State News

Written by: Lindsay Underwood

One of the hot topics in Workers’ Compensation over the past few years has been entitlement to extended benefits and what standard the courts would apply to determine the same. Most recently, the Court of Appeals issued a decision in one of the cases currently pending – Sturdivant v. NC Department of Public Safety. Interestingly, the opinion has since been withdrawn, and it is unclear how the Court will move forward at this juncture. Even so, the opinion merits discussion.

As a reminder, the key question presented by the extended benefits cases is what analysis the courts would use to determine entitlement to benefits beyond the 500 weeks. The plaintiff’s bar argued that the standard remains the same in pre-500 week and post-500 week cases. Defendants argued that benefits beyond the 500-week cap have an increased standard, such that a claimant has the burden to show a total loss of wage-earning capacity.

In Sturdivant, the claimant sustained a compensable injury to the back in 2011. Claimant was a high school graduate. He was certified to drive a forklift, had training in blueprint reading, and had CPR experience. The claimant had been on his church’s Board of Trustees since 2008. Four of the claimant’s physicians testified he could work and noted he could perform many of the essential functions of his prior job as a correctional officer. Claimant only started looking for work in January 2020 and produced a job log, but some of the entries were inaccurate. Defendants’ vocational expert met with the claimant, performed a transferrable skills analysis, performed a labor market survey and identified several jobs in the surrounding area that claimant was capable of performing. Claimant’s vocational expert testified claimant was unable to work at all. However, the vocational expert did not contact any potential employers, and only looked for jobs in Anson County. As a result, Deputy Commissioner Erin Taylor afforded more weight to the defendants’ vocational expert and determined that claimant could not show a total loss of wage-earning capacity and was not entitled to extended benefits beyond the 500-week cap on benefits.

Plaintiff appealed to the Full Commission, and the Full Commission affirmed the decision finding claimant failed to meet his burden to establish a total loss of wage-earning capacity. Plaintiff appealed to the Court of Appeals. The Court of Appeals agreed with the lower courts and affirmed the denial of extended benefits, but specifically noted that  the standard for total loss of wage-earning capacity and total disability are the same. Though they found that claimant still has the burden of proof to show they sustained the loss, the standard for disability does not change when a claimant applies for benefits beyond the 500 week cap. The Court further noted claimant could receive extended benefits even if not medically restricted from all work, if he showed there were no jobs available to him. Since the claimant did not meet his burden, he was not entitled to extended benefits in this case.

Though a victory for the Defendants in this specific case, the conclusion that there is no higher standard for disability once the claimant applies for extended benefits creates significant additional exposure for Defendants. However, as noted above, the Court has now withdrawn its opinion. It is unclear how they will proceed, or what this means for extended benefit cases moving forward. It should be noted that Mary Betts v. North Carolina Department of Health and Human Services – Cherry Hospital, is still pending before the Court of Appeals and a decision has not been issued in that case.

As we are somewhat back to square one when it comes to guidance in light of the withdrawal, our recommendations for handling remain the same: retain credible experts (both medical and vocational), investigate claimant’s job search, hobbies, and non-work related activities and participation, obtain a detailed understanding of claimant’s job history and educational background, and make sure your vocational expert meets with claimant to identify possible jobs and explore work history.

Passing of the Torch

Our founding partners, Mark Hamberger and Ronald Weiss, have served on the firm’s Governing Committee, and as Managing Partners in the Buffalo and Rochester offices respectively, since the founding of the firm in 1991. Effective January 1, 2023, Mark and Ron have decided that the time has come to pass the management responsibilities to the next generation. 

Accordingly, the firm created a new Governing Committee, and elected F. Daniel Bowers, Renée Heitger, and Joseph DeCoursey to serve on that committee, effective January 1, 2023 to manage the firm. Dan and Joe will serve as Managing Partners in Buffalo and Rochester respectively.  

Under Mark and Ron’s 31 years of leadership, the firm has grown to become the largest law firm dedicated solely to Workers’ Compensation defense in New York. Mark and Ron will remain with the Firm as Special Counsel, where they will play integral roles in the firm's continued success.

 H&W Saves Client Nearly $60,000 With Fraud Finding and Permanent Bar on Indemnity

Our associate, Victoria Hahn, obtained a WCL §114-a (fraud) finding and secured a permanent disqualification of the claimant's indemnity benefits for our client in a particularly tricky claim that was decided a few weeks ago. The claimant in this case had been out of work since the date of accident in March 2020. Our client's investigator was able to get some limited evidence of the claimant's work activity: a few photos and a 10 second video from an informant showing the claimant working as a carpenter at a job site. During testimony, the claimant alleged that he was just "helping a friend." Unfortunately, the informant was murdered before trial in an unrelated incident, leaving Tori without much of a case. 
 
Undeterred, she subpoenaed the claimant's bank records, which showed large deposits into a business account in the claimant's name, with the claimant listed as the sole signer and authorized user. These records were critical as they proved that the claimant was engaged in substantial work activity while collecting workers' compensation benefits. The Law Judge felt that the video surveillance and photographs were insufficient on their own to establish a fraud finding. However, the Judge found that the bank records completely discredited the claimant's testimony and that the only logical conclusion regarding the deposits noted in the bank records were that they were for services performed by the claimant on behalf of his business. 
 
Given the classification with a permanent partial disability and a 33% loss of wage earning capacity Tori's efforts saved our client nearly $60,000 in workers' compensation payments. For any questions about this case, please contact Tori and if you have a fraud case you would like to us to review, please contact us. 

Legal Update by Attorney Alison Stewart

Once the Iowa Workers’ Compensation Commissioner makes an arbitration award, instead of receiving permanent disability or death benefits on a weekly basis, the Claimant can opt to receive payment in a lump sum. In some cases, both parties elect this option as a way to resolve a particular claim. The legislative changes in 2017 impacted these provisions in that commutations of any type could only be obtained with the consent of both parties and upon approval by the Commissioner. In cases where both parties are in agreement that a commutation is appropriate, these new changes will remove the barriers to this type of resolution that had previously been in place. Prior to the rule change, all commutations required (1) the Claimant to establish financial need to receive an award in a lump sum, and (2) a prescribed period of remaining benefits (10 consecutive, un-accrued weeks of indemnity benefits). Previously, in order to make use of the Full Commutation option for resolution, the parties were required to establish that a minimum of ten un-accrued indemnity benefits remained outstanding.

6.2(6): Statement of Need: "If all parties are represented by an attorney, the parties may waive the statement of need, unless the case involves a dependent who is a minor."

6.2(9): Best Interests of Claimant: "If all parties are represented by an attorney, a commutation of benefits is presumed to be in the best interests of the claimant."

6.2(10) Definitely Determined Period of Time: "If all parties are represented by an attorney, the parties may stipulate to the definitely determined period of compensation."

Going forward, where both parties are represented and are in agreement that a commutation is appropriate, a commutation will be presumed to be in the best interest of the Claimant. Practically speaking, this means Claimants will no longer be required to identify on the Full Commutation documents why they are in need of a lump sum settlement or how they intend to spend their settlement proceeds, unless they are a minor. In addition, where all parties are represented, the parties may stipulate to the period of commutation involved in commuting the award or settlement. Parties attempting to settle via Full Commutation will no longer be required to establish consecutive weeks of indemnity paid in the past or that there are at least ten remaining weeks owed in the future to satisfy the prior Full Commutation requirements. Parties now merely need to agree on the period of compensation. Note, pursuant to Iowa Administrative Code section 876-6.3(2), unless the discount is waived by the insurance carrier, the future benefits that are commuted are discounted to their present value at the rate of interest on judgments and decrees.

These rules went into effect March 25, 2023 for Full Commutations going forward.

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Peddicord Wharton Legal Updates are intended to provide information on current developments in legislation impacting our clients. Readers should not rely solely upon this information as legal advice. Peddicord Wharton attorneys would be pleased to answer any questions you may have about this update. ©2023 Peddicord Wharton. All Rights Reserved.

04/04/2023

West Virginia News: Employer and Co-Employee Immunity, COVID-19 Compensability, and Intentional Tort Damages Cap

West Virginia Supreme Court of Appeals

http://www.courtswv.gov/supreme-court/docs/spring2023/21-0841-hutchison-p.pdf

In Precision Pipeline, the Supreme Court reinforced what it termed as “sweeping” immunity from common law tort liability provided to employers by the workers’ compensation statute. The workers’ compensation act shields an insured employer from liability outside the workers’ compensation system for workplace injuries. Similarly, an employee of an insured employer who negligently injures a fellow employee during the course of their employment is not liable to respond in damages to the injured fellow employee for the personal injuries caused.

Mr. Weese was injured in course and scope of his employment with Precision Pipeline and brought claims of negligent hiring, retention, and supervision against his employer with respect to co-employees, negligence claims against the employer and co-employees, a vicarious liability claim against his employer, and a claim for punitive damages. The Court reversed the circuit court’s order denying a motion to dismiss because workers’ compensation immunity bars the employee’s claims.

Weese severely injured his left leg at work and was treated at the accident scene by an on-site EMT Vanessa Stromberg who also was employed by Precision. Weese argued the EMT was not licensed and “provided no actual medical assistance or intervention on site;” and that “no ambulance or outside medical assistance” was summoned in violation of West Virginia law and public policy to treat medical emergencies. Weese alleged that he has been unable to work and has suffered permanent injuries as a direct result of Precision's negligence “in seeking acute medical care for [him]” and “the lack of competent immediate [sic] medical care.” Weese also alleged in his complaint that “supervisors and other Precision Pipeline employees received monetary bonuses based in part on workplace safety and limiting reportable workplace injuries[,]” and that petitioners “conspired to provide the bare minimum emergency medical response to [respondent] to ensure that safety bonuses were not affected.” Because Weese’s injury occurred in the course and scope of his employment, he received workers’ compensation benefits for his injury. He also claimed negligent hiring, retention, and supervision against Precision with respect to a co-employee superintendent and the co-employee EMT (Count 1); negligence against Precision Pipeline and the two co-employees (Count 2); vicarious liability against Precision (Count 3); and punitive damages (Count 4). The defendants moved to dismiss asserting workers’ compensation immunity under W. Va. Code § 23-2-6 (2003) and § 23-2-6a (1949). 

The Court described workers’ compensation immunity from common law tort liability as sweeping:

The Legislature intended for W.Va. Code § 23-2-6 (1991) to provide qualifying employers sweeping immunity from common-law tort liability for negligently inflicted injuries. As this Court succinctly stated in State ex rel. Frazier v. Hrko, 203 W.Va. 652, 659, 510 S.E.2d 486, 493 (1998), ‘[w]hen an employer subscribes to and pays premiums into the Fund, and complies with all other requirements of the Act, the employer is entitled to immunity for any injury occurring to an employee and ‘shall not be liable to respond in damages at common law or by statute.’ W. Va. Code § 23–2–6 [1991].

Precision Pipeline, LLC v. Weese, 2023 WL 2365328, at *3 (quoting Bias v. E. Assoc'd. Coal Corp., 220 W. Va. 190, 194, 640 S.E.2d 540, 544 (2006)).

The Court noted that the workers’ compensation immunity extends to negligent co-workers:

The sweeping immunity afforded to employers by West Virginia Code § 23-2-6 extends to acts of fellow employees by virtue of West Virginia Code § 23-2-6a, which provides: ‘The immunity from liability set out in the preceding section shall extend to every officer, manager, agent, representative or employee of such employer when he is acting in furtherance of the employer's business and does not inflict an injury with deliberate intention.’

Precision Pipeline, LLC v. Weese, 2023 WL 2365328, at *3.

The Court found it was undisputed Weese filed for workers’ compensation benefits for his injury, and Weese’s receipt of workers’ compensation benefits “. . . necessarily embraces a determination that his injuries were sustained during the course of and as a result of his employment.” Precision Pipeline, 2023 WL 2365328, at *4 (quoting with emphasis added Bennett v. Buckner, 150 W. Va. 648, 653, 149 S.E.2d 201, 204 (1966)). Citing no supporting legal authority, Weese claimed Precision's negligence in hiring, retaining, and supervising the employee as an EMT is not the type of employer negligence contemplated by West Virginia’s workers’ compensation law such that immunity should bar his claim. See id. The Court found this argument ignored the clear and unambiguous language of the statute expressing a clear legislative intent to provide immunity.

West Virginia Code § 23-2-6 expressly provides that qualified employers are “not liable to respond in damages at common law ... for the injury or death of any employee, however occurring[.]” Id., in pertinent part (emphasis added). As we have already noted, “however occurring” means “an employee who is injured in the course of and as a result of his employment, and one who, under the common-law principles of master and servant, could have maintained an action against his employer.” Falls, 223 W. Va. at 72, 672 S.E.2d at 208 (emphasis added). Clearly, respondent, who concedes that he was injured in the course of and as a result of his employment, could have maintained an action against Precision under the common law principles of master and servant. Accordingly, workers’ compensation immunity bars respondent's claim for negligent hiring, retention, and supervision.

Precision Pipeline, LLC v. Weese, 2023 WL 2365328, at *4 (quoting Falls v. Union Drilling, Inc., 223 W. Va. 68, 72, 672 S.E.2d 204, 208 (2008)).

The Court similarly found that Weese’s co-employees are immune from suit.

It is beyond cavil that Stromberg and other employees were acting in furtherance of Precision's business when they attended to respondent following his injury. The allegations in respondent's complaint state that Petitioner Vanessa Stromberg, a supposed EMT employed by Precision, was summoned to the site where respondent was injured, that she failed to provide medical assistance, and that she and other Precision employees drove past a nearby hospital in order to transport respondent first to Precision's office, transferring him to another vehicle, and finally driving him to MedExpress. Respondent's own account of the events at issue – including that the employees’ actions were motivated by monetary safety bonuses allegedly offered by their employer – clearly shows that they were acting in furtherance of their employer's business, albeit negligently so. As such, Stromberg and her fellow employees are immune from suit.

Precision Pipeline, LLC v. Weese, 2023 WL 2365328, at *5.

Intermediate Court of Appeals

In the Spring Term of Court in 2023, the Intermediate Court of Appeals of West Virginia (ICA) continues to issue decisions of importance in workers’ compensation cases. Two opinions of note address the question whether a COVID infection is an ordinary disease of life or an occupational disease.

COVID Compensability

PrimeCare Medical of WV, Inc., v. Brittany Foster, No. 22-ICA-138, 2023 WL 2364951 (W. Va. App. 03/06/2023)

http://www.courtswv.gov/intermediate-court/docs/Spring2023/22-ICA-138_greear.pdf

In the first signed opinion in the Spring Term of 2023, the ICA reversed the Board of Review and remanded the case to determine whether claimant met the six statutory factors for establishing a communicable disease of ordinary life was compensable. The ICA found that the Board of Review's order failed to provide sufficient findings of fact and conclusions of law to support its ruling. West Virginia Code § 23-4-1(f) (2021) provides that no ordinary disease of life to which the general public is exposed outside of employment is compensable under workers’ compensation unless the disease was incurred in the course of and resulted from employment. To make such a determination, a detailed analysis of the six factors listed in West Virginia Code § 23-4-1(f) must be completed. No such analysis was completed by the BOR, so the ICA vacate the BOR's final order and remanded the case with direction to make specific findings of fact and conclusions of law for each of the individual factors under West Virginia Code § 23-4-1(f). PrimeCare Medical of WV, Inc. v. Foster, 2023 WL 2364951, at *1 (W.Va. App., 2023).

Foster was employed by PrimeCare as the Health Services Administrator at Southern Regional Jail, and had administered COVID-19 tests to inmates in the medical unit at the jail. When testing, Foster wore full personal protective equipment including an N95 mask. Foster attended a management staff meeting with the heads of each department in the jail. Several days after the meeting, PrimeCare sent everyone who attended the meeting home to quarantine, due to members of the staff testing positive for COVID-19. During Foster’s quarantine period, she engaged in several non-work related activities, including a trip to a drive-through zoo with her mother, father, and two nieces and a visit to the emergency room on August 4, 2020. On August 4, 2020, Foster submitted to a COVID-19 test at Summers County Appalachian Regional Healthcare Hospital, which was negative. On August 11, 2020, Foster took a second COVID-19 test, which was positive. Foster was hospitalized from August 11, 2020, to August 24, 2020, due to pneumonia. As of August 20, 2020, Ms. Foster tested negative for COVID-19.

Foster's medical records note that she has a history of recurrent bronchitis, suffers from morbid obesity, and had an issue with sinus tachycardia over the last few years. Beginning August 31, 2020, and continuing through March 9, 2022, Foster underwent treatment from multiple doctors for COVID-19, major depressive disorder, morbid obesity, asthma, congestive heart failure, dyspepsia, and tachycardia. PrimeCare Medical of WV, Inc. v. Foster, 2023 WL 2364951, at *1 (W. Va. App., 2023).

Claimant filed an application for workers’ compensation benefits (“WC-1”) alleging direct COVID-19 exposure while at work. The physician’s portion of the WC-1 form diagnosed Foster with COVID-19 but indicated “N/A” in response to whether the condition was a direct result of employment. Claimant completed a second WC-1 form again alleging direct COVID-19 exposure while at work. The physician completing the physician's portion of the second WC-1 form indicated “non-occupational condition” in response to whether the condition was a direct result of employment. On March 1, 2022, the claim administrator denied Foster's claim for COVID-19. This order was appealed.

Bruce Guberman, M.D., conducted an IME of Foster and determined that Foster's contraction of COVID-19 was an “occupational disease” based on the medical records and medical history reported by Foster. Dr. Guberman was subsequently deposed and acknowledged that no medical or scientific tests were available to determine the exact source of Foster's COVID-19 infection. Thomas Parker, M.D., issued a medical review report opining that Foster had COVID-19 in August of 2020, but that the condition was not an occupational disease. Further, Dr. Parker opined that Foster recovered from COVID-19 pneumonia very quickly based on the total lung capacity pulmonary function test from September 1, 2020. Dr. Parker attributed Foster's continuing pulmonary problems to asthma and tachycardia, which were well established in her medical records and pre-dated her COVID-19 diagnosis.

On August 29, 2022, the Board of Review reversed the claim administrator, held Foster's workers’ compensation claim compensable for COVID-19, and awarded her temporary total disability benefits from August 10, 2020, through March 9, 2022, to continue thereafter as substantiated by proper medical evidence.

The ICA examined the different routes some state legislatures have taken in addressing COVID-19 in the context of workers’ compensation, and the Court noted the limited number of appellate courts addressing the compensability of COVID-19 in workers’ compensation. The ICA also discussed the enactment by the West Virginia Legislature in March 2021 of the COVID-19 Job Protection Act in W. Va. Code § 55-19-6, that provides that workers’ compensation benefits are the sole remedy for any injury, disease, or death when the work-related injury, disease, or death is caused by COVID-19 received in the course of and resulting from covered employment.

COVID-19 is not compensable as an occupational disease unless it is incurred in the course of and resulting from employment. W. Va. Code § 23-4-1(f). No ordinary disease of life to which the general public is exposed outside of the employment is compensable except when it follows as an incident of occupational disease. “To determine if an ordinary disease of life follows as an incident of occupational disease, a six-factor analysis must be completed, and all factors must be met.” PrimeCare Medical of WV, Inc., 2023 WL 2364951, at *3.

W. Va. Code 23-4-1(f) provides the six-factor compensability test as follows:

A disease is considered to have been incurred in the course of or to have resulted from the employment only if it is apparent to the rational mind, upon consideration of all the circumstances: (1) that there is a direct causal connection between the conditions under which work is performed and the occupational disease; (2) that it can be seen to have followed as a natural incident of the work as a result of the exposure occasioned by the nature of the employment; (3) that it can be fairly traced to the employment as the proximate cause; (4) that it does not come from a hazard to which workmen would have been equally exposed outside of the employment; (5) that it is incidental to the character of the business and not independent of the relation of employer and employee; and (6) that it appears to have had its origin in a risk connected with the employment and to have flowed from that source as a natural consequence, though it need not have been foreseen or expected before its contraction: Provided, That compensation is not payable for an occupational disease or death resulting from the disease unless the employee has been exposed to the hazards of the disease in the State of West Virginia over a continuous period that is determined to be sufficient, by rule of the board of managers, for the disease to have occurred in the course of and resulting from the employee's employment.

The Court held:

With this statutory framework in mind, we hold that although there is no prohibition on a claim for workers’ compensation benefits arising from or relating to COVID-19, it is generally not compensable, as it is a disease of ordinary life, unless the six factors contained in § 23-4-1(f) are met. While this undoubtedly creates a high burden on the claimant in establishing his or her case, it does not bar the compensability of COVID-19 claims when this burden is met.

PrimeCare Medical of WV, Inc., 2023 WL 2364951, at *4.

COVID Compensability

Vaughn Hutchison v. Raytheon Corp., No. 22-ICA-105, 2023 WL 2568817 (W. Va. App. 03/20/2023) (memorandum decision)

http://www.courtswv.gov/intermediate-court/memo-decisions/Spring2023/22-ICA-105md.pdf

In Hutchison v. Raytheon Corp., No. 22-ICA-105, 2023 WL 2568817 (W. Va. App. 03/20/2023) (memorandum decision), the ICA held that a determination of COVID-19 as an occupational disease requires the Board of Review to meaningfully assess the facts of each claim under the six-factors set forth in W. Va. Code 23-4-1(f), as discussed in PrimeCare Medical of WV, Inc., v. Brittany Foster, No. 22-ICA-138, 2023 WL 2364951 (W. Va. App. 03/06/2023). Hutchison failed to satisfy all of the six factors and the denial of his COVID-19 claim was affirmed.

Hutchison was employed by Raytheon as a builder of aircraft de-icing units. During the shut downs caused by the COVID-19 pandemic, Hutchison and his co-workers were deemed “essential workers” and the Raytheon facility operated normally with no reduction in the number of employees working any given shift. Hutchison testified co-workers were in close proximity to one another, and no social distancing or masking protocols were in place at the facility. Hutchison alleged he was exposed to and contracted COVID-19 in his workplace during an outbreak among employees when he and eight others tested positive. Hutchison v. Raytheon Corporation, 2023 WL 2568817, at *1.

Hutchison admitted that he attended church approximately three times monthly where congregation attendance consisted of approximately two hundred people. Hutchison was not aware of the health department considering his church to be a place of COVID-19 outbreak. The record is silent as to whether any COVID-19 safety protocols were employed by the church.

After contracting COVID-19, Hutchison was hospitalized and treated for atypical pneumonia from COVID-19 infection and dyspnea. He also reported to the hospital emergency department for shortness of breath, viral pneumonitis, and a respiratory tract infection from COVID-19. Hutchison completed a West Virginia Workers’ Compensation Employees’ and Physicians’ Report of Occupational Injury or Disease (“WC-1”) form alleging that he had contracted COVID-19 due to his workplace exposure. The physician's portion of the application was completed by Zach Halsey, D.O., who confirmed the diagnosis of COVID-19. Hutchison v. Raytheon, 2023 WL 2568817, at *2.

The claim administrator denied Hutchison's workers’ compensation claim based upon a lack of a causal connection between Hutchison's COVID-19 diagnosis and his work per W. Va. Code § 23-4-1(f), as COVID-19 is a disease of ordinary life to which the public is exposed outside of work. Hutchison protested and the Office of Judges affirmed the order of the claim administrator, concluding that COVID-19 is a disease of life to which the public at large is exposed and Hutchison's exposure at work did not arise to a level where such exposure could be deemed to have arisen in the course of and resulting from his employment. The Board of Review affirmed the decision of the Office of Judges.

On appeal, the ICA stated that an analysis of compensability of COVID-19 required Hutchison to satisfy all six factors set forth in W. Va. Code § 23-4-1(f) to prove compensability. In this case, the Board of Review found that COVID-19 is a disease of life to which the public at large is exposed and concluded that Hutchison's exposure at work did not arise to a level which could be deemed to have arisen in the course of and resulting from his employment. The Board of Review determined that even if it were to concede factors one, two, and three, that Hutchison could not satisfy the remaining factors. Specifically, after discussing the evidence introduced regarding Hutchinson's exposure at work and potential exposure at other locations including church, the Board of Review found “as the claimant described his exposure at Raytheon Corp., it would be difficult to find that COVID-19 comes from a hazard to which a workman would have been not exposed outside of employment.” The Board of Review also concluded that the exposure was not incidental to the character of the business, and that it did not have its origin in a risk connected with the employment. Hutchison v. Raytheon, 2023 WL 2568817, at *3.

The ICA agreed and concluded that the Board of Review was not clearly wrong in finding that Hutchison failed to meet his burden to prove that his contraction of COVID-19 was the result of his employment. “Per our decision in PrimeCare, if the BOR finds that the claimant has failed to satisfy any of the six factors under West Virginia Code § 23-4-1(f), further analysis is unwarranted.” Hutchison v. Raytheon, 2023 WL 2568817, at *3 (emphasis in original).

Jurisdiction

In Jessica Cassel v. Aspen Builders, Inc., No. 22-ICA-211, 2023 WL 2366502 (W. Va. App., 03/06/2023) (memorandum decision), the ICA addressed the question whether a fatal dependents’ benefits claim was properly filed in West Virginia when the employee’s death occurred on a job site in Kentucky. The claim administrator issued an order denying dependent benefits for lack of jurisdiction because Mr. Cassel was killed while working in Kentucky on a non-temporary basis. To be entitled to benefits under the West Virginia Workers’ Compensation system an employee's work in another state must be on a temporary or transitory basis. See West Virginia Code § 23-2-1a (2021). Cassel v. Aspen Builders, Inc., 2023 WL 2366502, at *1. The ICA found that the Board of Review was not clearly wrong in finding that Mr. Cassel’s work in Kentucky was not temporary or transitory due to testimony from the employer that Mr. Cassel would be working in Kentucky for over thirty days and the project he was working on when he sustained the fatal injury did continue beyond thirty days. The ICA found no error in the Board of Review’s ruling that Ms. Cassel is not entitled to Workers’ Compensation benefits in West Virginia.

West Virginia Legislative Session 2023

Intentional Tort Legislation Damages Cap

House Bill 3270 amends West Virginia Code § 23-4-2 and the deliberate intent exception to the exclusive remedy of workers’ compensation insurance for employee recovery for workplace injuries. The amendments limit noneconomic damages to $500,000 and heightens the burden of proof in deliberate intent cases based on occupational pneumoconiosis. The bill is effective 90 days from passage on June 8, 2023. The section applies to causes of action accruing on or after July 1, 2023.

House Bill 3270 created a new section W. Va. Code § 23-4-2a. In any deliberate intent lawsuit, the maximum amount recoverable as compensatory damages for noneconomic loss may not exceed the higher of two times the economic damages before the workers’ compensation offset or $500,000 for each person, regardless of the number of plaintiffs or defendants or, in the case of wrongful death, the number of distributees.

House Bill 3270 also sets a higher standard of proof necessary to bring a deliberate intent case when the underlying workplace claim is for occupational pneumoconiosis, set forth in W. Va. Code § 23-4-2(d)(2)(B)(v)(IV). House Bill 3270 added a threshold requirement that “the employee asserting a cause of action based upon this clause must prove that the employer fraudulently concealed or manipulated dust samples or air quality samples.”

Preferential Recall of Injured Employee

Another bill of interest to businesses in West Virginia is Senate Bill 661 that amends West Virginia Code §23-5A-3, relating to the preferential recall rights of an employee who is off work due to a compensable injury. The changes in the new statute include the employee’s demand for reinstatement to his/her former position must be in writing and delivered to the employer’s address by U.S. Mail with return receipt requested. The preferential recall time period remains one year provided the employee provides the employer a current mailing address during the one-year period. Finally, the new bill provides for a preferential recall time period of no greater than 120 days after the employee is released to return to work by a licensed physician when the injured employee is employed by contractors as defined by W. Va. Code §30-42-3 of the West Virginia Contractor Licensing Act. The employee of such an employer has an obligation to continually seek the possibility of employment during the preferential recall period, and the employee’s right to preferential recall terminates once the employer offers the employee his or her former position or a comparable position. The bill was signed by Governor Justice on March 29, 2023, and is effective 90 days from passage on June 9, 2023.

For any questions, please contact:

Dill Battle

Spilman Thomas & Battle, PLLC

hdbattle@spilmanlaw.com

304-340-3823

Gotte vs Air Conduit, LLC 22-C-0097 (La. 6/8/2022) 347 So. 2d 860

(OWC Judge Melissa St. Mary District 03)

Summary: The Court refused to grant a Writ of Certiorari on a Third Circuit Judgment affirming

the reduction of a claimant’s benefits due to his failure to cooperate with vocational

rehabilitation with two dissenting opinions urging legislative action.

The claimant was collecting SEB following a shoulder injury which required multiple surgeries.

The employer retained a vocational counselor to provide rehabilitation in accordance with

Louisiana workers compensation law. The counselor was unable to contact the claimant or his

attorney after several attempts. For this reason, the employer availed itself of the 50 %

compensation reduction provision in LA RS 23:1226(B)(3)(c) without the need for a hearing.

The claimant filed a disputed claim for compensation and the matter went to hearing. The

Louisiana Workers’ Compensation Office found that the claimant refused to cooperate with

vocational rehabilitation and reduced his compensation by 50%. The claimant argued on appeal

to the Third Circuit that the vocational counselor had a conflict of interest with the claimant

because she was chosen by the employer.

The Third Circuit upheld the employers’ reduction based on a prior Supreme Court opinion

holding this particular conflict of interest has been legislatively resolved.

The claimant applied for a Writ of Certiorari, which was denied by a majority of Justices. Justice

Genovese disagreed, and would have granted the writ. He opined the reduction of claimant’s

benefits without a hearing amounted to “sham rehabilitation” and a denial of due process.

Perceiving a Justice Griffin concurred in the writ denial, admonishing “this area of the law

warrants legislative reform.”

Boudreaux v. Take 5, LLC 2022-42 (La. App. 3 Cir. 10/5/2022) Not yet released for

publication.

(OWC Judge Paula Murphy District 04)

Summary: the claimant’s orthopedic injury while performing regular job duties caused by no

unusual strain is a compensable injury.

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The claimant was employed as an assistant manager at an oil change station. He was changing

oil in the pit under the cars, which requires him to unscrew tight oil filters over his head. At this

particular station, the filters were very tightly fixed, requiring the claimant to apply extra force.

He reported a back injury about a week later, due to having struggled with several filters

throughout the day.

The case went to trial and the employer moved for a directed verdict (involuntary dismissal). The

Louisiana Workers’ Compensation Hearings Officer denied the motion and entered judgment in

favor of the claimant, finding that he proved an injury.

The employer appealed the finding of a work injury, as the claimant did not identify an “actual,

identifiable, precipitous event” as the cause of his injury. The Third Circuit disagreed with this

analysis, citing precedent that an injury is compensable if the claimant can identify with some

particularity the manifestation of the accidental injury.

Minnesota Case Law Update--PTSD

Juntunen v. Carlton County

SUPREME COURT – DECEMBER 21, 2022

No. A22-0090

WCCA No. WC21-6418

Douglas Juntenen worked as a police officer for Carlton County and was diagnosed with post-traumatic stress disorder (“PTSD”) on August 20, 2019. Pursuant to the applicable Minnesota statute, first responders diagnosed with PTSD are entitled to a rebuttable presumption that the condition is work-related.

The employer and insurer denied primary liability and made arrangements for an independent medical evaluation to address causation for the diagnosed PTSD.  The IME was completed on July 20, 2020, and stated that the employee was not suffering from PTSD at the time of the exam or any time in the 30 days prior.

The Compensation Judge ruled that the medical opinions expressed in the independent medical evaluation report  were more persuasive than the employee’s treating physician and found that the statutory presumption did not apply. The judge denied the Employee’s claim for workers’ compensation benefits.

The employee appealed, and the Minnesota Workers’ Compensation Court of Appeals (“WCCA”) reversed the decision of the Compensation Judge, holding that the presumption applied at the time the employee was diagnosed with PTSD.

On appeal, the Minnesota Supreme Court affirmed the decision of the WCCA holding that the statutory presumption applies as soon as a diagnosis of PTSD has been made. The Court held that the employer and insurer failed to rebut the presumption because their medical expert commented only on the diagnosis of PTSD for the three months prior to the evaluation and not during any other time frame. Therefore, the Court found that the opinion of the treating doctor regarding the diagnosis of PTSD was unopposed for any other time frame.

Chrz v. Mower County

SUPREME COURT-March 8, 2023

A22-0792

WCCA No. WC21-6418

Ryan Chrz worked as a sheriff’s deputy  for Mower County and was diagnosed with post-traumatic stress disorder (“PTSD”) on September 25, 2019.

On March 30, 2021, the employee’s treating psychologist found that his condition had improved such that he no longer met all of the DSM-5 criteria for a valid PTSD diagnosis. Instead of PTSD, she found that his work-related mental health condition after March 30, 2021, was “other specified trauma and stress related disorder.” She continued to support his claim for disability from working in law enforcement due to his work-related mental-health condition. The employee then filed a Claim Petition for ongoing workers’ compensation benefits.

 Following a full evidentiary hearing, the Compensation Judge awarded the employee ongoing workers’ compensation benefits.

The employer and insurer appealed, and the Minnesota Workers’ Compensation Court of Appeals (“WCCA”) reversed in part, holding that the employee was not entitled to any workers’ compensation benefits after March 30, 2021.

On appeal, the Minnesota Supreme Court affirmed the WCCA holding that, even if an employee remains disabled from a work-related mental health condition that was originally diagnosed as PTSD, the claim stops being compensable once the employee no longer meets the diagnostic criteria set forth by the current version of the DSM. On that basis, the Court held that Mr. Chrz did not have an ongoing compensable work injury and was not entitled to ongoing workers’ compensation benefits.

MINNESOTA STATUTORY UPDATE—COVID PRESUMPTION HAS ENDED

Effective January 14, 2023, Covid-19 is no longer presumed to be work related, regardless of occupation.

During the height of the Covid-19 pandemic, Minnesota statute held that for any employee working in one of the following occupations who contracted Covid-19, the condition as presumed to be work related:

·        firefighter

·        paramedic

·        nurse or health care worker

·        correctional officer, or security counselor employed by the state or a political subdivision in the following work environment: corrections, detention, or secure treatment facility

·        emergency medical technician

·        a health care provider, nurse, or assistive employee employed in a health care, home care, or long-term care setting, with direct Covid-19 patient care or ancillary work in Covid-19 patient units, and

·        workers required to provide childcare to first responders and health care workers.

In 2022, the Minnesota legislature extended the Covid-19 presumption with an applicable sunset provision effective 11:59 p.m. on January 13, 2023. As of January 14, 2023, the provision has now expired andCovid-19 is no longer a presumptive disease in any employee.

Kentucky Workers’ Compensation Case Law Update

By H. Douglas Jones, Esq. and Margo Menefee, Esq., JSB Attorneys, PLLC

Employee v. Independent Contactor and Economic Realities Test

Oufafa v. Taxi, LLC d/b/a Taxi 7, et. al., (2022-SC-0003-W, not final) Supreme Court of Kentucky

Taxi 7 generates revenue by leasing taxis to its drivers, which it identifies as independent contractors. Claimant sought to work for Taxi 7 in 2016, meeting with the office’s head, providing his license, resume and background check. He passed a drug test and was given two documents to fill out. In one document, Claimant acknowledged in his own handwriting that he was not an employee and not entitled to workers’ compensation benefits.

Taxi 7 only allows the leased cabs to be used for Taxi 7 rides. It operates a dispatch system and cab drivers are penalized for declining rides. Customers could either pay with a credit card, which would go through Taxi 7’s processing system, or could pay the driver directly.

Claimant filed for workers' compensation benefits after being shot while driving. The ALJ found Claimant was an independent contractor and Taxi 7 was a taxicab leasing company utilizing the factors outlined in Ratliff v. Redmon and Chambers v. Wooten’s IGA Foodliner.

The appellate Board reversed, finding that the ALJ incorrectly concluded that Taxi 7 was a taxicab leasing company rather than a taxicab company that employed the Claimant as a driver. The Court of Appeals reversed the Board, stating that the ALJ’s finding of fact that Taxi 7 was a taxicab leasing business and Claimant was not an employee was supported by the facts and not clearly erroneous. The Court of Appeals held on its own that the Claimant was an independent contractor by relying on the definition of “work” as tied directly to renumeration as defined in KRS 342. The Court of Appeals further emphasized that Taxi 7’s income was unaffected by how much or little the lessees work.

Vacating the ALJ’s decision, and striking down the Court of Appeals’ reasoning, the Supreme Court of Kentucky adopted the economic realities test to determine whether a worker is an employee or independent contractor, remanding the claim to the ALJ for a determination consistent with that test.

Medical Fee Dispute – Burden of Proof

Perry County Board of Education v. Campbell, et. al. (2022-SC-0119-WC, not final)

Claimant worked for school district and was in the school gym hanging a banner when he hit his head on a duct and fell on April 11, 2018, alleging injury to his head, shoulder and knee. Radiology report indicated mild changes in the right knee from arthritis and possible fracture. One month later, a follow-up appointment indicated softening of cartilage of patella and partial dislocation. Non-surgical treatment was unsuccessful and a right knee arthroscopy with partial meniscectomy was performed on November 6, 2018, after which Claimant was released to full duty. His knee pain persisted, and a total knee replacement was recommended following his September 16, 2019 office visit. The employer denied the knee replacement on reasonableness and necessity grounds as well as causation, citing to pre-existing arthritic changes. The employer presented three medical opinions finding the knee replacement not

reasonable nor necessary for treatment of the work injury. Claimant presented an opinion from Dr. Madden diagnosing total knee replacement surgery and chronic knee pain. Dr. Madden stated Claimant’s complaints were caused by the work injury, but he did not explicitly state whether the osteoarthritis or need for a total knee replacement were causally related to work injury. He further stated that the work injury required surgical repair and that failing to provide the recommended treatment would worsen his condition. The ALJ found the total knee replacement compensable. The employer appealed, arguing the ALJ improperly relied on inferences instead of medical opinion to determine the knee replacement was causally related to the work injury and to find it was reasonable and necessary.

The Court of Appeals affirmed, finding the ALJ as fact finder has sole authority to judge the weight, credibility, substance and inferences to be drawn from evidence. First, although there was prior arthritis, all of the medical records indicated the Claimant had no prior right knee problems, so the ALJ’s determination that the arthritis was dormant and aroused into a disabling reality by the work injury was supported by substantial evidence. Second, the Court of Appeals approved the ALJ’s use of a patchwork of evidence, including treating doctor’s notes’ Claimant’s testimony, timeline of events, and inferences from Dr. Madden’ s report, to determine the knee replacement was causally related to the work injury as well as reasonable and necessary. The Court concluded that the Claimant bore the burden of proving the compensability of the knee surgery, he was successful, and the determination was supported by substantial evidence.

Should you have any questions or wish to discuss any related matters, please contact us at your convenience.

H. Douglas Jones, Esq. – djones@jsbattorneys.com, 859.594.4200

Margo Menefee, Esq. – mmenefee@jsbattorneys.com, 859.594.4200

SOAH ALJ rejects claimant’s argument that filing deadline is not fair.

There are not many new SOAH decisions these days because there are not nearly as many medical fee disputes as there used to be.  Therefore, when a new SOAH decision comes out it bears mention.  

In SOAH Docket No. 454-22-09437, the Administrative Law Judge held that the claimant was not entitled to reimbursement for his out-of-pocket medical expenses because he did not file his request for medical fee dispute resolution with the Division until about ten months after the filing deadline:  

[Claimant] argues that he has much experience in workers’ compensation—having even written a book on it—and “if someone as well versed in the workers’ compensation system cannot prevail in this matter, what hope does the average injured worker have?” Although the fairness of a labyrinthine workers’ compensation system can be questioned, ultimately its existence and structure is a question for the Texas Legislature and for the Commissioner of Insurance. The ALJ only applies the law as it is. Because [claimant’s] request for resolution was untimely, he is not entitled to reimbursement of his out-of-pocket medical expenses involved in this appeal.

The ALJ’s decision to strictly enforce the Division’s filing deadline should come as no surprise.  As the Texas Supreme Court put it, “A deadline is not something one can substantially comply with. A miss is as good as a mile.” Edwards Aquifer Auth. v. Chemical Lime, Ltd., 291 S.W.3d 392, 403 (Tex. 2009).  The U.S. Supreme Court has explained why filing deadlines must be strictly enforced:

The notion that a filing deadline can be complied with by filing sometime after the deadline falls due is, to say the least, a surprising notion, and it is a notion without limiting principle. If 1–day late filings are acceptable, 10–day late filings might be equally acceptable, and so on in a cascade of exceptions that would engulf the rule erected by the filing deadline; yet regardless of where the cutoff line is set, some individuals will always fall just on the other side of it. Filing deadlines, like statutes of limitations, necessarily operate harshly and arbitrarily with respect to individuals who fall just on the other side of them, but if the concept of a filing deadline is to have any content, the deadline must be enforced. Any less rigid standard would risk encouraging a lax attitude toward filing dates. A filing deadline cannot be complied with, substantially or otherwise, by filing late—even by one day.

United States v. Locke, 471 U.S. 84, 100–101 (1985).

The Supreme Court’s words are important to remember. The Texas workers’ compensation system is replete with deadlines that must be strictly enforced to keep the system running smoothly.  
 

Copyright 2023, Stone Loughlin & Swanson, LLP 

OCIP agreement did not prevent worker from suing property owner who failed to show that agreement was with worker’s employer, a subsidiary of a parent company.

It is a common misperception in the industry that the exclusive remedy defense prevents an employee of a subsidiary company from suing the parent company. It does not. The Dallas Court of Appeals makes this clear in Olivares v. Chevron, issued March 14, 2023. 

For a defendant to assert the exclusive remedy defense, the defendant must be the plaintiff’s employer.  However, the Dallas Court explains that employees of a subsidiary company are not by default also employees of the parent company and in fact, there is a strong presumption that a parent corporation is not the employer of its subsidiary employees. The court’s decision continues:

“An injured employee of a subsidiary corporation, who is estopped under an exclusive remedy provision in his state's workers’ compensation act from suing his employer, may nonetheless bring a third-party claim against the subsidiary's parent or sibling corporation.” Sims v. W. Waste Indus., 918 S.W.2d 682, 684 (Tex. App.—Beaumont 1996, writ denied) (cleaned up). “We are not persuaded that the legislature ever intended parent corporations, who deliberately chose to establish a subsidiary corporation, to be allowed to assert immunity under the Texas Workers’ Compensation Act by reverse piercing of the corporate veil they themselves established.” Id. at 686. 

The plaintiff in Olivares v. Chevron was employed by Apache Global, a subsidiary of Apache Industrial Services, Inc. Chevron sought to show that it had an owner-controlled insurance program (OCIP) with the plaintiff’s employer meaning that Chevron would also be considered his employer and therefore, could not be sued for his work injury.  The court held that Chevron failed to show that the OCIP was with Apache Global, the subsidiary company, rather than Apache Industrial, the parent company and because employees of a subsidiary company are not also employees of the parent company, the exclusive remedy defense did not prevent the plaintiff from suing Chevron.

Chevron presumably spent a lot of money to put this OCIP together to prevent it from being sued for work injuries on its premises and it was for naught. This case provides some good practice pointers for anyone working with OCIPs to make sure they are set up and administered properly.  

Copyright 2023, Stone Loughlin & Swanson, LLP