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by | Jun 21, 2023 | Workers' Compensation
In law school, one of the first concepts taught is the proverbial “eggshell” Plaintiff. The doctrine means that you take the victim (or in workers’ compensation cases, the employee) as you find him or her. In real world terms, some employees may be hired with absolutely no pre-existing problems while others may have a number of comorbidities that make them more susceptible to injury. However, the employee’s susceptibility to injury is not a defense to an otherwise compensable workers’ compensation claim.
The vast majority of workers’ compensation cases in Nebraska involve an employee with some extent of a pre-existing medical condition. However, the law is very clear: An injury, disability, or death that is solely the result of the normal progression of a preexisting condition or that is due to natural, idiopathic causes, although occurring while the employee is at work, is not compensable. Neb. Rev. Stat. § 48-151(4). Alternatively, if the work-related accident combines with, accelerates, or aggravates a pre-existing injury, the entire resulting disability is compensable. Heiliger v. Walters & Heiliger Electric, Inc., 236 Neb. 459, 461 N.W.2d 565 (1990).
Unlike some other states, Nebraska does not look for primary or secondary causes of an injury. Stated another way, if the employment was a “contributing factor” to the employee’s injury, the entire disability is compensable. Miner v. Robertson Home Furnishing, 239 Neb. 525, 531, 476 N.W.2d 854, 859 (1991). This is even true if the employee would not have been injured but for the pre-existing condition.
Because nearly every disputed case in Nebraska involves a pre-existing condition, it is not difficult to find cases from each of the six judges discussing the concept of aggravations. However, several recent decisions reveal an important factor that the judges routinely consider when deciding an aggravation case – honesty.
Often times, for whatever reason, an employee will misrepresent or significantly downplay the extent of his or her past medical conditions. For example, an employee with a work injury to his back may claim he’s never seen a doctor for his back prior to the work accident, only for that statement to be discredited by a neurosurgeon’s records from just weeks before the alleged accident. Alternatively, an employee may admit to prior ankle problems “years ago,” but her records show her ankle surgery occurred in the month before the work accident. It is abundantly clear that the workers’ compensation judges value when an employee is honest and forthcoming about his or her prior problems. In 2020, Judge Block specifically highlighted an employee’s honesty with his medical providers when deciding to award benefits for an aggravation to the employee’s back. Similarly, in 2022, Judge Stine awarded benefits to an injured employee who had been seeking medical treatment for his disputed knee claim just a few weeks before the alleged accident. In making that decision, Judge Stine highlighted that claimant was always forthright about his prior problems and how the accident made it worse.
Contrast these opinions with cases where employees aren’t forthright about their prior problems. In 2020, Judge Hoffert entered an Order of Dismissal in part because the employee was dishonest about her lack of prior back problems. He highlighted the voluminous records presented by the employer showing that the employee had been on a leave of absence for prior back problems right up until the day before her alleged accident. This evidence, he noted, was in stark contrast to the employee’s testimony on the stand.
While it may be somewhat obvious that judges value honesty from employees, these cases show the vital importance of securing employee’s prior medical records. When evaluating new cases, it’s important to pay attention to the parts of the medical records discussing an employee’s past problems or past medications. These portions of the treatment notes can be easily glanced over, but may contain information that sheds an important light on the employee’s prior medical history that he or she is unwilling to share voluntarily. Additionally, in cases where a recorded statement is taken, it’s necessary to ask the employee about his or her past medical problems. If an employee acknowledges a relevant past history, securing those records could be a major development in the case. While it’s true that employers take employees as they find them, to evaluate whether the eggshell plaintiff rule applies, one needs to know what “cracks in the shell” even existed before the accident.
If you have questions about a case involving an employee with a pre-existing condition, please contact any of the lawyers at CPW by phone or email. Want to ensure you don’t miss out on the next post in the CPW compendium series? Be sure to subscribe to our newsletter.
The Iowa Division of Workers’ Compensation has released updated rate information that will be in effect from July 1, 2023 through June 30, 2024. Peddicord Wharton has updated its rate and interest calculators which can be found on our website under the Resources page. We hope you will take advantage of these resources we have there for you, including our legal blog.
The Iowa Division of Workers’ Compensation releases annual rate information for mileage reimbursement and the following types of weekly workers’ compensation benefits: temporary total disability (TTD), healing period (HP), permanent partial disability (PPD), permanent total disability (PTD), and death.
In a 6-3 decision, the Oklahoma Supreme Court on 4/18/23, said the Legislature intended for injured workers to have at least one year from the date of an injury in which to file a workers' compensation claim before the Workers' Compensation Commission. The case is Schumberger Technology Corp. v. Paredes, 2023 OK 42. The case involves an un-represented claimant that later hires an attorney.
The Supreme Court was asked to interpret 85A O.S. Sec. 69, in pertinent part:
"A claim...shall be barred unless it is filed...within one (1) year from the date of injury or, if the employee has received benefits under this title for injury, six (6) months from the date of the last issuance of benefits."
Justice Gurich, writing for the majority, said the Legislature had created a method to extend payment of benefits beyond an arbitrary SOL since at least 1941. She noted that each time amendments were made to the workers' compensation law, the Legislature continued to provide for a way to extend benefits for injured workers.
Justice Gurich wrote, "that the SOL is "not an absolute time bar." The burden is on the employer to take affirmative action, or "arguably, even the one-year SOL will be extended." There must not only be an objection based upon the running of the SOL, but ALSO A HEARING. The opinion says otherwise the statute would be meaningless if the Commission did not have the discretion to adjust the statute of limitations based on the circumstances presented.
The holding is that an injured worker in Oklahoma has at least one year from the date of an injury in which to file his or her claim. The six-month provision of Sec. 69 only extends the SOL in cases in which the employer admits the injury and pays benefits. If a badly injured worker is off four years when treatment is terminated, he or she has six months from that date to file a claim before the Commission.
In the opinion, Justice Gurich also quoted comments by Commissioner Biggs during oral argument in this case. He told defense counsel, "My argument is simple, the system works when people know when deadlines are, when the SOL starts...if they didn't have notice of when your company paid, how do they know when the clock starts?"
The Court has created a new requirement that was not present previously. The opinion can interpreted to require a specific date which the SOL runs and the 6-month Statute of Repose will not begin to run until the date the claimant is informed of the specific date. An employer can no longer wait-out the SOL to assert the affirmative defense. The Court is requiring specific notice to an un-represented claimant before a SOL defense can be asserted.
As we reported last month, the DWC-32 form for requesting a designated doctor exam has been revised, most noticeably in its capacity to alert the examining doctor of the conditions for which he or she should be examining the injured worker. Parties must begin using the new version of the form very soon, on June 5, 2023.
Copyright 2023, Stone Loughlin & Swanson, LLP
In Hartford Accident & Indem. Co. v.
Francois, decided May 23, 2023, the Dallas Court of Appeals spells
out how to allocate a third-party settlement between the workers’ compensation
carrier, injured employee, and injured employee’s attorney. These
calculations are a source of continuing confusion for some despite the plain
language of the statute and the case law applying it.
The Dallas Court of Appeals’ decision also dispels the notion that the law
requires the parties to split a settlement three ways: one-third to the
carrier, one-third to the claimant, and one-third to the claimant’s attorney.
This idea refuses to die despite the fact that there is no support for it
in the law. As a result, some carriers still give up much more than they
should.
Janery Francois sustained a work injury for which Hartford paid her $356,669.73
in workers’ compensation benefits. Francois sued the third-party property owner
of the building where she was injured and recovered $150,000. Hartford argued
that under the Texas Workers’ Compensation Act’s subrogation statute, it was
entitled to $95,206.03 of Francois’s $150,000 recovery.
However, Judge Martin Hoffman, a former personal injury attorney, agreed with
the interpretation of the statute offered by Francois’s attorney and found that
Hartford was only entitled to $57,088.04 and that Francois and her attorney
were entitled to $92,911.96. Of this amount, $4,793.97 was for expenses
and the remaining $88,117.99 was for attorney’s fees for Francois’s attorney.
Judge Hoffman also awarded Francois’s attorney an additional $10,000 in fees
under the Uniform Declaratory Judgment Act (UDJA) which allows the trial court
to award fees that are equitable and just.
The Dallas Court of Appeals reversed Judge Hoffman’s decision and rendered
judgment that Hartford was entitled to $95,206.03 of the third-party
settlement. The court of appeals also found that Judge Hoffman abused his
discretion by awarding Francois’s attorney an additional $10,000 in attorney’s
fees under the UDJA because the award violates the Workers’ Compensation Act
and is not equitable or just.
Francois’s attorney argued at trial that the award is equitable and just
because Hartford refused to agree to a three-way split of the settlement which
would have provided $50,000 to Hartford, $50,000 to Francois, and $50,000 to
Francois’s attorney. This approach would have resulted in Hartford
recovering $45,206.03 less than it was entitled. The Dallas Court of
Appeals rejected this argument:
According to Francois’s counsel, the carrier, employee, and employee’s counsel “always” agree to split a settlement three ways, and he has entered into those agreements “dozens of times.” But Francois cites no authority to support an argument that Hartford was under any obligation to reduce its lien and accept a three-way split.
The Dallas Court of Appeals held that Hartford has a statutory right to recover
its entire lien amount and it should not be penalized for asserting its rights.
The court found that Judge Hoffman abused his discretion by awarding additional
attorney’s fees to Francois’s attorney when “Hartford was well within its right
to seek the full amount of reimbursement permitted under Chapter 417.”
Hartford Accident & Indemnity Co. v. Francois, No.
05-21-00981-CV (Tex. App—Dallas, May 23, 2023).
Copyright 2023, Stone Loughlin & Swanson, LLP
House Bill 2468 also amends Section 408.161(a)(7) which pertains to
serious burn injuries. Previously, an injured worker would be entitled to
LIBs if he/she sustained third degree burns to the majority of either both
hands, or one hand and the face. Now, third degree burns to both hands,
to one hand and one foot, or to the face and either one hand or one foot can
establish LIBs entitlement.
House Bill 2468 further expands LIBs entitlement to certain first responders in
the newly promulgated Section 408.1615. Peace officers, EMTs, and
firefighters (or those acting as EMTs or firefighters on a volunteer basis) who
are rendered “permanently unemployable” following a “serious bodily injury”
beyond those specifically enumerated in Section 408.161 may be entitled to
LIBs.
Qualifying claimants would be compelled to recertify their total unemployment
to Carriers annually. Carriers may audit the worker’s employment
status periodically, but not more than once in any five-year window, unless the
Carrier can show that the injured first responder’s assertion of non-employment
is false. Under such circumstances, the Carrier would be compelled to
request a designated doctor to evaluate the claimant’s employability.
LIBs may be suspended if the annual certification is not accomplished, or
if the first responder is employed in any capacity. Suspension of LIBs is
also codified under the new Section 408.0041(k-1).
Copyright 2023, Stone Loughlin & Swanson, LLP
The Texas Workers’ Compensation Act sets forth specifically prescribed
categories for grievously injured employees who qualify for Lifetime Income
Benefits (LIBs), most of which are straightforward: those who suffer permanent
loss of use in both eyes, both feet, or both hands, or a combination of one
hand and one foot; spinal injuries resulting in paralysis of both arms, both
legs, or one leg and one arm; and significant third-degree burn victims.
However, one classification has fostered equal parts ambiguity and scorn among
system participants for decades: head trauma injuries resulting in “incurable
insanity or imbecility.” The phrasing of this portion of the statute,
found in Texas Labor Code Section 408.161(a)(6), is not only inherently vague (as
neither “insanity” nor “imbecility” is defined anywhere in the Act), but also
antiquated, relying on medical terminology established during the reign of
Queen Victoria.
At long last, the Legislature is poised to rid us of the much-maligned clause.
House Bill 2468 replaces the unfortunate “incurable insanity or
imbecility” with “permanent major neurocognitive disorder.” But while the
revision may be exponentially more tactful, is it any clearer?
“Permanent major neurocognitive disorder” is not yet defined in the statute,
other than to say it necessitates “occasional supervision in the routine daily
tasks of self-care” and renders an employee “permanently unemployable.” What
constitutes “occasional supervision” or permanent unemployability remains to be
seen. If left unaddressed in the corresponding rules the DWC has been
charged with drafting, it is foreseeable that these phrases could generate as
much uncertainty as those they replace.
If signed by Governor Abbott, House Bill 2468 goes into effect September 1,
2023.
Copyright 2023, Stone Loughlin & Swanson, LLP
It never hurts to remember triumph over misfortune as a reminder that a work
injury - even a serious one - is rarely reason to despair. Maybe you never
thought about work injuries like that before, but if not, do you remember this
movie? Hard as it may be to believe, it has been thirty years since the release
of Dazed and Confused.
That’s almost twice the span of time between its premiere in 1993 and the
film’s setting: Texas, May 28, 1976. Since it’s late May in the Lone Star
state, it seems like the perfect time to revisit Richard Linklater’s
coming-of-age classic, shot in and around the director’s adopted home of
Austin. (Disclaimer:
Events depicted therein are for viewing enjoyment only, not for emulating.)
The ensemble comedy has gained a fanatical following far exceeding its paltry
box office grosses upon initial release, and some of today’s most recognizable
faces got their big breaks from the movie, including Academy Award winners Ben
Affleck, Renee Zellweger, and University of Texas alum Matthew McConaughey.
It turned the Texas capital into a viable alternative to Hollywood for
independent-minded filmmakers: Linklater co-founded the Austin Film Society.
It also spawned arguably the biggest movie catchphrase in recent memory,
albeit decades after the fact.
Melissa Maerz’s excellent book Alright,
Alright, Alright: An Oral History of Richard Linklater’s Dazed and Confused
(HarperCollins, 2020), is packed with insight and anecdotes about the making of
the film. Among those: the revelation that the movie’s two de facto
protagonists, freshman Mitch Kramer and senior Randall “Pink” Floyd, were
avatars for the writer/director at those ages, with his older, wiser self mentoring
his baby-faced doppelganger throughout the film. “Pink is me,” Linklater
admits to Maerz. “And so is Mitch.” (Eagle-eyed viewers will notice that
the characters are even dressed identically in gray t-shirts, blue pants, and
long brown hair when they first cross paths.)
When seeking the performers who would not only carry the film but embody its
creator, Linklater did not have to look far for his Mitch; Austin native Wiley
Wiggins happened to be outside a local coffee shop when the casting director,
looking for non-professional actors, offered him a chance to audition.
Finding the right person to play Pink, though, depended on an initially
horrific twist of fate in the form of a Texas work injury.
Jason London, who eventually won the role, never intended to become an actor
either. In Alright, Alright,
Alright, he recalls being fifteen and working construction for his
father in DeSoto, Texas, until his left foot got caught in the lift mechanism
on a forklift, amputating two toes. As he tells Maerz: “My whole life at
that point was all about sports, and the only way I was gonna get to go to
college was through scholarships in sports or the military. All of [a]
sudden, that path was gone. I thought it was the worst thing that could’ve
ever happened to me. But then I decided to take drama. I guess it was
destiny. I had to think about life beyond sports, just like Pink.”
London’s unfortunate Texas work injury inadvertently set him on an alternate
career trajectory, fortuitously intersecting with Richard Linklater in Austin
five years later and providing one of the most beloved Texas-based movies its
co-lead. The anecdote is one of triumph over misfortune and a reminder
that a work injury—even a serious one—is rarely reason to despair. As we
reminded you at the beginning, if you never thought of triumph over
misfortune before…
Copyright 2023, Stone Loughlin & Swanson, LLP
The Division, faced with a rapidly dwindling list of available designated
doctors (current numbers show 60 MDs, 9 DOs and 169 DCs for a total of 238 designated
doctors), has again changed things up in efforts to make more doctors available
to field the number of requests they receive each year.
The new rules change the qualification criteria to require less for certain
kinds of examinations and add to the list of board-certified doctors qualified
to evaluate traumatic brain injuries with the justification that those doctors
are to send out for testing anyway and they can then incorporate that testing
into their reports. These qualification changes are effective 6/5/23.
This is not the first rule change impacting the designated doctor suite of
rules, and it likely won’t be the last, but here are the high points:
• For DD
examinations involving traumatic brain injuries, the Division added doctors who
are or have been board certified in orthopaedic surgery, occupational medicine,
dermatology, plastic surgery, surgery, anesthesiology with a subspeciality in
pain medicine, emergency medicine, thoracic and cardiac surgery and family
medicine.
• For DD examinations involving injuries with multiple fractures, a
single spinal fracture or rib fractures where there is no vascular injury,
chiropractors are now qualified, in addition to MDs and DOs.
• DD examinations involving spinal cord injuries including spinal
fractures with documented neurological injury or vascular injury, more than one
spinal fracture or cauda equina syndrome are assigned to board certified
doctors in neurosurgery, neurology, PM&R or orthopedic surgery.*
• DD examinations involving multiple fractures accompanied by vascular
injury are assigned to board certified doctors in emergency medicine,
orthopedic surgery, plastic surgery, PM&R or occupational medicine.*
• Multiple certifications will no longer be ordered unless the Division
orders them as the result of a Presiding Officer Directive.
*These examinations are handled by the same specialties, but carve out the more complex fracture injuries for board certification while allowing chiropractors to evaluate multiple fractures, single spine fractures and rib fractures that don’t involve vascular injury.
• Doctors
who passed DWC certification on or after 5/13/13 don’t have to test again for
certifications that expire on or after 4/30/23.**
• Doctors still have to take required training and reapply every 2
years.
• The certification and re-certification rules have been streamlined.
• None of the
rule changes address billing and reimbursement for designated doctor
examinations. (Specifically, there is no mention of increasing
the reimbursement rate for designated doctor examinations. In 2022, the
Division posted and took comment on Rules 133 and 134 and the relevant sections
relating to billing and reimbursement for designated doctor examinations. The
second informal posting of those rules provided increased reimbursement for
examinations and even provided a $150.00 missed appointment fee. The
comment deadline for those rules was 12/16/22. There is no word yet on
the status of this rule project).
**The rule allows the
Division to require a doctor to take the test again on a case-by-case basis as
part of a performance review.
Copyright 2023, Stone Loughlin & Swanson, LLP
The El Paso Court of Appeals recently reversed a district court’s summary
judgment decision involving a coming and going case. Duane Cook was employed by
an oilfield fishing and rental tools company in far West Texas. The company
issued him a truck, which included tools, that he was to take to and from their
yard and other job sites as part of his job. He was allowed to drive the
truck to and from home and the employer’s shop, but could not use it for
personal errands. He was the sole mechanic employee and was responsible
for checking all of the company equipment before the crews took it to the
worksites from the shop.
The night before the accident in question, his supervisor told Cook to drive to
the employer’s yard the next morning to inspect some equipment that was to
leave the yard early in the morning to arrive on site at a designated delivery
time. Early that next morning, Cook began driving from his home to the
yard and was involved in a MVA only one or two blocks from his house.
The Division held Cook sustained a compensable injury and had disability.
The Appeals Panel reversed and rendered a decision against Cook and found
he was not acting in the course and scope of his employment. Cook filed
suit in district court and Texas Mutual filed a motion for summary judgment,
which the trial court granted. The El Paso Court of Appeals analyzed
Texas workers’ compensation course and scope law and the coming-and-going rule
with its exceptions and ultimately held that there was a genuine fact issue as
to whether Cook’s trip originated in the course and scope of his employment or
was in the furtherance of the affairs of his employer’s business and remanded
the case to the trial court. Cook v. Texas Mutual Insurance Company,
2023 WL 2919332, ___ S.W. 3d ___ (Tex. App. – El Paso, April 12, 2023).
In most Texas workers’ compensation cases, the question of venue is pretty straightforward. In the case of Dallas Cowboys offensive lineman, Alcus Reshod Fortenberry, however, it was less so. Texas Labor Code §410.252(b) requires suits to be brought in the county where the employee “resided at the time of the injury.” In this case, Mr. Fortenberry was injured while attending training camp in California on 8/2/15. He signed a 3-year contract in May of that year to play for the Cowboys. He stayed in a hotel in Dallas County while attending team practices that summer beginning in May. He sprained his knee in June and had to sit out practice for 2 weeks, but continued to attend and participate in other activities during that time. Later that month, he traveled to Louisiana to rehab his knee, but stayed in touch with the team regarding his progress and returned to Dallas for a conditioning test with his teammates in July before training camp began. On 8/2/15, he injured his knee and was added to the injured reserve list with an estimated recovery time of 9 to 12 months. His contract was ultimately terminated in May of 2016. He filed for workers’ compensation benefits and the Carrier denied them. The parties stipulated to venue in the Dallas Field Office at the DWC level. Unhappy with his impairment rating, Fortenberry filed suit in district court in Dallas, and the Carrier sought transfer to Travis County. Fortenberry alleged his residence at the time of the injury was the Marriott Residence Inn in Dallas. The trial court denied the Carrier’s motion and the trial went forward in Dallas. The jury returned a verdict for Fortenberry and the Carrier appealed. The Court of Appeals held Texas Labor Code § 410.252(b) did not apply and rejected his other venue arguments and reversed the trial court’s judgment. The Texas Supreme Court held the venue provision of Labor Code § 410.252(b) was mandatory and Fortenberry more than presented enough evidence that he “resided” in Dallas County at the time of his injury. The Court further held that the fact that he was staying in a hotel for a prolonged period of time did not preclude him from qualifying as a “resident” and found it probative that the parties stipulated to venue at the Division level. Fortenberry v. Great Divide Insurance Company, 2023 WL 2719475 (Tex., March 3, 2023).
Copyright 2023, Stone Loughlin & Swanson, LLP