined to pay for further treatment.

 

In 2000, the Claimant reported an increase in knee pain and ultimately underwent a right knee scope with Dr. Craig Dove which revealed significant arthritic changes. Dr. Dove opined that the Claimant’s condition was partially work related, though the Claimant’s obesity contributed to the problem, as the Claimant’s weight would fluctuate anywhere between 320-375 pounds. Quaker denied Claimant’s right knee claim.

 

The Claimant then began treatment with Dr. Jeffrey Nassif who treated the Claimant with physical therapy and injections. The Claimant next saw Dr. James Pape in 2001 who opined he suffered from bilateral patellofemoral chondromalacia, a degenerative condition. Dr. Pape recommended anti-inflammatories, which continued for several years.

 

The Claimant returned to Dr. Nassif in 2007, and following an x-ray which revealed severe osteoarthritis of the bilateral knees, knee replacement surgery was recommended. The Clamiant submitted an incident report to Quaker in March of 2008 claiming that he had sustained bilateral knee injuries as a result of repetitive trauma.

 

The Claimant then began to experience wrist and hand problems in 2008 and 2009, for which he underwent two surgeries, requiring him to miss work for 3 months. The Claimant then underwent knee replacement surgery with Dr. Nassif on March 15 and May 17, 2010. Subsequent to surgery, the Claimant developed deep vein thrombosis and pulmonary emboli conditions.

 

The Claimant was seen by Dr. Farid Manshadi, who placed him at MMI as of December 9, 2010, and also assigned the Claimant permanent partial impairment of 37% to the left leg and 39% to the right. He was next seen for an independent evaluation by Dr. William Jacobson on December 16, 2010, who assigned 50% permanent partial impairment to each of his legs.

 

The Claimant also apparently suffered from depression and anxiety, with symptoms beginning in 2008. Dr. Laurence Krain opined in a 2010 report that the Claimant’s inability to work was due to his depressive condition, which he has continued to receive treatment for.

 

The Claimant’s last day of employment with Quaker was March 12, 2010. He filed a petition with the Workers’ Compensation Commissioner in 2011. After hearing, the deputy found the Claimant’s work activities were a substantial cause of the his bilateral knee condition. It was further found that his deep vein thrombosis and pulmonary emboli were complications of the Claimant’s total knee replacements and were related to his March 14, 2008 cumulative injury. The employer appealed on the grounds that the decision was not supported by substantial evidence and misrepresented the record.

 

On appeal, the Court noted that medical causation is a question of fact vested in the discretion of the agency and the agency’s decision would not be overturned if supported by substantial evidence. After examining the medical opinions which were contained within the record, the Court found that while the weight of the medical evidence was contrary to the decision reached by the Agency, the Court determined that substantial evidence supported the agency’s finding of causation. Specifically, the Court found the opinion of Dr. Manshadi, who opined that the Claimant’s work caused his knee symptoms, provided enough evidence to sustain the agency’s finding of causation. The Court went on to note that while Dr. Nassif and Dr. Jacobson had opined the Claimant’s employment was not the cause of his bilateral knee condition, the Court’s job was not to determine whether a different conclusion could be reached but whether substantial evidence supported the findings actually made.

 

The Court further stated that the Agency had specifically given more weight to the opinions of Dr. Manshadi and the Claimant over those of Dr. Nassif and Dr. Jacobson, and that credibility determinations were within the province of the hearing deputy.

 

The Court next examined the issue of whether Claimant’s DVT and pulmonary emboli were causally related to his alleged cumulative injury. The Court noted that to so find, it would have to be found that the Claimant had sustained a work related injury which required surgery and that said surgery caused the DVT and pulmonary emboli. The Court ultimately found substantial evidence supported the finding that the DVT and emboli were caused by the Claimant’s bilateral knee replacements. Specifically, the Court found substantial evidence in the opinions of Dr. Manshadi and Dr. Nassif who opined that the surgery caused or could have been a contributing factor to the conditions.

 

In regards to the employer’s argument that the case should be remanded for a more complete record, specifically that the Agency further discuss in greater detail each doctor’s opinions, the Court found that remand was not appropriate. The Court opined that “even when a record is inadequate, remand for additional evidence is generally not appropriate and is only done when there are “good reasons.”” The Court declined to reweigh the evidence presented and remand the case for a more complete record. As such, the decision of the Agency was affirmed in its entirety.


If you have any questions on this, please feel free to call Mark Bosscher or Lee Hook at 515-243-2100. We'd be happy to help answer any questions you might have, big or small!  You can also reach us at www.peddicordwharton.com

Pablo Ledezma v. Procter & Gamble Hair Care, LLC, Cambridge Integrated Services Group, Inc., Court of Appeals of Iowa, No. 3-587/12-2103

 

The Claimant was injured at work in 2008. The employer and Claimant entered into a settlement agreement on July 23, 2010, which was subsequently approved on September 3, 2010. The agreement indicated that the Claimant had sustained a compensable injury and that he was entitled to temporary, permanent partial and medical benefits.

 

In July of 2011, the Claimant filed a Petition at Law alleging a bad faith claim based upon a failure to pay his outstanding medical bills as required in the settlement agreement. In August 2012, the defendants filed their motion for summary judgment arguing that the Claimant’s claim  was based in contract and no cause of action existed for bad faith breach of contract and that since all medical bills were paid there was no breach of contract.

 

The Claimant filed a resistance indicating that the bad faith claim was based upon a delay in payment of medical benefits pursuant to the settlement agreement. The district court granted the motion for summary judgment on the grounds that the claim was a contract claim and not an insurance or workers’ compensation bad faith claim. On appeal, the Court first found that the Claimant had not preserved the issue as to whether any initial denial of benefits was in bad faith. The Court then went on to affirm the district court’s ruling holding that it is well settled law that this was a contract claim and not a bad faith claim.


If you have any questions on this, please feel free to call Mark Bosscher or Lee Hook at 515-243-2100. We'd be happy to help answer any questions you might have, big or small!

Whirlpool Corporation v. Danny Davis, Court of Appeals of Iowa, No. 3-582/12-1962

 

The Claimant alleged a work injury on April 29, 2008. He had been employed with the employer for 16 years and at the time was working in the paint department. As part of his job he had to maintain sufficient levels of chemicals in the barrels. On his date of injury, one of the barrels was empty. The barrel weighed several hundred pounds and when the Claimant went to replace it, the pallet it was placed on broke, causing the Claimant to hold onto it to keep it from falling. The barrel pulled the Claimant and his foot became stuff in the pallet. As the barrel continued to pull him, he heard a rip in his lower back.

 

The Claimant immediately reported his injury and was taken by ambulance to Mercy Medical Center. While at the hospital, the Claimant was diagnosed with a lumbar strain and was given pain medication. He was to refrain from lifting and prolonged sitting and to follow up in two days. Two days later, the Claimant say Dr. Momany who would ultimately treat the Claimant’s back until June of 2009. He was diagnosed with mechanical back pain, and three days later reported feeling 20% better. An MRI taken in June of 2008 was unremarkable.

 

The Claimant then took a leave of absence from the employer between July and August 2008 for problems associated with COPD. The Claimant then asked Dr. Momany to unrestrict him on September 11, 2008 as he had to be unrestricted to bid for a new position and his job was being eliminated. Dr. Momany placed the Claimant at MMI as he was having no significant pain and indicated he had no impairment.

 

The Claimant saw Dr. Momany again on September 30, 2008 due to feeling a pain in his back while climbing a ladder at work. The Claimant then began to treat with his personal doctor, Wendy Buresh. The Claimant told Dr. Buresh that his back pain had not felt better since the injury occurred and diagnosed the claimant with a low back strain.

 

The Claimant later followed up with Dr. Momany and was referred for an FCE in October 2008 as it was felt he was approaching MMI. The FCE determined that the Claimant fell into the medium work level and assigned certain restrictions but returned the Claimant to work. On December 22, 2008, the Claimant obtained a seven percent whole person impairment rating from Dr. Mark Taylor.

 

The Claimant continued to treat with Dr. Buresh for his chronic back pain and unrelated lung condition. He was seen Dr. Gene Gessner at a pain clinic in March and April of 2009 where he received injections and a TENS unit, but the Claimant indicated no improvement. The Claimant also continued to see Dr. Momany, and on June 9, 2009 had to take a leave of absence due to threats of self harm related to his chronic pain.

 

Dr. Buresh indicated that she believed the Claimant’s complaints were consistent with the type of injury sustained on his date of injury and that he was also experiencing situational depression as a result of the injury. The Claimant then saw Dr. Kuhnlein for an IME on September 4, 2009. Due to the confusion in the record between Claimant’s original date of injury and the potential reinjury in September, Dr. Kuhnlein could not state to a reasonable degree of certainty whether the current complaints were related to his original April injury or a new injury. He then assigned the Claimant 5% impairment and gave him some restrictions.

 

The Claimant’s last day of employment had been June 9, 2009 as he was kept on medical leave by Dr. Buresh since that time. It was indicated that the pain kept him from doing construction which he did prior to his shifts at Whirlpool. He also continud to hunt and mow his lawn regularly, though limited some by pain.

 

At hearing, the claimant acknowledged that he had treated with Dr. Meyer, a chiropractor prior to his alleged work injury. Though Dr. Meyer indicated that he was treating the Claimant primarily for cervical pain. The deputy awarded the Claimant permanent total disability benefits, medical expenses and costs. The deputy gave no weight to the opinions of Dr. Momany and indicating that the Claimant’s testimony was credible and corroborated by the record. The deputy indicated that while the Claimant had preexisting depression, it was lit up and aggravated by the work injury.

 

The decision was affirmed by the commissioner on appeal. The employer appealed to the district court and sought a stay of judgment pending the court’s decision. The district court found the expert opinions cited by the deputy provided substantial evidence and that the employer failed to show irreparable injury if the stay was not granted.

 

The employer appealed, contesting the findings that the Claimant’s physical and mental conditions were causally related to the April 29 2008 incident; the agency’s findings as to the extent of the Claimant’s disability; that Dr. Buresh was not an authorized treating physician and thus it should not be liable for charges related to the Claimant’s visits to her; and that the commissioner erred in awarding costs in the amount of $1,947. Finally, the employer argued the district court erred in denying its application for stay of judgment.

 

The Court first addressed the issue of causation and extent of disability and found that the agency’s findings and decisions were supported by substantial evidence, thus those issues were affirmed without significant discussion.

 

In regards to the medical expenses for Dr. Buresh, the Court noted that the employer had stipulated at hearing that the treatment was reasonable and necessary and that the fees were reasonable. The Court went on to indicate that once he was placed at MMI by Dr. Momany, it was reasonable for the Claimant to seek treatment elsewhere. The Court stated that Iowa law states that even when the employee obtains unauthorized care, upon proof by a preponderance of the evidence that such care was reasonable and beneficial, the employer is liable for the cost of the care. The Court found the visits to Dr. Buresh were related to the Claimant’s low back work injury and affirmed the award of medical expenses.

 

The Court of Appeals did find that it was error for the commissioner to tax costs of $330 to the employer for the cost of Dr. Momany’s deposition. The Court stated that the costs for deposing an expert witness cannot exceed $150 under Iowa law, thus this taxation of costs was in error.

 

Finally in regard to the motion for stay, the Court found no abuse of discretion in denying the stay as all the appropriate factors were considered.


If you have any questions on this, please feel free to call Mark Bosscher or Lee Hook at 515-243-2100. We'd be happy to help answer any questions you might have, big or small!

AARP and Arch Insurance Co. v. Donald Whitacre, Court of Appeals of Iowa, No. 3-082 / 12-1519

The claimant worked part time as a janitor for the AARP. One day while on coffee break with his supervisor, Pat Faught, the Claimant began to choke. He stood up to get a drink of water, stumbled, and hit the corner of Faught’s desk and the corner of the office wall. He landed head first on the floor. The Claimant sustained injuries to the head and face; and had to undergo surgery to remove a blood clot in his brain.

The Claimant petitioned for workers’ compensation benefits and following arbitration hearing, it was concluded his injury arose out of his employment and he was awarded medical expenses and weekly benefits. On appeal to the district court, the Court determined that the agency had erred in finding the injury arose out of the Claimant’s employment with AARP.

On appeal the Court stated that the arising out of test requires proof that a causal connection exists between the conditions of the employment and the injury. The Court went on saying “generally injuries resulting from risks personal to the claimant are not compensable. However, where the employment contributes to the risk or aggravates the injury an exception may arise.

The Court recognized that the parties agreed the Claimant’s fall was caused by a personal condition. However the Claimant contended the condition’s of Claimant’s employment aggravated the injury sustained by the Claimant. It had been concluded by the agency that the design and construction of the office, namely that it was small, had hard concrete walls and floor, significantly contributed to the Claimant’s injury.

The Court’s analysis focused on the distinction between a dangerous employment condition that increases the risk of injury and an employment condition that aggravates the effects of an idiopathic fall. The Court noted that the distinction was a fine one. The Court indicated that the key is that, with idiopathic falls, which “begin with an origin which is admittedly personal,” there must be “some affirmative employment contribution to offset the prima facie showing of personal origin.”

The Court then applied this standard to the facts of the case and indicated that as the deputy concluded the fall took place in a small office, and the Claimant hit the corner of the desk, then the wall and then the floor, that the office conditions did aggravate the effects of the Claimant’s idiopathic fall. Thus, the decision of the Agency was affirmed.

 

Estate of John Herman v. Overhead Door Company of Des Moines, Inc. and Columbia Insurance Group, Court of Appeals of Iowa No. 3-110 / 12-0892

The Claimant passed away during the appeal of his workers’ compensation claim and his estate was substituted in his place. The Claimant worked for the Defendant employer from August 1994 until an alleged work injury in January of 2009.

The claimant spent the majority of his time in the shop area at work, which he testified was unheated at the time of his injury and the heaters had been broken for a couple of years. He testified that he had told his bosses about the heaters not working. Due to the temperature of the shop, the Claimant wore long underwear, jeans, a hooded sweatshirt, work coat, thermal socks, boots and gloves.

The Claimant’s job duties included throwing away scrap material and emptying trash cans, requiring him to walk outside to the dumpster multiple times a day. The Claimant first noticed his injury on January 21, 2009. On that day, he estimated the temperature in the warehouse where he was working to be in the teens. The ground outside was also covered with five inches of previous snow accumulation. Defendant employer’s owner testified that the snow had been cleared where the Claimant was required to walk and that it was not his job to clear snow.

After work on January 21, 2009, the Claimant noticed blisters on his right foot and toes. The next day at work, he noticed his foot was wet and discovered that his blisters had broken open. The low temperature that day was twenty degrees and the high was forty seven. The Claimant further testified that he did not engage in any outdoor activities outside of work from January 21st to the 23rd.

When the Claimant arrived to work on the 23rd, he showed his foot to his supervisor, who sent the Claimant to the emergency room. It was determined that the Claimant had frostbite and a secondary infection on his right foot. The Claimant was treated by Dr. Lester Yen, who attempted to repair the damage to the Claimant’s foot with a skin graft on March 6, 2009. A second attempt at a graft was attempted in May 2009.

The Claimant’s right big toe eventually become infected and he was referred to a bone specialist. He was eventually seen by Dr. Colin Pehde who performed a partial amputation of the Claimant’s right great toe on July 22, 2009. As a result of the amputation, the Claimant developed ulcerations on his second and third toes. A tenotmy was performed to address the Claimant’s persistent pain. On January 11, 2010, it was noticed that the Claimant had an infection in the area where the tenotomy was performed, and he was hospitalized until February 2, 2010.

The Claimant sought workers’ compensation benefits for his right foot injury. Both treating physicians offered opinions that the Claimant’s injury was caused or aggravated by work. At the arbitration hearing, it was determined that the Claimant had not met his burden of proof that the injury was related to his work. The decision was affirmed by both the commissioner and the district court.

The Court of Appeals took up the case and noted that issues of medical causation are questions of fact which will only be reversed if not supported by substantial evidence. The Court went on to state that medical causation is essentially within the domain of expert testimony. Additionally, if the Commissioner rejects uncontroverted expert testimony, he must state why he has done so with sufficient specificity.

The Court noted that this case was an instance where uncontroverted expert medical opinions in support of causation were presented. The Court noted that the commissioner made no determinations of credibility but merely adopted the findings of the deputy, who in the eyes of the Court, “inexplicably stated the doctors were not helpful in determining whether the frostbite occurred at work”. The Court also found that the Claimant’s medical histories supplied on his alleged day of injury supported a finding of causation. After a review of the totality of the record, the Court determined that the commissioner’s outright rejection of the doctors’ uncontroverted medical opinions is not supported by substantial evidence.

The Court then turned its attention to whether the injury arose out of and in the course of the Claimant’s employment. The Court noted that “the injury must not have coincidentally occurred while at work, but must in some way be caused by or related to the working environment or the conditions of [the] employment.”

The Court found that the medical record and climatological evidence demonstrated that the Claimant’s “injury coincided as to time, place, and circumstances, and occurred within the period of the employment, while Herman was fulfilling work duties or engaged in something incidental thereto, thereby satisfying the “in the course of” element.” As such, the Court found that the commissioner’s finding that the Claimant’s injury did not arise out of or in the course of employment was based upon an irrational, illogical, or wholly unjustifiable application of law to fact and must be reversed.

The Court reversed the district court’s decision upholding the agency denial of workers’ compensation benefits to the Claimant and remanded to the district court for remand to the commissioner for a determination of benefits.

Call Mark Bosscher or Lee Hook with any questions @ 515-243-2100.  We’d be happy to help, whether it be a quick or a complex issue!

Brenda Hernandez f/k/a Brenda Flores v. Osceola Foods, Court of Appeals of Iowa, No. 3-269/12-1658

The Claimant was employed at Osceola Foods from January 2003 to April 2008. On May 7, 2004 she injured her back while at work. A settlement agreement was entered into by the parties on May 22, 2006. She was awarded permanent partial disability for a fifteen percent loss of earning capacity. At the time she had a permanent thirty pound lifting restriction.

 

She continued working for the employer for almost two years after the settlement, at which point, she was terminated dishonesty as she had improperly filled out an employment application for her husband and intentionally misrepresented his employment history. The next day, the Claimant went to a temp staffing agency and filled out an application for Farley’s and Sathers Candy Company, acknowledging she was able to perform all duties as set forth in the job description. This included lifting up to fifty pounds. She was hired through the agency and eventually hired permanently by Farley’s on September 15, 2008. On January 9, 2009, Farley’s learned of her lifting restriction and terminated the claimant’s employment for misrepresenting her ability to do the job.

 

Following this, she filed a review-reopening petition based upon an allegedly greater loss of earning capacity. The deputy commissioner found that the Claimant did have a change in actual earning but it was due to her dishonest conduct resulting in the loss of her job rather than the work injury. This finding was affirmed by both the commissioner and the district court. The Claimant then appealed to the Court of Appeals.

 

On appeal, the Court stated the correct standard of review was for errors at law, but also noted that if substantial evidence supported the factual findings of the commissioner these would be upheld. The Court went on to state that while the Claimant attempted to frame the issue as an error at law, the Court agreed with the district court that the “crux of her argument is whether she proved by a preponderance of the evidence there has been a compensable change in her economic circumstances.” The review was thus limited to whether the conclusion reached by the agency was supported substantial evidence.

 

The Court went on to find that the Claimant’s initial job loss was due to her dishonesty rather than any physical impairment. Her subsequent job loss at Farley’s was also found to be due to her dishonesty rather than any lifting restriction she had. She had apparently been told by Farley’s that if she had been honest about her restriction, she would not have been offered the job. The Court found however that the agency was correct in determining that any loss of access to the labor market she now has is no different than the loss of access she had when the agreement for settlement was approved. The Court ultimately found that no facts about the Claimant’s employability attributable to her injury have changed since her settlement. Substantial evidence supported the findings of the agency and the Court affirmed the decision.

Call Mark Bosscher or Lee Hook with any questions @ 515-243-2100.  We’d be happy to help, whether it be a quick or a complex issue!

Charles Coffey v. Mid Seven Transportation Company and Great West Casualty Company, Supreme Court of Iowa No. 11-1106

 

 The claimant, Charles Coffey, worked for the Defendant employer, Mid Seven Transportation Company, as an over the road trucker. On February 8, 1994, the Claimant fell on an icy parking lot while working in Missouri. His left leg and foot were then run over by an eighteen wheel tractor-trailer. He sustained a medial malleolar fracture and suffered from compartment syndrome in the leg.

 

The Claimant was motivated to begin working again, but was unable to return to full time employment. He was placed at maximum medical improvement in August 1994 following several surgeries. The Claimant also suffers from post polio syndrome which causes whole body fatigue, weakness, pain and cramping in the legs, pelvis and lower back.

 

The Claimant had been found by physicians to be incapable of returning to work as a truck driver. He did work part time as a substitute school bus driver in 1996, 1997 and 1998, however the most he ever earned was $7,800 per year, and he eventually terminated that employment due to complications with his right shoulder. He also was awarded social security disability benefits starting in December 1997. He receives approximately $1,192 per month.

 

Prior to filing his workers’ compensation claim, the Claimant settled his third party claim for $275,000 on December 22, 1997. After attorneys fees and reimbursement to the employer/insurer, the Claimant pocketed $134,786.95. The Claimant instituted his workers’ compensation action in January of 1998 alleging injury to the back, leg and head as well as PPS. The employer admitted the work injury occurred on the date set forth in the petition.

 

Prior to arbitration, the employer had made workers’ compensation payments to the Claimant of $70,783.19 which included payment for healing period, permanent partial disability, medical expenses and mileage. Also before arbitration, the Claimant and his wife entered into another third party settlement for $100,000. His wife was allocated $60,000 of the settlement for loss of consortium. The Claimant received $24,634.14 after payment of legal fees.

 

At arbitration on September 5, 2002, the deputy found the Claimant was entitled to workers’ compensation benefits and that his injury caused his PPS, which resulted in a 75% industrial disability. However, it was found that the Claimant’s pulmonary, cardiac, vascular, thyroid problems, bladder cancer, spinal and shoulder issues were not work related.

 

The employer was ordered to pay 375 weeks of permanent partial disability benefitsat the benefit rate of $472.18 which had been being underpaid at the rate of $392.33. The employer was ordered to satisfy the underpayment by paying $79.85 per week. The employer was also ordered to pay certain disputed medical expenses, including the cost of travel for PPS care.

 

The decision of the deputy was affirmed on intra-agency appeal, as well as on appeal to the district court and court of appeals. Following the denial of further review, counsel for the employer wrote to the Claimant’s attorney stating that the Claimant’s third party recoveries covered the Claimant’s workers’ compensation claim, but asked whether the Claimant’s attorney claimed any further amounts were due on the award. The Claimant’s attorney responded indicating at lease one third of the amount awarded was due.

 

The employer’s attorney then responded that they had calculated the amount owed under the agency’s decision to be $154,719.26, however it appears this did not take into account mileage, medical payments or interested owed. It was stated that because the third party statements exceeded the calculated amount, the employer contended all they owed was a payment of the attorney fees for the claimant’s attorney in establishing their credit. This amount was deemed to be $51,573.09, which was paid to the Claimant and his attorney. Claimant’s attorney corresponded back indicating that he believed Claimant was owed more than the calculation done by the employer’s attorney.

 

The Claimant then filed a review reopening petition on April 2, 2008 seeking additional disability benefits, reimbursement for medical expenses and an order requiring the employer to pay the amount still due under the agency decision as well as a calculation of the credit to which they were owed. On hearing, the deputy found the claim for additional benefits was untimely under the statute of limitations. It was determined the date that the statute began to run was the date of the intra-agency appeal decision, March 23, 2004. The deputy however did award the payment of the medical expenses sought by Claimant, but the deputy did not determine the amount still due under the award, if any, or the amount of credit to which the employer was entitled. The deputy found the payment of $51,573.09 made by the employer was not intended as benefits but rather as a reimbursement of the Claimant’s attorneys in achieving third party settlements.

 

On intra agency appeal, the Commissioner upheld the finding that the claim for benefits was untimely. However, he reversed the finding that the employer should pay the medical expenses sought by the Claimant as he did not believe they were proved to be related to the work injury. He also affirmed the decision of the deputy that no order was need compelling the employer to make payment as the Claimant could seek a judgment. The decision was then appealed to and affirmed by the district court.

 

On appeal to the Supreme Court, the Court stated that in regards to the issue of the statute of limitations, such would be reviewed for errors at law as the legislature did not clearly vest the Workers’ Compensation Commissioner with the authority to interpret the statute. The issue as to whether the medical expenses were related to the Claimant’s work injury would be reviewed under the substantial evidence standard.

 

The Court took up the issue of the statute of limitations and indicated that there was no disagreement between the parties that the review reopening petition must be filed within three years from the date of the last payment of weekly benefits. The employer argued that the statute began to run from the date the commissioner issued the arbitration award, whereas the Claimant challenged the argument on two grounds; 1) that the payment of $51,573.09 constituted payment of weekly benefits, and 2) the statute did not begin to run until the Court denied further review of the arbitration decision.

 

The Court determined that the commissioner did not determine whether any further benefits were owed under the award, and as such, it could not be determined by the court whether or not the credit of the third party settlements covered all the weekly benefits under the award. The Court held that the Commissioner must first decided whether any further benefits were owed, as the Claimant contended, before determining what the last date of payment of weekly benefits was. The Court then remanded the issue to the Commissioner for a determination whether benefits were still owed. And following the decision of that issue, the Commissioner must then determine whether the last installment of weekly benefits has been paid and on what date if that has occurred.

 

The Court went on to state that if it is determined that the employer paid all weekly benefits prior to the arbitration award via the credit afforded to it by the third party settlements, the date the statute began to run must still be determined. The Court rejected the Claimant’s argument that the payment of $51,573.09 was payment of weekly benefits. This was based on the logic that 1) the obligation to pay weekly benefits would have already been completely fulfilled prior to the payment, and 2) the Code makes clear that the payment of attorneys fees to the injured party’s attorney for amounts recovered in third party settlements is not considered payment of weekly benefits.

 

The Court then held that the statute is not tolled pending final appellate review of the arbitration award. Rather, in a situation where the obligation to pay benefits is satisfied before the entering of an arbitration award, the statute begins to run when the award is entered.

 

Finally, the Court took up the issue of the payment of medical expenses and determined that based upon the review of the record, substantial evidence supported the Commissioner’s finding that the Claimant had failed to prove by a preponderance of the evidence that the sought after medical expenses were related to the work injury. The Court then remanded the case as to the statute of limitations issue, but affirmed the finding in regards to payment of medical expenses.

 

Call Mark Bosscher or Lee Hook with any questions @ 515-243-2100.  We’d be happy to help, whether it be a quick or a complex issue!

Angel Richards v. Creston Nursing & Rehabilitation Center, Court of Appeals of Iowa, No. 2-1017 / 12-1120

 

The Claimant began working as a CNA with the defendant in October of 2005. Prior to this, the Claimant had a history of back pain starting in 2002. On February 13, 2006, the Claimant alleged a back injury that occurred while she was moving a patient. She sought medical attention that day and returned to light duty four days later. According to the attending physician she was fully recovered on February 27, 2006.

 

The parties stipulated that the Claimant again injured her low back while assisting a resident out of bed on October 10, 2006. She saw Dr. John Hoyt who gave her epidural injections, muscle relaxers and physical therapy. She was then assigned to half days with no lifting but continued to experience some radiating right leg pain.

 

In early December 2006, Dr. Hoyt increased claimant’s restrictions to being able to lift 50 lbs. The Claimant then apparently aggravated her back while cleaning tables in late December at work. She was then seen by Dr. Lynn Nelson, an orthopedic surgeon, in January. An MRI taken at this time revealed that the claimant had very small disc bulges at L4-5 and L5-S1, however she was not experiencing a significant degree of impingement. Dr. Nelson opined that no surgery or injections were necessary; but did limit the claimant to office work and a 15 lb lifting restriction.

 

In January 2007, the Claimant slipped in the defendant’s parking lot and was again seen by Dr. Hoyt. Dr. Hoyt found the claimant’s symptoms to be improving. Then in February of 2007, the claimant was fired for excessive absenteeism. Soon thereafter, the Claimant was discharged from Dr. Hoyt’s care in March of 2007. She was briefly employed as a telemarketer in June, but then left to care for her father in law. Once he was improved, the Claimant began as a CNA at Crest Haven Care Center in January of 2008. At her pre-employment physical the Claimant was reported as being pain free in regards to her back. She worked without restrictions at Crest Haven and ultimately left her employment there due to circumstances unrelated to her back.

 

In April of 2008, the Claimant began working as a cashier at Kum & Go. In August of 2008, the Claimant fell in the Kum and Go parking lot. She saw Dr. Gerdes complaining of severe tail bone and back pain. She was diagnosed with acute lower back spasm and returned to work a week later with lifting restrictions. In September of 2008, the Claimant reported another fall at Kum & Go. An MRI taken revealed mild degenerative disc disease at L4-5 and L5-S1 with annular disc bulges, but no other maladies.

 

Kum & Go denied the claimant’s workers compensation claim stemming from this September fall as there was no significant difference in her MRI results from 2007 as to 2008. The employer also suspected the Claimant may have lied about the fall to obtain time off from work.

 

In November of 2008, the Claimant sought an IME with Dr. Robert Jones. Dr. Jones attributed the claimant’s pain primarily to her October 2006 injury. He opined that her improving symptoms did not mean the injury had completely resolved, but could not apportion a percentage of pain between her CNRC injury and the fall at Kum and Go. He assessed the claimant to have 5% permanent impairment causally related to the two injuries.

 

The Claimant was fired from Kum and Go in October of 2008 for unexcused absenteeism. She has been unable to find work since. The Claimant filed the current workers’ compensation action against CNRC in April of 2009. In connection with the claim, Claimant’s counsel wrote to Dr. Nelson for his opinion as to whether the Claimant’s injury was caused by her incident at CNRC or the fall at Kum & Go. Dr. Nelson ultimately opined that the claimant’s incident in October of 2007 did not result in permanent impairment.

 

At the claimant’s deposition she testified that she had trouble sitting as well as using stairs due to her low back pain. Video surveillance conducted of the claimant showed her ascending and descending stairs with no problem. The deposition and surveillance footage, as well as claimant’s medical records, were provided to Dr. Jones to obtain his opinion on causation. He continued to opine that the claimant’s 2006 nursing home injury was a significant causative factor in the claimant’s current complaints.

 

After the arbitration hearing, the deputy issued a ruling which found the claimant failed to carry her burden of proof that her work injury caused her permanent impairment. The conclusion was based largely on the claimant’s lack of credibility while testifying. The deputy also found Dr. Jones had relied on a very suspect history in rendering his opinions. The opinion of the deputy was adopted by the commissioner which was affirmed on appeal as being supported by substantial evidence.

 

The case was then appeal to the Court of Appeals. The Court first noted that its review would be based upon the substantial evidence standard as the case was based upon factual determinations which were vested in the agency’s discretion. The Claimant challenged the findings of the agency in regards to the Claimant’s credibility and the discounting of the opinion of Dr. Jones. In regards to the Claimant’s credibility, the Court found that even despite possible overstatements by the deputy in regards to the claimant’s tendency to deceive, the determination regarding credibility withstood a substantial evidence challenge. This was based upon numerous inconsistencies in the claimant’s testimony, both in her deposition and at hearing.

 

The Court then turned its attention to the issue of Dr. Jones’ opinion regarding causation. The Court found that the deputy had explained his reasoning for discounting the opinion of Dr. Jones as it was based upon the claimant’s statements which were found to lack credibility, and as such was relying upon a suspect history. The Court opined that it was within the purview of the deputy to weigh expert opinion testimony and the deputy did not abuse his discretion in finding the opinion of Dr. Jones’ unconvincing. As such, the Court affirmed the findings of the deputy.

Mercy Hospital Iowa City and Cambridge Integrated Services v. Susan Goodner, Court of Appeals of Iowa, No. 2-933 / 12-0186

 

 The Claimant was a family practice physician who treated two patients with mono in January of 2000. On January 18th, one of those patients vomited on the claimant’s hands during the examination. The Claimant began experiencing symptoms on February 4th and when they did not subside she performed a mono spot test on February 13 which came back positive.

 

The Claimant sought medical treatment from Dr. Wools-Kaloustian, an infectious disease specialist who diagnosed the claimant with mono. On February 25th, the claimant reported her illness to her employer and remained off work or worked reduced hours due to extreme fatigue.

 

The Claimant was eventually referred to Dr. Minner by the workers’ compensation carrier in July of 2000 to determine if there was a work-related condition and if further treatment was necessary. Dr. Minner found the infectious disease to be causally related to the claimant’s employment and referred further care to Dr. Ovrom. Dr. Minner also opined that the long term prognosis for complete recovery was good.

 

In November of 2000, the Claimant was seen by Dr. Gervich for a second opinion at the request of the claimant’s private disability company. Dr.Gervich expressed doubt that the Claimant ever contracted infectious mononucleosis, though he could not disprove it. This was based upon the incubation period of the claimant’s disease. Dr. Minner subsequently referred the Claimant to Dr. Wesner, a psychiatrist, due to possible depression. Dr. Wesner diagnosed the claimant with depression which was related to the chronic fatigue syndrome following her infection. She was referred to individual and family therapy which he believed were reasonable and necessary treatment for her major depressive disorder and the chronic fatigue syndrome.

 

The Claimant’s symptoms of fatigue waxed and waned over the next few years and she continued to see Drs. Ovrom, Wesner, and Minner. Dr. Ovrom’s initial diagnosis was post viral fatigue, but he revised his diagnosis in April of 2002 because he believed Goodner’s condition met the criteria for chronic fatigue syndrome, and recommended consideration of permanent partial disability. On July 24, 2002, Dr. Minner placed the claimant at MMI. At that time Goodner was able to work twenty hours per week and was “overall at approximately 70% of full-time productivity.” Dr. Minner retired soon thereafter and care was transferred to Dr. Buck.

 

The Claimant first saw Dr. Buck in October of 2002. Dr. Buck concurred with Dr. Minner’s assessment of maximum medical improvement, stating, “Clearly her condition has and will continue to have mild episodic relapse, but the overall pattern has been quite stable now for some time.” He anticipated her needing periodic care with both Dr. Wesner and Dr. Ovrom, and he authorized additional visits with both providers. At his deposition, Dr. Buck stated that he believed there was a significant possibility that the Claimant had never contracted mono.

 

In November of 2002, the claimant was seen by Dr. Meier for a second opinion. She was diagnosed with chronic fatigue syndrome triggered by infectious mononucleosis. He further opined that he did not believe the claimant had reached MMI as her condition remained in a state of flux. Goodner underwent a series of studies including a sleep study, hormonal study, and immune disorder study at the prompting of the board of medical examiners. These studies came back normal, ruling out other conditions causing the fatigue.

 

The Claimant gained approximately thirty-three pounds during the course of her illness. She attributed this weight gain to her fatigue as she was unable to exercise regularly or plan healthy meals. She also developed type 2 diabetes, high cholesterol, and hypertension. She sought assistance from a weight loss clinic. When her attempts to lose weight were unsuccessful, she underwent bariatric surgery in May of 2007.

 

In October of 2008, the claimant was referred to Dr. Pocinki, an expert on fatigue syndrome. It was Dr. Pocinki’s opinion that the claimant met all the criteria for chronic fatigue syndrome, and he believed the condition was triggered by the mononucleosis infection. He determined she was not yet at maximum medical improvement and anticipated it would be another two to three years before she would achieve this state.

 

The claimant was then seen by Dr. Risk, for an independent medical exam at the request of her attorney in February 2009. Dr. Risk opined the claimant developed post viral fatigue syndrome as a result of her exposure to mononucleosis. Although her obesity predated her symptoms, her subsequent fatigue lead to inactivity and poor diet. This condition resulted in her gaining the additional weight and developing diabetes, hypertension, and high cholesterol. He also believed the fatigue led to depression. He did not believe she was at maximum medical improvement at that time.

 

At the request of Mercy Hospital, a records review was performed by Dr. Katz. He opined that while the claimant may have a fatigue syndrome, the fatigue did not develop from mononucleosis, and he did not believe she contracted mononucleosis at all. He stated the likelihood of contracting mononucleosis in the way the claimant described was essentially zero. He also asserted the incubation period reported in the claimant’s case, seventeen days, was out of the question for this virus, which has a typical incubation period of forty to sixty days. He also stated the claimant’s clinical symptoms did not fit with infectious mononucleosis, which in older patients is typically characterized by a prolonged fever and liver involvement. Finally, it was Dr. Katz’s opinion that there was no specific concrete connection as to the cause of chronic fatigue syndrome; therefore, he doubted the causal link between mononucleosis and chronic fatigue syndrome.

 

Dr. Lutz also performed a records review at the request of Mercy Hospital. Like Dr. Katz, Dr. Lutz opined, in his March 2, 2009 report, there is no medical literature support for the way Goodner claims the mononucleosis virus was transmitted to her. He also found the incubation period in this case was too short for mononucleosis, which typically has an incubation period of one to three months.He asserted the claimant’s case likely was the result of “VIP syndrome” where a physician treats a patient differently when the patient is an important person such as a doctor. Dr. Lutz believed this was why no initial treating doctor tested for mononucleosis, but just accepted her description and self-diagnosis. He states that her treating providers assumed causation in this case rather than establishing it based on her history. He also opined that there was no data to support a viral cause of chronic fatigue syndrome as the cause of chronic fatigue is unknown. Finally, he was concerned with the level of medications the claimant was taking, because many of the medications could be the cause of her fatigue and have a sedating effect.

 

Finally, Mercy Hospital had Dr. Stutts conduct a psychiatric evaluation of the claimant in January 2009. After conducting a review of the medical records and a patient examination, Dr. Stutts recommended that the claimant discontinue many of the medications she was on because he believed the medications were contributing to her chronic fatigue syndrome in a significant fashion and likely perpetuating her problems. Dr. Stutts believed the psychotropic medication had so muddied the water that he could not tell if the claimant had chronic fatigue or if the symptoms were caused by the medication.

 

The Claimant’s employment status during this time was quite up and down. Ultimately the claimant took a full year off from practicing medicine in 2006 on the advice of her treating physicians. The Claimant stated this year off greatly helped her and she returned to practice at a clinic in Kalona, Iowa. However she was forced to resign this position in January of 2008 due to fatigue.She was advised by the medical board to stop seeing patients, and her medical license was placed on inactive status by mutual agreement in January of 2008. For the claimant to once again practice medicine, her treating physicians would need to recommend to the board of medicine that her license be reactivated, she would need to present a plan for how she would see patients without becoming fatigued, and the board would need to approve her plan.

 

The Claimant initially reported her workers’ compensation claim in February of 2000. The claim was accepted, and treatment and benefits were provided with no agency intervention until September of 2006. At that time the claimant filed a petition for alternate medical care asking the workers’ compensation commissioner to order Mercy Hospital to pay for physical therapy for strengthening and conditioning, and massage therapy for muscle aches. At hearing, counsel for Mercy Hospital admitted liability for the claimant’s February 2000 injury. Counsel also admitted that the claimant had a case of chronic fatigue syndrome “that has been accepted as a work injury.” During the hearing, Mercy Hospital agreed to provide the physical therapy requested, but asserted the massage therapy prescribed by Dr. Ovrom was “not causally related to the work injury.” The deputy commissioner authorized the care requested.

 

The claimant filed an arbitration petition with the agency on May 18, 2007, alleging she was permanently and totally disabled as a result of her work injury, which developed on February 4, 2000. On February 18, 2009, after consulting with Drs. Katz and Lutz, Mercy Hospital amended its answer to generally deny the injury. After hearing, the deputy issued a ruling finding Mercy Hospital judicially estopped from contesting liability for the injury due to the position Mercy Hospital took at the alternate care proceeding.

 

The deputy went on to conclude the claimant sustained an injury in the course and scope of her employment and that the chronic fatigue syndrome was causally related to that injury. The deputy commissioner found Mercy Hospital responsible for one-half of the cost of the family counseling ordered by her treating physicians. He also ordered Mercy Hospital pay the full cost of the bariatric surgery after concluding, “there is no evidence in the record that claimant ever had any weight problem before her exposure to [the virus].” The deputy finally concluded that the injury caused the claimant to be permanently and totally disabled as an odd-lot employee because her injury made her unable to perform work “that her experience, training, education, intelligence, and physical capabilities would otherwise permit her [to] perform.”

 

The findings of the deputy were adopted by the commissioner on appeal. The district court then affirmed the agency’s decision did not preserve error on its claim nor did it prove the agency acted irrationally, illogically, or without justification in finding Mercy Hospital should be judicially estopped from contesting liability for the injury after having admitted liability in the alternate care petition. The district court also found substantial evidence supported the findings of the agency. The case was then appealed to the Court of Appeals.

 

The Court first opined that the decision of the agency in regards to judicial estoppel would be reviewed de novo and the Court was free to substitute its interpretation of the law for that of the agency. The issue of whether the medical evidence supported the finding that the claimant contracted mono resulting in chronic fatigue syndrome would then be reviewed according to the substantial evidence standard as question of medical causation is a fact question vested within the purview of the agency. As to whether the claimant was permanently and totally disabled, this would be reviewed based on the irrational, illogical or wholly unjustifiable standard as it involved the agency’s application of law to the facts which is vested within the discretion of the agency.

 

The Court first took up the issue of whether Mercy Hospital was estopped from contesting liability for the claimant’s injury based upon its position at the alternate care hearing. The Court first looked to the established precedent fromWinnebago Industries, Inc. v. Haverly, which stated that an employer cannot change its position regarding liability subsequent to an alternate medical hearing barring a significant change in facts after the admission of liability. The Court stated that it could not overrule the holding inHaverly as it was Iowa Supreme Court precedent. The Court then took up the next argument of Mercy that the holding inHaverly had been limited by subsequent case law.

 

Mercy argued that a case known asTyson Foods, Inc. v. Hedlund, limited the application ofHaverly in this case. In Hedlund, a claimant had mistakenly filed an alternate care petition to which the employer had admitting liability. Once the claimant realized the mistake, the petition was dismissed. The claimant then later filed a second alternate care petition in which the employer denied liability. The Supreme Court held thatHaverly did not have preclusive effect in this instance as the deputy had not decided the first petition based on the admission of liability by the employer and as such it was a nonevent. In the present case, the Court differentiated the facts from those in Hedlund and found thatHedlund did not apply to the current situation as the deputy had accepted the admission of Mercy Hospital in ruling on the alternate care petition.

 

Mercy also tried to argue that Haverly should have no effect on the current situation as the alternate care petition was filed prior to the contested case proceeding (the alternate care petition in Haverly was filed after the contested case proceeding began). The Court found no merit to this argument as the doctrine of judicial estoppelis intended to prevent a party from asserting a position in a subsequent proceeding that is inconsistent with its position in a prior proceeding.

 

Mercy next argued that the exception applied in this case as there had been a significant change in facts based upon Mercy’s receipt of the opinions of Dr. Katz and Dr. Lutz which caused them to change their stance on liability. The Court found that the agency appeared to have rejected the “significant change in facts” exception on the basis that Mercy Hospital could have obtained the medical opinions from Drs. Lutz and Katz earlier. The Court did not further address the issue as to whether the exception applied in this case as the Court found the agency also decided the case on the merits, thus dodging the issue as to whether the exception applied in this case.

 

After its discussion of the issue of judicial estoppel, the Court next turned its attention to whether the medical evidence supported the findings made by the agency. The Court in finding that substantial evidence supported the findings of the agency articulated that it was within the purview of the agency, under Iowa case law, to determine how much weight to give to an expert opinion. It was not for the Court on appeal to reweigh the evidence which was considered by the agency. The Court could only determine whether or not substantial evidence supported the findings made. The Court opined that several of the claimant’s treating physicians testified, based on their knowledge and experience the mechanism of injury, the incubation period, and the causal connection between mononucleosis and chronic fatigue syndrome all supported a finding that the claimant suffered a work-related illness—mononucleosis—and her current condition—chronic fatigue syndrome—was causally related to work; thus substantial evidence supported the findings made.

 

The Court then took up the issue as to whether the claimant was permanently and totally disabled. The Court noted that Mercy Hospital claims the claimant in her deposition admitted that if she exercised and did the right things she would regain the ability to work at least part time as she had from the onset of her illness until quitting her job at the clinic in 2008. Mercy Hospital argued that the agency cannot award total disability to a claimant who admits she can take action to return to work, but refuses to do so. The Court found this argument appealing but noted that the expert testimony supported the finding of permanent and total disability.

 

The Court noted that the finding of permanent disability was based upon claimant’s classification as an odd lot employee. The Court opined that an odd-lot employee is totally disabled if “the only services the worker can perform are ‘so limited in quality, dependability, or quantity that a reasonably stable market for them does not exist.’” The Court then stated that even assuming the claimant was able to obtain her license to practice medicine again and could practice medicine part time if she “exercised and did the right things” as Mercy Hospital contends she should do, this does not foreclose the agency’s determination she is an odd-lot employee entitled to an award of permanent total disability. The Court noted that the agency gave greater weight to the claimant’s vocational expert than Mercy’s and the Court would not disturb that on appeal.

 

The final issue addressed by the court was whether the agency erred in ordering Mercy to pay for the Claimant’s bariatric surgery and family therapy sessions. The Court first examined the issue of the bariatric surgery and determined that it was unauthorized care for an accepted injury; which meant that for Mercy to be responsible for paying for this care the Claimant had to show that it was both reasonable and beneficial. In reaching this conclusion, the court had to first determine whether the liability position of the employer at the time the treatment was sought controls or if it is when the claim is fully presented to the deputy (as Mercy had changed their position to full deny compensability, this would mean the claimant would only have to establish compensability for the injury and reasonableness of treatment). Ultimately, the Court found that the liability position at the time treatment is sought controls. Therefore, because Mercy Hospital had accepted the injury and maintained control of the medical care at the time the claimant obtained the bariatric surgery, she must prove the treatment was both reasonable and beneficial.

 

In deciding the issue as to whether the care was reasonable and beneficial, the court stated T]he concept of ‘reasonableness’ in this analysis includes the quality of the alternative care and the quality of the employer-provided care.” It includes “the reasonableness of the employer-provided care, and the reasonableness of the decision to abandon the care furnished by the employer in the absence of an order from the commissioner authorizing alternative care.” Id.The medical care is “beneficial if it provided a more favorable medical outcome than would likely have been achieved by the care authorized by the employer.”

 

The Court ultimately found that Based on the record before it, they were unable to conclude substantial evidence supports the determination that the weight-loss surgery was both reasonable and beneficial to the work-related injury. There is no employer-provided care in order to compare the reasonableness of the alternative care sought. This is not a case where an employee abandoned the care provided by the employer to seek alternative care as a result of a disagreement of her diagnosis or treatment. Most importantly, the Claimant had not made a successful return to the labor market following the bariatric surgery and has instead been found to be permanently and totally disabled. The surgery therefore could not be said to have been beneficial. Thus the finding in regards to compensability for the bariatric surgery was reversed.

 

In regards to the family therapy sessions, Mercy argued that the medical care contemplated by section 85.27 is for the worker alone, not the worker’s family. The Court first noted the deputy agreed with Mercy Hospital that it could only order Mercy Hospital to pay for medical care to the claimant, not her family. However it found the family therapy was recommended by the treating physicians to treat the claimant’s depression. Part of the family therapy benefited the claimant and part benefited her family. Because the deputy was unable to dissect out what part of the therapy benefited the claimant alone, it ordered Mercy Hospital to pay for one-half of the cost. The Court found no error in the deputy’s decision. The court held the deputy did not order Mercy Hospital to pay for care given to the family. The deputy reduced the amount payable by half in order to hold Mercy Hospital responsible for a portion of the therapy that benefited the claimant. Thus the issue was affirmed.



Call Mark Bosscher or Lee Hook with any questions @ 515-243-2100.  We’d be happy to help, whether it be a quick or a complex issue!

John Walter Podgorniak v. Asplundh Tree Expert Company and Lumbermen’s Mutual Insurance Company,Court of Appeals of Iowa,No. 2-943 / 12-0644

 

The claimant injured his left shoulder, neck and head while working for the employer. He filed a workers’ compensation proceeding which ultimately awarded him alternate medical care and running healing period benefits. The Claimant was referred to a treating physician who opined the claimant was at maximum medical improvement; based upon this, the employer terminated the claimant’s healing period benefits.

 

The Claimant subsequently filed a review reopening petition which raised several issues including a request for penalty benefits based upon the termination of healing period benefits. The deputy awarded a penalty of 50% of all healing period benefits that the claimant asserted were not timely paid based upon the determination that the employer unreasonably delayed the payment of weekly benefits to the claimant. On appeal to the commissioner, the designated deputy reversed the decision reasoning that the decision to terminate healing period benefits was fairly debatable. The decision was affirmed by the district court.

 

The decision was appealed to the Court of Appeals which took up review of the issue based upon the substantial evidence standard of review. The claimant asserted that the appeal deputy erred by applying a non-statutory ‘fairly debatable’ standard as a per se defense to a penalty claim. The Court however stated that established case law supported the ‘fairly debatable’ language and that there was no material difference between the judicially created standard of ‘fairly debatable’ and the statutory standard set forth in the Iowa Code requiring a reasonable or probable excuse for delay in payment of benefits. The Court then stated that the deputy did not ignore the requirements of the Iowa Code by relying upon the judicial opinions which discussed those requirements.

 

The Court then discussed the issue as to whether substantial evidence supported the finding made by the commissioner. The Court found substantial evidence in the opinions of three doctors that the claimant was at maximum medical improvement. The claimant attempted to claim that these opinions carried no weight as they were rendered before the claimant completed his alternate care, but the Court found no case law to support this proposition. The Court then affirmed the finding of the commissioner based upon substantial evidence.

 

Pilgrim’s Pride Corporation and Zurich North American v. Johnie M. Eakins,Court of Appeals of Iowa,No 2-1016 / 12-0901

 

The employer appealed the district court’s ruling which affirmed the commutation decision of the workers’ compensation commissioner. The deputy had granted the claimant’s request for a partial commutation, giving him a lump amount rather than weekly benefit payments.

 

The Court first discussed that partial commutations may be awarded when it is found to be in the worker’s best interests based upon a number of factors, which include: age, education, mental and physical condition, life expectancy, family circumstances, living arrangements, responsibilities for dependents, financial condition, debt, living expenses, and reasonableness of plan for investing lump sum proceeds and ability to manage the invested funds.

 

The employer contended that the agency failed to consider the claimant’s lack of financial sophistication, the tax consequences of the commutation decision and the claimant’s lifelong interest instead of just his current financial situation. The Court stated that the agency’s decision did in fact clearly consider these issues. The Court then noted that the agency was particularly concerned with the claimant’s ability to find adequate housing should he not receive a commutation. The agency also considered the fact that the claimant would only draw down interest and principal of the lump sum until his wife completed nursing school and obtained employment. The claimant also intended to conserve the principal to provide an estate for his wife should she survive him. Based upon these factors the agency determined that the commutation was in the claimant’s best interest long term and the Court could find no error in the agency’s application of law to these facts.

 

The employer also attempted to argue that substantial evidence did not support the awarding of the commutation as the claimant had a lack of income to pay day to day expenses and his desire to spend the benefits on other family members. The employer also indicated that the claimant’s history of spending money indicated that he would spend the money rather than invest it, which would leave him destitute. The Court acknowledged that there was evidence to support the conclusion that the commutation was not in the claimant’s best interests, but stated that it was not the job of the appellate court to determine whether the evidence supports a different finding but rather whether the finding made was supported by substantial evidence. The Court ultimately found substantial evidence supported the award of the commutation. The evidence relied upon was the claimant’s desire to obtain adequate housing and his indication that he would employ the services of a financial advisor.

 

The next issue taken up by the court was what was the correct date to commute the award from. The Court found that the correct date to be used to calculate the interest rate for the purposes of the commutation was the date the agency decision became final. This was based upon Iowa Code Section 85.48, which sets the rate to be paid based upon the interest at the time judgment is entered. The Court held that a workers’ compensation decision becomes a final judgment when there is a final decision without further proceeding, unless there is an appeal to the agency. As there was an appeal to the commissioner in this case, a final judgment was not entered until the decision of the commissioner. The Court then ordered that the commutation be revised to reflect the value of the commuted weeks and that any weekly payments made after the date of the commissioner’s decision while the case was on appeal should be credited to that value.

 

Ottumwa Manufacturing d/b/a Cadbury Schweppes Holding, Inc., v. Carl Boyd Sr.,Court of Appeals of Iowa,No. 2-813 / 12-0889

 

The claimant sustained an injury to his feet on August 22, 2008 when they were run over by a forklift while at work. This caused crush injuries to both of his feet. The claimant began to treat with podiatrist, Dr. Scott King. An MRI revealed a bony contusion of the metatarsal joints. The claimant claimed to have reported hip pain since he was injured, but Dr. King did not note any right sided hip pain until March of 2009. Dr. King associated this pain with the claimant’s work injury and assigned restrictions. Later, he signed a letter deferring to the claimant’s other physicians in regards to work restrictions and the cause of his hip injury.

 

The claimant was also seen by Dr. Kenneth Pollack, a pain management specialist. The claimant complained of pain in his low back and right hip, which Dr. Pollack theorized was likely caused by altered body mechanics stemming from his crush injury. In March of 2009, Dr. Pollack opined that the claimant’s left knee and right hip pain were a direct result of his work related injury. This was based on the claimant having no symptoms prior to his injury. However, in January 2010, Dr. Pollack signed a letter which stated he was unable to state that the claimant’s right hip complaints were a result of the claimant’s 2008 work injury.

 

The Claimant was seen by Dr. Nettrour, a hip specialist, in November of 2009. He opined that the claimant had a right hip injury with unclear etiology. He subsequently signed a letter which stated the claimant suffered no identifiable hip injury and any hip pain could not be related to his work injury. The Claimant was also seen by Dr. Friedgood, a neurologist, who opined the claimant did not need permanent restrictions based upon his right hip injury.

 

The Claimant was seen by Dr. Stoken for an independent medical exam in November of 2009. Dr. Stoken related the claimant’s complaints of pain in his feet, right hip and low back to his work injury. He was placed at maximum medical improvement as of September 21, 2009 and given an impairment rating of 28% to the whole body. He was given permanent work restrictions to avoid prolonged standing and walking and to avoid repetitive bending, twisting and lifting.

 

 

The Claimant was next seen by Dr. Eric Barp. Dr. Barp believed the claimant to likely be at maximum medical improvement. His work was restricted to sit down work only. Late Dr. Barp indicated the document assigned this restriction was in error and that the claimant could return to work without restrictions from a foot and ankle standpoint. The claimant was then given a permanent impairment rating of 4% to the body as a whole.

 

At hearing, the deputy found the claimant’s injury extended beyond his lower extremities into his right hip. The deputy then found the claimant to have suffered an 80% industrial disability. On intra-agency appeal, the claimant argued he should have been given an award of total permanent disability. The decision of the deputy was affirmed by the commissioner; which was subsequently affirmed by the district court.

 

Both parties appealed to the court of appeals. The employer argued that the commissioner erred in determining the claimant sustained a whole body injury rather than an injury to the bilateral lower extremities as there was insubstantial evidence to support the finding. Ultimately the Court found substantial evidence supported the finding made by the commissioner. The Court focused on the fact that the commissioner gave greater weight to the opinions of Dr. Stoken as well as the opinions of Dr. Pollack indicating the hip pain was related to claimant’s work injury. The Court indicated it was not their duty to re-weigh the evidence or to question the weight given to expert opinion, as such the court found substantial evidence supported the finding made by the agency.

 

The Court then turned its attention to the assignment of 80% industrial disability awarded by the agency. The employer contended that substantial evidence did not support the award. The claimant on the other hand argued that he should have been awarded permanent total disability. The Court found that substantial evidence supported the award made by the agency. The Court looked to the factors that the agency considered such as claimant’s use of a wheel chair – which while self imposed – the court found necessary, a vocational evaluation showing the claimant could only perform sedentary work, his inability to perform part time employment and the opinion of the claimant’s vocational expert indicating there were no jobs available to the claimant in the current job market. However, the Court noted that the agency did not award permanent total disability as the claimant’s physicians had not imposed work restrictions which would keep him from being able to perform seated work.

 

Based upon the factors above the court found the award of 80% industrial disability was supported by substantial evidence and the decision of the agency was affirmed.

 

Jose Sanchez v. Celadon Trucking Services, No 2-1091 / 12-0895, Court of Appeals of Iowa

 

The Claimant was injured in a motor vehicle accident in the course and scope of his employment with the employer. He settled a third party suit against the drive at fault for $200,000. The employer was reimbursed on its lien for workers’ compensation benefits already pain. As there were funds remaining after payments of this lien, the employer retained a lien for future workers’ compensation payments it would become liable to pay. After hearing, the Claimant was awarded 25% industrial disability.

 

The Claimant filed a review reopening proceeding seeking additional compensation alleged that his physical condition had worsened and his industrial disability had increased. The Claimant also sought an adjudication on the issue of the employer’s remaining lien.

 

At hearing, the deputy found the claimant lacked credibility and that factor combined with the conflicting medical opinions in regards to his physical condition, led the deputy to conclude that the Claimant had not suffered any change of condition and there was no worsening of his earning capacity. The amount of the lien asserted by the employer was also adjudged to be correct. These findings were affirmed by the commissioner.

 

The Claimant then appealed the decision to the district court, who concluded that substantial evidence supported the finding that the claimant had no sustained a worsening of his physical condition. The district court also agreed that the calculation of the employer’s lien was correct. The Claimant then appealed to the Court of Appeals.

 

The Court affirmed the decision of the district court stating that substantial evidence supported the agency’s determination. In so doing the Court opined that their review waslimited to determining whether substantial evidence supports the decision the agency made and they would no reweigh the evidence to see if supported a different decision.

 

Debra Cooper v. Kirkwood Community College, No. 2-1080 / 11-1755, Court of Appeals of Iowa

 

This was the second time that this case had been on appeal for the Court of Appeals. The Claimant had filed a petition on March 4, 2003 alleging a work related injury on March 18, 2001. The employer answered raising the affirmative defenses that the claimants’ claims were barred as she did not give 90 days notice and that the statute of limitations had passed. After hearing in 2005, the deputy concluded that the claimant had failed to sustain her burden of proof that she suffered an injury arising out of and in the course of her employment. As such, the deputy did not address the affirmative defenses raised by the employer.

 

Both parties filed for rehearing as the employer wanted the deputy to address its affirmative defenses. Rehearing was granted and the deputy ultimately affirmed the prior decision. On appeal to the commissioner, the decision was affirmed as well. The case was appealed to the district court which remanded the case to the agency for fact finding regarding the employer’s affirmative defenses. On remand to the agency, a decision was entered finding that the claimant’s claim was barred by the 90 day notice provision but not the statute of limitations.

 

The decision was then appealed to the district court which found it had subject matter to hear the case as it was found to be appealed from a final agency decision. The district court then found that substantial evidence supported the finding of the agency. The district court also affirmed the agency’s findings regarding the claim being barred by notice provisions but not the statute of limitations.

 

This case was appealed to the Court of Appeals which found the district court lacked subject matter jurisdiction to hear the case as the Claimant had to wait for a resolution of the employer’s filing for rehearing prior to filing for judicial review. The case was remanded for dismissal of the district court petition.

 

The district court dismissed the Claimant’s petition for judicial review on April 26, 2010. Following inaction by the agency on the employer’s motion for rehearing, Claimant filed a second petition for judicial review of the agency decision twenty-eight days later, on May 24, 2010. The employer filed a motion to dismiss asserting the petition for judicial review was not timely filed. The court denied the employer’s motion and affirmed the agency decision, finding the claimant failed to prove an injury arising out of and in the course of her employment. The court also found that the claimant did not provide the employer timely notice of her injury. This decision was appealed to the Court of Appeals.

 

The employer first argued that the Court lacked subject matter jurisdiction to hear the case as the Claimant filed her petition for judicial review more than two and a half years after the time limit set forth in the Iowa Code. The Court noted that failure to file within the manner proscribed by statute deprives the Court of subject matter jurisdiction. The employer arguedthat the second petition for judicial review was untimely since the application for rehearing was filed in 2007, and the petition for judicial review was not filed until 2010, after dismissal of the first petition by the district court. The Court of Appeals did not agree with this argument.

 

The Court indicated that because the initial petition for judicial review was taken filed before a final agency decision was issued, the claimant’s appeal was provisional or conditional—i.e., interlocutory in nature. The Court went on to note that Iowa Code 17A.19(3) requires the thirty-day time limit to file an appeal to begin from the issuance of an “agency’s final decision.” The Court pointed out that previous Iowa Supreme Court precedent held that the 30 day time limit did not apply to petitions for judicial review from interlocutory actions. The Court held that the twenty-day window until an application for rehearing is “deemed to have been denied” was tolled and the thirty-day time limit to petition for judicial review was stayed pending the decision by our court and subsequent dismissal by the district court. Ultimately the Court found the Claimant’s second petition for judicial review was filed after the application for rehearing was deemed denied and twenty-eight days after dismissal by the district court and agreed with the district court that the petition for judicial review was timely; thus the Court had subject matter jurisdiction.

 

After finding subject matter jurisdiction existed, the Court proceeded to the merits of the Claimant’s appeal. The Court first noted that as the Claimant had alleged that the Commissioner applied the improper legal standard, that the decision would only be disturbed if the application of the law was irrational, illogical or wholly unjustifiable. The claimant contended that the words “claimant must prove that her work was the probable cause,” used in the decision applied the wrong legal standard to her case—a tort causation standard—and thereby reversible legal error was committed.

 

The Court first noted that the standard for an injury to be connected to employment is that the injury must be caused by or related to the working environment or the conditions of the employment. The Court stated that whether an injury has a direct causal connection with the employment or arose independently thereof is essentially within the domain of expert testimony; and the Commissioner may accept or reject expert opinion on the matter.

 

The Court then examined this particular case and found that the commissioner carefully weighed the expert testimony, noting “[n]o doctor has specifically opined that claimant’s work activities as of March 2001 were a substantial factor in causing her underlying condition to become symptomatic” and that “[n]o doctor has opined that [the claimant’s myofacial pain, depression, and fibromyalgia] standing by themselves were caused by or aggravated by claimant’s work.” The commissioner concluded evidence of causation was lacking. The commissioner, applying the law to the facts, found no connection between Cooper’s work at Kirkwood and her injuries. Due to this, the Court could not find that the agency’s application of law to the facts was not irrational, illogical or wholly unjustifiable.

 

Ultimately the Court found that the finding made by the agency was supported by substantial evidence and affirmed the decision.

 

 

Call Mark Bosscher or Lee Hook with any questions @ 515-243-2100.  We’d be happy to help, whether it be a quick or a complex issue!

Jose Sanchez v. Celadon Trucking Services, No 2-1091 / 12-0895, Court of Appeals of Iowa

 

The Claimant was injured in a motor vehicle accident in the course and scope of his employment with the employer. He settled a third party suit against the drive at fault for $200,000. The employer was reimbursed on its lien for workers’ compensation benefits already pain. As there were funds remaining after payments of this lien, the employer retained a lien for future workers’ compensation payments it would become liable to pay. After hearing, the Claimant was awarded 25% industrial disability.

 

The Claimant filed a review reopening proceeding seeking additional compensation alleged that his physical condition had worsened and his industrial disability had increased. The Claimant also sought an adjudication on the issue of the employer’s remaining lien.

 

At hearing, the deputy found the claimant lacked credibility and that factor combined with the conflicting medical opinions in regards to his physical condition, led the deputy to conclude that the Claimant had not suffered any change of condition and there was no worsening of his earning capacity. The amount of the lien asserted by the employer was also adjudged to be correct. These findings were affirmed by the commissioner.

 

The Claimant then appealed the decision to the district court, who concluded that substantial evidence supported the finding that the claimant had no sustained a worsening of his physical condition. The district court also agreed that the calculation of the employer’s lien was correct. The Claimant then appealed to the Court of Appeals.

 

The Court affirmed the decision of the district court stating that substantial evidence supported the agency’s determination. In so doing the Court opined that their review waslimited to determining whether substantial evidence supports the decision the agency made and they would no reweigh the evidence to see if supported a different decision.

 

Debra Cooper v. Kirkwood Community College, No. 2-1080 / 11-1755, Court of Appeals of Iowa

 

This was the second time that this case had been on appeal for the Court of Appeals. The Claimant had filed a petition on March 4, 2003 alleging a work related injury on March 18, 2001. The employer answered raising the affirmative defenses that the claimants’ claims were barred as she did not give 90 days notice and that the statute of limitations had passed. After hearing in 2005, the deputy concluded that the claimant had failed to sustain her burden of proof that she suffered an injury arising out of and in the course of her employment. As such, the deputy did not address the affirmative defenses raised by the employer.

 

Both parties filed for rehearing as the employer wanted the deputy to address its affirmative defenses. Rehearing was granted and the deputy ultimately affirmed the prior decision. On appeal to the commissioner, the decision was affirmed as well. The case was appealed to the district court which remanded the case to the agency for fact finding regarding the employer’s affirmative defenses. On remand to the agency, a decision was entered finding that the claimant’s claim was barred by the 90 day notice provision but not the statute of limitations.

 

The decision was then appealed to the district court which found it had subject matter to hear the case as it was found to be appealed from a final agency decision. The district court then found that substantial evidence supported the finding of the agency. The district court also affirmed the agency’s findings regarding the claim being barred by notice provisions but not the statute of limitations.

 

This case was appealed to the Court of Appeals which found the district court lacked subject matter jurisdiction to hear the case as the Claimant had to wait for a resolution of the employer’s filing for rehearing prior to filing for judicial review. The case was remanded for dismissal of the district court petition.

 

The district court dismissed the Claimant’s petition for judicial review on April 26, 2010. Following inaction by the agency on the employer’s motion for rehearing, Claimant filed a second petition for judicial review of the agency decision twenty-eight days later, on May 24, 2010. The employer filed a motion to dismiss asserting the petition for judicial review was not timely filed. The court denied the employer’s motion and affirmed the agency decision, finding the claimant failed to prove an injury arising out of and in the course of her employment. The court also found that the claimant did not provide the employer timely notice of her injury. This decision was appealed to the Court of Appeals.

 

The employer first argued that the Court lacked subject matter jurisdiction to hear the case as the Claimant filed her petition for judicial review more than two and a half years after the time limit set forth in the Iowa Code. The Court noted that failure to file within the manner proscribed by statute deprives the Court of subject matter jurisdiction. The employer arguedthat the second petition for judicial review was untimely since the application for rehearing was filed in 2007, and the petition for judicial review was not filed until 2010, after dismissal of the first petition by the district court. The Court of Appeals did not agree with this argument.

 

The Court indicated that because the initial petition for judicial review was taken filed before a final agency decision was issued, the claimant’s appeal was provisional or conditional—i.e., interlocutory in nature. The Court went on to note that Iowa Code 17A.19(3) requires the thirty-day time limit to file an appeal to begin from the issuance of an “agency’s final decision.” The Court pointed out that previous Iowa Supreme Court precedent held that the 30 day time limit did not apply to petitions for judicial review from interlocutory actions. The Court held that the twenty-day window until an application for rehearing is “deemed to have been denied” was tolled and the thirty-day time limit to petition for judicial review was stayed pending the decision by our court and subsequent dismissal by the district court. Ultimately the Court found the Claimant’s second petition for judicial review was filed after the application for rehearing was deemed denied and twenty-eight days after dismissal by the district court and agreed with the district court that the petition for judicial review was timely; thus the Court had subject matter jurisdiction.

 

After finding subject matter jurisdiction existed, the Court proceeded to the merits of the Claimant’s appeal. The Court first noted that as the Claimant had alleged that the Commissioner applied the improper legal standard, that the decision would only be disturbed if the application of the law was irrational, illogical or wholly unjustifiable. The claimant contended that the words “claimant must prove that her work was the probable cause,” used in the decision applied the wrong legal standard to her case—a tort causation standard—and thereby reversible legal error was committed.

 

The Court first noted that the standard for an injury to be connected to employment is that the injury must be caused by or related to the working environment or the conditions of the employment. The Court stated that whether an injury has a direct causal connection with the employment or arose independently thereof is essentially within the domain of expert testimony; and the Commissioner may accept or reject expert opinion on the matter.

 

The Court then examined this particular case and found that the commissioner carefully weighed the expert testimony, noting “[n]o doctor has specifically opined that claimant’s work activities as of March 2001 were a substantial factor in causing her underlying condition to become symptomatic” and that “[n]o doctor has opined that [the claimant’s myofacial pain, depression, and fibromyalgia] standing by themselves were caused by or aggravated by claimant’s work.” The commissioner concluded evidence of causation was lacking. The commissioner, applying the law to the facts, found no connection between Cooper’s work at Kirkwood and her injuries. Due to this, the Court could not find that the agency’s application of law to the facts was not irrational, illogical or wholly unjustifiable.

 

Ultimately the Court found that the finding made by the agency was supported by substantial evidence and affirmed the decision.

 

 

Call Mark Bosscher or Lee Hook with any questions @ 515-243-2100.  We’d be happy to help, whether it be a quick or a complex issue!

Alice Talton v. Fleur Delis Motor Inns, Inc. and Cambridge Integrated Services Group, Inc., Iowa Court of Appeals, No. 2-1095 / 12-0999

 

The Claimant suffered a work related injury on April 17, 2007, when a seven pound can of tomatoes feel from a height of six feet and landed on her left foot. Primary care for her foot was referred to Dr. Robert Eells. The Claimant was diagnosed with an injury to the first metatarsal head. After approximately three months of care, Dr. Eells referred the claimant to Dr. Eric Barp, a foot surgeon.

 

Dr. Barp diagnosed the claimant with a fractured fibular sesamoid on her left foot that he believed would heal with conservative treatment. He noted that the claimant’s back pain should subside once she was out of the CAM boot. Dr. Barp wrote to the nurse case manager on November 20th, indicating the Claimant should stop using her CAM boot that day. The letter also indicated the Claimant to be at maximum medical improvement and that her left big toe arthritis was unrelated to her work injury.

 

The Claimant then sought treatment on her own initiative from Dr. Vincent Mandracchia on January 11, 2008. Her condition was diagnosed as degenerative joint disease with hallux limitus first metatarsal phalangeal joint on the left. On January 31st, an exostectomy was performed by Dr. Denise Mandi. The Claimant then saw Dr. David Wadle and Dr. Dana Simon for her back pain. Dr. Simon indicated the Claimant’s back pain was probably secondary to the antalgic gait abnormality, maybe somewhat contributorily. Dr. Wadle indicated the Claimant’s altered weight bearing activities seem to have aggravated a pre-existing condition in her low back. The Claimant also saw Dr. Timothy Kenney for her knee pain. Dr. Kenney indicated the claimant’s altered weight bearing aggravated a pre-existing condition in her arthritic right knee but believed this to be a temporary condition caused by her altered gait while wearing the CAM boot.

 

On July 8, 2009, Dr. Mandracchia wrote a letter explaining her believed the joint disease and cartilage damage in the claimant’s left big toe directly resulted from her April 2007 work injury and that a joint replacement was a better option over conservative treatment.

 

The Claimant filed a workers’ compensation petition on January 16, 2009. It was stipulated that the Claimant sustained a left foot injury in the course of her employment; however the Claimant also alleged she experienced right knee and low back problems resulting from the injury. At hearing on August 19, 2010, the deputy ruled in the Claimant’s favor finding the left foot injury altered her gait and caused her right knee and low back problems. Temporary partial disability and alternate medical care were awarded, but as the deputy did not believe the Claimant to be at maximum medical improvement, no permanent benefits were awarded.

 

On appeal to the Commissioner, it was found that the Claimant’s left foot injury had healed and the ongoing problems she had with her left foot, right knee and low back were unrelated. Temporary disability benefits were awarded through November 20, 2007, the date Dr. Talton had found the Claimant reached maximum medical improvement. The Claimant’s requests for penalty and alternate medical care were denied. This decision was affirmed by the district court.

 

On appeal to the Court of Appeals, the Court first took up the issue as to whether the Claimant’s April 17, 2007 work injury caused the ongoing problems in her left foot, right knee and lower back. The Court first noted that medical causation is essentially within the domain of expert testimony and that the weight to be given those opinions is for the commissioner to determine.

 

The Court stated that the commissioner ultimately concluded Dr. Barp’s opinion deserved the greatest weight as it was consistent with the overall medical evidence. The Commissioner also determined that the opinions of Dr. Mandracchia and Mandi should be given little weight as “their own contemporaneous medical treatment notes and records are not consistent with their later causation opinions.” As the record presented a conflict of medical evidence, the commissioner was entitled to place greater weight on one opinion over the other.

 

The Court next took up the issue as to whether the Claimant’s ongoing left foot, right knee and lower back problems did not arise out of and in the course of her employment. The Court found that the Commissioner’s decision that the Claimant’s ongoing left toe, right knee and low back pain were unrelated to her alleged work injury was not illogical, irrational or wholly unjustifiable. The Court stated that the decision was within the domain of expert testimony and substantial evidence supported the Commissioner’s conclusion on causation.

 

As the Court found substantial evidence supported the Commissioner’s decision that the Claimant having reached maximum medical improvement on November 20, 2007, the Claimant was not entitled to alternate medical care or any additional temporary disability or healing period benefits.

 

Thus, the Court affirmed the decision of the commissioner.

 

Big Tomato Pizza v. Jonathan Cloud, Court of Appeals of Iowa, No. 2-1199 / 12-1291

 

The Claimant was employed as a delivery driver for the employer. On April 16, 2008, after returning from delivering a pizza when a man named Douglas Evans was being chased out the door of the employer. The Claimant stepped in front of him and was hit by Evans. A brief scuffle ensued between the Claimant and Evans. As a result of the incident, the Claimant was injured and had difficulty breathing. He was taken by ambulance to Iowa Methodist Hospital.

 

At the hospital, the Claimant was diagnosed with a small puncture wound to the left side of his chest and a collapsed lung. The Claimant remained in the hospital until April 26, 2008. Upon discharge, the Claimant did not have any subsequent medical treatment as he testified he could not afford it and did not have medical insurance. He returned to his job with the employer. He continued to complain of pain in the left chest region and sometimes experienced shortness of breath; particularly with cold, misty or dusty conditions. The Claimant also stated he experienced nightmares about the incident.

 

On May 30, 2009, the Claimant filed a workers’ compensation petition. He was seen by Dr. John Kuhnlein for an independent medical examination on February 4, 2010. Dr. Kunhlein found the claimant’s pain to have been caused by the April 16, 2008 injury and assigned the Claimant a one percent whole person impairment. It was recommended the Claimant could only lift pizzas above shoulder height on an occasional basis. It was further recommended that the Claimant be examined by a mental health professional for possible post-traumatic stress disorder.

 

At hearing, the deposition of a fellow employee was presented. This deposition testimony stated the Claimant was returning from delivering pizza when he was Evans being chased by the deponent and another employee. The deponent stated he was chasing Evans because he wanted to get in a fight. The Claimant made a U-turn to follow Evans, got out of his car and engaged in a fight with Evans in front of a restaurant down the block. A co-owner of the employer also testified that he had come into the business the night of the accident to get a pizza and was told that some employees were chasing a man down the street. He also testified that the Claimant came into the business and told the co-owner that he had hit Evans in the head.

 

The deputy did not find the testimony of the co-owner and co-employee to be as convincing as the Claimant’s. The deputy concluded that the Claimant was the victim of an assault that occurred because he was an employee and that this injury arose out of and in the course of his employment. The deputy determined that compensation was not barred by Section 85.16 and found the Claimant to have suffered a 15% industrial disability. It was also found that the Claimant should be evaluated for a mental health injury as a result of the assault.

 

On intra agency appeal, the Commissioner found that the ambulance record, police report and hospital medical records were objective evidence of what occurred the night of the incident and were more consistent with the Claimant’s testimony than other testimony presented. The Commissioner affirmed the decision of the deputy but modified the Claimant’s industrial disability rating to ten percent. The decision of the commissioner was affirmed by the district court on judicial review.

 

The Court first took up the issue as to whether the Claimant’s alleged injury arose out of an in the course of employment. The Court stated that an injury is considering to be arising out employment “if there is a causal connection between the employment and the injury.” The Court went on to state that the phrase “in the course of employment” refers to the time, place and circumstances of the injury.

 

The employer argued that substantial evidence did not support the finding that the Claimant’s injury did not arise out of an in the course of employment. The Court noted that on appeal it is not for the Court to determine if the evidence could support a different finding but whether the finding made was supported by substantial evidence. The Court found that the employer’s assertion relied on a factual scenario that was different than the factual findings made by the Commissioner. The Court went on to find that the factual findings made by the Commissioner were supported by substantial evidence.

 

The Court found the Claimant’s testimony to be supported by the ambulance report, police report and hospital reports from the evening of the altercation. The Court found substantial evidence supported the Commissioner’s finding that the Claimant was performing his work duties when he was assaulted. As the Claimant was performing work duty at the time of his injury, his injury was found to arise out of and in the course of his employment.

 

The Court next turned its attention the employer’s contention that the injury was barred by Section 85.16 which bars compensation for injuries which are caused by an employee’s willful intent to injure himself or another or by the willful act of a third part directed against the employee for reasons personal to such employee. The Commissioner had found that there was no credible evidence that the Claimant wanted to injury Evans or that Evans assaulted the Claimant for reasons personal to the Claimant. The Court ultimately found that substantial evidence supported the finding that the Claimant was hit because he happened to get in Evans’ way and that as such this injury was not barred under Section 85.16.

 

The next issue addressed by the Court was whether the Claimant was entitled to workers’ compensation benefits. The employer claimed that the Claimant had not shown any loss of earning capacity resulting from the injury. The employer pointed to the fact that the Claimant returned to his employment as a delivery driver for the employer. At most, the employer stated the Claimant was entitled to a disability rating of one percent to the body as a whole.

 

The Court first noted that in a determination of industrial disability, factors such as the Claimant’s age, education, restrictions and employment experience are considered. The Court ultimately found that substantial evidence supported the Commissioner’s finding that the Claimant had sustained a 10% permanent partial disability. The Court cited to the fact that the Claimant was 40 years old, had quit school in the 11th grade and obtained his GED. The Court also noted that most of his adult life was spent as a delivery driver and Dr. Kunhlein stated the Claimant could only lift pizzas above shoulder height occasionally and may have problems in dust, mist or cold environments. Based on this, the Court found substantial evidence to support the Commissioner’s decision.

 

The final issue taken up by the Court was whether substantial evidence supported the finding that the Claimant was entitled to be evaluated and treated for a mental health injury. The employer asserted that the Claimant had not presented any qualified expert opinion on this issue as Dr. Kuhnleing was not a mental health professional. The Court ultimately agreed with the reasoning of the district court which stated “[w]hile Dr. Kunhlein is not a mental health professional…he is certainly qualified to recognize symptoms needing further investigation.” The Court stated that the Commissioner did not find the Claimant had proven a mental health condition as a result of the work injury, but that there was sufficient evidence to warrant further investigation. The Court found substantial evidence supported this finding.

 

Thus, the decision of the Commissioner was affirmed.

 

Diane Cecilia Hansen vs. Snap-On Tools Manufacturing Company, Court of Appeals of Iowa, No. 3-031 / 12-1038

 

The Claimant was employed with the employer since 1971, almost the entirety of her entire working life. She worked in electrical, pack and the ball slide departments. Prior to her alleged work injury, the Claimant had health problems including carpal tunnel syndrome, right shoulder overuse problems, diabetes, high blood pressure, fibromyalgia and a hiatel hernia.

 

The Claimant filed a workers’ compensation petition on July 10, 2008. The parties agreed that the Claimant sustained two injuries. The first occurred on February 15, 2005 when the Claimant injured her left shoulder while working in the pack department. The second injury was alleged to have occurred on September 11, 2007, when she sustained an injury to her right hand/arm while working in the pack department. In regards to the February 15, 2005 injury, the Claimant alleged the injury manifested over a period of time by microtrauma. The Claimant had left shoulder arthroscopic surgery with Dr. Phillip Deffer. This surgery was performed on June 3, 2005, with the Claimant returning to work on June 10, 2005. Following the surgery, the Claimant continued to experience some shoulder pain and depression.

 

The Claimant was placed at maximum medical improvement by Dr. Deffer on February 10, 2006. On February 9, 2009, the Claimant underwent an independent medical examination with Dr. Kuhnlein, who opined that the Claimant had a material change in her left shoulder condition related to the February 15, 2005 injury which was an acute injury superimposed on a cumulative process.

 

On September 11, 2007, the Claimant suffered an injury while putting drawers in toolboxes in the pack department at the employer. After continuing problems, Dr. Deffer performed a right synovectomy in the right hand fourth dorsal compartment and side to side transfer of the extensor indicis proprius tendon on May 9, 2008. The Claimant was placed at maximum medical improvement on July 23, 2008.

 

After hearing, the deputy concluded the Claimant sustained a fifteen percent industrial loss related to her February 15, 2005 injury. The deputy also found that Dr. Kunhlein’s IME bill totaling $9,502.50 was unreasonable and the employer should only be responsible to reimburse the Claimant $2,890.00. The decision was affirmed by the commissioner with a slight modification to a mileage reimbursement calculation.

 

On judicial review, the district court remanded to the Commissioner to determine the correct amounts of healing period benefits, the due date of the benefits, the appropriateness of any penalty and whether interest should be assessed based upon the fact that the court found the deputy failed to analyze or provide rationale for the healing period benefits awarded. The issues of temporary partial disability benefits and the reasonableness of Dr. Kuhnlein’s fee were also remanded.

 

On judicial review, the Claimant argued extensively regarding the constitutionality of the successive disability statute, the applicability of the statute, and whether there was substantial evidence to support the deputy’s industrial disability award. The constitutional issue was reserved for the appellate court and found the deputy’s decision to be supported by substantial evidence.

 

The decision was appealed by the Claimant claiming the district court erred by failing to reverse the commissioner for failing to apply the successive-disability statute and all the industrial disability factors. It was also claimed that the court erred by taxing one half the costs on judicial review to the Claimant. The employer cross appealed arguing the commissioner was correct in regards to Dr. Kuhnlein’s fee and in the award to temporary benefits award.

 

The Court first addressed the issue of the successive-disability statute noting that the review of the issue was for errors at law and no deference would be given to the agency’s interpretation of the statute. The Court noted that the Claimant’s challenge to the deputy’s decision regarding permanent disability was based on the argument that all of Claimant’s previous injuries from her employment with the employer needed to be included in the permanent combined disability from which the permanent partial disability compensation award for the February 15, 2005 injury was made.

 

The Court examined Section 85.34(7), the successive-disability statute, which provides that if an employee has a preexisting disability that was caused by a prior injury arising out of and in the course of employment with the same employer, and the preexisting disability was compensable, the employer is liable for the combined disability caused by the injuries. The Claimant argued that the agency had erred by not explaining if and how it determined the fifteen percent industrial disability award represented a combined disability caused by the injuries measured in relation to the employee’s condition immediately prior to the first injury. In essence, the Claimant argued that if the agency properly considered her prior history, her rating should be higher.

 

The Court stated that in regards to the successive-disability statute, the Court must be able to identify from the record the pathway followed by the deputy when the determination was made. The Court noted that the record was not clear if or how the deputy applied the successive disability statute in making its determination regarding industrial disability. However, the Court went on to note that even if the agency had analyzed the facts under the successive-disability statute, the outcome would not change as the statute is not applicable to the Claimant’s February 15, 2005 injury.

 

The Court stated that in interpreting a statute, the stated legislative intent governed. In this case, the stated intent to the legislature was that the division did not alter the method of determining the degree of unscheduled permanent partial disability. As the Claimant’s injury was an industrial disability to the body as a whole, the degree of her unscheduled disability could not be determined under Section 85.34.

 

The Court next found that the agency determination as to the Claimant’s 15% industrial disability was supported by substantial evidence. In so finding, the Court noted that the law did not require the commissioner to specifically discuss each factor in arriving at the determination of industrial disability. Ultimately, the Court found substantial evidence supported the decision made by the Commissioner.

 

The Court then turned its attention to the issue of costs as to Dr. Kuhnlein’s IME and the costs of judicial review. The Court first looked at the issue of the costs of Dr. Kunhlein’s IME. The Court noted that the fee for an IME must be reasonable. While the agency determined the IME fee of Dr. Kunhlein was unreasonable, the district court remanded the issue as the pathway to determine the allowable fees was not clear. The court examined the deputy’s findings and found that the deputy has sufficiently reasoned as to why the fee was not reasonable and reversed the remand of the district court.

 

The Court spent no time discussing the issue of the costs of judicial review, merely affirming the finding of the court as “the taxation of costs of judicial review shall be in the discretion of the court.”

 

The final issue taken up by the Court was the determination that all temporary benefits that the Claimant was entitled to had been paid. The Court noted that in regards to benefits, the agency’s decision must be sufficiently detailed to show the path it had taken through conflicting evidence to arrive at its decision. The Court found that the agency only recited what benefits had been paid and never made any determination as to their accuracy or timeliness. As such, the decision was not sufficiently detailed and the district court’s remand was appropriate.


Call Mark Bosscher or Lee Hook with any questions @ 515-243-2100.  We’d be happy to help, whether it be a quick or a complex issue!

Here are the details of a new proposed bill out of the Iowa House that would change the way we handle alternate medical care, among other items:

House File 274


Bill Explanation:
This bill relates to the state's workers' compensation laws by modifying alternate care procedures for medical treatment, creating registries of physicians who treat and evaluate work=related injuries, providing for the retention of a medical director, creating a state workplace injury care providers registry fund, establishing a workers' compensation advisory council, providing for and appropriating fees, and providing effective dates.


MEDICAL AND ALTERNATE CARE. Code section 85.27(4), concerning the provision of medical services, requires an employer to provide written information about the state's workers' compensation laws to an employee upon receiving notification that the employee has suffered a work=related injury.

The employer has the right to predesignate a licensed physician to treat the injury and make necessary referrals and may predesignate a physician listed on the state registry of workplace injury care providers. If the employer does not predesignate a treating physician, the employee may designate a physician of the employee's choosing to provide the treatment. The physician predesignated by the employer or designated by the employee is required to provide ongoing written documentation of the physician's opinions, treatment recommendations, and care plan to the employee along with information about whether the opinions, recommendations, and care plan are in accord with either the official disability guidelines and treatment guidelines in workers' compensation published by the work loss data institute or the American college of occupational and environmental medicine practice guidelines (ACOEM), and if so, citation to the appropriate guidelines. The employee has the right to request and obtain a second opinion from another licensed physician of the employee's choosing at the employer's expense. If the employer or employee is dissatisfied with the care of a treating physician predesignated or designated by the other party or with any referral made by that physician, the employer and employee may mutually agree to alternate care. If they cannot agree on alternate care, either party may notify an insurance claims specialist within the division of workers' compensation, who shall, within five working days, schedule a conference between the parties to review the basis for dissatisfaction and provide an advisory opinion to resolve the dispute. If the parties still cannot agree on alternate care after this conference, the workers' compensation commissioner may, upon application and reasonable proof of the necessity, allow and order alternate care. The employee is responsible to make the application for alternate care and to provide such reasonable proof to the commissioner if the employer provided written information about the state's workers' compensation laws at the time of notification of the employee's injury, and predesignated a treating physician listed on the state registry of workplace injury care providers, and if the treating physician predesignated by the employer provided written documentation to the employee of the physician's opinions, treatment recommendations, and care plan along with citation to the appropriate treatment guidelines. The employer is responsible for making the application for alternate care and providing reasonable proof if the employer and predesignated treating physician did not act as described above or if the employee designated the treating physician to treat the work injury. The commissioner is not bound by the advisory opinion of the claims specialist and must conduct a hearing and issue a decision within 10 days of receipt of an application for alternate care. The employer has the right to request an employee to submit, as often as is reasonable and at a reasonable time and place to an examination by a licensed physician chosen by the employer for any purpose relevant to the employer's duties to provide benefits to the employee under the state's workers' compensation laws and at the employer's expense. If the employer makes the request in writing and pays all expenses, including transportation, the employee shall submit to the examination. Each time that the employer obtains an evaluation of an employee's permanent disability by a physician chosen by the employer, if the employee believes that the evaluation of disability is too low, the employee may obtain a subsequent examination and evaluation by a physician of the employee's choosing at the employer's expense, including transportation expenses to and from the place of the examination.


PROVIDER REGISTRIES ==== FEES ==== MEDICAL DIRECTOR. New Code section 85.73 requires the workers' compensation commissioner to establish and maintain a registry of licensed physicians that offer or provide treatment of work=related injuries. The commissioner shall, by administrative rule, establish requirements for a physician to be listed on the registry and establish a registration fee. The provision shall not be construed to require a physician to be listed on the registry in order to offer or provide treatment of work=related injuries or to prohibit an employer or employee from predesignating or designating a physician to provide treatment who is not listed on the registry.


New Code section 85.74 requires the commissioner to establish and maintain a separate registry of licensed physicians trained to perform independent medical evaluations and to issue impairment ratings of injured employees. The commissioner shall establish, by administrative rule, minimum training requirements for a physician to be listed on the registry and establish a fee. A physician must be listed on the registry in order to perform independent medical evaluations and issue impairment ratings of injured employees in this state. The commissioner may prohibit an employer or employee from using an independent medical evaluation or impairment rating of an injured employee from a physician who is not listed on the registry as evidence at a hearing to determine benefits under the state's workers' compensation laws.


New Code section 85.76 authorizes the commissioner to retain the services of a medical director to assist the division of workers' compensation in advancing the field of occupational health in Iowa and to advise the commissioner on how to successfully apply and administer the state's workers' compensation laws.
STATE WORKPLACE INJURY CARE PROVIDERS REGISTRY FUND. All registration fees collected pursuant to new Code sections 85.73 and 85.74 shall be credited to the state workplace injury care providers registry fund created in new Code section 85.77 and are appropriated to the division of workers' compensation by new Code section 85.75 to carry out the provisions of new Code sections 85.73, 85.74, 85.75, 85.76, and 85.78, including establishing and maintaining the two physician registries, retaining a medical director, and for the expenses of the workers' compensation advisory council created in new Code section 85.78.


WORKERS' COMPENSATION ADVISORY COUNCIL. New Code section 85.78 establishes a workers' compensation advisory council within the division of workers' compensation that is composed of six members, three representing employers and three representing organized labor. The governor appoints two of the members, the president and the minority leader of the senate jointly appoint two members, and the speaker and the minority leader of the house of representatives jointly appoint two members. The members serve six=year staggered terms, except that for the initial terms beginning on January 1, 2014, one member appointed by the governor, one member representing employers, and one member representing organized labor shall be appointed for three=year terms to ensure that members serve staggered terms. The purpose of the council is to assist the workers' compensation commissioner in the successful administration of the division of workers' compensation and to make recommendations to the governor and the general assembly regarding workplace safety and improvements to the state's workers' compensation system.


EFFECTIVE DATES. The sections of the bill creating the provider registry for treatment of work injuries, the provider registry fund, the position of medical director, and the advisory council, and appropriating fees, take effect January 1, 2014. The sections of the bill pertaining to alternate care procedures and required registration of physicians performing independent medical evaluations and impairment ratings take effect July 1, 2014.


If you have any questions on this, please feel free to call Mark Bosscher or Lee Hook at 515-243-2100. We'd be happy to help answer any questions you might have, big or small!


Usoro Nkanta v. Wal-Mart Stores, Inc. and American Home Assurance, No. 2-871 / 12-0475, Court of Appeals of Iowa

 

The Claimant was hired by the employer in 1999. He was employed unloading trucks. On November 15, 2008, the Claimant sustained a low back injury arising out of and in the course of his employment. He went to the doctor the next day and was diagnosed with a back strain. On November 19, the Claimant was seen by Dr. Boyett who diagnosed left lower back pain and spasm and took the Claimant off work. An x-ray on November 24 revealed mild degenerative spondylosis. The Claimant was then returned to work, sit down duties only.

 

The Claimant continued to describe pain in his lower back and weakness in his left leg to Dr. Boyett. Dr. Boyett noted symptom magnification and nonphysiologic findings. He was continued on restricted duty and physical therapy. He was also given a referral to Dr. Nelson, an ortho spine specialist. After an MRI on January 22, 2009, Dr. Nelson opined he could not attribute the Claimant’s complaints to his lumbar spine. He was then referred to physiatrist Dr. William Koenig.

 

After his exam on January 28, 2009, Dr. Koenig found the Claimant to have normal results from an EMG of the left back and left lower extremity. He opined the Claimant was not a surgical candidate and kept him off work until February 10, 2009. Based on the appointment with Dr. Koenig, the employer ceased payment for the Claimant’s medical care and scheduled him for an IME with Dr. McCaughey. Dr. McCaughey spoke with Dr. Koenig prior to his IME of the Claimant. After the IME, Dr. McCaughey opined that he could not contribute the Claimant’s complaints to “organic pathology” as a result of work activities on November 15, 2008 and was unable to identify a compensable injury. He further opined that he further treatment would be under the Claimant’s personal healthcare provider.

 

In May 2009, the Claimant of his own volition was seen by Dr. Chen. Dr. Chen found the Claimant suffered from myofacial pain with no MRI or EMG evidence of nerve root pathology and recommended physical therapy and a home exercise program. The Claimant then underwent a second IME of his choosing with Dr. Jones, who found the Claimant to have a low back strain and some depression. He assigned the Claimant 5% impairment to the body as a whole.

 

After hearing on the matter, the deputy concluded that the Claimant had failed to prove his November 2008 injury was a cause of permanent impairment. The deputy did not accept Dr. Jones’ opinion as convincing as he gave no analysis, nor did he address other experts’ discrepancies with his opinions. In contrast, there were three experts who had opined that there were no organic explanations for the Claimant’s continued pain complaints.

 

In its decision, the deputy also noted that prior to the hearing, the employer had filed a confidential sealed envelope with the commission that included an offer to confess judgment. The deputy determined the agency did not have the authority to accept sealed documents as all documents filed in a contested case are public unless specially made confidential by law. The deputy also stated he did not view the contents of the offer to judgment as it was not material to awarding costs in this case and that there were no procedures under the statutes and rules of the agency for awarding costs under an offer of judgment.

 

On appeal, the commissioner adopted the ruling of the deputy. The commissioner also expressly stated that pursuant to chapter 677 of the Iowa Code, offers to confess judgment are not available in workers’ compensation proceedings. The employer then sought to enlarge the appeal and avoid paying costs on the action as it was the successful party. However, the commissioner denied this request noting that the Claimant was partially successful as he won his claim for reimbursement of an IME fee. These rulings were affirmed on judicial review by the district court.

 

On appeal, the Court of Appeals found that the commissioner’s ruling that the Claimant had no sustained permanent impairment due to a work injury was supported by substantial evidence. Thus this finding was not disturbed on appeal. The Court next took up the issue as to whether chapter 676 or 677 allows for an offer to confess judgment in workers’ compensation proceedings. The Court first noted that the Commissioner’s finding in this regard would be given no deference as he had not been given the authority to interpret this particular statute.

 

Chapter 677 provides that a defendant may make an offer to confess judgment for a specific sum. If a plaintiff rejects the offer and subsequently does not recover a greater amount than that offered, the plaintiff is taxed with the Defendant’s costs following the offer to confess judgment. The Court took up the issue as to whether or not Chapter 677 was applicable to workers’ compensation proceedings. In finding that Chapter 677, and the offer to confess judgment, is inapplicable in workers’ compensation proceedings the court conducted a comprehensive review of the applicable Iowa statutes. More specifically, the Court examined the Iowa Administrative Procedure Act and the Workers’ Compensation Act to determine if Chapter 677 was applicable.

 

The Court held that the language of the Iowa Workers’ Compensation Act provided that no party may settle a controversy without the approval of the Workers’ Compensation Commissioner. The Court stated that settlements, which included the offer to confess judgment, were governed by the specific administrative provisions of the Iowa Workers’ Compensation Act and the Administrative Procedure Act. As these Acts did not provide for the applicability of offers to confess judgment to workers’ compensation proceedings, the Court found that the consequences for failing to adopt an offer of judgment, mainly the taxing of costs, directly conflicted with the discretion given to the Commissioner to approve settlements per the Workers’ Compensation Act. Based upon this interpretation, and the finding that the Commissioner did not abuse his discretion in awarding costs, the ruling that each party was to pay its own costs was affirmed.


Call Mark Bosscher or Lee Hook with any questions @ 515-243-2100.  We’d be happy to help, whether it be a quick or a complex issue!

Merivic, Inc. and Zurich North America v. Enrique Gutierrez, Court of Appeals of Iowa, No. 2-722 / 12-0240

 

The Claimant was a 48 year old with a ninth grade education and a limited knowledge of English. His past job history included working as a mechanic, manual laborer and a welder.

 

While on the job, the Claimant fell from 10-12 feet and landed on a steel table injuring his left right and left rotator cuff. Both required surgery. He returned to light duty work in between the two surgeries; however following the second surgery the Claimant was only able to work three hours before he was told the work did not fit his restrictions. He never worked for the employer again and was unable to find other employment.

 

At hearing of the Claimant’s workers’ compensation case, the Claimant was found to have sustained a permanent and total loss of earning capacity as a result of his work injury. The deputy partially relied upon a report of a vocational expert who cited the Claimant’s limited fluency in English as an adverse effect upon his employability. The employer had urged the deputy to reduce the Claimant’s benefits due to an alleged lack of motivation to learn English. The deputy stated that the agency no longer penalized Claimants who failed to learn English while working for a U.S. employer.

 

On appeal to the commissioner, the employer urged that prior precedent regarding learning English be set aside; but the commissioner refused to do so. The commissioner affirmed the deputy’s decision and clarified that the disability determination was primarily based on factors other than lack of English fluency. The district court did not address the issue of overruling prior precedent with regard to learning English as they found substantial evidence supported the determination of total disability even without considering the language deficiency.

 

On appeal to the Court of Appeals, the employer again reiterated that prior case law with regard to a claimant’s inability to speak English should be overturned. The Court refused to address the issue as they found the assertion to be an impermissible collateral attack on an unappealed agency decision. The Court then stated that the issue was whether the finding by the commissioner of permanent total disability was supported by substantial evidence.

 

The Court found the finding by the commissioner was supported by substantial evidence. Specifically, the Court highlighted the opinion of the vocational expert retained by the Claimant which highlighted such factors as the Claimant’s advanced age, past work history of physically demanding jobs which his restrictions now prevent him from performing, limited education and his severe physical limitations. The Court noted the Commissioner’s finding of this vocational opinion as more convincing than the opinion of the Defendants’ vocational expert, and the underlying analysis distinguishing between the two based upon the use of a labor market survey.  

The Court then turned its attention to the consideration of the claimant’s limited proficiency with the English language. While noting the Commissioner’s assertion that this factor was not determinative in his decision, the Court confirmed that it had, in fact, been considered. They then went on to formally find that the inclusion of English proficiency in the industrial disability analysis was appropriate.  They also noted that substantial evidence did support the Commissioner’s finding that Claimant was deficient in his capacity to speak English, and his finding as to the impact of the deficiency on Claimant’s ability to find employment. 

 

Ultimately, the Court affirmed the decision of the Commissioner as supported by substantial evidence.

 

Call Mark Bosscher or Lee Hook with any questions @ 515-243-2100.  We’d be happy to help, whether it be a quick or a complex issue!

New Deputy Commissioner Announced

On Friday, November 9, 2012, Commissioner Christopher Godfrey announced the hiring of William H. Grell, (Bill), as the new Deputy Workers’ Compensation Commissioner. Bill had previously been working primarily as a workers’ compensation defense attorney for Huber, Book, Cortese and Lanz, PLLC .,in West Des Moines, Iowa. Bill will commence his employment with the Division of Workers’ Compensation early in December.  For all of you interested, there is no word on Bill’s schedule for hearing cases yet.





O’Reilly Auto Parts and Gallagher Bassett Services v. Jerry Alexander, No. 2-711 / 11-1864, Court of Appeals of Iowa

 

The Claimant began working with the employer in 1999. On May 8, 2008, the Claimant alleged he sustained hip and back injuries while unloading at tote from a truck and twisting his body to take a step. He encountered his supervisor and told him he could barely walk. He returned to work on May 12, 2008 using a walker and reported the injury to the store manager.

 

An injury report was filled out, however it listed the injury dates as August 8, 2006 and December 2007. This report was signed by both the Claimant and his manager. The claimant testified at hearing that he was upset as he was denied seeing the company doctor and likely signed the document without reading it. He further testified that he did not understand the importance of the form and that he was confused about what the dates represented.

 

The Claimant’s manager testified that the Claimant did report injuring his hip but she was uncertain as to when the report occurred. She apparently was also questionable of the report of injury as the Claimant had previously reported him pain which he had associated with a hip injury he sustained in 2003. Due to the inconsistencies in the Claimant’s statement, the employer maintained that the Claimant had not suffered any injury in May 2008.

 

The Claimant treated with Dr. Ray who ultimately opined that the Claimant’s work with the employer contributed to a worsening of pain from his pre-existing condition of spinal stenosis and assigned 8% whole person impairment. Prior to his deposition and hearing of this matter, the Claimant sustained a stroke. During his deposition and at hearing he frequently explained that he was having difficulties with his memory. After hearing of the matter, the deputy commissioner found that the Claimant had not sustained an injury in the course of his employment. This was reversed on appeal to the Commissioner, who found that the testimony of the Claimant and his wife, along with the medical records in the case provided substantial evidence that the claimant suffered an injury in May of 2008.

 

The decision of the commissioner was upheld on appeal to the district court. At the district court level, the employer argued there was insufficient evidence of the necessary causal connection between the conditions of employment and the injury to support the commissioner’s finding. The district court declined to address this argument as it was not presented at the agency level and not preserved for judicial review. The case was appealed to the Court of Appeals.

 

The Court first addressed that the argument on appeal was one that presented a mixed question of law and fact and thus the commissioner’s decision would only be disturbed if irrational, illogical or wholly unjustifiable. The Court then turned its attention to whether the argument that the injury to the Claimant was not caused by or related to the conditions of his employment as his work presented no particular hazards of such an injury. The Court first recognized that this was not raised in the initial pleadings nor as an issue the parties agreed were in dispute. However, the Court noted that among the issues identified by the deputy was “whether the injury arose out of and in the course of employment.” The Court then stated that while the majority of the focus of the proceedings centered upon whether and injury occurred and if so, if it occurred in the course of employment, the employer had consistently raised the issue of whether the Claimant’s act of lifting and carrying a tote allegedly containing a four ounce filter was sufficient to establish a compensable injury. Therefore, the Court viewed the contention as there being no causal connection between the injury and a condition, risk or hazard of the Claimant’s employment.

 

In the Court’s eyes, this satisfied them that the error was preserved as the “arising out of” requirement was raised, litigated and decided by the agency.

 

The Court next turned its attention to the issue of whether substantial evidence supported the commissioner’s finding that the Claimant sustained an injury arising out of and in the course of his employment. The Court stated that credibility determinations are to be made by the commissioner as a trier of fact and that while some testimony can be disregarded due to its impossibility or absurdity, the Claimant’s testimony did not fit that description. The Court did note that he exhibited confusion in his testimony and that he himself acknowledged that his memory was not as good as it used to be. However, the Court also found that the Claimant’s manager was in no way consistent in his testimony as to when the injury was reported. The Court also noted that while the Claimant did not report an injury to his family doctor in later May of 2008, he did report a fall having occurred a few weeks prior in a June 2, 2008 appointment with another doctor.

 

Ultimately the Court found that there was substantial evidence to support the Commissioner’s finding that the claimant did sustain an injury in May of 2008.

 

The employer also contended that Dr. Ray’s opinion on causation could not be relied on as he was unaware of the weight of the tote the Claimant was carrying at the time of the alleged injury. In finding that the Commissioner could rely on Dr. Ray’s opinion noted that the employer had not offered an expert opinion calling Dr. Ray’s opinion into question; nor had they offered evidence that Dr. Ray’s opinion would have changed if he had known that the tote was light in weight. Ultimately the Court concluded that substantial evidence supported the Commissioner’s reliance upon the testimony of Dr. Ray in finding medical causation was present for the Claimant’s injury.

 

The Court ultimately found that substantial evidence supported the findings of the Commissioner and the determination that the injury sustained by the Claimant was not irrational, illogical or wholly unjustified.

 

The final issue taken up by the Court on appeal was whether the Commissioner’s review of the employer’s proof of coverage information on the agency’s website to verify the appropriate insurer constituted bias or reversible error. The Court first noted that the Iowa Administrative Procedures Act provides that “[A]n individual who participates in the making of any . . . final decision in a contested case shall not have personally investigated . . . or advocated in connection with that case, the specific controversy underlying that case . . . .” The Court however found no evidence that the commissioner investigated the specific controversy underlying the case. Rather the Court found that he simply “consulted records maintained by the agency and corrected an error, which counsel failed to identify and remedy, making the decision he rendered enforceable against the proper insurance carrier.”

 

The Court then examined the commissioner’s decision in adding the correct insurance carrier for errors at law. The Court found that the “commissioner’s action in adding the correct insurance carrier was necessary and within the authority granted to him by the legislature under the power to adjudicate the rights and duties as between injured workers and the responsible insurance carriers and the power to enforce the provisions of the code.” Thus the Court did not find that the Commissioner’s action created an appearance of impropriety or evidence of bias.



Call Mark Bosscher or Lee Hook with any questions @ 515-243-2100.  We’d be happy to help, whether it be a quick or a complex issue!

 

 

Menard, Inc. and Zurich American Insurance v. James Jones Jr., No. 2-579/12-0027


[(1) Substantial evidence supports Commissioner's decision that a running healing period was appropriate; (2) Merely stating that an employee is working part time hours is not enough to invoke the rate calculation set forth in 85.36(9).  Evidence as to the hours worked by similarly situated full time employees in the same field is required.]

 The Claimant, James Jones Jr., was a recipient of social security benefits who began employment at Menards stocking shelves. He was employed four hours a day for five days and was considered a part time employee. Six weeks after he began his employment the Claimant injured his back.

 

Many years prior, the Claimant had injured his low back with another employer. He underwent surgery for the injury and was ultimately given lifting restrictions. This was not disclosed on his Menards application as he stated he felt better than he had in a decade. After his injury at Menards the Claimant saw an orthopedic surgeon who saw no need for surgery and referred him to a pain specialist. This specialist found the injury to be an exacerbation of his previous injury. Once Menards learned of this they refused to approve further treatment.

 

The Claimant then filed a petition with the Workers’ Compensation Commissioner alleging an injury to his low back. Menards stipulated that the Claimant’s injury arose out of and in the course of his employment but disputed the permanency of the injury and his rate of compensation. At hearing, the deputy found that the Claimant had not yet reached MMI and awarded him healing period benefits. This was affirmed by the Commissioner and eventually appealed to the district court.

 

The district court affirmed the ruling that the Claimant had yet to reach MMI but reversed the agency’s rate calculation under section 85.36(9) finding that there was no evidence to support the application of the provision. Both the employer and the Claimant appealed the ruling of the district court.

 

The Court first examined the issues presented to it, whether the Claimant had reached MMI and whether the rate was correctly calculated, and noted that both fell under the Court’s substantial evidence standard of review; meaning the rulings would be upheld if substantial evidence was found to support them.

 

The Court then began its analysis of the issue of whether the Claimant had reached maximum medical improvement. The Court noted that the finding of the agency rested upon two independent medical examinations which opined the Claimant required further treatment and was not at MMI. Thus the Court found the finding supported by substantial evidence. These opinions had been provided by both an examiner chosen by the Claimant and one chosen by the employer. Thus the finding of that MMI had not been reached was affirmed.   

 

The Court then turned its attention to the issue of the Claimant’s weekly compensation rate. The agency in making its rate determination relied upon section 85.39 of the Iowa Code which provides:

 

If an employee earns either no wages or less than the usual weekly earnings of the regular full-time adult laborer in the line of industry in which the employee is injured in that locality, the weekly earnings shall be one-fiftieth of the total earnings which the employee has earned from all employment during the twelve calendar months immediately preceding the injury.

 

The district court had found that substantial evidence did not support the application of this provision. The district court had stated:

 

The provision found in subsection 9 requires a finding that the employee was earning nothing, or less than the usual full-time employee in that field. . . .

. . . [T]here is no evidence in the record of the usual weekly earnings of other workers in [the Claimant’s] field. . . . The Commissioner relies upon the fact that Jones worked four hours per day, as shown by Menards’s own records. The number of hours worked is not determinative of this issue. . . . The true inquiry is into wages earned. No evidence on this subject is discussed by the commissioner or contained in the record.

 

The Court noted that invoking section 85.39 required more than the Claimant’s claims that he was a part time employee. Indeed, the Court noted that recently the Supreme Court of Iowa emphasized that a finding of part time employment is not sufficient to invoke 85.39. The Court noted that the Supreme Court had held that 85.39 distinguished between full and part time employees on the basis of weekly earnings and not the number of hours worked per week. Thus, a factual finding must be made as to whether the employee earns no wages or  earns less than the usual weekly earnings of the regular full-time adult laborer in the line of industry in which the employee is injured in that locality.

 

The Court went on to state that such a finding had not been made in this case as the agency simply found that the Claimant worked four hours per day and was clearly a part time worker. The Court did not find this to be enough to invoke section 85.39 based on previous Iowa Supreme Court precedent. Thus the finding of the district court was affirmed and the case was remanded to the agency for a recalculation of the Claimant’s healing period benefits under section 85.36.


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Benito Villafana v. Blackhawk Foundry and Travelers, No. 2-441 / 11-1781 (Iowa Court of Appeal)

 

The Claimant, Benito Villafana, was born in Mexico and immigrated to the United States in 1976 after completing the sixth grade. Until 1988 he had worked as a farm laborer, but following that he went to work with the employer in the present case. The Claimant worked as a grinder for ten years until he suffered from a carpal tunnel injury related to his repetitive work. To accommodate the Clamiant’s permanent restrictions related to this injury, the employer moved the Claimant to the job of scale operator. This job required him to pick up castings, some of which weighed upwards of 100 lbs. When lifting these heavy castings, the employer instructed the Claimant to get the help of his supervisor or forklift operator.

 

The Claimant then sustained a shoulder injury in 1999. In relation to this injury, the Claimant was awarded a thirty five percent partial disability in 2004. In the present case, the Claimant alleged neck and hand pain beginning in 2006. The Claimant continued his employment until a plant wide lay off in 2009. At hearing, the Claimant admitted to his earlier carpal tunnel injury as well as ongoing neck problems before his alleged injury dates. In 1997, he reported neck pain in conjunction with finger pain. He also received treatment for neck pain in 1998. In 2002, he again complained to a physician that he was experiencing neck pain in conjunction with the pain from his shoulder injury, and in 2003 a neurosurgeon evaluated the Claimant for neck pain and ultimately recommended neck surgery.

 

The Claimant had alleged a first injury date of April 28, 2006 when he went to Dr. Pardubsky regarding his neck pain. Dr. Pardubsky believed the neck pain was related to Claimant’s prior shoulder injury. In a subsequent visit, Dr. Pardubsky told the Claimant there was nothing further he could offer. The Claimant also alleged a second injury date of January 2, 2007 when he was referred by the employer to Dr. Frederick. The Claimant complained of chronic right trapezium and cervical pain, as well as numbness and tingling in his right fourth and fifth fingers. Dr. Frederick noted the right trapezius pain and cervical pain were well documents since 1999. In a follow up visit, Dr. Frederick noted that the Claimant’s EMG was “positive for moderate to severe right carpal tunnel.” She believed the condition was work-related based on the history provided by the Claimant that he was performing “highly repetitive grasping tasks” in his job. Blackhawk did not offer further treatment for the Claimant’s carpal tunnel or other chronic problems related to the prior work injury, nor did the Claimant seek treatment for his ailments, aside from some chiropractic care.

 

At the employer’s request, Dr. Frederick revisited her opinion regarding the Claimant and ultimately concluded that she could not relate his recurrent right carpal tunnel to his job with the employer. She also noted that the Claimant did not suffer a new injury of 2006 and any pain was likely caused by an ongoing spondylosis that has never resolved since 1998.

 

One month before his hearing with the deputy commissioner, the Claimant visited neurosurgeon Robert Milas in June of 2009. Dr. Milas noted the Claimant was a poor historian but stated that the Claimant experienced a significant change in cervical pain as well as loss of strength in his right hand in 2007. He opined the 2007 injury was linked to his recurrent carpal tunnel syndrome and cervical radiculopathy, and that the injuries caused Villafana to be permanently impaired.

 

After hearing, the deputy concluded that the Claimant failed to show he suffered an injury in the course of his employment and denied his claim. The deputy was more persuaded by the opinions of Dr. Frederick as opposed to Dr. Milas. The deputy noted that:

 

While Dr. Milas may have superior qualifications as a specialist in neurosurgery than those of Dr. Frederick, the record does not indicate what prior medical records, if any, were reviewed by Dr. Milas before making his opinion. This is a critical flaw in claimant’s case given Benito’s past medical history involving not only cervical and right extremity pain, but facial numbness dating back four years prior to the claimed neck injury. Also, it is not clear if Dr. Milas had any understanding of what claimant’s job at Blackhawk involved.

 

On appeal, the Commissioner found the deputy’s findings were supported by the preponderance of the evidence. The decision was also affirmed by the district court. The Claimant then appealed to the Court of Appeals.

 

The Court began its review noting that the factual findings of the agency were reviewed for substantial evidence. The Court found that he arbitration decision detailed why the deputy found Dr. Frederick to be more convincing than Dr. Milas. Dr. Milas did not reveal whether he reviewed any medical records, the Claimant’s actual labor requirements for scale operators, or whether his injury was caused by the repetitive nature of his work. Conversely, the Court found Dr. Frederick documented her decision-making process, and although her ultimate conclusion contradicts her initial stance on the Claimant’s injury, the Court found she explained what subsequent information—an on-site job inspection—persuaded her to change her opinion. The deputy also credited Dr. Frederick’s review of the Claimant’s prior medical records, contrasted with Dr. Milas, who found the case factually confusing because the Claimant was a “poor historian.”

 

The Court stated that as the finder of fact, the agency determines the weight to give an expert opinion. Therefore the Court found that they would not give greater weight to the Claimant’s medical expert than what was afforded by the agency.

 

The Court then turned its attention to the finding that the Claimant had not suffered a permanent aggravation of his previous injury to his cervical spine. The Court found that the Claimant had not carried his burden to overturn the agency’s decision. The court state that “evidence is not insubstantial merely because we may draw different conclusions from it; the ultimate question is whether it supports the finding actually made, not whether the evidence would support a different finding.” The Court found that given the gravity of medical evidence on the issue of causation, and the fact-finder’s ability to accept or reject expert evidence in whole or in part, Dr. Frederick’s conclusion she “do[es] not feel there has been any new injury to his neck [and that] he has an ongoing cervical spondylosis from 1998 that has never resolved” supports the commissioner’s finding.

 

The decision of the district court was affirmed.

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College Community School District and EMC Insurance Company v. April Orris, No. 2-280 / 11-1848 (Iowa Court of Appeal)

 

The Claimant, April Orris, was employed as a middle school science teacher who chaperoned a field trip to the local roller skating rink on May 20, 2005. While on the trip, the Claimant fell and landed on her right wrist, arm, shoulder and back. She was treated at Mercy Care South and was placed in a sling and released with restrictions of no use of the right arm. The Claimant continued to treat with Dr. Pape and despite the treatment, she reported her right elbow pain progressively got worse. On April 20, 2006, the Claimant underwent an arthroscopic subacromial decompression with Dr. Pilcher. The Claimant reported the surgery increased her range of motion and decreased her shoulder pain, although her neck symptoms continued.

 

The Claimant resigned from her position with the College Community School District for reasons unrelated to her work injury. In August of 2006 she began a position with the Marion Independent School District. Four days after she began her employment, she began complaining of problems with her neck, shoulder and elbow. In February of 2007, the Claimant was discharged because she had exhausted her leave and failed to return to work. She then became a tutor.

 

The Claimant then began to treat with Dr. Bagheri, who noted she had symptoms consistent with fibromyalgia. The Claimant then saw Dr. Buck, an occupational medicine specialist in February of 2008 who placed the Claimant at maximum medical improvement and released her to light duty for six months and then full duty thereafter. He then assigned her an eight percent permanent impairment rating.

 

The Claimant underwent an independent medical examination in January of 2009 with Dr. Kuhnlein. He assessed the Claimant with an ten percent permanent impairment and stated he did not feel the Claimatn was capable of working full time, but felt she could work full time in the future.

 

At hearing, the deputy determined that the Claimant had sustained injuries and awarded her permanent partial disability benefits of thirty percent. On appeal, the commissioner affirmed the deputy’s decision. In support her motion for rehearing the Claimant argued that the agency had erroneously relied upon the opinion of Dr. Buck that Claimant’s fibromyalgia would be under control within six months. This motion was subsequently denied by the commissioner. On judicial review, the district court found the commissioner committed legal error in relying upon Dr. Buck’s prediction regarding the Claimant’s future condition when determining her industrial disability. The case was sent back to the commissioner for evaluation of the Claimant’s disability without consideration of her future consideration.

 

The Court began its analysis by stating that  in determining a scheduled or unscheduled award of workers’ compensation benefits, the workers’ compensation commissioner finds the facts “as they stand at the time of the hearing and should not speculate about the future course of the claimant’s condition.” The Court further stated that functional impairment and disability resulting from a scheduled loss must be determined at the time of the award and not based on any anticipated deterioration of function that may or may not occur in the future. The Court then noted that any future developments, including the worsening of a physical condition or a reduction in earning capacity, are properly addressed in review-reopening proceedings.

 

The Court then turned its attention to whether the agency improperly relied on the evidence regarding the Claimant’s future employment in its finding that she had suffered a thirty percent partial disability. The Court determined that the agency had not. The Court found that the agency had determined the Claimant was capable of full-time employment “in the sedentary to light categories” and found working as a teacher in a high school setting fit within the sedentary to light categories of labor. In making this determination, the deputy noted “Dr. Buck opined the Claimant was capable of resuming her duties as a teacher after a six month period of light duty to work.”

 

The Court, in their review of the record, found that the agency had not erronesouly relied on the opinion of Dr. Buck and that the agency had actually cited other evidence supporting the conclusion that the Claimant was capable of teaching full time. The additional evidence cited was the opinion of Dr. Kuhnleing that the Claimant was capable of working in light to sedentary categories, that the Claimant’s personal physician noted the Claimant needed a job where she could change positions and finally that Dr. Bagheri had never restricted the Claimant from working. Due to that evidence, the Court could not conclude that the agency relied on Dr. Buck’s opinion in its finding. The decision of the district court was thus reversed.


Wendy Leavens vs. Second Injury Fund, No 2-376 / 11-1636 (Iowa Court of Appeal)

The Claimant, Wendy Leavens, began working for Maytag in 1994. In October of 2007, the Claimant filed a petition with the Commissioner for a December 20, 2006 injury. The Claimant alleged she had sustained bilateral carpal tunnel syndrome stemming from cumulative and repetitive employment duties. This petition was ultimately resolved through settlement which was approved by the agency in May of 2008. This settlement stated the Claimant suffered a permanent disability of six percent of the body.

 

In June of 2008, the Claimant filed a Second Injury petition which alleged a first injury to her right hand in 2000 and second injury of bilateral carpal tunnel syndrome on December 20, 2006. After hearing, the deputy found the approved settlement from May of 2008 was valid and due to the issues being of mutuality of interest between the employer and the Fund, that the Fund was without recourse. The deputy found the hand and wrist losses equaled a twenty percent disability of the whole person and awarded Second Injury benefits.

 

The Claimant applied for rehearing asserting that the deputy did not appropriately consider all her injuries. An amended decision was issued which stated that subsequent to the original arbitration decision, the controlling authority on the preclusive effect of settlement agreements had been expressly reversed. The deputy noted that under the new authority, “the only preclusive effect of an agreement for settlement between worker and employer is upon the parties who entered into that agreement, and the settlement does not establish the compensability of any injury or the extent of entitlement to disability benefits in a subsequent claim against the Second Injury Fund.”

 

The deputy then found that the Claimant had the burden of proving that the injury was a proximate cause of the disability on which her claim was based. The deputy held that the Claimant failed to meet the burden of proof and was not entitled to an award of benefits from the Fund. On appeal to the commissioner, it was held that the deputy appropriately relied on the new authority. The ruling was subsequently upheld by the District Court. The Claimant then sought review with the Court of Appeals.

 

The Court first noted that they would only reverse in this case if it was found the agency decision was based on an erroneous interpretation of Iowa law. The Court next stated that the Claimant had entered into a settlement in regards to her December 20, 2006 injury under Section 85.32(2) and stated that under this code section, “The parties may enter into an agreement for settlement that establishes the employer’s liability, fixes the nature and extent of the employee’s current right to accrued benefits, and establishes the employee’s right to statutory benefits that accrue in the future.”

 

The Court then found in this case that the Claimant sought to use issue preclusions offensively because in the second action with the Second Injury Fund, the Claimant relied upon a former judgment as conclusively establishing in her favor an issue which she must prove as an essential element of her cause of action. The Court then stated that Iowa law was clear that issue preclusion required the issue be actually litigated in the prior proceeding. The Court further found that in this case, the employer and the Claimant stipulated to a compensable injury to the Claimant’s bilateral arms arising out of her employment but that the issue of liability was never actually raised and litigated before the agency. The Court then stated the Claimant would still have to establish that the party sought to be precluded (the Fund) was afforded a full and fair opportunity to litigate the issue in the action. The Court finally found that the Fund was not a party to the settlement and did not have an opportunity to fully and fairly litigate the issue of liability. The Court found the agency’s decision was not based on an erroneous interpretation of the law, and therefore affirmed the decision of the district court.

 

The Court next turned its attention to the issue raised by the Claimant as to the weight the commissioner gave to certain medical reports. The Court ultimately found that working backward in this case from the commissioner’s appeal decision to the deputy’s amended and substituted arbitration decision, the Court was able to “deduce what must have been the agency’s legal conclusions and findings of fact.” The deputy considered the evidence before him and concluded the opinion provided by Dr. Jones did not outweigh the opinions of Drs. Formanek and Quenzer. Further, he noted that he considered the record as a whole. The court noted that the Claimant asserted the deputy improperly relied on reports wherein Drs. Formanek and Quenzer responded to defense inquiries. The Claimant alleged she was “winning her case until the deputy came to the summary, leading, wish-list reports.” The Court found that while the Claimant is correct that the deputy analyzed Dr. Formanek’s and Dr. Quenzer’s responses to the defense inquiries, there is nothing in the record to indicate these inquiries and responses constituted the entire basis on which the deputy’s decision was founded. Ultimately the Court the denial of the rehearing was not unreasonable, arbitrary, capricious or an abuse of discretion.

 

The Court finally turned its attention to the finding of that the Claimant did not sustain a permanent disability as a result of her December 20, 2006 injury. The Court agreed with the district court that substantial evidence supports the agency’s denial of Fund liability because the Claimant failed to prove before the agency an impairment to a second qualifying scheduled member. The Court further recognized that the evidence relied on by the agency was “not insubstantial merely because a contrary inference is supported by the record.” Factual findings were vested in the discretion of the agency, and the Court found that because the findings in this case are supported by substantial evidence, they were bound by these findings.

 

The decision of the district court was then affirmed.

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Finley Hospital v. Charles Stokes, No. 2-381 / 11-2024 (Iowa Court of Appeals)

 

The Claimant, Charles Stokes, sought alternate medical care by way petition to the workers’ compensation commissioner. Claimant’s first application was made in February of 2011 and was subsequently denied by the deputy workers’ compensation commissioner. In issuing the denial, the deputy found that the Claimant had expressed dissatisfaction with his current care in October of 2010 by way of a letter from his counsel. However, the employer had extended the offer to return the Claimant to Dr. Pearson and the deputy did not find this unreasonable. The deputy also found that the employer scheduled an appointment with Dr. Pearson for the Claimant on March 17, 2011. Further the employer represented that it would abide by Dr. Pearson’s treatment recommendations.

 

The Claimant filed another application for alternate medical care on April 14, 2011. At hearing of the matter, the Claimant testified that he attended the March 17, 2011 appointment with Dr. Pearson, who was unaware of the reason for the visit. The Claimant explained he had ongoing symptoms for which he had been seeing Dr. Tebbe for chiropractic relief. He then asked Dr. Pearson for treatment and a referral to Dr. Tebbe. Dr. Pearson suggested an MRI, but noted he would need prior authorization for this. He then stated he would not make a referral for chiropractic care, stating “I don’t treat pain.” Nothing was offered by Dr. Pearson in the way of treatment.

 

The Claimant then introduced correspondence from his counsel dated April 12, 2011, stating that Claimant’s counsel had written to the employer’s counsel on March 22, 2011 requesting a copy of Dr. Pearson’s notes or report and that to date Claimant’s counsel had heard no reply. The letter continued to express Claimant’s dissatisfaction with Dr. Pearson’s care. On April 21, the employer’s counsel replied providing Dr. Pearson’s medical notes. Another letter was sent by the employer’s counsel on April 25, the day before the alternate medical care hearing, authorizing an MRI with Dr. Pearson.

 

At hearing, the deputy determined that the employer failed to timely provide medical care to the Claimant. The deputy then granted the Claimant’s request for chiropractic care with Dr. Tebbe. On appeal to the district court, the Court found that there was substantial evidence to support the deputy’s findings that the care the employer offered the Claimant by way of Dr. Pearson was not offered promptly. The court also stated there was substantial evidence that the treatment made available to the Clamiant was not ‘reasonably suited to treat the injury without undue inconvenience to the employee,’ as required by section 85.27(1). The employer then appealed to the Court of Appeals.

 

The employer first challenged the deputy’s decision on the grounds that Claimant’s counsel’s letter in October of 2010 did not convey dissatisfaction of authorized care. The Court concluded that the deputy was correct in finding the letter substantially complied with Iowa law and communicated the Claimant’s dissatisfaction.

 

Next the employer challenged the decision of the deputy on the grounds that the designated care provider, Dr. Pearson, remained available to provide care. The Court dismissed this argument, as well, finding that while Dr. Pearson did perform an evaluation of the Claimant, he made no recommendations for ongoing care.

 

The Court ultimately found that after the Claimant expressed his dissatisfaction with the care provided, nearly six months had expired, and three petitions for alternative care had been filed, although the first petition was dismissed. During that time the only ongoing care ultimately authorized by the employer was an MRI test. However, that authorization came one day before the hearing on the third petition and as noted, Dr. Pearson’s medical notes only state that it “may” be needed.

 

The Court ultimately found that the deputy’s decision was supported by substantial evidence and affirmed the ruling of the district court upholding the deputy’s granting of alternate medical care.

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Bernard Kent v. Diamond Shine Management Services, Inc. and United Heartland, Iowa Court of Appeals No. 2-064 / 11-1041

The Claimant, Bernard Kent, began work with the Defendant in 2000. Prior to that he had held jobs stocking shelves, repairing pallets, operating a forklift, working a production line as well as cooking and bartending. Since 2005, the Claimant’s duties with the Defendant including clearing floors at Target and Shopko stores in Nebraska and Minnesota and Fareway stores in Iowa.

On April 30, 2006, the Claimant injured his left and right shoulders during his employment. In May of 2006, he was diagnosed with tendonitis bursitis in the right shoulder and the emergency room. He was subsequently seen by Dr. Westpheling who diagnosed the Claimant with possible right shoulder tendonitis with possible right cervical radiculitis. An MRI subsequent to that diagnosis showed moderate degenerative changes in the AC joint.

As the Claimant did not experience any significant improvement, Dr. Westpheling referred the Claimant to Dr. Fabiano in June of 2006. Dr. Fabiano diagnosed the Claimant with shoulder pain and AC joint degenerative disease related to his May 2006 injury. He was then referred to Dr. Kim who gave the Claimant prolotherapy injections.

On November 9, 2006, Dr. Westpheling found the Claimant to be at MMI and gave him permanent work restrictions. In response to an inquiry from the employer’s insurer, Dr. Westpheling stated the Claimant had zero percent impairment. After an arbitration petition was filed, the Claimant was seen by Dr. Miller on referral by the Claimant’s attorney. Dr. Miller diagnosed the Claimant with degenerative arthritis of the AC joint bilaterally and carpal tunnel syndrome bilaterally. He then gave the Claimant twelve percent impairment to his right upper extremity and eight percent impairment to the left upper extremity.

The Claimant was subsequently re-seen by Dr. Miller in December of 2007 who assigned ten percent impairment to the Claimant’s right upper extremity and six percent impairment to the left (six and four percent body as a whole respectively). Dr. Westpheling concurred with these findings in January 2008 but noted that Claimant had not complained of left upper extremity pain in his May 2006 visit. These impairment ratings were also agreed to by Dr. Fabiano.

The Claimant was also seen by a vocational expert in December 2007 who opined that the Claimant did not currently possess the necessary capacities for competitive employment in the labor market. Based upon this, the Claimant moved to amend his petition to assert the odd-lot doctrine which was resisted by the Defendants as they would not have time to prepare before the February 2008 hearing. The deputy commissioner subsequently denied this motion.

At hearing, the deputy found that the Claimant had sustained a loss of earning capacity of forty percent. The deputy found that neither party’s vocational expert had provided ‘reliable, probative evidence.’ The case was appealed to the commissioner who found the deputy failed to take into account the Claimant’s disability in his arms as well as shoulders. The commissioner then increased the award to seventy percent disability. He did however endorse the deputy’s refusal to see the matter as an odd-lot claim.

On appeal to the district court, the court remanded the decision stating the decision was not sufficiently detailed to enable the court to consider whether there is substantial evidence to support the 70% disability rating, and that “it was arbitrary for the agency to refuse to consider” the odd-lot claim due to its untimely filing fifty-five days before the hearing.

On remand the Commissioner noted that the appeal decision identified the relevant factors of industrial disability at issue in this matter and thereafter concludes that the factors are evidence that claimant has “some residual ability to compete for employment positions in the competitive labor market.” The Commissioner also determined the Claimant failed to prove a prima facie case of total disability and that Diamond Shine proved the Claimant could find employment elsewhere in the community, and therefore the Claimant was not an odd-lot employee.

The case was again appealed to the district court which determined the seventy percent disability was based on an erroneous interpretation of the law and that the Claimant was “entitled to a finding of total disability under the odd-lot analysis.”

On Appeal, the Court of Appeals first noted that loss of earning capacity is determined by “the employee’s functional impairment, age, education, work experience, qualifications, ability to engage in similar employment, and adaptability to retraining to the extent any of these factors affect the employee’s prospects for relocation in the job market.” The Court noted that the commissioner reviewed all these factors in his decisions and found that the Commissioner’s finding of seventy percent disability was supported by substantial evidence.

Of particular note to the Court was that the Claimant had continued to work two jobs at the time of hearing as well as the deputy’s interpretation of the parties’ vocational witnesses’ testimony being skewed towards the respective party for which they were retained. The Court found that both the Deputy and Commissioner both addressed all the factors affecting the industrial disability determination and explained their reasoning. The Court finally stated that “although reasonable minds could differ when measuring the extent of Kent’s industrial disability, we find substantial evidence to undergird the agency’s decision.”

The Court then examined the commissioner’s finding that the Claimant was not an odd-lot employee. The Court first noted that if an individual is able to perform only those services “so limited in quality, dependability or quantity that a reasonably stable market for them does not exist,” courts will consider the odd-lot worker to be totally disabled. The Court found that in making its determination, the Commissioner had relied on the opinion of one vocational expert more so than another. The Court found that the district court had stepped outside its role by substituting its own credibility finding for that of the commissioner when it determined that the Claimant was in fact an odd-lot employee. Ultimately, the Court found that the commissioner’s finding was supported by substantial evidence.

The final issue addressed by the Court was whether the commissioner’s refusal to grant the Claimant’s request for payment of its vocational expert was proper. The Claimant had sought payment of these fees based upon the admittance of the Defendant that the Claimant had sustained a cumulative trauma to his right shoulder but refusal to compensate the injury. The Claimant argued this caused him to have to retain the vocational expert. The Commissioner however noted that the vocational expert’s opinion related to the extent of the disability, not to its nature.

The Court found that the costs of retaining the vocational expert as a consultant were not “reasonable expenses incurred” in proving the truth of the matter at the heart of the request for admissions. The Court finally added that they found it more likely that the Claimant had hired the vocational expert to prove additional issues in the case—such as the Claimant’s odd-lot claim and his ability to gain future employment—and not to prove the threshold claim that he was entitled to relief; as such he was not entitled to payment of the expert’s fees.

Refugio Orozco Serratos v. Tyson Foods, Iowa Court of Appeals, No. 2-103 / 11-1186

The Claimant began his employment with Tyson in November of 1990 when he was 48 years old. The Claimant claimed that the janitorial staff and cleaning crew at Tyson left a chemical residue on machines he touched, which irritated his breathing. He further claimed that water vapor and fumes from the animal parts bothered him as well. The manager said the plant’s cleaning crew members used detergents and chlorine products, but they were required to rinse the machines to avoid contaminating the meat.

It was noted that the Claimant was a cigarette smoker, however there was conflicting evidence regarding the extent and duration of the habit. The deputy found it to be one to three packs daily for four years.

In 1996 the Claimant began complaining of difficulty breathing and similar symptoms. These complaints continued over the next two years and ultimately the Claimant was diagnosed with asthma. In 1998, the Claimant filled out of form for injury/illness which reported difficulty breathing related to work areas and vapors from machines. He also had an episode where he collapsed at a rest area. He was taken to the ER in Iowa City and was diagnosed by Dr. McBride as having reactive air-ways disease or COPD. He was instructed to wear a mask to complete his duties as a butcher.

Subsequent clinical appointments produced mixed diagnoses. Dr. James Merchant concluded Refugio’s asthma was related to his occupation and that he should not be exposed to his current working environment. Dr. Dale Minner found Refugio’s condition was not caused by his work environment, but that he should nonetheless avoid laboring in the cold. Following these diagnoses, the Claimant was transferred to a “hot side” of the plant.

Over the next nine years, the Claimant would continue to seek periodic treatment related to COPD. The Claimant filed a claim with Tyson in July of 2005, alleging another incident of inhaling ammonia and chemicals. This claim was denied by Tyson based on medical records showing The Claimant had been exposed to “lots of smoke” at a party he attended on July 3, 2005. The Claimant subsequently took an extended leave of absence in 2006 and Tyson was informed by Dr. Bedell that the Claimant was permanently disabled and would not be coming back to his job. The Claimant was then terminated.

The Claimant filed his petition in August of 2007 alleging that he had sustained an occupational disease (per Iowa Code 85A, specifically related to occupational diseases) on May 10 of 2006. The Claimant was seen by Dr. Conte, a cardiovascular thoracic surgeon, who opined that the Claimant suffered from COPD, but identified its cause as chronic exposure to tobacco and heavy dust. He testified at the hearing that he could not recall any documented case of COPD caused by pure water vapor.

Dr. Thomas Hughes performed an independent medical examination of Refugio. Dr. Hughes testified that steam or water vapor did not cause COPD, though it could exacerbate it, and that a cold environment would be worse than a warm setting for the condition. Dr. Hughes produced a detailed report of his impressions, concluding Refugio’s exposure to irritants in the work place aggravated his respiratory condition, but that non-occupational activities likely caused his condition.

On September 30, 2009, the deputy issued an arbitration decision, denying Refugio’s claim because he did not show a connection between his work environment and his COPD. Refugio appealed to the commissioner, who affirmed the denial. On judicial review, the district court affirmed the agency decision.

On Appeal, the Court of Appeals first noted that the Claimant must show: (1) his occupational disease was causally related to the exposure to harmful conditions of his field of employment, and (2) those harmful conditions were more prevalent in his employment than in everyday life or in other occupations. The Court found that The commissioner concentrated on the opinion of the claimant’s own expert, Dr. Hughes, and concluded that Dr. Hughes provided “significant evidence” that Refugio’s COPD resulted from “a hazard to which claimant would have been equally exposed outside of his occupation.” The Court also found that the commissioner pointed out that Refugio did not show that “he and his fellow workers were exposed to any risk that resulted in anyone else working with claimant to develop or suffer from COPD.” Similarly, Refugio offered “no evidence that employees who work in meat processing facilities are routinely subject to a risk resulting in the development of COPD.”

The Court stated that their conclusion was the same as that of the district court, which acknowledged while “there is some evidence here to support the Claimant’s contentions, there is also certainly evidence in the record to support the findings actually made by the Commissioner.” In this situation, the Court’s task is not to determine whether the evidence supports a different finding; “rather, our task is to determine whether substantial evidence, viewing the record as a whole, supports the findings actually made.” Ultimately, the Court found that the Commissioner’s findings were supported by substantial evidence. The Court concluded the commissioner appropriately weighed the evidence, and concluded the greater weight of the evidence supported the deputy’s determination that medical evidence did not satisfy the claimant’s burden to show causation.

The Court then next had to determine whether the deputy’s analysis of the Claimant’s COPD as an injury rather than a disease warranted reversal. While the Court acknowledged the analysis for a disease claim differs from that of an injury claim, any error in this case was cured by the commissioner applying the occupational disease analysis on review. In so finding, the Court had to determine whether the Claimant was prejudiced by the Commissioner’s alternative endorsement of the deputy that COPD could also be analyzed as an injury.

Ultimately the court found no prejudice as substantial evidence undergirds the commissioner’s determination that the Claimant’s COPD did not qualify as an occupational disease. The Court stated the Claimant had the benefit of the commissioner’s application of the proper legal test to the deputy’s fact-finding. Because the commissioner’s alternative endorsement of the deputy’s lapse into an injury-based analysis did not ultimately impact the Claimant’s substantial rights, the Court found the agency decision should stand.

Call Mark Bosscher or Lee Hook with any questions @ 515-243-2100.  We’d be happy to help, whether it be a quick or a complex issue!

It appears that a U.S. District Court in Florida convicted a former Florida postal worker of health care fraud after she was caught participating in more than 80 long-distance races, including the Boston Marathon, all while taking workers compensation for a back injury.

55-year-old Jacquelyn V. Myers was also convicted of making false statements and faces up to 15 years in prison. Her sentencing is scheduled for July 25.

In May 2009, Myers claimed to have a lower back injury that prevented him from delivering the mail as part of her job. She was relieved of her mail carrying responsibilities and put on “light duty.”

However, photos and videos emerged showing Myers participating in the races, including a triathlon. And in what would ordinarily be considered good news, her race times actually improved after she made her initial injury claim.

Must have been quite the postal route if marathons qualify as light duty!

July 11, 2012 Kansas Workers Compensation Law Update.

1.  Final Results Of The 2012 Kansas Legislative Session.

The final results of the 2012 Kansas legislative session were no substantive or significant changes to the Kansas Workers Compensation Act.  Our 2011 pro-employer reform laws remain in place and are starting to take hold with great results for employers.

2.  Summary Of A Few Of The Significant 2011 Pro-Employer Kansas WC Law Reforms:

A) To be a compensable work accident, there must be an undesigned, sudden and unexpected traumatic event, identifiable by time, and place of occurrance, and must produce at the time of accident, symptoms of injury and must occur on a single work shift.

B) To be compensable, the work accident must be the prevailing factor cause of: a) the injury; b) the need for treatment; AND c) the resulting impairment or disability. If the accident causation proof fails in any of these three elements, the accident is deemed to "not arise out of employment."

C) The "simple aggravation of a preexisting condition" rule which previouly resulted in Kansas employers paying tens of millions of dollars in benefits and treatment for preexisting conditions, is gone.  In its place is a higher standard of injury and causation claimants must prove to establish a compensable personal injury by accident on the job.

D) "Arising out of and in the course of" employment does NOT include: a) injury by natural aging process or activities of day-to-day living; b) neutral risks; c) personal risks; d) accidents or injuries arising either directly or indirectly from idiopathic causes.

E) All compensation is disallowed in the case where the injury results from the employee's "reckless" (lower standard than "willful") disregard of an employer safety rule or regulation.

F) For the accidental injury to "arise out of" employment, the claimant must prove a causal connection between the "conditions under which the work is required to be performed" AND the work accident.

 3.  More Good News For Employers On Appeals Board Decisions Interpreting And Applying The New 2011 Pro-Employer Workers Compensation Law Reforms.

PREVAILING FACTOR CAUSE DEFENSE

In Shepard v. Big Lakes Development Center, Inc. Docket No. 1,058,184, (April 2012), the Kansas Workers Compensation Appeals Board reversed an administrative law judge preliminary hearing order awarding benefits on the prevailing factor cause defense.

While the Appeals Board acknowledged Shepard proved a work accident occurred on July 22, 2011, and she presented medical causation opinions from two separate doctors, the Board held that claimant failed to meet her burden of proof under the new prevailing factor cause requirement that her work accident resulted in her current need for medical treatment.

The key to the Board's denial of benefits in this case was that Board found that even though claimant procured two favorable expert opinions that the work accident was the prevailing factor cause of the injury and need for treatment, those experts had not been provided the full relevant medical histories of the claimant.  As such, those pro-claimant causation opinions were flawed and unreliable.  If fact, claimant Shepard had a long history of prior low back and knee problems and those facts were not provided to the doctors who provided claimant favorable causation opinions.

The refreshing take away from this favorable "new law" Appeals Board decision is that the intent of the new law reforms is in fact being enforced and carried out by the Appeals Board.  The new law reforms did away with the old law "simple aggravation of a preexisting condition" rule, that cost Kansas employers untold enormous sums of money in compensating workers for preexisting conditions which were not work injury related.

The Appeals Board Member writing the Shepard decision explicitly pointed this out in the following passage:  "The new law, placed into effect on May 15, 2011, requires additional elements of proof from a claimant.  No longer is the simple aggravation, acceleration or exacerbation of a preexisting condition sufficient."

This case points out to claimant attorneys in Kansas that they would be wise to do their due diligence regarding medical history discovery on their client prior to procuring medical expert causation opinions, to get their experts the full and complete medical histories of their clients.  This would allow that any pro-claimant expert opinions generated, can be relied on in court by the Judge.  The obvious question is why wouldn't this be standard operating procedure in the first place?

The flip side of that coin for employers, carriers and TPA's in Kansas is that it is now essential that they spend the money and time in the defense of a workers compensation claim to discover and procure all relevant medical history information concerning a claimant.  This case proves that such efforts can result in a total claim denial thereby saving significant workers compensation costs.

By Kim R. Martens of Hite, Fanning & Honeyman L.L.P.  www.hitefanning.com

July 7, 2011: Kansas Workers’ Compensation Law Update.

1.         Results Of The 2011 Kansas Legislative Session.

Significant new pro-employer workers’ compensation law reforms passed the Kansas Legislature in 2011 and were signed into law by Governor Sam Brownback.  Sweeping new pro-employer workers’ compensation laws went into effect in Kansas for dates of accident or repetitive trauma occurring after May 15, 2011.

In essence, the new law reforms sweeten the pot at the finish line for claimants by modestly increasing our maximum benefit caps (for example lifetime permanent total cap went from $125,000 to $155,000 – relatively speaking, still a very low perm total exposure).  However, the new law reforms contain many new defenses which will likely act as hurdles preventing many more claimants from getting to that finish line. 

In short, fewer claimants will successfully establish compensable claims, but those that do, could see slightly more money in the end.  For employers and carriers, while there will be increased litigation costs on the short term effectuating all the new defenses, over the long term, these new law reforms will likely reduce the overall number of claims and costs for employers.

These new statutory reforms legislatively reverse the holdings of four prior appellate court decisions discussed in previous Kansas Law Updates found below:  Casco, discussed below in the May 17, 2007 update was reversed by these new law reforms (this change is one of the few that is pro-employee); Bergstrom, discussed below in the September 25, 2009 update, was reversed by the new law reforms (this reform law reversal is really good for employers); and both the Redd and Mitchell cases discussed in the October 5, 2010 update, were also reversed by the new law reforms (again these new law reform reversals are pro-employer changes).

It is strong suggested that any employers, adjusters, claims professionals consult with legal counsel regarding assessing compensability and exposure of all Kansas claims with dates of accident or repetitive trauma occurring after May 15, 2011.  It is a whole new ballgame in Kansas after May 15, 2011 and the changes are so sweeping and comprehensive that professional assistance is required to benefit from all the new changes.

A very brief list of some of the most significant changes includes:

  • Multiple new compensability defenses including but not limited to:  new definitions for accident, injury and repetitive trauma which will provide new proof requirements for injured workers; sweeping new causation defenses (prevailing factor test) which heighten the worker’s proof requirements to establish compensability; new defense where worker’s injury results from reckless violation of employer’s work place safety rules and regulations; new beefed up horseplay/fighting on the job defense; new lack of timely notice rules; new easier to establish drug/alcohol impairment defense affording more chance of success for a complete denial of benefits.
  • New private insurer and self-insured employer obligation to issue written notice to all workers receiving TEMPORARY disability compensation benefits concerning fraud.
  • Multiple new defenses related to preexisting conditions, impairments and prior work restrictions which allow employers/carriers more opportunity for compensation denials, subtractions and offsets.
  • Multiple new defenses for employers against TTD liability where the worker has voluntarily terminated or been terminated for cause or refused accommodated work.
  • Increased importance and legal support of authorized treating physician opinions over worker’s hired gun doctor opinions in TTD entitlement context.
  • New average weekly wage calculation method and rules.
  • New limits on, and increased proof hurdles for, workers try to establish permanent total disability compensation.
  • New permanent partial disability compensation rule for calculating value of bilateral carpal tunnel syndrome and other bilateral injuries – reversing Casco decision.
  • Multiple new defenses to work disability compensation claims including higher hurdles (new minimum impairment threshold) for worker to claim work disability entitlement, and elimination of work disability compensation for undocumented workers.
  • Enhanced methods for employers to get slow moving or dormant cases dismissed.
  • Significant new defenses to future medical benefits exposure and new ways to get future medical liability cut off.
  • Several pro-worker new law changes including modestly increased benefit caps, elimination of the timely written claim statute of limitation and conversion of bilateral carpal tunnel type cases back to a general body disability allowing for work disability compensation potential.

 

2.         New Director of Workers Compensation appointed:  Larry Karns, one of the drafters of the pro-employer new law reforms, was appointed Kansas Director of Workers Compensation.  This     really concludes the “pro-employer” sweep of a new pro-employer set of laws, and a new pro-employer administrator to see that the new law reforms are properly and fairly administered and implemented.

October 5, 2010:        Kansas Workers’ Compensation Law Update.

1.         Results Of The 2010 Kansas Legislative Session.

In summary, there were no substantial changes to the law by the Kansas Legislature in 2010.  The 2010 Kansas Legislative Session ended much like 2007, 2008 and 2009 with no significant legislative change or amendments to the Kansas Workers’ Compensation Act.  Labor groups and the claimants’ bar continue to push to increase Kansas’ low benefit caps.  Business and industry sought to decrease the cost of workers’ compensation.  There were competing bills introduced, but nothing significant was passed.  The end result was no legislative change favoring either side.  The pro-business Republican 2010 Legislature did not aggressively move to try to change laws in favor of employers because the current Governor is a Democrat, and would likely have vetoed any sweeping reforms.  That scenario is likely to change in the 2011 legislative session.  Kansans will likely elect U.S. Senator Sam Brownback as the new Governor in the upcoming November 2010 election.  If this occurs as is expected, both the House and Senate will be controlled by Republicans and the Governor will be Republican.  Many in Kansas are projecting that this is the optimum political environment and opportunity for employers to pass pro-business legislation which would most certainly be signed into law by the next Governor.  Stay tuned for updates after the 2011 legislative session ends as there most likely will be good news for employers in Kansas.

2.         Significant New Legal Changes In 2010 Continue To Come        From The Kansas Supreme Court.

 

Two recently released Kansas Supreme Court opinions will likely continue to push employer workers compensation costs up.  Last year’s update regarding the Bergstrom case predicted increased employer settlement and award disability compensation costs.  While there are no official statistics published yet, most employers, observers and practitioners would agree that the effect of the Bergstrom decision discussed in 2009’s update increased employer settlement and disability compensation award payments.

Two new decisions issued by the Kansas Supreme Court in September, 2010 will likely continue to push up employer workers compensation costs.  These new decisions are very lengthy and space allows for only a very brief summary.

In the most pro-claimant outcome, the Kansas Supreme Court in Redd v. Kansas Truck Center, No. 101,137 (September 10, 2010), ruled that for multiple injuries to a single scheduled member (such as a wrist and elbow surgery on the same arm) the workers compensation judge must now make separate awards for each injury to that scheduled member.  The practical result of this decision is that before a wrist and elbow injury would be computed based on a combined impairment to the full arm.  Now, instead of one award for both injuries to the full arm, there will be two separate awards issued from the one accident.  It is possible that in some fact situations, this new “multiple award” decision will actually compute to a lower actual cost to the employer.  Employers and adjuster are cautioned to seek advice of counsel to update exposure estimates on currently pending and new scheduled injury claim.

Redd also set forth a new rule regarding $50,000 “functional impairment cap.”   The new rule says that the cap does not apply where the worker has been paid even the slightest amount of TTD benefits.  Thus, in certain circumstances, an employer will want to carefully evaluate potential challenges to TTD benefit entitlement where the claimant is a high wage earner and potentially subject to future application of the cap.

Finally, Redd clarified that the new “appellate standard of review” for the appellate courts which allows for more scrutiny of the fact findings of the Workers Compensation Appeals Board applies to Board decisions issued after July 1, 2009.  For any appeals to the Court of Appeals or Supreme Court from Board decisions issued prior to July 1, 2009, the more limiting “substantial competent evidence” standard from the old statute is still applicable.

Turning then to the other new Kansas Supreme Court decision in Mitchell v. Petsmart, Inc., No. 99,528 (September 10, 2010), we find a “mixed benefit” opinion from the Court with elements that are both favorable and unfavorable to employers. The pro-employer ruling in Mitchell is the smack down by the Supreme Court of the often championed argument by claimants that the administrative regulation (K.A.R. 51-7-8) which allowed for, in the computation of permanent disability compensation benefits, a subtraction of the number of weeks of TTD benefit already paid to the claimant.  The claimant’s bar has for several years tried to argue for a statutory interpretation that would effectively allow for double-dipping – taking TTD benefit weeks and then also taking PPD compensation for those same weeks.  The Kansas Supreme Court affirmed the position long held by employers and carriers that the regulation preventing double dipping is clearly within the authority granted by the statutory language.

The remaining two Mitchell rules are characterized here as negative to employers and carriers because they fly in the face of the plain language of the workers compensation act and will likely increase employer and carrier defense litigation costs because they will increase workers compensation litigation costs.  The first of these two rulings is the re-establishment of the “bright-line rule” for determining date of accidental injury in repetitive use micro-trauma injury claims such as carpal tunnel syndrome cases.  The re-established “bright-line rule” for determining date of accidental injury is “the last date worked.”  At first glance this would appear to be a helpful clarification of the very confusing and cumbersome statutory legal test.  The problem is that this new “bright-line rule” for determining date of accidental injury is not found in, and is contrary to, the plain language of the statutory test.  So, the administrative law judges are now faced with the decision, in every repetitive use injury case, of deciding which rule to follow – the “bright-line rule” of last date worked as provided by the Mitchell decision, or the plain language of K.S.A. 44-508(d) which does not contain as one of the choices, the last date worked, as a date of accidental injury.  Clearly this will cause less certainty and more litigation.

The other carrier unfriendly language in Mitchell which is likely to increase defense litigation costs is the language purporting to create a new barrier for carriers to litigate their disputes as to liability for payment of benefits in the workers compensation litigation.  The purported new rule is that where there are two or more carriers with separate coverage periods spanning the claimed repetitive use injury claim, those carriers will now be forced to take their “carrier verses carrier” dispute to the local district court for determination.  Workers compensation judges are purportedly allowed to issue “joint and several liability” orders against multiple carriers in a claim.  The result is that both carriers are jointly and severally liable for all the benefits ordered paid to the claimant.  This can, and likely will, create significant confusion and problems for carriers in assessing their exposure and reserves.  There are also multiple potential pitfalls to good companies who are assessed joint and several liability with not-so-good companies who are chronically late or tardy in paying benefits.  It is totally conceivable that Insurance Company A which diligently pays its compensation claims will be assessed penalty awards for the late payments of Insurance Company B.  Furthermore, to try to get out from this situation, Insurance Company A must purportedly file a separate action in a state district court to adjudicate its liability to pay benefits to claimant.  The obvious first question is where did this new rule come from and what statutory authority exists for a compensation judge to order “joint and several liability?”  The answer is that there is no statutory authority in the plain language of the Kansas Workers Compensation Act and, in fact, the Kansas Supreme Court technically dodged this question in the Mitchell decision saying that the precise issue of statutory authority for joint and several liability was not properly raised and preserved by the parties in Mitchell.  In summary, this joint and several liability exposure combined with the directive to take your carrier verses carrier disputes to district court is bound to create new and additional confusion and litigation in currently pending and new workers compensation repetitive use injury claims.

3.         Update On Kansas’ Move To Mandate ODG Guidelines. 

The 2009 update below, asked the question of whether Kansas was on the verge of mandating the ODG (Official Disability Guidelines).  The answer in 2010 was no, Kansas did not mandate use of the ODG in workers compensation.

As reported below, it appeared in late 2009 that a push was being made to mandate the use of the ODG through the Kansas Medical Fee Schedule update.  However, it turned out that the push to “mandate” use of the ODG did not go forward and was not included in the January 1, 2010 Kansas Medical Fee Schedule update.  Any move to “mandate” use of the ODG in Kansas will likely occur via legislative changes in 2011.  Stay tuned for updates after the 2011 legislative session.

4.         New Interim Kansas Director Of Workers Compensation.

In September, 2010, Kansas Division of Workers Compensation Director, Paula Greathouse, resigned and Assistant Director Seth Valerius was appointed as Interim Director to replace her.

September 25, 2009:  Kansas Workers’ Compensation Law Update.

1.         Results Of The 2009 Kansas Legislative Session.

In summary, there were no substantial changes to the law by the Kansas Legislature in 2009.  The 2009 Kansas Legislative Session ended much like 2008, with no significant legislative change or amendment to the Kansas Workers Compensation Act.  Labor groups and the claimants’ bar attempted to increase Kansas’ low benefit caps.  Business and industry attempted to hold the line and avoid any legislative roll back of the Kansas Supreme Court’s sweeping 2007 employer friendly strict constructionist decision in the Casco case, discussed below in the 2007 summary.  The end result was no legislative changes favoring either side.  The predominantly pro-business Republican 2009 House and Senate resisted any attempts to amend the workers compensation laws so as to avoid any change in the law which would have the effect of increasing workers compensation costs to Kansas businesses, as they are already struggling in tough economic times.

2.         SIZZLING HOT NEW TOPIC IN KANSAS – New judicially created increase in permanent disability compensation exposure for employers and carriers under Kansas law.

On September 4, 2009 the Kansas Supreme Court issued a sweeping decision in Bergstrom v. Spears Manufacturing Company et. al. (http://www.kscourts.org/Cases-and-Opinions/opinions/supct/2009/20090904/99369.htm)  which will have an immediate impact on current exposure estimates in many pending, and future, general body disability injury cases.  The Kansas Supreme Court’s split decision in Bergstrom continues the same analytical movement departing from prior judicial precedent via a re-examination of previous statutory construction efforts, similar to what was seen in the 2007 Casco decision (discussed below).  However, the practical outcome of this version of the judicial statutory construction tsunami is the opposite of the outcome of CascoCasco created an immediate reduction in work disability compensation exposure for employers, whereas Bergstrom will likely create an immediate increase in the work disability compensation exposure for employers.

Highly summarized, Bergstrom was a production janitor for a manufacturer of plastic plumbing parts.  She sustained a back injury (general body disability claim) after picking up a heavy garbage can.  Her employer tried to provide her with accommodated work within her restrictions after her injury.

Unfortunately, claimant continued to experience pain during the several attempts to return to work and on the last attempt was only able to work three hours and then had to quit, according to her, due to the pain caused by the accommodated work activities.  She left work and was subsequently terminated by the employer.

The ALJ initially awarded a permanent total disability award ($125,000).  The Appeals Board ultimately reduced this permanent total award to a much smaller dollar award limited to claimant’s 10% functional impairment, on the rationale that Bergstom did not make a “good faith effort” to continue working in the accommodated position provided by the employer.  The Bergstrom majority threw out the “functional impairment” only award of the Board, and remanded the case back to the Board for what is likely to be a significant increase in the permanent disability compensation award owed by the employer.

The rationale of the Bergstrom majority was that the functional only award by the Board relied on the same inaccurate assumption made by previous judicial interpretations, that the work disability statute contained an implicit “good faith job search effort” requirement on the injured worker.  The majority opinion stated that it could not find anywhere in the plain language of the work disability statute, a “good faith” requirement imposed upon claimants by the legislature.  The majority opinion noted that the plain language of the statute contains no explicit requirement from the legislature that claimants are required to attempt to work or look for work.

This of course raises the question, to even the most casual observer, of to what degree the Kansas Supreme Court now expects the Kansas legislature, when writing or amending statutes, to set forth explicitly in the plain language of the statute, basic societal norms and applicable common law principles.  Here the obvious societal norm is a mitigation of damages requirement – that workers are expected to be able to show a good faith effort in returning to work before asking for an award of benefits because they are not working.

Common sense would appear to dictate that at some base level, the Kansas Supreme Court should allow certain commonly agreed to societal norms and legal principles to be “read into” statutes, including the societal norm that able bodied individuals are expected to work and if they voluntarily choose to avoid work, even the “plain language” of our laws should not be read to allow or require the disability compensation system to reward behavior amounting to sloth.  The Bergstrom majority’s analysis and “strict constructionist” fervor appear to divorce the application of common sense from the act of construing statutory language.

According to the Bergstrom majority decision, the Court will not read into the statute something not readily expressed therein.  The dissenting opinion written by Chief Justice McFarland expressed the view that the result of the judicial exercise of statutory construction analysis must always occur in the context of respect for the established judicial principle of stare decisis (adherence to judicial precedent so as to promote stability and predictability in the law).  Chief Justice McFarland asserted that the majority opinion “cavalierly” overruled a 15-year-old statutory construction that the law implicitly requires of a claimant “a good faith job search effort” for no other reason than it (the current Court majority) would have interpreted the statute differently had if been faced with the issue in the first instance.

The immediate effect of this decision is to require all employers and carriers to reevaluate their current and future exposures to pending work disability compensation awards.  For those employers and carriers in the midst of defending a case on the basis that the claimant did not make a good faith effort to seek employment or accept a light duty accommodated job offer within the restrictions, those defenses may now be useless, and the exposure to benefits much higher.

It is anticipated by most observers that the 2010 Kansas Legislature will now be asked by business and industry interests to look into possible statutory revisions which will re-impose a good faith requirement on claimants.  It is also anticipated that labor interests will counter this with resistance at re-imposing the good faith requirement, and at the same time ask the legislature for a long overdue increase in overall benefit compensation caps.  The clear conclusion is the next legislative session is likely to include multiple opposing and competing demands from polar opposite interest groups, all in the context of a continued strained economic environment.  Stay tuned for more updates on this topic!

3.         H1N1 Flu Virus – Employers Get Ready To Respond To Possible Workers Compensation Claims Arising From Claimed Employer Exposure To The H1N1 Flu Virus.

QUESTION: Are employees who contract H1N1 flu virus entitled to workers compensation benefits under Kansas law?

ANSWER:  Probably not, depending upon the facts.   The defense would argue the claim would fall under the Occupational Disease (OD) Act.  In Kansas, prerequisites to a compensable OD claim include: 1) The condition is not an ordinary disease of life to which the general public is or may be exposed outside of the particular employment and which only generally exposes the employee in the work environment; 2) Exposure from a work environment where there is attached a particular and peculiar risk of such disease which distinguishes that employment from other occupations and employments, and where the risk of getting the disease is greater than the otherwise general risk of getting the disease, and 3) That the disease was actually contracted while engaging in work activity.

THEORIES OF COMPENSABILITY TO WATCH FOR: (1) Accidental injury theory that there is a distinct single traumatic exposure and there is some neutral or increased risk associated with the employment that makes the exposure to H1N1 work related.  (2) Occupational Disease theory which focuses on the “means of transmission” in making the exposure to the H1N1 virus occupational.

4.         Is Kansas On The Verge Of “Mandating” Use Of The “ODG” (Official Disability Guidelines)?

Is Kansas on the verge of “mandating” the use of the Official Disability Guidelines? The “Official Disability Guidelines” as announced by the Work Loss Data Institute, are the prevailing evidence-based authority on expected disability and appropriate medical treatment in workers’ compensation and non-occupational disability cases.

A December 19, 2007 Work Loss Data Institute public relations release proclaimed:  “The Kansas workers’ comp regulatory agency, the Department of Labor, Division of Workers’ Compensation (DWC), has adopted Work Loss Data Institute’s “Official Disability Guidelines – Treatment in Workers’ Comp (ODG) as the standard of reference for evidence-based medicine used in caring for injured workers.” (Emphasis supplied).

The Kansas Division of Workers’ Compensation web site has posted, as of this date, the following statement concerning the ODG:  “The Official Disability Guidelines – Treatment in Workers Compensation (ODG), published by the Work Loss Data Institute (WLDI), is to be recognized as the primary standard of reference, at the time of treatment, in determining the frequency and extent of services presumed to be medically necessary and appropriate for compensable injuries under the Kansas Workers’ Compensation Act, or in resolving such matters in the event a dispute arises.” (Emphasis supplied).

The above rather “mandatory” sounding description on the Division’s web page of what Kansas “recognizes” concerning the ODG, does not entirely square with what the Kansas Statutes, Administrative Regulations and published Fee Schedule currently have to say on the subject.

First, there is no reference or mention anywhere in Kansas Workers Compensation Act or Kansas Administrative Regulations relating to workers’ compensation, to Kansas adopting or recognizing the ODG.  Second, if one goes to the current 2008 Kansas Medical Fee Schedule (next to be revised January 1, 2010), one finds on page two, itemized paragraph number “10” the following statement regarding the ODG:  “The Official Disability Guidelines-Treatment in Workers Compensation (ODG) that is published by the Work Loss Data Institute (WLDI) has been adopted as the primary standard of reference for evidence-based medicine used in caring for injured workers. Medical treatment guidelines are not requirements, nor are they mandates; they are to provide advice to help those who make health care decisions regarding the care of injured workers.” (Emphasis supplied).

Clearly the Fee Schedule paragraph quoted above has a specific statement indicating that the ODG is not a requirement or a mandate; instead it is merely advisory.  This language means anyone in Kansas can chose to use the ODG, or ignore the ODG.  As a practical matter in workers compensation litigation before administrative law judges across the State of Kansas, the ODG has not been a source or reference typically used or consulted to assist in the adjudication of medical disputes between employers and claimants before Kansas workers’ compensation administrative law judges.  However, this may be about to change.

At the September 2009 Annual Division of Workers’ Compensation Seminar, there was significant buzz among attendees concerning whether there will be some attempt in the final version of the soon to be revised Kansas Medical Fee Schedule which will go into effect January 1, 2010, to change the current “ODG is only advisory” language, to language making the ODG “mandatory” and “required.”  Another avenue to watch for change is whether proposals will be submitted in the upcoming legislative session to add statutory changes to the Workers Compensation Act explicitly mandating and requiring the use of the ODG in Kansas Workers Compensation.  Stay tuned for more updates on this topic!

May 17, 2007:            Kansas Workers’ Compensation Law Update – Significant 2007 Pro-Employer Change To Kansas Workers’ Compensation Law From The Kansas Supreme Court, But Not From The Kansas Legislature.

 

1.         Results of the 2007 and 2008 Kansas legislative session.

 

The 2007 and 2008 Kansas Legislative Sessions ended with no significant legislative change or amendment to the Kansas Workers’ Compensation Act.  Controversial provisions put forward in past legislative sessions by both management and labor went nowhere in 2007 or 2008.

2.         The 2007 Kansas Supreme Court dramatically reverses its 1931 decision of Honn v. Elliott, 132 Kan. 454, 295 Pac. 719 that was the foundation for the “parallel injury rule” that for 76 years served as the basis for bilateral upper-extremity and lower extremity disabilities to be compensated as a general body disability, instead of separate scheduled disabilities.

 

In  Casco v. Armour Swift-Eckrich, 283 Kan. 508, 154 P.3d. 494 (2007 Kan. LEXIS 235), the Kansas Supreme Court issued a dramatic reversal of its own precedent, abandoning the 76 year old “parallel injury rule” that originated from its 1931 decision in Honn v. Elliott.  In summary, the practical significance of Casco is it will likely result in an immediate and significant reduction in the disability compensation cost for employers of many pending and future bilateral upper-extremity and lower-extremity claims.

In place of a detailed technical legal analysis of the sweeping Casco decision, this limited discussion will focus on the likely practical effect this new change in the law will have on your existing and future bilateral upper-extremity and lower-extremity disability claims.

But first, in an effort to quell the shrill “sky is falling” cries from the claimant’s bar, that the Casco decision has tilted the earth off its axis, and eviscerated the essential “grand compromise” forming the basis for the entire Kansas Workers Compensation Act, remember what Casco does not change.  Casco does not change the unlimited lifetime right to payment of all causally related, reasonable and necessary, medical expenses, for all bilateral upper and lower extremity injuries, free of any co-payments or deductibles for injured workers.  Casco does nothing to ease the burden on employers of the cost of lifetime medical expenses for these injuries.  What the Kansas Supreme Court has said Casco will accomplish is bringing everyone back to a point that was originally intended by the legislature when it established the “schedule” of disabilities as the general rule, and “non-scheduled disabilities” (general body disabilities) as the exception for permanent partial disability compensation.

As a practical matter, the real issue involved here is whether “work disability” compensation benefits are available to injured workers with bilateral upper and lower extremity injuries.  Prior to Casco, the routine bilateral carpal tunnel syndrome injury to a high wage earner in Kansas, such as a highly paid aircraft industry worker who does not return to work after the injury, would typically expose the employer to a maximum $100,000.00 permanent partial general body “work disability compensation” award.  Under Kansas law, a general body disability award qualifies at minimum for an award based on the functional impairment, but that functional impairment percentage is but the compensation floor, for the potential ultimate compensation award.  Work disability compensation far in excess of the amount generated by the functional award would become available to the injured worker if he/she was not working at the time of the regular hearing, and that loss of employment was due to their bilateral carpal tunnel injury and disability.

A common pre – Casco 2007 work disability compensation award for a high wage aircraft or other industrial worker with bilateral carpal tunnel syndrome, which generates a 10% whole body impairment rating from the doctor, where the worker could not return to work after being issued permanent work restrictions, would be something similar to the following benefit computation: 415 maximum weeks of compensation x 50% work disability = 207.5 compensable weeks x $483 maximum compensation rate = $100,222,50.  This amount would automatically be reduced down to the $100,000.00 cap for any permanent partial general body disability.

While upper-extremity injuries generate “scheduled disabilities” under the Kansas statute, following the 76 year old pre – Casco “Honn precedent,” workers compensation administrative law judges would never have given the time of day to an argument by an employer that permanent disability compensation for bilateral carpal tunnel syndrome should be limited to that available to two separate scheduled disabilities.  The pre – Casco bilateral carpal tunnel syndrome awards would have almost always been calculated based on the much more economically generous general body work disability compensation entitlement formula.

After Casco, that same aircraft worker with a bilateral carpal tunnel syndrome injury with a functional impairment rating of 10% to each upper-extremity would likely receive something similar to the following permanent disability compensation benefit computation: Right Upper-Extremity: 190 maximum weeks x 10% impairment = 19 compensable weeks x $483 maximum weekly compensation rate = $9,177.00; Left Upper-Extremity: 190 maximum weeks x 10% impairment = 19 compensable weeks x $483 maximum weekly compensation rate = $9,177.00.  Adding together the right and left awards would result in a total permanent scheduled disability compensation award of $18,354.00.

In summary, this hypothetical illustrates that the pre – Casco bilateral carpal tunnel syndrome disability compensation award would likely cost the high wage paying employer $100,000.00 in permanent disability compensation benefits; whereas, under the Casco separate schedule disability compensation award, the same set of injuries would cost the employer $18,354.00.

One post Casco caveat regarding single injury (as opposed to repetitive micro-trauma injury) bilateral carpal tunnel and other similar combination extremity disability claims – under the plain language of the Kansas permanent total disability compensation statute, such combination disability claims could potentially, under certain fact situations, be presumed to constitute a $125,000.00 permanent total disability compensation award.  It can be expected that in certain currently pending, and future, bilateral upper and lower-extremity cases, claimants will utilize the plain language of the permanent total statute, and attempt to procure a $125,000.00 disability compensation award by invoking the permanent total disability presumption by putting on evidence that the worker is essentially and realistically unemployable from any type of substantial gainful employment because of the injury.  It is critical in such currently pending cases, and future cases, for the employer to put on evidence to rebut the presumption by putting on evidence that the claimant is capable of engaging in some type of substantial and gainful employment.

Employers should also be on the alert for separate body part conditions to be “combined” into a “single injury” via the “secondary injury” theory.  The “secondary injury” theory allows a subsequent, but separate, body part problem to be combined with the original injured body part via the “natural and probable consequence” rule to turn an otherwise inexpensive scheduled disability into a $125,000.00 permanent total disability compensation award.  An example of this would be a left knee injury that later causes an aggravation of a preexisting right knee condition.  Here the claimant would be favoring the original injury to the left knee, resulting in the “secondary” injury to the right knee by overcompensation.  Under the “secondary injury” rule, the right knee problem becomes a compensable injury and the date of this right knee injury relates back to the date of the original left knee injury via the natural and probably consequence doctrine.  The key for employers to avoid this often hidden but dangerous exposure is to always present lay and/or expert testimony that claimant is capable of engaging in some type of substantial and gainful employment.

In short, employers must now pay close attention to any bilateral or combination injury claims to see that they are properly compensated as separate scheduled disabilities, and if they are alleged as a single injury either directly, or indirectly through the “secondary injury” rule, that there is evidence to rebut the permanent total presumption that the claimant is incapable of engaging in any type of substantial and gainful employment.

April 9, 2012:             Kansas Workers’ Compensation Law Update.

1.         Results Of The 2012 Kansas Legislative Session.

As of April 9, 2012, while the Kansas Legislative Session for 2012 is not technically completed, it appears that there will be no significant substantive changes to the Kansas WC Act by the 2012 Legislature. The significant pro-employer revisions enacted in 2011 (see July 7, 2011 update below) remained intact, and are starting to work their way through the WC litigation system with actual administrative decisions (see discussion below) with great results for employers, TPA’s and carriers!

2.         Several Initial Preliminary Hearing Appeals Board Decisions Are Effectuating On The Pro-employer Changes In Kansas’ 2011 Reform Laws, And The Results Are Dramatic And Favorable For Employers And Carriers.

Several initial Kansas Workers Compensation Appeals Board decisions interpreting and applying the 2011 Reform Laws bear out the sea change of outcomes for employers, TPA’s and carriers doing business in Kansas. Below are several examples.

RECKLESS VIOLATION OF SAFETY RULE/REGULATION DEFENSE:

Price v. Robert Todd Baker d/b/a Sunshine Lawn & Tree Service, Docket No. 1,058,417 (February 21, 2012).  Claimant was a tree trimmer and sustained injury when he fell out of a tree hitting a power line and then falling to the ground.  The employer provided claimant with safety equipment including a safety harness, lanyard and rope.  Claimant appeared to be an experienced climber and was seen in the days prior to the accident, properly using the safety equipment.  A supervisor testified that the owner had caught claimant on one occasion not using the safety equipment, and reprimanded the claimant.  The employer denied claimant’s entitlement to workers compensation benefits because just after the accident, claimant was caught with his safety equipment in a position evidencing he had not been using it just prior to the fall; therefore the fall was caused by claimant failing to properly use his safety equipment.

New law K.S.A. 44-501(a)(1) provides:

Compensation for an injury shall be disallowed if such injury to the employee results from … (D) the employee’s reckless violation of their employer’s workplace safety rules or regulations. (Emphasis supplied)

The Administrative Law Judge (ALJ) awarded compensation over the employer’s defenses applying “pre-reform law” principles and old law case precedent.  Basically the ALJ refused to grant the employer’s defense because the employer failed to prove that the claimant’s actions in  failing to use the safety equipment did not amount to a “willful” refusal to use the safety equipment.  This is in fact the way the vast majority of cases were decided under the “old law” statutory language, with the employer never able to effectuate on the defense because the hurdle to achieve the defense was place so high by the application of the requirement that the employer had to prove that the claimant’s refusal to use the safety equipment was “willful.”  In practice, this “willfulness”  proof requirement necessary to succeed on the old law defense was almost like having to prove the employee intended to injure himself – a threshold almost never impossible for an employer to prove.

On appeal to the Kansas Workers Compensation Appeals Board, the ALJ’s compensability award was reversed and all compensation was denied for purpose of preliminary hearing.  The Appeals Board member writing the decision correctly cited to the “new law” provision quoted above and consulted other Kansas appellate court decisions for an interpretation of the proof requirements under the word “reckless.”  “Reckless” conduct has been defined as conduct that shows a realization of the imminence of danger and a conscious and unjustifiable disregard of that danger.  The Appeals Board member applied this lesser standard to the employer’s defense and concluded under the facts that claimant’s act of failing to use the provided safety equipment constituted a reckless violation of the employer’s workplace safety rule concerning the use of safety equipment.  All compensation was denied for purposes of preliminary hearing.

Analysis of the application of this new “reckless disregard” defense: The Price case summarized above illustrates the pro-employer sea change taking place in Kansas under our 2011 reform laws.  Claimant Price made a conscious decision not to use the safety equipment his employer safety rules required him to use, which resulted in him sustaining personal injury on the job.  Why should the employer in this case be punished by having to pay workers compensation benefits when the cause of the accidental injury was the claimant’s conscious choice to not use the safety equipment provided by the employer?  Under the “old law” principles and concepts existing in Kansas before our 2011 reforms, claimant Price would have surely been awarded benefits and the employer would consequently be penalized by having his business costs go up, simply because this claimant made the conscious decision to not use safety equipment the employer provided him, which if used, would have prevented the accident from happening.  The purpose and intent of the 2011 reforms was in part to bring back some reason and sanity to Kansas workers compensation, and the Price case illustrates that the Appeals Board is in fact applying those reforms as intended.

PREVAILING FACTOR CAUSE DEFENSE:

In Lowrey v. USD 259, Docket No. 1,056,645 (November 21, 2011), claimant alleged he fell off of a ladder hitting and injuring his left knee.   Claimant denied preexisting left knee problems or treatment, and the employer agreed it could not prove claimant suffered from prior left knee injury or pain.  However, a post accident MRI of the left knee was reviewed by the authorized treating doctor, and he opined in a written report (but was not deposed) that in addition to a meniscus tear, claimant clearly had some degenerative changes going on in the left knee as shown on MRI.  The doctor also wrote:  “I explained to him that this is pre-existing…”

Kansas’ new reform laws contain multiple new references to a new medical causation standard (prevailing factor cause) which replaces the old “simple aggravation” rule.  Under the old law “simple aggravation” rule, the only thing the claimant had to prove was that the work accident caused some “aggravation” of a pre-existing condition.  This “simple aggravation” rule was almost impossible for employer’s to defend against, and prevail.

New law K.S.A. 44-508 now specifically requires the claimant must prove that the work accident is the prevailing factor causing the injury, medical condition, and disability or impairment.  “Prevailing” as it relates to the term “factor” means the primary factor in relation to any other factor.

The ALJ in Lowery awarded preliminary hearing compensation benefits including the cost medical treatment, without any analysis or application of the new law statutory proof requirement that the work accident must be the prevailing factor cause of the need for treatment.

On appeal, the Appeals Board member reversed the ALJ’s award of benefits, and denied all compensation benefits including medical treatment for purpose of preliminary hearing.  The basis for the denial of benefits was that claimant failed in his burden of proof of proving that the work accident was the prevailing factor cause of the need for medical treatment.

Analysis of the application of this new “prevailing factor cause” defense:  The Lowery case summarized above illustrates another sea change of Kansas workers compensation – the death of the “simple aggravation” causation rule.  Prior to the new reform law “prevailing factor cause” defense, it was virtually impossible for an employer to prevail on a defense that the work accident did not really cause “an injury” because the “injury” proof requirement was met by the claimant simply testifying that the work accident caused “an aggravation” of a pre-existing condition (no pain before, but pain now after the work aggravation).  There is absolutely no question under the “simple aggravation” test that the outcome of claimant Lowery’s preliminary hearing would have been different, and he would have received a preliminary award of benefits.  However, with the new law prevailing factor cause proof requirement, the Lowery outcome suggests to Kansas claimants that they better come to court with at least some credible medical evidence or opinion that the work accident was the prevailing or primary factor cause of the need for medical treatment, or risk that their claim will be denied for failure to meet the burden of proof requirement.  This is a huge and significant pro-employer change arising from the 2011 reform laws.

3.         New Director Of Workers Compensation Appointed.

Anne Haught was recently appointed to replace former Director Larry Karns, as the new Kansas Director of Workers Compensation.  Anne replaces former Director Karns and continues the task of properly and fairly administering the Kansas Division of Workers Compensation in its implementation of the new law reforms.

July 7, 2011:               Kansas Workers’ Compensation Law Update.

1.         Results Of The 2011 Kansas Legislative Session.

Significant new pro-employer workers’ compensation law reforms passed the Kansas Legislature in 2011 and were signed into law by Governor Sam Brownback.  Sweeping new pro-employer workers’ compensation laws went into effect in Kansas for dates of accident or repetitive trauma occurring after May 15, 2011.

In essence, the new law reforms sweeten the pot at the finish line for claimants by modestly increasing our maximum benefit caps (for example lifetime permanent total cap went from $125,000 to $155,000 – relatively speaking, still a very low perm total exposure).  However, the new law reforms contain many new defenses which will likely act as hurdles preventing many more claimants from getting to that finish line.

In short, fewer claimants will successfully establish compensable claims, but those that do, could see slightly more money in the end.  For employers and carriers, while there will be increased litigation costs on the short term effectuating all the new defenses, over the long term, these new law reforms will likely reduce the overall number of claims and costs for employers.

These new statutory reforms legislatively reverse the holdings of four prior appellate court decisions discussed in previous Kansas Law Updates found below:  Casco, discussed below in the May 17, 2007 update was reversed by these new law reforms (this change is one of the few that is pro-employee); Bergstrom, discussed below in the September 25, 2009 update, was reversed by the new law reforms (this reform law reversal is really good for employers); and both the Redd and Mitchell cases discussed in the October 5, 2010 update, were also reversed by the new law reforms (again these new law reform reversals are pro-employer changes).

It is strong suggested that any employers, adjusters, claims professionals consult with legal counsel regarding assessing compensability and exposure of all Kansas claims with dates of accident or repetitive trauma occurring after May 15, 2011.  It is a whole new ballgame in Kansas after May 15, 2011 and the changes are so sweeping and comprehensive that professional assistance is required to benefit from all the new changes.

A very brief list of some of the most significant changes includes:

  • Multiple new compensability defenses including but not limited to:  new definitions for accident, injury and repetitive trauma which will provide new proof requirements for injured workers; sweeping new causation defenses (prevailing factor test) which heighten the worker’s proof requirements to establish compensability; new defense where worker’s injury results from reckless violation of employer’s work place safety rules and regulations; new beefed up horseplay/fighting on the job defense; new lack of timely notice rules; new easier to establish drug/alcohol impairment defense affording more chance of success for a complete denial of benefits.
  • New private insurer and self-insured employer obligation to issue written notice to all workers receiving TEMPORARY disability compensation benefits concerning fraud.
  • Multiple new defenses related to preexisting conditions, impairments and prior work restrictions which allow employers/carriers more opportunity for compensation denials, subtractions and offsets.
  • Multiple new defenses for employers against TTD liability where the worker has voluntarily terminated or been terminated for cause or refused accommodated work.
  • Increased importance and legal support of authorized treating physician opinions over worker’s hired gun doctor opinions in TTD entitlement context.
  • New average weekly wage calculation method and rules.
  • New limits on, and increased proof hurdles for, workers try to establish permanent total disability compensation.
  • New permanent partial disability compensation rule for calculating value of bilateral carpal tunnel syndrome and other bilateral injuries – reversing Casco decision.
  • Multiple new defenses to work disability compensation claims including higher hurdles (new minimum impairment threshold) for worker to claim work disability entitlement, and elimination of work disability compensation for undocumented workers.
  • Enhanced methods for employers to get slow moving or dormant cases dismissed.
  • Significant new defenses to future medical benefits exposure and new ways to get future medical liability cut off.
  • Several pro-worker new law changes including modestly increased benefit caps, elimination of the timely written claim statute of limitation and conversion of bilateral carpal tunnel type cases back to a general body disability allowing for work disability compensation potential.

2.         New Director of Workers Compensation appointed:  Larry           Karns, one of the drafters of the pro-employer new law reforms,         was appointed Kansas Director of Workers Compensation.  This           really concludes the “pro-employer” sweep of a new pro-     employer set of laws, and a new pro-employer administrator to      see that the new law reforms are properly and fairly   administered and implemented.

October 5, 2010: Kansas Workers’ Compensation Law Update.

1.         Results Of The 2010 Kansas Legislative Session.

In summary, there were no substantial changes to the law by the Kansas Legislature in 2010.  The 2010 Kansas Legislative Session ended much like 2007, 2008 and 2009 with no significant legislative change or amendments to the Kansas Workers’ Compensation Act.  Labor groups and the claimants’ bar continue to push to increase Kansas’ low benefit caps.  Business and industry sought to decrease the cost of workers’ compensation.  There were competing bills introduced, but nothing significant was passed.  The end result was no legislative change favoring either side.  The pro-business Republican 2010 Legislature did not aggressively move to try to change laws in favor of employers because the current Governor is a Democrat, and would likely have vetoed any sweeping reforms.  That scenario is likely to change in the 2011 legislative session.  Kansans will likely elect U.S. Senator Sam Brownback as the new Governor in the upcoming November 2010 election.  If this occurs as is expected, both the House and Senate will be controlled by Republicans and the Governor will be Republican.  Many in Kansas are projecting that this is the optimum political environment and opportunity for employers to pass pro-business legislation which would most certainly be signed into law by the next Governor.  Stay tuned for updates after the 2011 legislative session ends as there most likely will be good news for employers in Kansas.

2.         Significant New Legal Changes In 2010 Continue To Come From The Kansas Supreme Court.

Two recently released Kansas Supreme Court opinions will likely continue to push employer workers compensation costs up. Last year’s update regarding the Bergstrom case predicted increased employer settlement and award disability compensation costs.  While there are no official statistics published yet, most employers, observers and practitioners would agree that the effect of the Bergstrom decision discussed in 2009’s update increased employer settlement and disability compensation award payments.

Two new decisions issued by the Kansas Supreme Court in September, 2010 will likely continue to push up employer workers compensation costs.  These new decisions are very lengthy and space allows for only a very brief summary.

In the most pro-claimant outcome, the Kansas Supreme Court in Redd v. Kansas Truck Center, No. 101,137 (September 10, 2010), ruled that for multiple injuries to a single scheduled member (such as a wrist and elbow surgery on the same arm) the workers compensation judge must now make separate awards for each injury to that scheduled member.  The practical result of this decision is that before a wrist and elbow injury would be computed based on a combined impairment to the full arm.  Now, instead of one award for both injuries to the full arm, there will be two separate awards issued from the one accident.  It is possible that in some fact situations, this new “multiple award” decision will actually compute to a lower actual cost to the employer.  Employers and adjuster are cautioned to seek advice of counsel to update exposure estimates on currently pending and new scheduled injury claim.

Redd also set forth a new rule regarding $50,000 “functional impairment cap.”   The new rule says that the cap does not apply where the worker has been paid even the slightest amount of TTD benefits.  Thus, in certain circumstances, an employer will want to carefully evaluate potential challenges to TTD benefit entitlement where the claimant is a high wage earner and potentially subject to future application of the cap.

Finally, Redd clarified that the new “appellate standard of review” for the appellate courts which allows for more scrutiny of the fact findings of the Workers Compensation Appeals Board applies to Board decisions issued after July 1, 2009.  For any appeals to the Court of Appeals or Supreme Court from Board decisions issued prior to July 1, 2009, the more limiting “substantial competent evidence” standard from the old statute is still applicable.

Turning then to the other new Kansas Supreme Court decision in Mitchell v. Petsmart, Inc., No. 99,528 (September 10, 2010), we find a “mixed benefit” opinion from the Court with elements that are both favorable and unfavorable to employers. The pro-employer ruling in Mitchell is the smack down by the Supreme Court of the often championed argument by claimants that the administrative regulation (K.A.R. 51-7-8) which allowed for, in the computation of permanent disability compensation benefits, a subtraction of the number of weeks of TTD benefit already paid to the claimant.  The claimant’s bar has for several years tried to argue for a statutory interpretation that would effectively allow for double-dipping – taking TTD benefit weeks and then also taking PPD compensation for those same weeks.  The Kansas Supreme Court affirmed the position long held by employers and carriers that the regulation preventing double dipping is clearly within the authority granted by the statutory language.

The remaining two Mitchell rules are characterized here as negative to employers and carriers because they fly in the face of the plain language of the workers compensation act and will likely increase employer and carrier defense litigation costs because they will increase workers compensation litigation costs.  The first of these two rulings is the re-establishment of the “bright-line rule” for determining date of accidental injury in repetitive use micro-trauma injury claims such as carpal tunnel syndrome cases.  The re-established “bright-line rule” for determining date of accidental injury is “the last date worked.”  At first glance this would appear to be a helpful clarification of the very confusing and cumbersome statutory legal test.  The problem is that this new “bright-line rule” for determining date of accidental injury is not found in, and is contrary to, the plain language of the statutory test.  So, the administrative law judges are now faced with the decision, in every repetitive use injury case, of deciding which rule to follow – the “bright-line rule” of last date worked as provided by the Mitchell decision, or the plain language of K.S.A. 44-508(d) which does not contain as one of the choices, the last date worked, as a date of accidental injury.  Clearly this will cause less certainty and more litigation.

The other carrier unfriendly language in Mitchell which is likely to increase defense litigation costs is the language purporting to create a new barrier for carriers to litigate their disputes as to liability for payment of benefits in the workers compensation litigation.  The purported new rule is that where there are two or more carriers with separate coverage periods spanning the claimed repetitive use injury claim, those carriers will now be forced to take their “carrier verses carrier” dispute to the local district court for determination.  Workers compensation judges are purportedly allowed to issue “joint and several liability” orders against multiple carriers in a claim.  The result is that both carriers are jointly and severally liable for all the benefits ordered paid to the claimant.  This can, and likely will, create significant confusion and problems for carriers in assessing their exposure and reserves.  There are also multiple potential pitfalls to good companies who are assessed joint and several liability with not-so-good companies who are chronically late or tardy in paying benefits.  It is totally conceivable that Insurance Company A which diligently pays its compensation claims will be assessed penalty awards for the late payments of Insurance Company B.  Furthermore, to try to get out from this situation, Insurance Company A must purportedly file a separate action in a state district court to adjudicate its liability to pay benefits to claimant.  The obvious first question is where did this new rule come from and what statutory authority exists for a compensation judge to order “joint and several liability?”  The answer is that there is no statutory authority in the plain language of the Kansas Workers Compensation Act and, in fact, the Kansas Supreme Court technically dodged this question in the Mitchell decision saying that the precise issue of statutory authority for joint and several liability was not properly raised and preserved by the parties in Mitchell.  In summary, this joint and several liability exposure combined with the directive to take your carrier verses carrier disputes to district court is bound to create new and additional confusion and litigation in currently pending and new workers compensation repetitive use injury claims.

3.         Update On Kansas’ Move To Mandate ODG Guidelines.

The 2009 update below, asked the question of whether Kansas was on the verge of mandating the ODG (Official Disability Guidelines).  The answer in 2010 was no, Kansas did not mandate use of the ODG in workers compensation.

As reported below, it appeared in late 2009 that a push was being made to mandate the use of the ODG through the Kansas Medical Fee Schedule update.  However, it turned out that the push to “mandate” use of the ODG did not go forward and was not included in the January 1, 2010 Kansas Medical Fee Schedule update.  Any move to “mandate” use of the ODG in Kansas will likely occur via legislative changes in 2011.  Stay tuned for updates after the 2011 legislative session.

4.         New Interim Kansas Director Of Workers Compensation.

In September, 2010, Kansas Division of Workers Compensation Director, Paula Greathouse, resigned and Assistant Director Seth Valerius was appointed as Interim Director to replace her.

September 25, 2009: Kansas Workers’ Compensation Law Update.

1.         Results Of The 2009 Kansas Legislative Session.

In summary, there were no substantial changes to the law by the Kansas Legislature in 2009.  The 2009 Kansas Legislative Session ended much like 2008, with no significant legislative change or amendment to the Kansas Workers Compensation Act.  Labor groups and the claimants’ bar attempted to increase Kansas’ low benefit caps.  Business and industry attempted to hold the line and avoid any legislative roll back of the Kansas Supreme Court’s sweeping 2007 employer friendly strict constructionist decision in the Casco case, discussed below in the 2007 summary.  The end result was no legislative changes favoring either side.  The predominantly pro-business Republican 2009 House and Senate resisted any attempts to amend the workers compensation laws so as to avoid any change in the law which would have the effect of increasing workers compensation costs to Kansas businesses, as they are already struggling in tough economic times.

2.         SIZZLING HOT NEW TOPIC IN KANSAS – New judicially created increase in permanent disability compensation exposure for employers and carriers under Kansas law.

On September 4, 2009 the Kansas Supreme Court issued a sweeping decision in Bergstrom v. Spears Manufacturing Company et. al. (http://www.kscourts.org/Cases-and-Opinions/opinions/supct/2009/20090904/99369.htm)  which will have an immediate impact on current exposure estimates in many pending, and future, general body disability injury cases.  The Kansas Supreme Court’s split decision in Bergstrom continues the same analytical movement departing from prior judicial precedent via a re-examination of previous statutory construction efforts, similar to what was seen in the 2007 Casco decision (discussed below).  However, the practical outcome of this version of the judicial statutory construction tsunami is the opposite of the outcome of CascoCasco created an immediate reduction in work disability compensation exposure for employers, whereas Bergstrom will likely create an immediate increase in the work disability compensation exposure for employers.

Highly summarized, Bergstrom was a production janitor for a manufacturer of plastic plumbing parts.  She sustained a back injury (general body disability claim) after picking up a heavy garbage can.  Her employer tried to provide her with accommodated work within her restrictions after her injury.

Unfortunately, claimant continued to experience pain during the several attempts to return to work and on the last attempt was only able to work three hours and then had to quit, according to her, due to the pain caused by the accommodated work activities.  She left work and was subsequently terminated by the employer.

The ALJ initially awarded a permanent total disability award ($125,000).  The Appeals Board ultimately reduced this permanent total award to a much smaller dollar award limited to claimant’s 10% functional impairment, on the rationale that Bergstom did not make a “good faith effort” to continue working in the accommodated position provided by the employer.  The Bergstrom majority threw out the “functional impairment” only award of the Board, and remanded the case back to the Board for what is likely to be a significant increase in the permanent disability compensation award owed by the employer.

The rationale of the Bergstrom majority was that the functional only award by the Board relied on the same inaccurate assumption made by previous judicial interpretations, that the work disability statute contained an implicit “good faith job search effort” requirement on the injured worker.  The majority opinion stated that it could not find anywhere in the plain language of the work disability statute, a “good faith” requirement imposed upon claimants by the legislature.  The majority opinion noted that the plain language of the statute contains no explicit requirement from the legislature that claimants are required to attempt to work or look for work.

This of course raises the question, to even the most casual observer, of to what degree the Kansas Supreme Court now expects the Kansas legislature, when writing or amending statutes, to set forth explicitly in the plain language of the statute, basic societal norms and applicable common law principles.  Here the obvious societal norm is a mitigation of damages requirement – that workers are expected to be able to show a good faith effort in returning to work before asking for an award of benefits because they are not working.

Common sense would appear to dictate that at some base level, the Kansas Supreme Court should allow certain commonly agreed to societal norms and legal principles to be “read into” statutes, including the societal norm that able bodied individuals are expected to work and if they voluntarily choose to avoid work, even the “plain language” of our laws should not be read to allow or require the disability compensation system to reward behavior amounting to sloth.  The Bergstrom majority’s analysis and “strict constructionist” fervor appear to divorce the application of common sense from the act of construing statutory language.

According to the Bergstrom majority decision, the Court will not read into the statute something not readily expressed therein.  The dissenting opinion written by Chief Justice McFarland expressed the view that the result of the judicial exercise of statutory construction analysis must always occur in the context of respect for the established judicial principle of stare decisis (adherence to judicial precedent so as to promote stability and predictability in the law).  Chief Justice McFarland asserted that the majority opinion “cavalierly” overruled a 15-year-old statutory construction that the law implicitly requires of a claimant “a good faith job search effort” for no other reason than it (the current Court majority) would have interpreted the statute differently had if been faced with the issue in the first instance.

The immediate effect of this decision is to require all employers and carriers to reevaluate their current and future exposures to pending work disability compensation awards.  For those employers and carriers in the midst of defending a case on the basis that the claimant did not make a good faith effort to seek employment or accept a light duty accommodated job offer within the restrictions, those defenses may now be useless, and the exposure to benefits much higher.

It is anticipated by most observers that the 2010 Kansas Legislature will now be asked by business and industry interests to look into possible statutory revisions which will re-impose a good faith requirement on claimants.  It is also anticipated that labor interests will counter this with resistance at re-imposing the good faith requirement, and at the same time ask the legislature for a long overdue increase in overall benefit compensation caps.  The clear conclusion is the next legislative session is likely to include multiple opposing and competing demands from polar opposite interest groups, all in the context of a continued strained economic environment.  Stay tuned for more updates on this topic!

3.         H1N1 Flu Virus – Employers Get Ready To Respond To Possible Workers Compensation Claims Arising From Claimed Employer Exposure To The H1N1 Flu Virus.

QUESTION: Are employees who contract H1N1 flu virus entitled to workers compensation benefits under Kansas law?

ANSWER:  Probably not, depending upon the facts.   The defense would argue the claim would fall under the Occupational Disease (OD) Act.  In Kansas, prerequisites to a compensable OD claim include: 1) The condition is not an ordinary disease of life to which the general public is or may be exposed outside of the particular employment and which only generally exposes the employee in the work environment; 2) Exposure from a work environment where there is attached a particular and peculiar risk of such disease which distinguishes that employment from other occupations and employments, and where the risk of getting the disease is greater than the otherwise general risk of getting the disease, and 3) That the disease was actually contracted while engaging in work activity.

THEORIES OF COMPENSABILITY TO WATCH FOR: (1) Accidental injury theory that there is a distinct single traumatic exposure and there is some neutral or increased risk associated with the employment that makes the exposure to H1N1 work related.  (2) Occupational Disease theory which focuses on the “means of transmission” in making the exposure to the H1N1 virus occupational.

4.         Is Kansas On The Verge Of “Mandating” Use Of The “ODG” (Official Disability Guidelines)?

Is Kansas on the verge of “mandating” the use of the Official Disability Guidelines? The “Official Disability Guidelines” as announced by the Work Loss Data Institute, are the prevailing evidence-based authority on expected disability and appropriate medical treatment in workers’ compensation and non-occupational disability cases.

A December 19, 2007 Work Loss Data Institute public relations release proclaimed:  “The Kansas workers’ comp regulatory agency, the Department of Labor, Division of Workers’ Compensation (DWC), has adopted Work Loss Data Institute’s “Official Disability Guidelines – Treatment in Workers’ Comp (ODG) as the standard of reference for evidence-based medicine used in caring for injured workers.” (Emphasis supplied).

The Kansas Division of Workers’ Compensation web site has posted, as of this date, the following statement concerning the ODG:  “The Official Disability Guidelines – Treatment in Workers Compensation (ODG), published by the Work Loss Data Institute (WLDI), is to be recognized as the primary standard of reference, at the time of treatment, in determining the frequency and extent of services presumed to be medically necessary and appropriate for compensable injuries under the Kansas Workers’ Compensation Act, or in resolving such matters in the event a dispute arises.” (Emphasis supplied).

The above rather “mandatory” sounding description on the Division’s web page of what Kansas “recognizes” concerning the ODG, does not entirely square with what the Kansas Statutes, Administrative Regulations and published Fee Schedule currently have to say on the subject.

First, there is no reference or mention anywhere in Kansas Workers Compensation Act or Kansas Administrative Regulations relating to workers’ compensation, to Kansas adopting or recognizing the ODG.  Second, if one goes to the current 2008 Kansas Medical Fee Schedule (next to be revised January 1, 2010), one finds on page two, itemized paragraph number “10” the following statement regarding the ODG:  “The Official Disability Guidelines-Treatment in Workers Compensation (ODG) that is published by the Work Loss Data Institute (WLDI) has been adopted as the primary standard of reference for evidence-based medicine used in caring for injured workers. Medical treatment guidelines are not requirements, nor are they mandates; they are to provide advice to help those who make health care decisions regarding the care of injured workers.” (Emphasis supplied).

Clearly the Fee Schedule paragraph quoted above has a specific statement indicating that the ODG is not a requirement or a mandate; instead it is merely advisory.  This language means anyone in Kansas can chose to use the ODG, or ignore the ODG.  As a practical matter in workers compensation litigation before administrative law judges across the State of Kansas, the ODG has not been a source or reference typically used or consulted to assist in the adjudication of medical disputes between employers and claimants before Kansas workers’ compensation administrative law judges.  However, this may be about to change.

At the September 2009 Annual Division of Workers’ Compensation Seminar, there was significant buzz among attendees concerning whether there will be some attempt in the final version of the soon to be revised Kansas Medical Fee Schedule which will go into effect January 1, 2010, to change the current “ODG is only advisory” language, to language making the ODG “mandatory” and “required.”  Another avenue to watch for change is whether proposals will be submitted in the upcoming legislative session to add statutory changes to the Workers Compensation Act explicitly mandating and requiring the use of the ODG in Kansas Workers Compensation.  Stay tuned for more updates on this topic!

May 17, 2007:            Kansas Workers’ Compensation Law Update – Significant 2007 Pro-Employer Change To Kansas Workers’ Compensation Law From The Kansas Supreme Court, But Not From The Kansas Legislature.

1.         Results of the 2007 and 2008 Kansas legislative session.

The 2007 and 2008 Kansas Legislative Sessions ended with no significant legislative change or amendment to the Kansas Workers’ Compensation Act.  Controversial provisions put forward in past legislative sessions by both management and labor went nowhere in 2007 or 2008.

2.         The 2007 Kansas Supreme Court dramatically reverses its 1931 decision of Honn v. Elliott, 132 Kan. 454, 295 Pac. 719 that was the foundation for the “parallel injury rule” that for 76 years served as the basis for bilateral upper-extremity and lower extremity disabilities to be compensated as a general body disability, instead of separate scheduled disabilities.

In Casco v. Armour Swift-Eckrich, 283 Kan. 508, 154 P.3d. 494 (2007 Kan. LEXIS 235), the Kansas Supreme Court issued a dramatic reversal of its own precedent, abandoning the 76 year old “parallel injury rule” that originated from its 1931 decision in Honn v. Elliott.  In summary, the practical significance of Casco is it will likely result in an immediate and significant reduction in the disability compensation cost for employers of many pending and future bilateral upper-extremity and lower-extremity claims.

In place of a detailed technical legal analysis of the sweeping Casco decision, this limited discussion will focus on the likely practical effect this new change in the law will have on your existing and future bilateral upper-extremity and lower-extremity disability claims.

But first, in an effort to quell the shrill “sky is falling” cries from the claimant’s bar, that the Casco decision has tilted the earth off its axis, and eviscerated the essential “grand compromise” forming the basis for the entire Kansas Workers Compensation Act, remember what Casco does not change.  Casco does not change the unlimited lifetime right to payment of all causally related, reasonable and necessary, medical expenses, for all bilateral upper and lower extremity injuries, free of any co-payments or deductibles for injured workers.  Casco does nothing to ease the burden on employers of the cost of lifetime medical expenses for these injuries.  What the Kansas Supreme Court has said Casco will accomplish is bringing everyone back to a point that was originally intended by the legislature when it established the “schedule” of disabilities as the general rule, and “non-scheduled disabilities” (general body disabilities) as the exception for permanent partial disability compensation.

As a practical matter, the real issue involved here is whether “work disability” compensation benefits are available to injured workers with bilateral upper and lower extremity injuries.  Prior to Casco, the routine bilateral carpal tunnel syndrome injury to a high wage earner in Kansas, such as a highly paid aircraft industry worker who does not return to work after the injury, would typically expose the employer to a maximum $100,000.00 permanent partial general body “work disability compensation” award.  Under Kansas law, a general body disability award qualifies at minimum for an award based on the functional impairment, but that functional impairment percentage is but the compensation floor, for the potential ultimate compensation award.  Work disability compensation far in excess of the amount generated by the functional award would become available to the injured worker if he/she was not working at the time of the regular hearing, and that loss of employment was due to their bilateral carpal tunnel injury and disability.

A common pre – Casco 2007 work disability compensation award for a high wage aircraft or other industrial worker with bilateral carpal tunnel syndrome, which generates a 10% whole body impairment rating from the doctor, where the worker could not return to work after being issued permanent work restrictions, would be something similar to the following benefit computation: 415 maximum weeks of compensation x 50% work disability = 207.5 compensable weeks x $483 maximum compensation rate = $100,222,50.  This amount would automatically be reduced down to the $100,000.00 cap for any permanent partial general body disability.

While upper-extremity injuries generate “scheduled disabilities” under the Kansas statute, following the 76 year old pre – Casco “Honn precedent,” workers compensation administrative law judges would never have given the time of day to an argument by an employer that permanent disability compensation for bilateral carpal tunnel syndrome should be limited to that available to two separate scheduled disabilities.  The pre – Casco bilateral carpal tunnel syndrome awards would have almost always been calculated based on the much more economically generous general body work disability compensation entitlement formula.

After Casco, that same aircraft worker with a bilateral carpal tunnel syndrome injury with a functional impairment rating of 10% to each upper-extremity would likely receive something similar to the following permanent disability compensation benefit computation: Right Upper-Extremity: 190 maximum weeks x 10% impairment = 19 compensable weeks x $483 maximum weekly compensation rate = $9,177.00; Left Upper-Extremity: 190 maximum weeks x 10% impairment = 19 compensable weeks x $483 maximum weekly compensation rate = $9,177.00.  Adding together the right and left awards would result in a total permanent scheduled disability compensation award of $18,354.00.

In summary, this hypothetical illustrates that the pre – Casco bilateral carpal tunnel syndrome disability compensation award would likely cost the high wage paying employer $100,000.00 in permanent disability compensation benefits; whereas, under the Casco separate schedule disability compensation award, the same set of injuries would cost the employer $18,354.00.

One post Casco caveat regarding single injury (as opposed to repetitive micro-trauma injury) bilateral carpal tunnel and other similar combination extremity disability claims – under the plain language of the Kansas permanent total disability compensation statute, such combination disability claims could potentially, under certain fact situations, be presumed to constitute a $125,000.00 permanent total disability compensation award.  It can be expected that in certain currently pending, and future, bilateral upper and lower-extremity cases, claimants will utilize the plain language of the permanent total statute, and attempt to procure a $125,000.00 disability compensation award by invoking the permanent total disability presumption by putting on evidence that the worker is essentially and realistically unemployable from any type of substantial gainful employment because of the injury.  It is critical in such currently pending cases, and future cases, for the employer to put on evidence to rebut the presumption by putting on evidence that the claimant is capable of engaging in some type of substantial and gainful employment.

Employers should also be on the alert for separate body part conditions to be “combined” into a “single injury” via the “secondary injury” theory.  The “secondary injury” theory allows a subsequent, but separate, body part problem to be combined with the original injured body part via the “natural and probable consequence” rule to turn an otherwise inexpensive scheduled disability into a $125,000.00 permanent total disability compensation award.  An example of this would be a left knee injury that later causes an aggravation of a preexisting right knee condition.  Here the claimant would be favoring the original injury to the left knee, resulting in the “secondary” injury to the right knee by overcompensation.  Under the “secondary injury” rule, the right knee problem becomes a compensable injury and the date of this right knee injury relates back to the date of the original left knee injury via the natural and probably consequence doctrine.  The key for employers to avoid this often hidden but dangerous exposure is to always present lay and/or expert testimony that claimant is capable of engaging in some type of substantial and gainful employment.

In short, employers must now pay close attention to any bilateral or combination injury claims to see that they are properly compensated as separate scheduled disabilities, and if they are alleged as a single injury either directly, or indirectly through the “secondary injury” rule, that there is evidence to rebut the permanent total presumption that the claimant is incapable of engaging in any type of substantial and gainful employment.

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L.D. 1913 represents the first significant amendment of the Maine Workers’ Compensation Act in twenty years, and a much lauded provision of the new law is the amendment of Section 205(9)(B)(2).  As it read prior to amendment, an Employer/Insurer could successfully establish the right to terminate payment of indemnity benefits due to the running of the 520 week period, but be compelled to continue paying indemnity benefits,  Decree notwithstanding, because Section 205(9)(B)(2) specifically directed an employer/insurer to continue paying benefits during the pendency of an appeal.  As one can imagine, ever losing employee appealed the Decree, and so continued the flow of indemnity for as long as it took the Law Court to reject the appeal.

Making matters worse, the right to recover “overpayments” paid pending appeal, found under 39-A M.R.S.A. Section 324(1), exists only for employers/insurers who are paying some level of benefits pursuant to an award of benefits.  So for an employer/insurer who successfully reduces the level of partial indemnity but has to continue paying the pre-Decree level pending the outcome of the appeal, there is a right to recover the overpayment made during appeal, but for an employer/insurer who has prevailed in establishing the cap and terminating indemnity payments, there is no right to recover the windfall to the employee.

L.D. 1913 has fixed this problem by amending the language of Section 205(9)(B)(2) to now allow suspension of indemnity benefits as soon as the Hearing Officer rules on the petition.  An employer/insurer is also now specifically permitted to reduce or discontinue benefits pursuant to a  Decree pending a  motion for further findings of fact or pending an appeal.   These amendments are effective as of August 30, 2012, so any matter decided on or after that date involving a determination of the applicability of the cap will be governed by this new, much more reasonable and business-friendly provision.

Maine Workers’ Compensation Updates, December Edition
1. After Eighteen Long Years, At Last A Medical Fee Schedule That Addresses Hospital Costs
The Maine Workers’ Compensation Board has finally succeeded in crafting a Medical Fee Schedule that addresses the ever-increasing costs of work-related in-patient, out-patient, ambulant care and surgical center costs. Ever since the massive overhaul of the law in 1992 (effective 1/1/93) Maine has labored without a Fee Schedule addressing these critical areas in the health care billing spectrum. With the new rule, adopted on December 11, 2011, facility costs for workers’ compensation payers will be brought into line with those costs paid by private 3rd party payers. The hope is that the new Fee Schedule will reduce costs in the workers’ compensation system, particularly for facility fees.
The Board is continuing to analyze data on private 3rd party payer rates for professional services and hopefully will have updated recommendations on that topic in the New Year.

2. Changes afoot for unemployed injured workers
39-A M.R.S.A. §214 has long contained a little-if-ever used provision requiring insurance carriers or self-insureds to notify the Bureau of Employment Services of the name of any injured employee who is unemployed and to whom the insurer or self-insured is paying workers’ compensation benefits. Executive Director Paul Sighinolfi has communicated his intent to begin requiring compliance with this provision, as well as the companion provision directing the Bureau of Employment Services to give priority to finding employment for such persons and to notify the Board, in writing, if any such person refuses a “bona fide offer of reasonable employment”. Under Section 214(1), refusal of a “bona fide offer of reasonable employment” subjects the injured worker to the risk of a suspension of indemnity benefits “during the period of refusal”, a fairly significant incentive to encourage return to work. A group is being organized affiliated with the Workers’ Compensation Coordinating Council to brainstorm ways to ensure the most reasonable and cost-effective application of these provisions, and to avoid any unintended pitfalls for employers and insurers subject to the provisions of the Maine Workers’ Compensation Act.

NCCI has announced that it is filing with the Maine Bureau of Insurance a proposed average premium rate decrease of 6.9% for 2012. It had earlier announced a rate reduction of 3.2%, but revised the rate to take into account the promulgated medical fee schedule finally adopted by the Board in December of 2011. NCCI calculated an additional rate reduction attributable to the newly adopted medical fee schedule projected to be 3.8% , with the resulting overall reduction of 6.9%.


NWCDN MARYLAND WORKERS’ COMPENSATION UPDATE

I.       New Maryland Benefit Rates

            Effective January 1, 2011, the following are the maximum benefit rates for Maryland disability benefits:

            State Average Weekly Wage – $940 (which represents the cap on temporary total

            disability, permanent total disability, and vocational rehabilitation benefits)

            Permanent Disability Under 75 Weeks – $157/week

            Permanent Disability Between 75-249 Weeks – $314/week

            Permanent Disability for 250 or More Weeks – $705/week

            If you would like benefit rate cards prepared by Franklin & Prokopik detailing Maryland’s benefit rates from 2006-2011 or to subscribe to F&P’s quarterly Workers’ Compensation Newsletter, please contact F&P principal, Bert Randall, at (410)

230-3622 or by email at arandall@fandpnet.com.

II.      New Settlement Regulations Introduced In 2010      

The Centers for Medicare and Medicaid Services is charged with reviewing workers’ compensation settlement offers that contemplate future medical treatments. This past year, new regulations were approved regarding the content of Agreements for Final Compromise and Settlement, in order to align with CMS requirements. The changes were to COMAR 14.09.01.19 and included several additions to what an AFCS must contain, the most notable of which was a provision that the Insurer would reimburse Medicare for any payments Medicare made but for which the Insurer was responsible. The changes also included a requirement that an AFCS explain whether it requires approval by the CMS, and that it must contain a formal set-aside allocation, which must reflect a comprehensive analysis and projection of future injury-related medical needs and costs.

The full text of the new regulations may be found in blackline on the Maryland Workers’ Compensation website at:

http://www.wcc.state.md.us/PDF/Regs/Medical_Settlement_Reg_Change_Text.pdf

 

 

III.    New Vocational Rehabilitation Regulations Go Into Effect

The proposed amendments to the COMAR regulations on vocational rehabilitation practitioners were adopted and became effective on April 20, 2010. The amendments mandate that vocation rehabilitation providers enroll with the Commission and include a list of all registered practitioners employed by them. Additionally, the provider selection process was completely revised for situations where the parties cannot agree on a provider. Each party must submit to the Commission the names of three potential providers. Then each party must strike two of the providers submitted by the opposing party. The Commission will then select from the remaining list the provider with the highest priority (determined on a rolling list maintained by the Commission).

The full text of the newly-amended regulations may be found at: http://www.dsd.state.md.us/comar/comarhtml/14/14.09.05.09.htm

IV.    Recent Cases in Workers’ Compensation

 

One Injury Can Lead to Another: Finding Causation for a Subsequent Condition Caused by the Original Injury

On March 31, 2010, the Maryland Court of Special Appeals held in Wilson v. Shady Grove Adventist Hospital that the standard for establishing the causal relationship between an injury and employment is broader in workers’ compensation cases than in general tort claims in Maryland.

The Claimant was working as a psychiatric technician for Shady Grove Hospital when he injured his right knee while restraining a patient. One year later, the Claimant began complaining of pain in his left knee. Following a hearing, the Workers’ Compensation Commission found the left knee complaints to be related to the original injury and ordered an MRI of the Claimant’s left knee. The Employer and Insurer appealed, and following a trial on the merits, the trial judge instructed the jury, over Claimant’s counsel’s objection, that “causation means that [Claimant's] work related injury of July 14, 2006, to his right knee, is a cause of the condition of his left knee.” The jury was then asked, “Is the disability of the claimant’s left knee causally related to the July 14, 2006 injury?” The jury returned a verdict in the negative.

The Claimant appealed, alleging that the jury instruction did not correctly state the law, and the Court of Special Appeals agreed. In noting that plaintiffs must show evidence of probable cause in civil tort cases in order to demonstrate a causation nexus, the Court held that workers’ compensation claimants do not have to meet the burden of probable cause, but instead can cobble together an argument consisting of a sequence of events, proof of a possible causal relationship, and the absence of a competing cause. The Court held that the jury should have been instructed that it was the Employer and Insurer’s burden to prove that the Commission’s decision should have been reversed either because the right knee injury could not have led to the left knee injury or that there was an intervening cause that led to the left knee complaints. As this was not adequately conveyed to the jury, the Court of Special Appeals remanded the matter for a new trial on the merits.

Wilson v. Shady Grove Adventist Hosp., Court of Special Appeals of Maryland, No. 2588, Sept. Term 2008. 

 

The Unwritten Venue Rule: Place of Employment, Location of Injury, County of Residence . . . The Petitioner Has the Choice of Where to File an Appeal

 

The Maryland Court of Special Appeals decided LeCronier v. UPS on November 03, 2010, ruling that a claimant aggrieved by a decision of the Commission may seek judicial review in the circuit court for the county in which the claimant is employed, in addition to the counties where the claimant resides and where the accident occurred.

Jeffrey LeCronier suffered a work injury while working as a driver for United Parcel Service (“UPS”), and filed a claim with the Commission. After a hearing, it was denied on the ground that “the claimant did not sustain an accidental injury arising out of and in the course of employment.” LeCronier filed a petition for judicial review in the Circuit Court for Baltimore City, where he regularly did business making deliveries. UPS filed a Motion to Transfer Venue to the Circuit Court for Anne Arundel County pursuant to §9-738, arguing that LeCronier’s county of residence was Anne Arundel County. LeCronier filed a response to the motion and after a hearing, the Court issued an Order denying the Motion to Transfer Venue. UPS promptly filed a Motion to Reconsider Judgment, and the Court granted its motion without a hearing or explanation, and transferred the case to the Circuit Court for Anne Arundel County.

Trial commenced in Anne Arundel County, ultimately resulting in a jury verdict in favor of UPS. LeCronier appealed that decision to the Court of Special Appeals. LeCronier argued that §9-738 must be read in conjunction with Maryland’s general venue statute, Md. Code Ann., Cts. & Jud. Proc. §6-201(a), which “unless otherwise provided by law[,]” allows a civil action to be brought, among other places, in a county where an individual is employed. UPS argued that the proviso “unless otherwise provided” is applicable to §9-738, which allows a claimant to file a petition for judicial review in the circuit court “(1) that has jurisdiction over that person; or (2) for the county where the accidental personal injury . . . occurred.” In reviewing the purely legal question of where an appeal should be heard, the Court noted that the law prior to enactment of the Workers’ Compensation Act (the “Act”) allowed for an individual to be sued in the county of his or her employment. The Court noted that the General Assembly is aware of existing law when new legislation is enacted and held that the Act contemplated that a claimant could file a petition for judicial review in the county of employment. Thus, it was erroneous for the case to have been transferred from the Circuit Court for Baltimore City and the case was remanded for a new trial in that court.

LeCronier v. United Parcel Service, et al, Reported, Court of Special Appeals of Maryland, September Term, 2008, No. 02650.

Dependency Update: Court of Appeals Ruling on Connection Between Spousal Support and Permanency Benefits

 

In 2009, the Maryland Court of Special Appeals ruled that a surviving spouse may be entitled to permanency benefits from a deceased spouse due to being owed “a legal obligation to support” pursuant to Md. Code Labor & Employment §9-632(d). The Maryland Court of Appeals on October 25, 2010 reversed that decision in Wal Mart Stores v. Holmes, stating that “a legal obligation to support a surviving spouse does not arise by virtue of the marital tie alone.”

Patricia Holmes suffered an injury during the course of her employment with Wal Mart and filed a claim with the Workers’ Compensation Commission. The Commission awarded Ms. Holmes temporary total disability benefits until she reached maximum medical improvement. Prior to seeking permanency benefits from the Commission, Ms. Holmes died from causes unrelated to her work injury. Her spouse Mr. Larry Holmes filed Issues seeking permanent partial disability benefits based on Ms. Holmes’s accidental injury. He did not allege that he was entitled to benefits as a “dependant” under §9-632(c), but that his wife owed him a legal obligation to support pursuant to §9-632(d).

The Commission ruled against Mr. Holmes, and on appeal, the Circuit Court for Baltimore City affirmed. The Court of Special Appeals, after review of the legislative history of §9-632 and §10-201 of the Family Law Article regarding the right to spousal support, reversed. Wal Mart filed a petition for certiorari with the Court of Appeals, which was granted.

The Court of Appeals examined the legislative history behind §9-632. Ultimately the Court held that for the purposes of §9-632(d) “a legal obligation to support” a surviving spouse does not arise by virtue of the marital tie alone. The Court noted that “[n]o other affirmative, legal obligation to support a spouse, solely by virtue of the marital tie . . . existed or now exists in Maryland case law.” Without another source of legal obligation, such as a “legally enforceable contract, decree or order from a court of competent jurisdiction,” no legal obligation to support will exist. The Court held that §10-201 is inapplicable in the instant case because the language of §9-632 is not ambiguous and no further inquiry was warranted than the plain language of that statute. 

Wal Mart Stores, Inc. v. Holmes, Reported, Court of Appeals of Maryland, September Term, 2009, No. 141.

 

Responding to an Appeal? Consider Adding a Cross-Petition for Judicial Review

On March 1, 2010, the Maryland Court of Special Appeals determined that a party who does not cross-petition for judicial review has no protected interest in the case if the petitioning party chooses to dismiss the case.

The Claimant James M. Darby was injured in the course of his employment, the Employer contested the claim, and a hearing was held. The Workers’ Compensation Commission found the claim compensable, denied temporary total disability benefits, and ordered the Employer and Insurer to pay for causally-related medical treatment.

The Employer and Insurer petitioned for judicial review of the decision. The Claimant filed a Response to Petition for Judicial Review but did not file a Cross-Petition for Judicial Review. While the matter was pending before the circuit court, the parties agreed on a lump sum settlement. However, the Claimant died without signing the settlement agreement. The Employer then voluntarily dismissed its Petition for Judicial Review and the circuit court dismissed the Petition without prejudice. When the Claimant’s estate moved for reconsideration of that decision, the circuit court denied the motion, and Darby appealed to the Court of Special Appeals.

The Court of Special Appeals affirmed the decision of the circuit court and held that the Claimant, as a non-petitioning party, had no protected interest in the continuation of the matter at the circuit court level after the petitioning party chose unilaterally and voluntarily to dismiss its petition.

Darby v. Marley Cooling Tower Co., Court of Special Appeals of Maryland, No. 2242, 2008 Term.

 

For further inquiries regarding Maryland law contact Mr. Randall at (410) 230-3622 or at arandall@fandpnet.com.

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Gallup v Jackson County Road Commission, 2010 ACO #102

This is a new decision from the Workers’ Compensation Appellate Commission regarding the specific proofs required under Stokes v Chrysler, LLC, 481 Mich 266 (2008).  Magistrate Goolsby issued an open award of benefits for left knee and right shoulder injuries.

On appeal, the Commission affirmed the finding of the right shoulder injury.  However, it reversed the award of wage loss benefits on the premise that the plaintiff failed to establish “disability.”  The Commission stated:

“The plaintiff’s proofs focused on his ability or inability to perform his past jobs instead of focusing on his transferable skills.  The plaintiff needed either vocational testimony or additional lay testimony to establish the universe of jobs he is qualified and trained to perform…[b]ecause the plaintiff failed to prove the universe of jobs he is qualified and trained to perform, he necessarily also failed to prove his work-related injury prevents him from performing those jobs.  While the plaintiff could have gone a long way in establishing disability by conducting serious job search efforts, the record is also lacking in those proofs.  Accordingly, we reverse the award of wage loss benefits.”

This case again reaffirms that Stokes has established that vocational proofs are a necessary part of Michigan workers’ compensation litigation, and that the burdens considered by the Stokes decision must be addressed in all cases.  While it is the plaintiff’s burden to establish the “universe of jobs” that he or she is qualified to perform, it is also important for the defense to obtain expert vocational opinions regarding, among other things, the availability of those jobs.

Update on Trammel

The Michigan Court of Appeals and the Michigan Supreme Court have now denied Leave to Appeal in the Trammel case, and the WCAC’s decision is now final.  The Michigan Supreme Court also denied a Motion for Reconsideration.  A concurring opinion written by Justice Corrigan acknowledged that the WCAC’s opinion may ultimately authorize “more benefits than the Legislature intended for workers claiming limb loss” under MCL 418.361(2), particularly in light of the increasing success of joint replacement surgery.  However, she believed that these concerns were best addressed through the Legislature and not through the judicial system.

 

The Michigan Supreme Court recently denied leave in two cases – Harvlie v Jack Post Corp and Mansour v AZ Automotive – that involved the award of attorney fees on medical bills.  The cases were held in abeyance following the outcome of Petersen v Magna Corp.  Leave was denied because the majority of the Court was not persuaded that, after Petersen, there were any questions presented that warranted review by the Court.

Three of the Justices disagreed with the decision to deny leave because Petersen held that the Magistrate “may” award attorney fees on medical without providing a workable standard under which such an award is proper or improper.

Specific Loss Award Kicks In After Knee Replacement Surgery

 

Timothy Trammel reported a left knee injury while working for Consumers Energy in June of 1984.  Following arthroscopic surgery, he returned to work without restrictions and then reported a second left knee injury occurring on December 12, 2005.  He underwent a total knee replacement surgery on April 12, 2006 and returned to unrestricted employment for Consumers Energy less than two months later.  He eventually retired from active employment in October of 2007.

The plaintiff was awarded specific loss of the left leg by Magistrate Decker because the deterioration of the left leg prior to the knee replacement was “tantamount to amputation.”  The Workers’ Compensation Appellate Commission then issued an en banc decision on June 8, 2009 affirming the specific loss award.  Trammel v Consumers Energy Company, 2009 ACO #126.  Both the Magistrate’s and the Appellate Commission’s decisions were based upon an interpretation of the recent Michigan Supreme Court case of Cain v Waste Management, Inc, (after remand), 472 Mich 236 (2005).

Plaintiff Cain suffered an industrial accident resulting in the amputation of his right leg, along with a severe crushing injury to his left leg which was “saved” with extensive surgery and bracing.  Plaintiff claimed permanent and total disability under Section 361(3)(b) for the one amputated leg and the other non-amputated leg.  The Michigan Supreme Court awarded Permanent & Total disability benefits on the basis of plaintiff’s “uncorrected” status to the left leg.  They also ruled that the “uncorrected” status should be applied in determining whether an individual has incurred a specific loss of the leg.

Subsequent to the Cain decision, there have been numerous Applications for Hearing filed in cases involving joint replacements, primarily the hip or knee.  The Trammel case represents the first time such a claim has been reviewed by the Appellate Commission.  The defendant has filed an Application for Leave to Appeal to the Michigan Court of Appeals.  We will be monitoring the progress of that appeal.  If left undisturbed, the Trammel case should be considered by employers and carriers any time an employee undergoes a joint replacement following a work injury, even if the surgery (“correction”) is completely successful.

Our office has been directly involved in numerous such cases following the Cain decision in both Permanent & Total disability and specific loss type claims.

Please feel free to contact our office with any specific questions.  This should be a very interesting topic of discussion moving forward.

Bifurcated Redemptions

As some of you may already know, the Workers’ Compensation Agency is no longer approving bifurcated redemptions, pursuant to a recent memorandum authored by Chief Magistrate Murray Gorchow.  Previously, bifurcated redemptions had been recommended by both CMS and the Agency.  It allowed the parties to “redeem out” most elements of a pending claim while leaving medical still open.  When CMS did issue its opinion regarding conditional payments or the necessity of a Medicare Set-Aside, the second half of the redemption closing out the medical could proceed.  This was particularly beneficial due to the often lengthy process of obtaining CMS approval. 

However, due to some issues regarding whether CMS will be seeking repayment of conditional payments out of the “first half” of a bifurcated redemption, that practice can no longer be utilized.  For CMS to require reimbursement out of the first half of a redemption defeats the purpose of bifurcation, as the wait to receive those letters from CMS can be very lengthy.  Magistrate Gorchow still indicated that bifurcation may be considered in extremely limited instances, however it is no longer a standard practice. 

Please note that this does not mean that bifurcated redemptions will never be heard.  There are still factual situations where bifurcation is appropriate.  For example, a case where the facts establish the likelihood of a very small amount of conditional payments when compared to the relative size of a larger settlement amount would likely be appropriate to bifurcate.

Please feel free to contact our firm with any additional questions you may have!

Stokes v Chrysler LLC

Recent Opinion from Michigan Supreme Court

            This recent decision from the Michigan Supreme Court addressed the Sington requirement that a plaintiff must show that he or she is disabled from all jobs paying the maximum wages within his or her qualifications and training.  The Court’s opinion addressed specific factors that must be considered by the Magistrate, the proofs that must be presented by the plaintiff and the defendant, as well as some practical discovery applications.

            The plaintiff bears the burden of proving a disability by a preponderance of the evidence pursuant to MCL § 418.301(4).  To establish a disability, the plaintiff must prove a work-related injury and a reduction of his or her maximum wage earning capacity in work suitable to his or her qualifications and training.  The Michigan Supreme Court noted in Stokes that the plaintiff must do the following:

1)                  disclose all of his or her qualifications and training;

2)                  consider other jobs that pay the maximum pre-injury wage within his or her qualifications and training;

3)                  show that the work-related injury prevents performing any of the jobs identified as within his or her qualifications and training; and,

4)                  show that he or she cannot obtain any of the jobs that he or she may be capable of performing.

It is important that plaintiff now must engage in a type of “transferable skills analysis,” where his or her qualifications and training extend beyond just jobs that he or she has had previously.  After these factors are established, the plaintiff has met the initial burden of showing disability.  The defense must then produce evidence to refute the plaintiff’s showing by proving that there are actual jobs within the plaintiff’s qualifications, training, and physical restrictions for which the plaintiff either did not apply or refused.  Following that production, the plaintiff then may come forward with additional evidence to refute the defendant’s evidence.  The defense is entitled to discovery necessary to present its case.

            Note the importance of ensuring that the available jobs pay the maximum pre-injury wage.  If this is not the case, then Sington may not be applicable.  There is still some question whether a plaintiff who failed to find employment due to poor economic conditions would be entitled to benefits.  Previous cases seem to suggest that benefits could be denied.  The Court in Stokes did not address that issue directly.

As a practical matter, investigation should be taken during the early stages of a claim to determine exactly what the plaintiff’s qualifications and training may be (e.g., past educational experiences, special skills they may possess, etc.).  The Court clearly states in the recent Stokes opinion that “[t]he employer is entitled to discovery before the hearing to enable the employer to meet [its] production burden.”  A good initial investigation will help the attorney to identify what discovery is necessary when the case proceeds to litigation.  Interrogatories are appropriate in light of the recent Stokes decision, in order to get a better and more thorough understanding of an individual’s qualifications and training.  A wage earning capacity evaluation/labor market survey may be appropriate in certain cases.  The Court stated that face-to-face interviews of the plaintiff by defendant’s vocational expert are allowed as part of the discovery process.

Kashou v Coca-Cola Enterprises, Inc, 2008 ACO #89

This is an interesting new case from the Workers’ Compensation Appellate Commission regarding wage earning capacity.  The Magistrate granted an open award of benefits, but found a residual wage earning capacity of $280.00 per week as of January 17, 2007.  The plaintiff testified that he tried to obtain employment pursued by the vocational counselor.  The Magistrate’s decision to find a residual wage earning capacity was specifically influenced by the plaintiff’s presentation in her courtroom.  She believed that the plaintiff greatly exaggerated his impairment, which would have clearly prevented a potential employer from wanting to hire him.  As of January 17, 2007, the Magistrate believed that the plaintiff could perform positions listed by the vocational counselor.

We presume that this case will be appealed.  Note, however, that the opinion goes out of its way to describe the specific effect that the plaintiff’s poor credibility had on its decision.  This, as well as the decision’s language that this case is not to be used as precedent to “secure reduction of weekly indemnity in cases involving all but the most severely disabled” makes this a limited but interesting issue.  Pursuant to this holding, however, the Magistrate can imply a false presentation to potential employers based on the false presentation of an individual during trial.  This false presentation as to the extent of impairment to potential employers may result in the Magistrate calculating a residual wage earning capacity.

            Recent Amendments to the MSPA

 

Recent amendments to the Medicare Secondary Payor Act, which were adopted by Congress in late 2007, change the reporting provisions for any claimant who is a Medicare recipient.  As a practical matter, as soon as a claim is filed in any workers’ compensation case, the insurer or self-insurer should immediately discover whether or not the claimant is a Medicare beneficiary.  If the injured employee is entitled to Medicare, CMS must be notified and provided with his or her identity and basic claim information.  If the Act is not complied with, Medicare can enforce fines of up to $1,000.00 per day.

At this point, there are still a lot of questions.  The Secretary of Health and Human Services has not yet specified what reporting deadline is required to comply with this amendment.  Additionally, the law is not scheduled to take effect until June 2009.  The Secretary will be issuing a directive as to how an insurer or self-insurer complies with these new requirements before that time.  From past experience, we know that these directives are generally published on CMS’ website.  We will continue to check their website periodically in order to stay informed of all requirements when the information is eventually published.  We will keep you updated in that regard.

The Medicare amendment also addresses issues related to reporting dealing with other types of claims, such as liability and medical malpractice claims.

On December 7, 2007 the Michigan Supreme Court issued the latest order interpreting Simpson v Borbolla Construction & Concrete Supply, Inc, and the application of Rakestraw to pre-existing work-related conditions.

Simpson v Borbolla Construction & Concrete Supply, Inc, 133274 (S Ct December 7, 2007)

Plaintiff Dennis Simpson injured his left wrist while working as an iron worker in 1979.  He continued to work as an iron worker for various employers through October 23, 2000.  The left wrist fracture developed necrosis, which led to bone loss and traumatic arthritis.  His last day worked was with Borbolla Construction & Concrete Supply, Inc.  He worked for them only one day.

Magistrate Thomas Burden granted benefits against Borbolla Construction for plaintiff’s left wrist injury.  The WCAC affirmed.  The Michigan Court of Appeals affirmed on the basis that the “medically distinguishable condition” standard of Rakestraw only applied to pre-existing non-occupational injuries, and did not apply to pre-existing work-related injuries.  The Michigan Supreme Court recently issued an Order vacating the decision of the Michigan Court of Appeals.  It determined that the Court of Appeals erroneously held that Rakestraw does not apply to pre-existing work-related conditions.  However, it affirmed the award of benefits based on the reasoning in the WCAC opinion.

As the Court of Appeals decision has now been vacated, Rakestraw will clearly apply to all pre-existing conditions, regardless of whether they are work-related or non-work related in origin.

The reasoning in the WCAC opinion supported the Magistrate’s decision that Borbolla Construction is fully liable for benefits even though plaintiff only worked for them for one day.  The WCAC believed that Rakestraw’s “medically distinguishable condition” standard applied to all pre-existing conditions.  Please note that a recent Michigan Supreme Court order in the case of Fahr v General Motors Corp, 133500 (S Ct June 22, 2007) described a “medically distinguishable condition” as requiring pathologic change as opposed to merely a worsening of symptoms. Thus, it was their duty to determine whether plaintiff now had a “medically distinguishable condition” from his injury in 1979.  They answered affirmatively, stating that his ongoing work as an iron worker caused or accelerated an arthritic change in condition that disabled him upon his last day worked. 

The WCAC also had to determine whether plaintiff established a “last day worked injury” by showing that he was performing similar work.  The Commission reasoned, “[p]laintiff was not required to prove a discrete contribution from the single day plaintiff worked for the defendant…where it is the cumulative effect of work that constitutes the injury.”  Simpson v Borbolla Construction & Concrete Supply, Inc, 2005 ACO #153.  Though he only worked for one day with Borboll