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.
Travis County District Court Judge Madeleine Connor signed a judgment in favor
of the insurance carriers in the PHI Air Medical Case on August 8, 2023.
PHI Air Medical had until September 7, 2023 to appeal Judge Connor’s
decision to the court of appeals but did not do so, making her decision final.
Judge Connor found that PHI Air Medical did not timely file its petition
for judicial review challenging SOAH’s decision awarding payment of 149% of the
Medicare rate and agreed with the carriers that 149% of the Medicare rate exceeds
the Workers’ Compensation Act’s fair and reasonable reimbursement standards for
the 33 fee disputes at issue in the case.
The PHI case began at the State Office of Administrative Hearings (SOAH) in
2015 when Administrative Law Judge Craig Bennett consolidated the 33 fee
disputes involving eight carriers consisting of Texas Mutual Insurance Company,
Hartford Underwriters Insurance Company, TASB Risk Management Fund,
Transportation Insurance Company, Truck Insurance Exchange, Twin City Fire
Insurance Company, Valley Forge Insurance Company, and Zenith Insurance
Company.
The PHI case went all the way to the Texas Supreme Court which ruled in favor
of the carriers. PHI petitioned the U.S. Supreme Court for review but it
declined to hear the case. The case then went back to the court of
appeals for a second decision before heading back down to the trial court where
the carriers filed a motion for summary judgment. Because PHI did not
appeal Judge Connor’s order granting summary judgment for the carriers, the PHI
case will now be remanded to SOAH for further proceedings consistent with Judge
Connor’s final judgment.
The rest of the air ambulance disputes at SOAH and DWC have been abated while
the PHI case proceeded. However, Air Evac, another air ambulance
provider, recently filed a motion to lift the abatement of its cases at SOAH so
that it could brief how a 2018 injunction that it obtained applies to its cases
at SOAH. The injunction states that DWC is “enjoined from enforcing Texas
Labor Code § 413.011 and 28 Texas Administrative Code against Plaintiff Air
Evac EMS, Inc.” The parties filed a proposed briefing schedule on
September 15, 2023 which the ALJ has not yet ruled upon.
As of August 2023, there are 2,414 air ambulance disputes pending at DWC.
This figure does not include the air ambulance fee disputes pending at
SOAH. The average amount sought by the air ambulance provider in each
case at DWC is estimated to be at least $50,000, which is the difference
between what the air ambulance provider was paid by the carrier and its
unregulated billed charges. This makes the total amount sought by the air
ambulance providers in the disputes at DWC over one hundred and twenty million
dollars plus interest.
There are five air ambulance providers that comprise the vast majority of the
air ambulance disputes. These providers are Air Evac EMS, Inc., EagleMed, LLC,
Med-Trans Corp., Rocky Mountain Holdings, and PHI Air Medical, LLC. These
five providers are owned by two private equity firms and a publicly traded
company. Air Evac EMS, Inc., EagleMed, LLC, and Med-Trans Corp. are
subsidiaries of Air Medical Group Holdings (AMGH) which is owned by private
equity firm KKR. Rocky Mountain Holdings (a subsidiary of Air Methods) is
owned by private equity firm American Securities, LLC. And PHI Air Medical, LLC
is a subsidiary of publicly-traded Petroleum Helicopter International, Inc. (PHIL).
The air ambulance providers continue to argue that the federal Airline
Deregulation Act (ADA) preempts Texas workers’ compensation laws that regulate
reimbursement to air ambulance carriers and therefore, DWC must order the
carriers to pay their grossly inflated billed charges. However, the Texas
Supreme Court already squarely rejected this argument in the PHI case:
“First, if ADA preemption applies, neither state nor federal law provides for full reimbursement of air carrier bills—or for any reimbursement at all. Second, the effect of federal preemption cannot be that States must provide full reimbursement, as that outcome would violate the Tenth Amendment. For these reasons, the result of ADA preemption here would not be full reimbursement—it would be no reimbursement.”
If the air ambulance providers were able to force DWC to order payment of its
billed charges, it would result in a massive wealth transfer to private equity
investors and reward the takeover of the air ambulance industry by private equity.
See The Air-Ambulance Vultures A search for why my flight
cost $86,184 led to a hidden culprit: private equity.
Copyright 2023, Stone Loughlin & Swanson, LLP
We advised you last month that long-time Division Administrative Law Judge,
Carol Fougerat, decided to hang up her gavel (ALJs don’t wear robes) last month
and is now pursuing her next big adventure in life. Judge Fougerat was a most
excellent ALJ and will be missed.
This month, we can further announce that another favorite ALJ, Britt Clark, has
also left Hearings. Judge Clark, an astute judge with a wealth of knowledge,
has accepted a position with General Counsel. We wish him well in his new
position.
Copyright 2023, Stone Loughlin & Swanson, LLP
The Workers’ Compensation Research and Evaluation Group this month released its
report on pharmacy utilization and cost in the Texas workers’ compensation
system between 2009 and 2022. The aim was to capture data before and after the
introduction of the pharmacy closed formula and the results are interesting:
To access the entire report, click here. For a quick overview, see the snapshot on the TDI website.
Copyright 2023, Stone Loughlin & Swanson, LLP
The vast majority of
enforcement actions are against insurance carriers for failure to timely pay
income benefits and medical bills. While these violations are certainly
worthy of enforcement action, they don’t usually make for very exciting
reading. Enforcement actions against providers, on the other hand, often
have unique facts which make them much more entertaining. To demonstrate
this point, here is a summary of the most recent consent orders against
providers.
On September 6, 2023, the Commissioner signed a consent order concerning disciplinary action
against Dan Mai Ung, D.C. The Commissioner found that Dr. Ung, in treating an
injured employee for work-related cervical and lumbar strains and right knee
pain, had referred the injured worker for two unnecessary MRIs. Not only did
the doctor fail to provide a rationale or document findings supporting MRI
testing pursuant to the Official Disability Guidelines, but he also failed to
disclose that the clinic to which the injured worker was referred for the MRIs,
Americana Injury Clinic, was, in fact, owned by Dr. Ung. (Note: Unlike federal
health care programs, it is not against the law to self-refer in Texas workers’
compensation; it is just a violation if you self-refer and don’t disclose your
financial interest.).
The Commissioner concluded that Dr. Ung had provided treatment or services
which were improper, unreasonable, or unnecessary; that he violated treatment
guidelines; that he failed to explain the basis for his return-to-work
determinations; and that he failed to disclose his financial interest in
Americana Injury Clinic.
Dr. Ung was ordered to pay an administrative penalty of $7,000.00 and ordered
to attend 6 hours of continuing medical education including 2 hours each in
evidence-based spinal evaluation, evidence-based knee evaluation, and
ethics.
On September 14, 2023, the Commissioner signed a consent order concerning disciplinary action
against Ray R. Trey Fulp III, D.O. The Commissioner found that Dr. Fulp failed
to provide treatment in accordance with the Official Disability Guidelines and
performed improper, unreasonable, or medically unnecessary spinal surgery. Dr.
Fulp was ordered to pay an administrative penalty of $10,000.00 and required to
attend 6 hours of continuing medical education in the topic of spine diagnosis
or treatment. Dr. Fulp was further required to attend and successfully complete
the Center for Personalized Education for Professionals Medical Record Keeping
Seminar and PROBE Ethics and Boundaries Program.
On August 31, 2023, the Commissioner signed a consent order concerning disciplinary action
against Anthony Owusu, Jr., M.D. under two DWC Enforcement files. In the first,
the Commissioner found that Dr. Owusu had completed a designated doctor
examination of injured employee No. 1 on April 17, 2021, but had failed to
complete the report or receive approval for additional time to complete the
report within 15 working days of the examination date. Dr. Owusu filed his
request for an extension of time on June 2, 2021, 26 calendar days late.
In the second Enforcement File, the Commissioner found Dr. Owusu, as a
designated doctor, had reported performing a physical examination of injured
employee No. 2 but failed to document a focused medical examination of the
injured body part in the record. Dr. Owusu was further found to have failed to
reference or follow the required MD Guidelines in his return-to-work evaluation
or to justify deviating from the guidelines using evidence-based medicine.
Finally, Dr. Owusu’s work restrictions and conclusions were inconsistent with
the clinical findings of the treating doctor, however, he failed to acknowledge
or differentiate these findings in his rationale supporting his determination
that injured employee No. 2 was incapable of returning to work.
Dr. Owusu was ordered to pay an administrative penalty of $8,500.00 and
required to attend and complete 6 hours of continuing medical education.
The Commissioner further ordered that Dr. Owusu shall not reapply for
designated doctor certification or participate as a designated doctor in the
Texas workers’ compensation system, and that any future applications for
certification will be denied.
Finally, the Commissioner ordered that Dr. Owusu shall not practice or receive
any remuneration from the Texas workers’ compensation system as a consulting
doctor, Required Medical Examination doctor, or as a peer reviewer.
Copyright 2023, Stone Loughlin & Swanson, LLP
The Division has announced the State AWW and maximum/minimum weekly benefits
for the period from October 1, 2023 through September 30, 2024 and it should
come as no surprise that the effects of inflation continue to impact the SAWW
and weekly benefits.
For the period from October 1, 2023 through September 30, 2024, the new SAWW
and weekly benefits were increased approximately 5.6% as follows:
State Average Weekly
Wage:
From $1,111.55 to $1,173.81
Maximum Temporary Income Benefits: From
$1,112.00 to $1,174.00
Minimum Temporary Income Benefits: From
$167.00 to $176.00
Maximum Impairment Income Benefits: From $778.00 to
$822.00
Minimum Impairment Income Benefits: From
$167.00 to $176.00
Maximum Supplemental Income Benefits: From $778.00 to $822.00
Maximum Lifetime Income Benefits:
From $1,112.00 to $1,174.00
Minimum Lifetime Income Benefits:
From $167.00 to $176.00
Maximum Death Benefits:
From $1,112.00 to $1,174.00
To access the SAWW and maximum/minimum weekly benefits for Fiscal years 1991
through 2024, click here.
Copyright 2023, Stone Loughlin & Swanson, LLP
There is still time to help us help the kids by becoming a participant or
sponsor and joining us for fun and camaraderie at The Lakes at Castle Hills on
October 23 for the Fourth Annual Kids’ Chance Texas Golf Tournament!! All
proceeds will fund Kids’ Chance of Texas scholarships. Do not delay, spots are
limited and filling quickly.
As we remind readers on a regular basis, Stone, Loughlin & Swanson is a
Founding Sponsor and long-time supporter of Kids’ Chance of Texas, an
organization whose mission is to create and support scholarship programs to
provide educational opportunities for children in Texas who have had a parent
catastrophically or fatally injured while in the course and scope of his or her
employment. As participants in the Texas Workers’ Compensation system, we are
particularly aware of the devastating toll such an injury takes on a family
and, especially, the children.
For more information and to register as a player and/or sponsor, click here.
Copyright 2023, Stone Loughlin & Swanson, LLP
Simon Law Group, P.C.
701 Market Street, Suite 340, St. Louis, MO 63101
314-621-2828
MISSOURI WORKERS’ COMPENSATION CASE LAW UPDATE
July 2023 – September 2023
Defense of Lack of Written Notice Fails when Employer Received Actual Notice
Goodwin v. Quik N Tasty Foods, Inc., Injury No. 20-094155
FACTS: The claimant worked for Quik Trip as a local delivery truck driver. On November 20, 2020, he suddenly began experiencing pain in his left knee following a misstep while taking a dolly down a ramp at a delivery stop. Upon returning to the warehouse, he discussed his injury with a fellow driver, Curtis Montgomery. Mr. Montgomery’s deposition was consistent with the claimant’s testimony. In addition, the claimant’s assistant, Mr. Waugh recalled that when they got back to the warehouse, the claimant complained of being sore.
Records from AT&T indicated that the claimant telephoned the Quik Trip transportation team leader, Marcus Hunter, on November 21, 2020. Also, AT&T records note a call from Mr. Hunter to the claimant on November 20, 2020. Per the claimant’s testimony, that call from Mr. Hunter was to advise him that an over-the-road route had become available to accommodate the claimant’s injury. The claimant drove that route on November 24, 2020.
On November 25, 2020, the claimant was seen by a physician. The claimant also testified that the next week he spoke with Quik Trip supervisor, Grant Bowman, to discuss his work status and injury. This was corroborated by the deposition testimony of Mr. Hunter. The claimant submitted a short term disability application, submitted by his physician. Prior to December 15, 2020, the claimant was contacted by a representative of Quik Trip to discuss his disability application. During his discussion, the claimant informed the representative that he had injured his knee while on the job and suggested that Quik Trip review its surveillance video to investigate the claim.
At the Hearing, the employer asserted its defense that the claimant did not timely provide notice in accordance with Section 287.420 which states that no proceeding for compensation shall be maintained unless written notice of the time, place and nature of the injury has been given to the employer no later than 30 days after the accident, unless the employer was not prejudiced by failure to receive the notice.
The ALJ concluded the employer was not entitled to a notice defense. It was noted that the claimant’s physician provided a short-term disability form to the employer four days after the injury and there was evidence that the claimant communicated by telephone numerous times with his employer regarding the injury. Furthermore, employer’s representative filed a Report of Injury claiming it was notified on December 21, 2020, which is 31 days after the alleged injury, although the employer had actual notice within days of the accident. Additionally, the claimant promptly sought medical evaluation and diagnosis which was provided to the employer. The employer appealed.
HOLDING: The Commission affirmed the Award of the ALJ. The Commission found, as a factual matter, that the employer received actual notice of his November 20, 2020 work injury when the claimant telephoned the employer’s team leader, Marcus Hunter, on November 21, 2020, to advise of the injury to his knee and to inquire about the availability of a less strenuous over the road trucking route for his next scheduled work day.
The Commission wrote that even assuming arguendo that the employer did not receive notice of the employee’s injury until December 21, 2020, as its January 21, 2021 Report of Injury alleged, the Commission found that the employer was not prejudiced by the claimant’s one-day late notice in that it was able to investigate the employee’s claim at the time as well as it would have been able to on December 20, 2020, the thirtieth day after the employee’s work accident.
Claimant Found PTD for Back Injury, in Isolation, Despite Subsequent Neck Injury
Watson v. Tuthill Corporation and Second Injury Fund, Case Nos. SD37293 and SD37294 Consolidated (Mo. App. 2023)
FACTS: In April of 2015, the claimant injured his lower back when he caught a falling motor. He underwent a fusion surgery in August 2015. On January 25, 2016, he returned to work full time but had difficulty getting up and down and could not do some things he could perform prior to his back injury like lifting heavy parts. On February 1, 2016, the claimant sustained a new injury to his neck. The neck injury was minor and he received only conservative treatment. In the 10 days after the neck injury, the claimant worked only two or three days per week. On April 23, 2016, he retired because he could no longer do the job. He did not reach MMI for the back injury until July 2016.
The claimant’s medical expert, Dr. Koprivica, opined that the work accident causing the back injury, in isolation, rendered claimant permanently and totally disabled. The employer’s expert, Dr. Belz, opined that neither the back injury nor neck injury, in isolation, met the requirements for permanent total disability, but when considered together with all prior injuries and non-work-related degenerative conditions, claimant was PTD.
The ALJ found the back injury, in isolation, rendered claimant PTD as of July 18, 2016, the date of MMI, and the Fund was not liable because claimant’s “last injury” was the back injury and not the neck injury. The Commission affirmed the ALJ. The employer appealed.
HOLDING: The Court affirmed the Commission’s decision finding the Award was supported by competent and substantial evidence. The ALJ considered and found Dr. Koprivica’s findings and opinions more credible than Dr. Belz. When a Judge expresses determinations regarding credibility, the Court is bound by these determinations.
Also, the employer’s argument, that the claimant could not have been PTD from the back injury alone because he returned to work, was not the proper standard. The Court stated that an employee can be PTD without becoming completely inactive or inert. A claimant who returns to work for an employer which accommodates the claimant’s disabilities will not preclude a finding of PTD because “the test is whether the claimant could compete in the open labor market.” Furthermore, there was no disability found as a result of the subsequent injury to the neck, and thus it was not the “last injury.” Therefore, there was no Fund liability.
PTD Awarded on Vocational Expert’s Opinion Based only on Qualifying Pre-Existing Disabilities
Obermann v. Second Injury Fund, Case No. ED111004 (Mo. App. 2023)
FACTS: The claimant’s claim for benefits against the Fund arose from a workplace injury to his right shoulder (the primary injury) on November 3, 2017. The claimant previously suffered five other workers’ compensation injuries, four of which were qualifying disabilities under Section 287.220.3 in that each exceeded 50 weeks of PPD. The non-qualifying disability was a 1995 injury to the left knee that resulted in less than 50 weeks of PPD.
The Commission denied the claim based on its finding that claimant’s medical and vocational rehabilitation experts included the non-qualifying 1995 left knee disability in their report and testimony. The Commission said “no medical or vocational expert opined that the employee’s PTD resulted solely from the combination of the November 3, 2017 primary injury and the pre-existing disabilities exclusive of disability attributable to his compensable 1995 left knee injury.” This disqualified claimant from PTD benefits from the Fund. The claimant appealed.
HOLDING: The Court reversed the Commission. It found that the Commission’s decision improperly considered Section 287.220.3 of the statute. The record demonstrated that claimant’s vocational rehabilitation expert repeatedly opined that claimant was unemployable, irrespective of his left knee disability, “based upon the limitations from the shoulder injury plus the pre-existing conditions that he had from his feet injuries.” The Court noted that this evidence directly refuted the Commission’s decision. The case was remanded back to the Commission with instructions to enter an Award in favor of the claimant against the Fund for PTD benefits since the Court concluded the undisputed expert testimony was that claimant’s PTD resulted from his primary injury combined with his qualifying pre-existing feet disabilities.
Second Injury Fund Required by Statute to Pay Medical Bills of Uninsured Employer but Claimant is not Entitled to Windfall from Medical Payment
State of Missouri, Ex Rel., Jeff Peters and John Newman v. Treasurer, State of Missouri, Case Nos. WD85719 and WD85777 (Mo. App. 2023)
FACTS: On November 14, 2006, Peters suffered severe injuries in a motor vehicle accident in the course of his employment. Peters filed a workers’ compensation claim against both his employer and the Fund through his counsel, Attorney Newman. His claim against the Fund was based on allegations that his employer was uninsured and that the Fund was responsible for his medical expenses under Section 287.220.5.
On December 2, 2011, the ALJ issued her Award findings Peters’s injury compensable, that his employer was uninsured, and that his employer had paid none of the medical bills at issue. The Award found that the fair, reasonable, and necessary charges resulting from his medical treatment was $1,142,169.57. The Award allowed Newton’s attorney’s fees “in the amount of 25% of all payments hereunder.” Finally, the Award ordered that interest shall be paid as provided by law. No Application for Review or appeal was filed and the Award became final.
After the Award became final, Peters filed an Application for Judgment on the Award in the Circuit Court under Section 287.500. On July 31, 2012, the Circuit Court entered judgment against the Treasurer of the State of Missouri (custodian of the Fund) in the amount of $1,142,169.57, with interest of 10% per annum from January 12, 2012. This judgment was not appealed and became final.
In September and November 2013, the Fund paid 9 of the 10 medical providers the total of their billed amount less Newman’s 25% attorney fee. They also paid the 10th medical provider approximately $100,000.00, and in exchange, the medical provider executed a release providing that the amount paid satisfied all liability. The Fund also directly paid Newman 25% of the amount paid to that medical provider, approximately $25,000.00. The payments made by the Fund did not include any amounts for interest. Peters and Newman did not consent to the payments to the medical providers.
On October 9, 2019, Peters and Newman filed for a Writ of Mandamus ordering the Fund to pay the outstanding judgment entered in their favor for the full amount of $1,142,169.57 plus interest as required by Section 287.220.
HOLDING: The Court noted that Peters did not dispute that the Fund paid his medical bills. There was also no genuine dispute that the 10th medical provider released Peters from liability. Pursuant to the Award and consistent with Section 287.220.5, the Fund paid Peters’s fair, reasonable, and necessary medical expenses, and he was released from all liability for them. The Award did not indicate that the Fund was not permitted to negotiate the existing unpaid medical bills. The Award did not order the Fund to pay any amount of medical bills directly to Peters.
The Court reasoned that to allow Peters to recover the full cost of his medical bills from the Fund would result in an impermissible windfall to him. The Court pointed out that pursuant to Section 287.220.5 the Fund has limited liability to employees who are not covered by insurance as required by law. The Statute provides that only an employee’s actual expenses be paid by the Fund. It does not direct the manner in which the funds withdrawn from the Fund are to be paid. Moreover, “An employee of an uninsured employer should not receive a windfall from the Second Injury Fund on account of his employer’s failure to carry insurance, as required under the law.”
With respect to the attorney’s fees, the Court noted that in compliance with the Award, the Fund paid Newman 25% of the full amount of the medical bills paid to each of the 10 medical providers. Accordingly, the Fund paid Newman everything he was due under the Award. Any additional payment to Newman would result in a windfall contrary to the language and intent of Section 287.220.5.
Settlement of a Primary Injury is Relevant Evidence in a Hearing Regarding Fund Liability for PTD
Huffman v. Second Injury Fund, Injury No. 15-073745
FACTS: In September 2015, the claimant sustained an injury to her shoulder. She obtained treatment, including surgery. She settled her primary case in January 2018 against the employer on a disputed basis for $23,500.00 representing 24% of the right shoulder.
At the Hearing against the Fund for PTD, the claimant testified that due to employer denying her work related accident, she developed a sense of distrust in people which increased her longstanding anxiety and depression for which she had been receiving treatment and medication for over 20 years. She testified that her current levels of anxiety were now worse than before her alleged work accident and she was unable to perform any type of gainful employment due to the combined effects of her psychological conditions, pre-existing chronic headaches, and diabetes.
The claimant was initially examined by Dr. Koprivica in March 2018 who provided a rating of 25% PPD of the right shoulder from the September 2015 work injury. He also identified several pre-existing conditions including chronic disabling headaches resulting in 15% PPD of the body and pre-existing diabetes for which he assigned 15% PPD of the body. He also found significant pre-existing psychological disability and recommended a mental health evaluation.
Dr. Jackson, a licensed psychologist, was of the opinion that claimant had a total psychological disability of the whole person of 45%, 25% pre-existing and 20% psychological disability to the work accident of 2015. Vocational expert, Mr. Cordray clarified that the claimant was PTD due to the combination of the right shoulder injury and psychological disability.
It was also noted that Dr. Koprivica opined in a supplemental report that claimant’s pre-existing psychological disability would qualify to trigger Fund liability, which in his opinion directly and significantly aggravated or accelerated the subsequent work related injury. He felt that as a result of the pre-existing condition and the work related injury, in combination, rendered the claimant PTD.
In his Award, the ALJ noted that the claimant’s allegations for PTD and Fund liability are based on the claimant’s alleged psychological condition in combination with her shoulder injury. However, the claimant needed to show that the work injury of September 2015 resulted in psychological injury, which when combined with her pre-existing condition aggravated or accelerated that condition and rendered her permanently and totally disabled. The Judge further noted that claimant’s decision to settle her claim for disability for only the right shoulder, and not any psychological disability was significant. Therefore, he found that the claimant failed to meet her burden of proof to established Fund liability and the claim against the Fund was denied. The claimant appealed.
HOLDING: The Commission noted that the Supreme Court of Missouri’s recent decision in the March case in 2022 held that the fact that the Fund did not offer contradicting evidence did not establish a “presumptively valid claim.” The Court stated that to establish a claim, the employee must meet not only their burden of production but also the burden of persuasion.
In this case, the Commission affirmed and adopted the Award of the ALJ noting that to establish that she was entitled to compensation from the Fund under Section 287.220.3, she was required to establish that a qualified pre-existing psychological disability combined with a psychological disability related to her September 2015 work injury to result in PTD.
The Commission noted that the Judge denied the claimant’s Fund claim because the testimony of the claimant and her experts failed to persuade him that she sustained any psychological disability related to her September 2015 work injury. The ALJ discredited the claimant’s medical and vocational expert views on the basis that their opinions were not sought until after she settled her claim against the employer based on 24% PPD of the right shoulder.
The Commission noted that Missouri courts have held that while a settlement with the employer does not bind an ALJ or the Commission, it “does serve as relevant evidence of the nature and extent of the employee’s permanent disability attributable to the primary injury.”
An Award for PTD Cannot be Based on Medical Opinions which Include any Non-Qualifying Pre-Existing Disabilities
Eckardt v. Second Injury Fund, Injury No. 15-105268
FACTS: At the time of the Hearing, the claimant was 74-years-old and retired, after working almost his entire adult life as an airplane mechanic. He had sustained several prior injuries for which Dr. Volarich provided ratings for pre-existing disability. The claimant’s last work accident, the primary work injury, occurred on October 3, 2015, when he was getting out of a van at work. The van started moving and he was struck by the door and fell, injuring his right shoulder, wrist and neck. As a result of this accident, he had a neck fusion.
In his August 16, 2018 report, Dr. Volarich provided a 35% PPD of the body rated at the cervical spine as a result of the October 2015 work injury. Dr. Volarich also provided several other ratings for pre-existing disabilities, including a 20% rating of the right upper extremity for a prior injury. He also opined, “Based on my medical assessment alone, it is my opinion that Mr. Eckardt is permanently and totally disabled as a direct result of the work related injury of 10-3-15 in combination with his pre-existing medical conditions.”
The ALJ concluded that the claimant had met his burden to prove that he is PTD from the combination of his primary work-related injury and his qualifying pre-existing injuries and, therefore, the Fund was liable for permanent total disability. The Fund appealed.
HOLDING: The Commission considered two points on appeal.
First, the Commission found that the claimant’s work related bilateral carpal tunnel syndrome, exceeding 50 weeks of disability in each hand, qualified as a pre-existing disability under Section 287.220.3(2)(a)(ii). The Commission disagreed with the Fund’s argument that carpal tunnel syndrome is not an injury because the statute section which defines the term “injury” provides that an “injury” shall in no case except as specifically provided in the Chapter be construed to include occupational disease in any form.”
The Commission stated that in the absence of controlling Appellate case law, that the doctrine of stare decisis has no application to administrative tribunals. They were allowed to deviate from a prior Commission’s ruling on the matter as long as their action “is not otherwise arbitrary or unreasonable.” They respectfully disagreed with the 2020 Commission’s conclusion, discussed only briefly in a footnote in the Lexow opinion that carpal tunnel syndrome would not satisfy Section 287.220.3(2)(a)(ii) solely because carpal tunnel syndrome is the result of an occupational disease as defined by Section 287.067.
Secondly, on the issue of whether the claimant met his burden of proving that his PTD was attributable to his October 3, 2015 work injury in combination with pre-existing disabilities that qualify under Section 287.220.3, the Commission reversed the Award of the ALJ
The Commission noted that no party disputed that Dr. Volarich’s evaluation of disability to the claimant’s right shoulder as 20% PPD of the right upper extremity (46.4 weeks) fell short of the 50 week threshold required by Section 287.220.3(2)(a)(ii). In her Award, the ALJ acknowledged, “Claimant’s only injury that does not reach the statutory threshold is claimant’s right shoulder.”
The Commission noted that the ALJ awarded PTD against the Fund based on her finding that the exclusion of one work related injury was not significant when considering all of claimant’s qualifying pre-existing injuries. The Commission found that the ALJ erroneously substituted her own opinion.
The Commission concluded that under Section 287.800, they would strictly construe the provisions of the workers’ compensation law and weigh the evidence impartially without giving any party the benefit of the doubt. They found no credible or persuasive evidence in the record that the employee was PTD due to the primary injury in combination with only pre-existing disabilities that qualify under Section 287.220.3. Therefore, claimant did not meet his burden of proof and persuasion because he did not produce credible and persuasive evidence suggesting that he was PTD as a result of the combination of the primary injury and only his qualifying pre-existing disabilities. Therefore, claimant’s claim against the Second Injury Fund was denied because his evidence failed to satisfy the standard set forth under Section 287.220.3.
Commission has Authority to Determine Fair and Reasonable Attorney’s Fees
Roe v. Darden Restaurants, Inc., Case No. WD86109 (Mo. App. 2023)
FACTS: In September 2018, claimant cut her finger while sorting silverware for the employer. She notified her manager of the injury. Over the next several days, the small cut became infected resulting in emergency hospitalization. After her hospitalization, employer sent claimant for follow up treatment. Due to her injury, claimant incurred medical expenses totaling $30,879.21.
Subsequently, claimant hired an attorney to pursue a workers’ compensation claim to help pay her medical bills. She signed a fee agreement in which her attorney would receive 25% of all benefits paid, including 25% of claimant’s incurred medical bills resulting from the injury.
In January 2020, following a discussion with the ALJ, employer paid claimant’s total medical bills. After paying claimant’s medical bills, employer sent copies of all paid medical bills and their associated explanation of benefits with a letter to claimant’s attorney advising them that the information would also be introduced into evidence at the hearing. Although employer paid all of her medical bills, the claimant was not aware. The record is not clear why the claimant remained unaware her medical bills were paid despite the employer informing her attorney and providing proof of payment.
In March 2022, two years after employer paid claimant’s medical bills, the parties appeared for a final hearing before the ALJ. During the hearing, the employer introduced and the ALJ admitted into evidence, over claimant’s objection, Exhibit A, showing an affidavit and the payment of nine separate checks with accompanying explanation and Exhibit E, employer’s letter to claimant’s attorney sent in April 2020.
As a result of the hearing, the ALJ limited claimant’s attorney’s fees to 25% of the permanent partial disability Award. The Award did not include a fee on the claimant’s medical expenses, since those expenses were already paid two years prior. The claimant appealed. The Commission affirmed and adopted the ALJ’s decision.
HOLDING: The Court noted that because the claimant’s attorney worked the majority of hours after employer paid claimant’s medical bills in January 2020, the ALJ correctly limited claimant attorney’s fees to “25% of the permanent partial disability awarded.” The amount of work done prior to the payment of the medical bills was limited to about 17 hours with additional time expended for negotiations of settlement. The Court concluded that the Commission acted within its authority, under Section 287.260, in determining the fair and reasonable amount of claimant’s attorney’s fees to compensation for services rendered “in obtaining payment of her medical bills as well as permanent partial disability benefits.” They saw no reason to disturb the Commission’s findings. Also, the Court noted that in the findings of fact, the ALJ chastised claimant’s attorney about the needless work performed as well as claimant’s attorney’s failure to communicate with his client.
Exclusivity Provision of Workers’ Compensation Act Does Not Preclude Civil Recovery For Non-Work-Related Injuries
Schneider Electric USA, Inc. f/k/a Square D v. Williams, et. al. (2022-CA-0190-MR) KY Court of Appeals 7/7/2023, not final
Plaintiff was six years old when adopted by Ken Baxter in 1967. Plaintiff lived with Baxter until the mid-1980s and during that time Baxter worked for Square D who manufactured plastic electrical parts from molding compounds, some of which contained asbestos until around 1974. Plaintiff also worked for Square D for a few months in 1978. Plaintiff was diagnosed with mesothelioma in 2016 and died a year later. Prior to her death she filed suit against Square D claiming she was exposed to asbestos from her father’s contaminated work clothes and directly during her brief employment in 1978. During discovery, all of the medical and expert proof attributed her mesothelioma to asbestos from her father’s work clothes. Square D moved for summary judgment based partly on the exclusivity provision of the Workers’ Compensation Act. The trial court denied summary judgment. Square-D argues the trial court wrongly concluded Plaintiff’s claims were not barred by the Workers’ Compensation Act.
The Kentucky Court of Appeals affirmed the trial court’s refusal to dismiss claims against Square D based on workers’ compensation exclusivity. It reasoned that there was no evidence that Plaintiff was exposed to asbestos during her brief time working at Square D. The Court also agreed with the trial court that a jury is capable of apportioning work-related and non-work-related injuries, if appropriate. The Court further determined that allowing Plaintiff’s brief summer employment with Square D to immunize Square D against all repercussions from other-than-workplace asbestos exposure would result in an unfair windfall for Square D.
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
Disclaimer: This is not an
actual flow chart and is not intended to accurately represent real persons or
events.
Copyright 2023, Stone Loughlin & Swanson, LLP
When we dusted off our rule book to look at the rules in the aforementioned
chapters of the Administrative Code, we discovered all kinds of little
treasures. For example, many acronyms that we use every day in the system, such
as AWW, BRC, MMI, etc., are actually codified in DWC Rule 102.7. Others, such
as BRO, DD, LOC, POD, etc. are not included.
This past month saw some new acronyms enter the system, resulting in a new form
and some new additions to DWC staff hierarchy.
You might recall that the new DD request form (DWC032) implemented on 6/5/23
does not include a box for the Carrier to identify the accepted condition and
thus, the DD determines the compensable injury during the exam. In the April
edition of The Compendium,
our own Erika Copeland predicted that the change to the DWC032 would create
more problems with informal resolution. Kudos to Erika and her foresight,
because the new OARFI (“Request for Information”) appears to be the first
attempt at righting the ship. The OARFI lists multiple conditions and requests
that the Carrier check whether it “Accepts” or “Disputes” the condition. It
also asks the parties to identify any additional injuries that they believe
should be considered when assessing MMI or the impairment rating. The parties
are asked to send the information to a named “Benefit Review Officer” within
three business days, and notice is given that the information is for “mediation
purposes only.” The Carrier is told that the answers are not binding and that
they can change their mind but inaccurate answers will likely cause additional
exams and delays in the dispute resolution process. Likewise, to date there
doesn’t appear to be any penalty associated with not returning the form.
The “Benefit Review Officer” named on the form is actually known as a “BRO-1”
(which begs the question – is the BRO that presides over the BRC now known as
“Big Bro”?). The BRO-1 has been charged with looking at issues before a BRC and
requesting information of the parties so a Presiding Officer’s Directive (POD)
can be sent to the DD.
Meanwhile, we have been informed that if you need to request the status of LOC
requests or responses, DD reports, or RME reports, you need to contact the
Proceeding Resolution Officer or “PRO.” If you are seeking information about
scheduling, resets, requests for dates, motions, subpoenas, agreements, or
interpreter requests, you need to contact the Docketer.
Unfortunately, we do not have the key to knowing who actually handles the
docketing for each field office nor are we able to keep up with the frequent
changes in PRO assignments. Our wish list for next month includes periodic
information updates from the DWC regarding these changes. Until then, here is
our (non)helpful chart of how this works on a daily basis.
Copyright 2023, Stone Loughlin & Swanson, LLP