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.
Simon Law Group, P.C.
701 Market Street, Suite 340, St. Louis, MO 63101
314-621-2828
MISSOURI WORKERS’ COMPENSATION CASE LAW UPDATE
January 2024 – March 2024
Expert Must Consider Only Qualifying Pre-Existing PPD
Emerson v. Prestressed Casting Co., & Second Injury Fund, Injury No. 18-08559
FACTS: The claimant sustained three prior injuries to his low back. His first low back injury was on May 8, 2012. The MRI showed a small central zone protrusion at L3-4, a central and pericentral zone disc protrusion and annular fissure at L4-5, with mild lateral recess stenosis. The claimant was discharged with a 0% rating and return to full work without restrictions.
His second prior injury was on April 13, 2013. Dr. Crabtree performed a hemilaminectomy and microdiscectomy at L5-S1. The claimant subsequently returned to full duty work without restrictions.
The claimant’s third injury was on December 29, 2014. Dr. Chabot performed surgery which included partial facetectomies and foraminotomies at L4-5 and L5-S1, fusion at L5-S1, and insertion of pedicel screws and rods at L5-S1. After surgery, the claimant continued follow-up care with Dr. Chabot for continuing leg pain.
After reaching MMI following each of the three prior low back injuries, the claimant returned to work at full duty. Although Dr. Woodward provided job restrictions for 35-pound lifting, there is no evidence that the restrictions were followed.
On August 29, 2018, the claimant sustained his primary injury to his neck and low back. A lumbar spine MRI showed L4-5 lateral recess stenosis and facet joint arthropathy that had progressed since claimant’s post fusion MRI. The claimant then underwent a cervical fusion at C5-6 with Dr. Crabtree. Since the claimant’s cervical surgery in 2019, he was using a cane daily, his right leg had given out, he slept poorly, was dependent on pain medication and had significant limitations regarding his activities.
In his Award following the Hearing, the Judge found the employer/insurer solely liable for PTD because the employee worked without limitations before the August 29, 2018 primary injury, stating that “although Mr. Emerson suffered impairments before his last accident, he did not suffer significant consequences from his impairment, i.e. [prior] disabilities until after the last accident.”
The employer/insurer filed a timely Application for Review alleging that the Judge erred in making a distinction between impairment and disability in disregard to the prior settlement and erroneously interpretating 287.220 regarding the liability of the Fund.
HOLDING: The Commission analyzed and applied Section 287.220.3 (2) regarding the liability of the Second Injury Fund for permanent total disability claims. In summary, the statute states that the Fund is liable when an employee sustains a subsequent compensable work-related injury when combined with a preexisting disability equaling a minimum of 50 weeks of permanent partial disability results in permanent total disability.
In this case, only one medical expert, Dr. Volarich, addressed the effect of the claimant’s preexisting disabilities in combination with disabilities attributable to his primary injury. Dr. Crockett rated the claimant’s PPD as 20% of the body but did not distinguish preexisting disabilities from any disability relating to the primary injury. Dr. Volarich opined that the claimant had 60% preexisting PPD of the body rated at the lumbar spine.
The Commission concurred with Dr. Volarich’s opinion that qualifying pre-existing disability attributable to the claimant’s 2013 and 2014 compensable work injuries combined with disability from the claimant’s primary injury to render him permanently and totally disabled. Therefore, the Fund was liable for PTD benefits and the employer was liable for 35% of the body for the primary injury.
Employer Liable for PTD From Primary Injury Alone Despite Conservative Treatment
Balliu v. Konika Minolta Business Solution USA, Inc. & Second Injury Fund, Injury No. 15-085465
FACTS: The employee had an injury on May 6, 2015 and settled against the employer for 25% of the body for a strain on the right groin which was treated non-surgically. The employee went to a hearing against the Fund.
The claimant sustained two prior injuries. In 1999, he suffered a bilateral hernia which was surgically repaired. The claimant testified this happened in a work-related event but did not pursue Worker’s Compensation Benefits. Thereafter, he returned to his same job working full duty with no formal restrictions or accommodations although the claimant testified to some self-accommodating behavior to avoid further injury. Subsequently, in 2004, he sustained a right sided inguinal hernia that was not work related.
In his Award, the Judge stated that the burden of proving entitlement to compensation is on the claimant. In this case, the claimant was alleging that he was PTD due to a combination of injuries. To establish Fund liability, the claimant must demonstrate that the primary injury combined with the prior qualifying injury renders the claimant unemployable in the open labor market. The Judge concluded that the prior injuries did not qualify as preexisting disabilities. When the claimant returned to work after the 1999 injury, he returned to work full time with no restrictions. Furthermore, prior to the primary 2015 work injury, the claimant testified that he engaged in outdoor hobbies including bicycling 8 to 10 miles at a time twice a month, as well as hiking and other activities. The Judge found that the claimant did not meet his burden to establish liability of the Fund for PTD.
HOLDING: The Commission affirmed the Judge’s Award and decision but corrected his analysis with a supplemental opinion. The Commission noted that for there to be Fund liability, the first analysis is to determine the degree of disability from the last work-related injury. If that last work-related injury, independent and alone, renders the claimant PTD, neither the number of preexisting conditions nor their degree of disability is relevant and there is no Fund liability.
For that reason, the Commission found that the claimant failed to meet his burden of proof to establish liability of the Fund in this matter. Specifically, the claimant’s last accident of May 6, 2015, and the limitations and restrictions, including claimant’s need to recline multiple times per day up to 7 hours per day as a result of the last accident alone, and in isolation, are the most significant factors which rendered the claimant PTD as a result of the primary injury.
“Right to Control” Establishes Employment
Reyes v. Indios Painting, Injury No. 20-100084
FACTS: At the time of the Hearing, the sole issue to be resolved was whether there was an employer/employee relationship between the claimant and Indios Painting.
The claimant alleged that she worked as a painter for Indios Painting and was hired approximately three months prior to the accident date of May 11, 2020. There is little dispute that on May 11, 2020, the claimant was involved in a serious motor vehicle accident. Mr. Pacheco testified deposition that he previously owned and operated Indios Painting which was operated out of his home and that all employees of Indios Painting were not engaged in the actual business of painting with the exception of occasional touchup work. Also, he was not the owner of the van in the motor vehicle accident on the day in question. However, in the testimony presented, including that of Mr. Pacheco and the claimant, it describes oral contracts entered into with Indios Painting through Mr. Pacheco with various subcontractors including Wilder Landaverry.
The facts also showed that Wilder, as a subcontractor of Indios Painting, picked up the claimant and drove her and others to the job site and returned them at the end of the day. This exercise of the control and the nature of going and coming to jobs and being in a vehicle arguably owned and controlled by Indios Painting at the time of the accident satisfied the right to control test.
HOLDING: The Judge concluded that the claimant was an employee because she was employed by a subcontractor of Indios Painting and presumably the subcontractor possessed no worker’s compensation insurance. By law the statutory employer would step into the shoes for an uninsured subcontractor and for that reason, the Judge found that Indios Painting was the statutory employer of the claimant.
The statute regarding statutory employment states: “Any person who has worked on under contract on or about his premises which is an operation of the usual business which he there carries on shall be deemed an employee and should be liable under this chapter to such contractor, his subcontractor, and their employees when injured or killed on or about the premises of the employer while doing work which is in the usual course of business.”
The evidence showed that Indios Painting hired subcontractors, directed and controlled where they worked, and provided the materials to allow them to perform that work. Also, the accident occurred in an Indios Painting van filled with painting supplies and equipment in which the claimant was picked up by Wilder and transported to the job. Therefore, the Judge found that Indios Painting was the statutory employer of Wilder Landaverry.
The employer/insurer appealed, and the Commission affirmed the Judge’s Award.
Must Consider “Usual Wages From Similar Services” For Volunteer Workers
Hayes v. City of El Dorado Springs, Case No. SD37841 (Mo.App.2024)
FACTS: The Commission awarded Susan Hayes (Wife) $40.00 per week in benefits for the death of her husband, Russell Hayes (Husband) who died while working as a volunteer fire fighter for the City of El Dorado Springs, Missouri. Wife appealed the decision.
Husband served as a volunteer firefighter and EMT for several decades. In 2018, he was fatally injured. Employer admitted that Husband and Wife were entitled to benefits. The only dispute was the amount of Wife’s weekly death benefit.
The only witnesses to testify at the Hearing were Wife and her two expert witnesses, a Lieutenant firefighter and Mr. Eldred, a vocational expert. According to Wife, Husband was on call 24 hours a day as a volunteer fire fighter for employer. Except for working nights as an in home aid, Husband would stop what he was doing to respond to calls. If the calls required Husband to act in some fashion, he was paid $10 per response inside the city limits and $20 per response outside the city limits. But if no action was required, his pay was reduced from $10 to $4 and from $20 to $6.
Mr. Eldred’s report included wage data for firefighters generally, including the mean annual salaries for full time firefighters nationally, within Missouri and within southwest Missouri along with a general firefighter job description as well as the employer’s volunteer firefighter job description.
The employer presented exhibits including a wage statement for Husband, Husband’s personnel file, the employer’s job description for volunteer fire fighters, Husband’s historical pay information, and a wage statement for the employer’s fire chief.
At Hearing, the ALJ found that while Husband was paid for per call responded to, the nature of responding to emergency calls was unpredictable. Also, the ALJ dismissed the testimony of Mr. Eldred as that testimony asked for an assumption that the services of a full-time career firefighter and by a rural volunteer firefighter were similar. Therefore, the ALJ concluded that there was no wage evidence that was introduced. Therefore, since Husband's compensation never exceeded $40 per week the ALJ concluded that the statutory minimum of $40 per week was appropriate. The Wife appealed and the Commission affirmed.
HOLDING: On appeal, Wife contends the Commission misapplied the law in determining Husband’s weekly wage. The Court reversed the Commission’s Award and remanded the case for further proceedings consistent with their opinion.
The Court stated that when the Commission found that Wife presented evidence of the “usual wage” of firefighters, they did not compare the services provided by such firefighters to services provided by Husband as a volunteer firefighter to determine whether those services are “similar” as required by Section 287.250.1 (6) which states that if the hourly wage has not been fixed or cannot be ascertained or the employee earned no wage, the wage for the purpose of calculating compensation shall be taken to be the usual wage for similar services where such services are rendered by paid employees of the employer or any other employer.
The Court stated it was clear that the Commission did not consider the testimony of Wife’s expert testimony that as a general rule most firefighters have similar job expectations or that the job description of a firefighter and a volunteer firefighter overlapped.
The Court concluded that the plain language of Section 287.250.1 (6) clearly allows for a wage to be calculated for an employee who earned very little or even “no wage” by utilizing the “usual wage” paid to others. The Commission’s Award was revered and remanded for the Commission to determine whether a wage for the purpose of calculating compensation in the form of the “usual wage for similar services” can be determined under Section 287.250.1 (6).
The Georgia Legislative Session had no major changes to report for our system in this session. This should generally be received as great news, considering the trend in recent years to annual increases in our TTD and TPD caps.
Although not directly related to Workers’ Compensation HB 451 presents a non WC and private insurance solution to PTSD benefits for first responders, and EMT’s. This topic has been discussed for the last two sessions and originally was being proposed as an amendment to our WC code but sure and steady work by the Board has this issue positioned to fall into a non-WC coverage insurance program. To continue with a theme of advancing protections for first -responders, SB 371 would provide additional compensation out of the State Indemnification Fund for public safety/first responders as a gap between workers' compensation benefits and their current wage income.
Beyond both of those matters which were near misses from a WC perspective, it remains business as usual with no significant changes to report!
April 2024 Case Law Update
Troy Faughn v. Northern Improvement Company, Jan. 10, 2024
Jurisdiction – Out-of-state Employment
Statutes Construed – Minnesota Statutes § 176.041, Subdivision 3
Where the employee was at his current residence in Minnesota when he was offered and accepted a seasonal job at a North Dakota jobsite, for purposes of Minn. Stat. § 176.041, subd. 3, the employee was hired in the state of Minnesota.
Jurisdiction – Out-of-state Employment
Statutes Construed – Minnesota Statutes § 176.041, Subdivision 3
Where an employee is hired in the state of Minnesota, by a Minnesota employer, and is injured while temporarily working outside the state of Minnesota, the compensation judge properly determined that the employee’s injury is compensable under the Minnesota Workers’ Compensation Act.
Affirmed.
Gerald Bauer v. Flint Hills Resources, Jan. 26, 2024
Permanent Total Disability – Retirement
Statutes Construed – Minnesota Statutes § 176.101, Subdivision 4
The statutory presumption of retirement under Minn. Stat. § 176.101, subd. 4 (2016), controls for the employee’s date of injury as the 2018 amendment to the statute does not have retroactive effect.
Permanent Total Disability – Retirement
The record as a whole supported the compensation judge’s conclusion that the employee had failed to rebut the presumption that he had retired at age 67, and the judge did not err by noting the fact that the employee had not sought to supplement his income by returning to work or from other sources.
Practice and Procedure – Dismissal
The compensation judge did not abuse her discretion in dismissing the employee’s claim with prejudice upon determining that he failed to rebut the retirement presumption of Minn. Stat. § 176.101, subd. 4, as the decision was a final order resolving that issue.
Affirmed.
Andrew Thompson v. Minnesota Trial Courts – District 4 and State of Minnesota Department of Administration, Jan. 26, 2024
Arising Out of and in the Course Of
Although the employee was incidentally carrying a work laptop and other work-related materials while commuting to work when he slipped on an icy public sidewalk, substantial evidence supports the finding that the employee failed to meet the “arising out of and in the course of” employment requirements of Minn. Stat. § 176.021, subd. 1, where the compensation judge could reasonably find an absence of a sufficient causal connection between the employee’s injury and his employment under the “special hazard,” “street risk” or “special errand” exceptions.
Affirmed.
In Alabama, all disputed workers’ compensation claims are handled through the regular court system. Alabama is the only remaining state to handle disputed claims in this manner. The statute of limitations (“SOL”) for filing a workers’ compensation lawsuit is 2 years from the date of injury or date of last indemnity payment. For cumulative trauma or exposure claims, it is 2 years from the date of last exposure. One exception to the 2-year SOL is if the claimed injury was latent and could not reasonably have been discovered until a later date.
In the recently released opinion of Dillard v. Calvary Assembly of God, the Alabama Court of Appeals affirmed and clarified that a latent injury exception to the SOL is not applicable to situations where a reasonably minded employee knows they have a compensable injury even when there has been no lost time from work. Further, an injury will not be considered latent based on the employee not knowing the full extent of the injury. In Dillard, the employee testified that he had frequent low back pain. Despite being off work following each of his two back surgeries, he never claimed and did not receive temporary-total-disability benefits. As a result, the trial court concluded that a reasonable person would have known the nature, seriousness, and probable compensable nature of the work-related injury as of the date the first surgery was recommended as a possible treatment option.
About the Author:
This blog submission was prepared by Karen Cleveland, an attorney with Fish Nelson & Holden, LLC, a law firm dedicated to representing self-insured employers, insurance carriers, and third-party administrators in all matters related to workers’ compensation. Fish Nelson & Holden is a member of the National Workers’ Compensation Defense Network. If you have any questions about this submission or Alabama workers’ compensation in general, please contact Cleveland by e-mailing her at kcleveland@fishnelson.com or by calling her directly at 205-332-1599.
On May 19, 2023, the Alabama Supreme Court release its opinion in Ex parte Midsouth Paving, Inc. wherein it reversed the trial court’s denial of summary judgment on the issue of whether the roadside paving company where the temporary employee was assigned was afforded the protections of the exclusivity doctrine as a special employer. The trial court declined to grant summary judgment because the employee was never made aware that he was a special employee. In reversing the court’s decision, the Alabama Supreme Court rationalized that the mindset of an employee is of little consequence when determining whether a special employer/employee relationship exists.
About the Author
This blog submission was prepared by Mike Fish, an attorney with Fish Nelson & Holden, LLC, a law firm dedicated to representing self-insured employers, insurance carriers, and third-party administrators in all matters related to workers’ compensation. Fish Nelson & Holden is a member of the National Workers’ Compensation Defense Network. If you have any questions about this submission or Alabama workers’ compensation in general, please contact Fish by e-mailing him at mfish@fishnelson.com or by calling him directly at 205-332-1448.
On December 2, 2022, the Alabama Supreme Court release its opinion in Ex parte Varoff wherein it granted the employer’s petition for writ of mandamus. The trial judge had previously denied summary judgment in this safety guard removal case where the evidence revealed that a lid was removed from the subject machine just prior to the employee injuring his arm. The Alabama Supreme Court determined that it was necessary to remove the lid to unclog the machine. Since unclogging the machine enabled the machine to work properly it constituted a repair thus disqualifying it as a safety guard removal.
About the Author
This blog submission was prepared by Mike Fish, an attorney with Fish Nelson & Holden, LLC, a law firm dedicated to representing self-insured employers, insurance carriers, and third-party administrators in all matters related to workers’ compensation. Fish Nelson & Holden is a member of the National Workers’ Compensation Defense Network. If you have any questions about this submission or Alabama workers’ compensation in general, please contact Fish by e-mailing him at mfish@fishnelson.com or by calling him directly at 205-332-1448.
Rule 325-1.26
· Treatment by chiropractors, acupuncturists, physical therapists, and occupational therapists must be done in person.
· Treatment by physicians, podiatrists, nurse practitioners, and P.A.s
o First exam in person
o For treatment within three months of injury date, every third exam in person
o For treatment more than three months from injury date, in person exam required every three months unless claimant at permanent MMI
§ If claimant at MMI, at least one in person exam per year required
· Treatment by Psychologists and Licensed Clinical Social Workers
o Remote visits allowed under certain circumstances
o For treatment more than three months after the injury date, in person exam is required every three months unless claimant at MMI
o IMEs may be done by telehealth when all parties consent and IME is not opining on permanency
Board Announcement
In mid-2024, the Board will start issuing notices of indexing for all cases where the file contains a C-3 or FROI-00 and a medical report which triggers the carrier’s obligation to file a Notice of Controversy
On March 22, 2024, Governor Tony Evers signed into law 2023 Wisconsin Assembly Bill 1073, now 2023 Wisconsin Act 213 (the Act), which was originally introduced by the Committee on Labor and Integrated Employment on February 8, 2024. The Act’s effective date was March 24, 2024.
Most notably, the Act provides amendments to Chapter 102 regarding: (1) the weekly permanent partial disability (PPD) rate for the remainder of 2024 and 2025, (2) the statute of limitations run date after compromise agreement approval, and (3) voluntary advancements in PPD.
I. Weekly PPD Rate
The Act increases the maximum weekly PPD rate to $438 (previously $430) for injuries occurring on or after the effective date of the Act through December 31, 2024. The Act also increases the weekly PPD rate to $446 for injuries occurring on or after January 1, 2025.
Therefore, all PPD benefits for injuries occurring on or after March 24, 2024, need to be paid at the rate of $438. Further, all PPD benefits for injuries occurring on or after January 1, 2025, need to be paid at the rate of $446.
II. Statute of Limitations
Previously, Wis. Stat. §102.17(4) was silent regarding the effect of a compromise agreement on the statute of limitations. This Act provides clarification regarding when the statute of limitations (12 years for occupational injuries and 6 years for traumatic injuries) begins to run, stating that it “begins to run on the date an order is issued by the division approving a compromise agreement.”
Previously, the Division had the ability to hold open claims that were settled on a limited basis, thereby halting the statute of limitations, potentially indefinitely. The new language in the Act changes that practice, ensuring that the Division’s holding of claims has no effect on the statute of limitations. This is a welcome change for all employers and workers’ compensation carriers as it guarantees that the statute of limitations will continue to run even if a claim is resolved on a limited basis.
III. Advancements in PPD
It remains that the department or the division has the authority to direct an advance on the payment of unaccrued compensation for permanent disability or death benefits if it is determined to be in the best interest of the injured employee or employee’s dependents; the employer or insurer shall be given a 5% interest credit in such situations. Now, the Act also allows advancements on PPD to be made voluntarily by an employer or insurer, without DWD authority, if the claim is undisputed. If an employer or insurer decides to voluntarily advance unaccrued PPD, the employer or insurer cannot impose any interest credit.
This additional provision allows employers and insurers to pay out “lump sum” PPD awards in full, prior to their accrual. This way, employers and insurers can close their files rather than continue to pay out benefits over the accrual period. Nevertheless, it is important to note that opting for advancement in PPD payments will not affect the statute of limitations, as the statute of limitations is based on the date the last PPD payment should have been made, if paid as it accrues. In other words, paying PPD in a lump sum will not speed up the statute of limitations.
Memorandum Decision Only Indiana Court of Appeals
David Vass v. Barklay Purkans, LLC 23A-EX-2090
Although a memorandum-only decision, this Indiana Court of Appeals case supported medical treatment following a finding of maximum medical improvement and PPI award by the Board, but held fast to the Board’s decision plaintiff was not temporarily totally disabled during the ongoing treatment, which took place over several years.
This case had a long history following a compensable worker’s compensation injury occurring in 2014. The original knee injury resulted in a total knee replacement. However, plaintiff had ongoing complaints of pain, contending he was unable to work for that reason, despite having been released to full duty work by the treating physician and by a subsequent IME physician. Examinations were normal and physicians could identify no medical reason plaintiff could not work. As a result, he had no medical evidence taking him off work, despite continuing medical attention. In a 2018 decision the Single Hearing Member found claimant was at MMI in 2017, was not entitled to additional TTD benefits, assigned a 31% PPI of his right leg and retained jurisdiction over the matter.
In subsequent appearances, the judge issued an order requiring plaintiff to participate in an FCE, his refusal to attend the FCE previously recommended. Eventually, the treating physician began a course of conservative treatment for IT Band syndrome with a later recommendation the plaintiff have IT band surgery, which was done in 2023. Following an additional hearing the judge concluded the ITB surgery was necessary to limit or reduce the 31% PPI, which is allowed under the Indiana Worker’s Compensation Act following a PPI award, and denied plaintiff’s request for additional TTD based on its conclusion he had reached MMI in 2017.
The Court of Appeals upheld the decision of the
Indiana Board, supporting appropriate post MMI/PPI palliative medical care and
supporting no TTD owed following that finding given the consistent medical
opinions plaintiff could work.
A. Lifetime Benefit Caps Increases: SB 430 increases the following lifetime maximum benefits as follows:
1. Death benefit cap will increase from current $300,000 to $500,000. Benefits can exceed death benefit cap for dependent children until the later of: 1) Age 18; 2) If enrolled in high school, May 30th of the senior year, or until such child becomes 19, whichever comes first; or 3) Until age 23 if enrolled in vocational school or college.
2. Permanent Total Disability cap will increase from current $155,000 to $400,000.
a. To be eligible pursue permanent total disability benefits, an injured worker must prove the work accident resulted in at least a 10% permanent partial impairment to the body as a whole or, if the injured worker has preexisting impairment, the injured workers total permanent partial impairment to the whole body must be at least 15%.
b. The injured worker must still prove they are essentially and realistically unemployable as a result of the accident.
3. Permanent Partial Disability
cap will increase from $130,000 to $225,000
a. Injured worker must prove permanent partial impairment to the whole body from the work accident of at least 7.5% or, if the injured worker has preexisting impairment, the injured worker’s combined permanent partial impairment to the whole body must be at least 10%.
b. Work disability is still determined by the average of wage loss and task loss related to the work injury.
4. Functional Only Cap: If the workers compensation accident results in only permanent partial impairment, an injured worker’s recovery cap is increased from $75,000 to $100,000.
5. Built In Cap Modifier: Caps will remain fixed until July 1, 2027, at which time a cost of living adjustment will kick in to raise caps on a yearly basis. The annual percentage increase will be based on a 5-year average of the percentage increase in the State’s average weekly wage.
B. Note: This is a basic summary of some of the key SB 430 work comp law changes. As of the date of this writing (April 2, 2024), SB 430 has passed both the Kansas House and Senate, but has not yet been signed into law by Governor Kelly. Details concerning additional changes in SB 430 will be updated once Governor Kelly has signed SB 430 into law. Effective date of these new law changes will be for work injuries occuring after July 1, 2024.