State News

Carolyn Marcine Jenson, v. Cummins Filtration-Lake Mills A/K/A Cummins, Inc., F/K/A Fleetguard, Inc., Court of Appeals of Iowa,No. 13-1733

The Claimant, Carolyn Jenson, appeals a district court decision affirming the commissioner’s denial of her knee injury claim. The deputy concluded the Claimant failed to meet her burden to prove by a preponderance of the evidence that the injury arose out of and in the course of her employment. Instead, the deputy concluded the cause of the Claimant’s knee pain was due “to degenerative disease exacerbated by poorly controlled diabetes” and the Claimant’s weight.

The commissioner affirmed the deputy’s decision noting that it was based largely on the deputy’s assessment that the Claimant’s testimony was not credible or convincing. The Claimant was unable to identify how or when her knee pain began, and the knee injury was inconsistent with the motion described by the Claimant during job tasks. The Court of Appeals concluded the commissioner did not abuse his discretion, the decision is not irrational, illogical, or wholly unjustifiable, and is supported by substantial evidence in the record as a whole. Thus, the Court agrees with the district court’s affirmance.

The Claimant also maintains the district court erred by misconstruing the commissioner’s award when it converted the award into a judgment. Specifically, the Claimant maintains the district court misapplied the fifty-percent penalty awarded by the commissioner when the court applied the penalty to only the unpaid portion of the award rather than the total award.

The Court of Appeals found the district court did not err in determining that Cummins Filtration should only pay a penalty for payments it was required to make less credits for the disability payments paid. The Court emphasized that Iowa Code section 86.13(4)(a) provides that “the workers’ compensation commission shall award benefits in addition to those benefits payable under this chapter…up to fifty percent of the amount of benefits that were denied, delayed or terminated.”

Hydecker Wheatland Company and Zurich North America v. Kelly Bruce, Court of Appeals of Iowa, No. 14-0492

On October 15, 2010, the Claimant, Kelly Bruce, was working for Hydecker Wheatland Company installing new electrical lines.  He was standing in the bucket of a boom truck that touched a live electrical wire. The voltage entered his body through his right hand and surged out through the left hand, causing second- and third-degree burns to both hands, along with significant nerve damage.  He lost his left ring finger and left pinky, as well as his right ring finger, as a result of the accident. 

The deputy commissioner found the Claimant was unable to return to the competitive work force. The deputy decided the Claimant was permanently and totally disabled. The commissioner affirmed and adopted the deputy’s decision. Hydecker sought judicial review. Following a hearing, the district court affirmed the commissioner’s award of total permanent disability benefits. Hydecker now appeals.

Hydecker argues that despite the “dramatic mechanism” of the Claimant’s work injury, he sustained “only moderate industrial disability” and has not reentered the work force due to his unwillingness, not inability, to secure employment. In response, the Claimant asserts phantom pain is a type of neuropathic pain and his reports of such pain were substantiated in the agency record. He also argues his mental injuries—including flashbacks, nightmares, and anxiety—were supported by substantial evidence, including his own testimony, which the commissioner found credible.

The Court of Appeals found that the commissioner’s fact finding was supported by substantial evidence and the determination that the Claimant suffered Permanent Total Disability was not irrational, illogical, or wholly unjustifiable. The commissioner was entitled to consider the toll of the electrical burns on the Claimant’s physical abilities, as well as the impact on his psychological functioning when deciding the extent of his industrial disability. The court noted that the Claimant was unable to return to his prior occupation.  Additionally, the Claimant’s age, lack of education and poor academic skills, and limited work experience support the commissioner’s decision. The Claimant established that he could not compete for jobs in his field, nor could he realistically retrain for other positions given his cognitive limitations and physical restrictions.

JBS Swift & Company and Zurich American Insurance Company v. Wayne Hedberg, Court of Appeals of Iowa, No. 14-0565

The employer appeals the district court’s decision affirming the agency’s award of permanent total disability benefits.  The Claimant, Wayne Hedberg, sustained an injury to his right shoulder and arm on May 7, 2010. After his injury he continued working in light-duty positions within his temporary work restrictions until his surgery on December 31, 2010. On January 3, 2011, after the death of his wife, he moved to Minnesota to live with his brother, because he could not care for himself.  He suffered for most of his life from cerebral lupus, mild cerebral palsy, and hearing impairment, for which he required the assistance of others.  As of March 28, 2011, the employer notified the Claimant there was work available to him within his temporary work restrictions.  Later, he was notified there was work available for him within his permanent work restrictions. The Claimant did not return to work after his surgery and did not seek other employment. On August 8, 2011, he was notified that he was deemed a voluntary quit for failing to report back to work. 

An arbitration decision found the Claimant had an 80% industrial disability but was not permanently and totally disabled. The intra-agency appeal adopted the arbitration decision, with a modification as to the extent of the Claimant’s permanent disability, finding the Claimant was entitled to permanent total disability benefits.  In support of the award of permanent total disability benefits, the commissioner’s designee stated the employer failed to provide any descriptions of the work available to the Claimant. 

On appeal, the employer contends this case does not present a routine question of substantial evidence review.  Instead, the employer argues that the agency failed to consider a relevant and important matter, took action that was unreasonable, arbitrary, capricious, or an abuse of discretion; and reached a decision that was a product of illogical reasoning. Specifically, the employer asserts the agency failed to consider and/or explicitly misstated record evidence; failed to consider the Claimant’s refusal of full-time work within his permanent work restrictions; and failed to consider the Claimant voluntarily left his employment for reasons unrelated to his work injury.

The Court of Appeals found that the record reflects the commissioner’s designee simply ignored or overlooked record evidence regarding the work available to the Claimant. The Commissioner stated that no descriptions of available work were given, but this statement is demonstrably incorrect as there were descriptions given in an expert’s report of jobs that were viable and within the Claimant’s medical restrictions. The overlooked evidence was not immaterial; the heart of the appeal decision was based upon the designee’s conclusion that the employer failed to provide evidence of available work, and that only make-work was available.  The Court of Appeals thus concluded the commissioner’s designee’s action was unreasonable, arbitrary, capricious, an abuse of discretion, and the product of illogical reasoning. The decision was accordingly reversed and remanded to allow the agency to make a decision based on the existing record.  

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

            It is very difficult to appeal a Judge of Compensation on the level of permanency awarded following trial.  That lesson can be seen in Huesser v. United Airlines, A-5959-12T3, (App. Div. July 14, 2014). 

             Elaine Huesser worked as a flight attendant for United Airlines since 1998.  She suffered her first injury on September 28, 2005 when her flight seat broke, causing her to fall and injure her left shoulder and lower back.  That case settled in March 2009 for 42.5% of partial permanent disability, apportioned 27.5% for the left shoulder and 15% for the low back.

             The second injury occurred on September 28, 2008, when petitioner suffered a massive rotator cuff tear of the right shoulder while lifting a suitcase into an overhead compartment.  She had four surgeries following this incident, culminating in a shoulder replacement procedure. 

             Huesser reopened the first award and sought an increase in permanency.  She had invasive pain management treatment , including lumbar injections and lumbar nerve ablations after the initial award was entered.  Both the reopener claim and the right shoulder claim were tried to a conclusion before the Judge of Compensation with the only issue being the nature and extent of permanency.

             The job of flight attendant was demonstrated to be very physical, with occasional lifting of up to 75 pounds, pushing metal carts weighing 250 pounds, lifting bins of sodas, reaching to close overhead bins, lifting luggage, and opening and closing heavy flight doors.  Huesser testified that she returned to work in November 2010 after two years of treatment following her four right shoulder surgeries.  She had seniority with United Airlines which permitted her to avoid some of the heavy lifting duties.  She became a purser, a job which involved lifting lighter bags and doing more supervisory work.  Eighty five percent of the time she did not have to do the very heavy lifting, but the remaining 15% of the time she still did some of the physical tasks, which she would perform in pain.  She said she learned to compensate for the pain in her right shoulder and adjusted the way she did things.

             At the time of her testimony, petitioner said she had constant pain in her mid to lower back which had worsened since her testimony at the time of her first award for the 2005 accident.  The pain had begun to travel down to the left and right sides of her buttocks.  Her sleep was deleteriously affected.  Her husband testified that she did no longer cooked, cleaned or gardened. 

             Respondent produced two employees who said that petitioner was never written up for being unable to perform her job, and she never complained about inability to do her job duties. 

             Petitioner’s expert, Dr. Gaffney, testified that her level of disability increased since the original award.  He raised his estimate of disability for her back by 45%. Dr. Tobias, petitioner’s expert for the right shoulder, said she had a disability of 75%.

             Respondent’s expert, Dr. Zazzo, increased his disability on the back by 2.5% and left shoulder.  He estimated 33% disability for the right shoulder, and he increased that percentage at trial to 38.5%. 

             The Judge of Compensation found an increase of 10% in the low back, meaning that her award for the 2005 accident was 52.5% credit 42.5% ($52,035), and he awarded petitioner 45% on her right shoulder ($120,150), which was only marginally higher than the very high estimate of respondent’s expert, Dr. Zazzo.   Respondent appealed both judgments, contending that they were not based on adequate and credible evidence.  The Judge of Compensation found no increase on the left shoulder.

             The appellate division dispensed with the argument that the Judge of Compensation had not considered the fact that petitioner had not complained about her job duties since returning to work in November 2010.  The court noted that her seniority allowed her to avoid some of the heavier tasks and noted that she simply worked in pain.  The court also rejected the notion that the mere fact that petitioner successfully returned to work negated such high awards.  It citedN.J.S.A. 34:15-36: “nothing in this definition shall be construed to preclude benefits to a worker who returns to work following a compensable accident even if there be no reduction in earnings.”

             In the end, the appellate division deferred to the expertise of the Judge of Compensation in finding the correct level of disability.  “We recounted in detail the compensation judge’s findings and conclusions because they demonstrate a comprehensive and thoughtful review of all of the testimony and evidence presented.  The judge made credibility determinations and clearly set forth the basis for his findings and conclusions.  We find the judge’s determinations of disability are supported by the weight of the evidence.” 

            We live in a world where terrorism unfortunately poses genuine insurance risks. The Terrorism Risk Insurance Act (TRIA) was passed by President George W. Bush on November 26, 2002 to establish a backstop for insurance claims arising from acts of terrorism.  This coverage includes workers’ compensation claims.  Before September 11, 2001, insurance companies generally did not charge for nor specifically exclude terrorism coverage.  However, much of the cost from the 9/11 attacks fell on reinsurance companies, leading some to withdraw coverage for terrorism from the market place.

             TRIA was passed to provide protection for employers and insurers in the event of acts of terrorism.  It creates something like a federal reinsurance program in cases of terrorism.  In exchange for this protection, the insurance industry must offer terrorism coverage and cover a certain amount of losses before federal assistance kicks in.  The law has been extended several times since 2002, but regrettably Congress let it lapse on December 31, 2014. 

             With a new Congress convening this week, employers and insurers are hopeful that TRIA will be renewed shortly.  Without TRIA protection, businesses and insurers could be left without adequate insurance in the event of a terrorist attack.  The risks are probably greatest in urban areas, particularly in large American cities. Congress is playing with fire in allowing TRIA to lapse. 

             Employers and practitioners should be aware of the importance of TRIA in workers’ compensation and should consider contacting their Congressional representatives to urge the renewal of TRIA as soon as possible.  

DWCreleased itsbiennial reportto the84th  LegislatureinDecember. Accordingto thereport, injury rates,insurance rates,and premiumsand claimscosts aredown andemployerparticipation, return-to-work outcomes,access tocare, andmedicaldispute resolutionare betterthan ever.DWC didnote that there isroom forimprovementin reducingthe numberof designated doctor disputes, injuredemployee educationand outreachand reducingthe numberof work-related fatalities. DWC included two legislative recommendations in thereport: 1)increase themaximumreimbursement for burial benefits; and 2) establish a pilot safety reimbursement programfor small employers.

TDI alsopublishedan Analysis ofthe Impact ofthe 2005Legislative Reformson theTexas Workers’CompensationSystem inDecember– this wasthe “network” legislation. Thatreport also favorablyreports thestate ofworkers’ compensationin Texas.Highlights from the reportinclude:

1) workers’compensation insurancehas beenprofitable eachyear from2005-2013 (asmeasured by theindustry’s combinedratios andreturn onnet worth);2) thenumberof employersparticipating in networksand employeesbeing treatedby network providershas increased (approximately42% of new claims are network claims); 3) injured employeesatisfactionwithcare andhealth-related outcomes increased since 2005 (according to recent injured employee surveys); 4)total medical costsforprofessionalservices decreasedfrom itspeak in 2002until2007,buttherewasan increasing trend beginning in 2008, which seems to haveleveled off since 2011; and 5) overall wholeclaim denials,medical disputesand thenumberof claimswith disputesare atthe lowestlevel since 2008.

Accordingto arecent TDIreport resultingfrom aOpen RecordsRequest bythe Insurance Council of Texas, insurancecarriers prevailedthe majority ofthe timein bothprospective and retrospective medical necessityIndependent ReviewOrganizationreviews.  Thereport coversthe years2009-2013. These numbers are not surprising since the adoption of the Official DisabilityGuidelines (effective 5/1/07),but itis goodto knowthattheIRO reviewsystem appears tobe producing consistent outcomes applying evidence-based guidelines fromthe ODG.

BeginningJune 1,2015, Carriersare requiredto usethe revisedDWCForm PLN-11 to disputea workers’ compensation claimand provide the factual basis of the dispute.

TheDivision’s statedreason forthe revision isto help theagency andinjured employeesclarify whether acarrier isdisputing extentof injury, disabilityand/or eligibilityto receivedeath benefits. In itsmemorandumannouncing the finalized form,theDivision alsowarned against usingthe PLN-11 for issues outside the

scope of the PLN-11.

Carriers haveuntil June1, 2015to begin usingthe newform,but there isno harm    in practicing to doso nowin order toget used to using it. The finalizedform isavailable nowon theDWCwebsite at http://www.tdi.texas.gov/forms/form20numeric.html.

December ushered in a DWC effort to providemuch needed education to workers’ compensation treatingdoctors. Theeducation is aimedat teaching treatingdoctors theappropriate wayto address and report oncausation ofa claimedcompensableinjuryin hopesthat thereport willaid indispute resolution.

Wewelcomebetter reportsfrom treatingdoctors. Butthe training materialsfocus onthe formof the report over the substance of the opinion and the underlying science a doctor should use to formulate his or her opinion. The use of templates andmagic words should not replace a well- reasonedopinion thataddresses causationin thecontextof theclinical recordand evidence-based medicine relevantto thespecifics ofa given case.Weare awareof atleast onecase where ahearing officer under the guise of an LOC mid-hearing sent the trainingmaterials to a designated doctor where thedesignated doctorhad notprovided acausation opinion that met evidentiary standards. The expectation was that the doctor would then issue an “amended” report.

Ofnote isthe factthat thereis norequirementthat atreating doctorreview allthe medicalrecords and list what hehas reviewed.   Thatis notthe casefor peerreview doctors,RMEdoctorsand designated doctors who are held to amuch more stringent standard.

Membership in the AWCO offers a number of professional and social opportunities annually to interact with other workers' compensation professionals. The highlight of the year is the annual AWCO Spring Conference where its members come together for three days of education, fun, and fellowship. Membership is only $75 if paid prior to February 27, 2015. After that, the annual fee goes up to $150. Once you are an AWCO member, the Spring Conference is free. You pay nothing, nada, zero, zilch to register and attend. If you have any questions about the AWCO, membership, the Spring Conference, or simply need an application for membership, feel free to call or e-mail Mike Fish (contact info below). ________________________ 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.