NWCDN Members regularly post articles and summary judgements in workers’ compensations law in your state.
Select a state from the dropdown menu below to scroll through the state specific archives for updates and opinions on various workers’ compensation laws in your state.
Contact information for NWCDN members is also located on the state specific links in the event you have additional questions or your company is seeking a workers’ compensation lawyer in your state.
Lights…Camera…Termination: Surveillance Footage Wins Best Picture |
Claimant was involved in a compensable work accident in 2016, when he was operating a construction vehicle that crashed and turned over, resulting in injuries to his head, face, neck, and back. Claimant was paid a substantial period of total disability benefits. On March 30, 2021, the Employer filed a Termination Petition seeking to terminate total disability. Employer’s medical expert Dr. Gelman testified that at his defense medical examination, Claimant presented with a rolling walker and singled prong cane, moved slowly, dragged his left foot, and had trouble straightening his left leg. Surveillance footage, on the other hand, showed claimant walking without any limp, climbing into and out of a pickup truck, walking briskly, and not using any assistive devices. Based on this evidence and his examination, Dr. Gelman felt claimant could work in some capacity. Claimant’s medical expert, Dr. James Zaslavsky, testified that claimant could not work, surveillance notwithstanding, as it was his understanding that claimant did not take his medication on dates he was to be examined, which could have explained his worse presentation. Claimant interestingly “doubled down” and testified at trial that he did not walk without a cane or walker, despite what was clearly shown on the surveillance. The Board issued a Decision indicating that they agreed with Dr. Gelman and the Employer, and granted the Termination Petition. Should you have any questions regarding this Decision, please contact John W. Morgan or any other attorney in our Workers’ Compensation Department. Joseph Frederick v. A-Del Construction Co., Inc. and/or Colonial Trucking, Inc., IAB Hrg. No. 1440955 (Dec. 2, 2021). |
Claimant filed a Petition seeking 14% permanency to the right upper extremity (shoulder), as rated by Dr. Rodgers. Following a Hearing, the Board issued a Decision, commenting that although they felt that there was likely some applicable permanency rating due to the work injury, Claimant had not met his burden of proof as to there being 14% impairment. The Board specifically noted that it was uncomfortable with Dr. Rodgers’ permanent impairment rating when his testimony made it clear that he had not reviewed medical records documenting prior right shoulder injuries and treatment. Claimant then provided Dr. Rodgers with the pre-existing medical records. Dr. Rodgers issued an addendum maintaining the same rating. Claimant re-filed the Petition. Following a Legal Hearing, the Board dismissed the Petition, finding the same was precluded by res judicata and/or collateral estoppel. Should you have any questions regarding this Decision, please contact John Ellis or any other attorney in our Workers’ Compensation Department. St. James v. State, IAB Hrg. No. 1490378 (Oct. 28, 2021)(ORDER) |
For many years, the common wisdom has held that carpal tunnel syndrome occurs through repetitive use of the hands and fingers; typing is often given as an example of what causes this malady. Consistent with this common wisdom, the Industrial Accident Board often found carpal tunnel syndrome to be related to one’s employment performing repetitive hand movements. However, the Board appears to be undergoing a paradigm shift in the compensability of allegedly work-related carpal tunnel syndrome, consistent with a growing body of scientific literature on the subject. A recent Board Decision has adopted the most recent scientific literature on carpal tunnel syndrome. Specifically, the Board accepted the opinion of a medical expert that recent scientific studies were performed comparing keyboarding work with the general population and the occurrence of carpal tunnel syndrome; those studies showed no increased occurrences of carpal tunnel syndrome with individuals who performed regular keyboarding work. See Lewis v. State, 1481670 (Feb. 9, 2021). However, the expert in that case did note an increased occurrence of carpal tunnel syndrome in professions “with a forcible use of the wrist against resistance,” with examples of meat packing plants and work with vibrating tools. It is also worth noting that carpal tunnel syndrome has been alleged as a consequence of acute trauma, whether to the shoulder, wrist, hand, or fingers. However, much of the same science applies. The Board has accepted a medical opinion, offered in the case of an alleged traumatically induced carpal tunnel syndrome, that “60 percent of CTS cases have an idiopathic, or unexplained, origin.” Woodie v. Malik’s Repair, Inc., IAB No. 1496417 (Nov. 13, 2020). The idiopathic nature of the condition can combine with testimony on a lack of direct trauma, and/or a delay in symptoms, to avoid compensability. See Gonzalez-Hernandez v. JT Hoover Concrete, IAB No. 1465912 (Sep. 6, 2019). In sum, the Board is casting a more critical eye on allegations of carpal tunnel syndrome. For that reason, claims of carpal tunnel syndrome should be investigated thoroughly, with the goal of raising a vigorous defense where possible. Following these trends and the Board’s guidance on same, allegations of carpal tunnel syndrome from repetitive hand or finger movement should be scrutinized to a greater extent, while a diagnosis following trauma should be investigated for prior symptoms, delays in symptoms, and potential idiopathic or alternative causes of the condition and/or symptoms. A full investigation, supported by an expert examination, will help to continue this trend in favor of the defense. If you should have any questions on this issue, then please contact anyAttorney in our Workers’ Compensation Department. |
WORKERS' COMPENSATION LAW Deny, Deny, Deny – Claimant’s Denial of History Results in Denial of Petition |
The Claimant was involved in a work-related lifting injury to her low back in June 2018. In October 2018, Claimant went to the emergency room with shoulder and neck pain, with no, follow-up treatment for the shoulder until she saw an orthopaedic surgeon in April 2019. According to the surgeon, Claimant identified an incident that occurred 6-8 weeks prior in which she was wearing a large, bulky back brace and attempted to reposition herself; after placing her full weight on her left arm, she experienced left shoulder pain, which was ultimately diagnosed as a rotator cuff tear. A similar history was given to the physical therapist. The surgeon testified that he relied upon this history to relate the left shoulder injury to the work accident, as he placed the blame on the work-related low back brace causing the claimant to move unnaturally. At the Hearing on Claimant’s Petition, however, Claimant gave an entirely different story. Claimant testified she was sitting on the couch in October 2018 and moved her left arm outward, at which point she felt a pop in her shoulder. Claimant specifically denied the history given by the surgeon and the physical therapist, with respect to both the mechanism of injury and the timing – she insisted it was a single event in October. Claimant also denied moving in any particularly awkward or abnormal ways while in the brace, again departing from the history reported by her surgeon. After hearing the significant inconsistencies and outright denials of the recorded histories, the Board found Claimant was not credible or consistent, finding her “timeline of events incoherent” and noting her denials of the history given to her doctors difficult to reconcile. The Board was “left wondering if there was an inciting event” and, if so, whether it was one event or multiple. Instead, the gaps and uncertain symptoms and causes supported the opinions of the Employer’s expert, Dr. Matz, who testified that Claimant’s condition presented as the result of a rotator cuff that has worn down over 68 years of daily life and work. Because the Board could not reconcile the denials with the treating surgeon’s efforts to explain the mechanism of injury, the Board was left with no choice but to deny Claimant’s Petition entirely on the basis of causation alone. Should you have any questions regarding this Decision, please contactNick Bittner or any other Attorney in our Workers’ Compensation Department. Geraldine Daggett v. ShopRite, IAB No. 1500021, March 19, 2021. |
It Is Okay to Lose ‘Round One’ If You Conclude with a Complete Knockout |
The parties entered into an Agreement acknowledging a lumbar soft tissue strain injury. Employer filed a Petition seeking to void the Agreement for fraud, arguing that Claimant had materially misrepresented her prior medical history at the time the Agreement was made. The Board denied the Petition finding there was insufficient evidence for the Agreement to be rescinded due to fraud. Employer filed a new Petition seeking to terminate ongoing benefits, under the theory that any work-related injury had resolved. Claimant argued that the Board’s earlier ruling “implicitly acknowledged” the compensability of radicular symptoms associated with the work injury, and therefore precluded a finding of resolution of injury. The Board rejected Claimant’s legal argument, noting that the burden of proof relating to fraud, that was controlling at the first Hearing, is a different and higher standard than the burden of proof on whether benefits should be terminated. Claimant could have misrepresented her medical history, but not to a degree of a legally fraudulent misrepresentation. The Board commented that it should have been clear from the first Decision that it was not deciding issues of nature and extent of injury, only whether the Agreement should be rescinded for fraud. The Board also agreed with Employer that Claimant had a pre-existing degenerative condition with a radicular component that became symptomatic leading up to the work accident and not impacted by the work accident. The Board accepted the opinions of defense medical expert Dr. Gelman, over that of Dr. Rudin, primarily because the Board did not find Claimant credible. Claimant provided very specific testimony that her radicular symptoms migrated from left to right sided secondary to the work accident. It was “suspect” that claimant would be that specific in testimony, yet three separate emergency room clinicians specifically recorded either no trauma or non-work-related histories. It was also suspect that in many locations in the records, Claimant had explicitly denied any history of prior low back pain or pain involving the same body part. The Board also noted Dr. Gelman’s opinions that claimant’s pre-existing MRI findings were competent to cause both right and left sided problems. Therefore, the Board found that Claimant’s soft tissue strain injury had resolved and granted Employer’s Petition. Should you have any questions regarding this Decision, please contactJohn Ellis, or any other attorney in ourWorkers’ Compensation Department. Dawn Lawson v. Amazon.com, Inc., IAB Hrg. No. 1473748 (Jan 7, 2021). |