State News

By: Brenna Hampton (Office Managing Partner - San Diego), Kelsey Paddock (Partner - San Francisco), Richard Berryhill (Attorney - San Francisco), Bill Davis (Attorney - Santa Rosa)

California has a long history of legislation and case law dealing with AOE/COE presumptions, the newest of which is the Governor’s Executive Order N-62-20 (the COVID-19 Presumption), which established a rebuttable presumption in favor of finding that COVID-19was contracted in the workplace. While this presumption is rebuttable, there is not yet any case law addressing how this presumption can be rebutted. Nevertheless, we know from experience that there are defenses to rebuttable presumptions, such as those based upon the latency period of the disease. Some of these defenses may have significant relevance to the defense of COVID-19 cases.

The Executive Order 5/06/2020: “The COVID-19 Presumption”

The COVID-19 Presumption extends a temporary, rebuttable presumption of AOE/COE for employees who worked on their employer’s premises at the direction of the employer between March 19, 2020 and July 5, 2020. The presumption shifts the burden to employers to show that it was more likely the employee sustained COVID-19 outside of work, otherwise the employer is liable for COVID-19 related indemnity and medical treatment.

As the medical community develops a better understanding of COVID-19, the workers’ compensation community will be sorting out how to apply existing legal principles, and perhaps creating a few new ones. Until there is specific case law addressing this new legislation, parties will need to argue by analogy to existing cases regarding other presumptions. There is good reason to believe that the legal principals in those cases will govern and be applied regarding whether the COVID-19 presumption has been rebutted.

Rebuttable Presumptions – The Blais Decision

There is a general notion that rebuttable presumptions (like some of those found in Labor Code section 3212) cannot ever be defeated.  However, as with the COVID-19 Presumption, the defense community must be prepared to develop and litigate the appropriate evidence.  While rebutting the presumption may not be easy, and may not always be successful, it is certainly worth the fight where the circumstances support a valid defense.

The Board issued a panel decision in one such case on May 13, 2020 in Robert Blais, Jr. v. State of California (PSI) (“Blais”)ADJ10840422, 2020 Cal. Wrk. Comp. P.D. LEXIS ____.  In this decision, the Board found the defendant rebutted the seemingly insurmountable cancer presumption inLabor Code Section 3212.1 through the reporting and deposition testimony of the panel qualified medical evaluator (PQME).  What can the defense community learn from this case to use in its defense of the COVID-19 cases? As it turns out, quite a bit.

Blais involves a safety officer cancer presumption in which the officer had a pre-existing cancer award with a prior employer, but the cancer manifested during the defendant’s employment and is subject to anti-attribution clause of Labor Code section 4663(e) if held to be presumptive.  The case hinged on medical evidence from the PQME, who found on a medical basis that the cancer should not be attributed to the current employer.

The Blais decision noted that the defendant successfully rebutted the cancer presumption through PQME reports and testimony because this evidence demonstrated there was no reasonable link between the exposure to the claimed carcinogen and the cancer. One factor the Board relied upon in reaching its decision was the latency period between exposure and manifestation. As the Board explained, if the medical evidence shows that the latency period is long enough to preclude exposure at the employer’s workplace, then there is no reasonable link between the cancer and the industrial exposure. InBlais, the presumption was held to be rebutted on medical grounds, which may have interesting implications in our post-COVID-19 environment, particularly if the Legislature were to adopt (as it appears) a permanent rebuttable presumption. (Note: the current Executive Order extends through 7/05/2020).

The medical evidence was key in the Blais verdict for the defense in finding that the current employer was not responsible for the employee’s cancer, despite the presumption. TheBlais decision also held that rebuttal of the presumption does not require showing the absence of a possible link between the cancer and the industrial exposure, but thatdefendant should show that such a link was not reasonable. There is a crucial distinction between proving there is no reasonable link versus showing clearly that there is no link to exposure in the workplace at all. But what does it mean for there to be “no reasonable link” in these cases? As the Blais court explained in quotingGarcia: “A link that is merely remote, hypothetical, statistically improbable, or the like, is not a reasonable link.” (Id., at p. 316, citingCity of Long Beach v. Workers’ Comp. Appeals Bd. (Garcia) (2005) 126 Cal.App.4th 298.)

Thus, while courts will no doubt hold defendants to as strict a standard as possible,Blais and Garcia show that it may be possible to rebut a presumption by showing there is no reasonable link without necessarily having to prove that the exposure happened only outside of the workplace.

Analyzing COVID-19 cases in light of Blais and Garcia

In finding for Defendant in the Blais case, the Board looked to prior cases includingCity of Long Beach v. Workers’ Comp. Appeals Bd. (Garcia) (2005) 126 Cal.App.4th 298.  In theGarcia case, the Court of Appeal set up two alternative standards under which a cancer presumption can be rebutted:

1. It could be demonstrated that it is highly unlikely that the cancer was industrially caused becausethe period between the exposure and the manifestation of the cancer is not within the cancer’s latency period;or

1. The nature of the manifestation, or other medical evidence, may be sufficient to show thelack of connection. (Id., p. 317)

As applied to COVID-19, either standard would require development of the medical evidence. In the first case, latency, the evidence must show when COVID-19 manifested and provide a reasonable chronological history to identify the latency period based on current scientific understandings of COVID-19.  This would show that the injured worker’s exposure to COVID-19 could not have occurred while at work because exposure was either too soon or too late compared to when they worked.  In the second case, lack of connection, a more traditional AOE/COE medical opinion is required to demonstrate that the COVID-19 exposure, diagnosis, and manifestation are not reasonably connected to work.

First – Does the COVID-19 Presumption Apply?

To argue for the applicability of other presumption cases, the wise practitioner must first discern whether the COVID-19 Presumption applies because this will determine whether the injured worker or defendant carries the burden of proof.  Remember, the COVID-19 Presumption creates a temporary, rebuttable presumption of industrial injury for employees who claim to have contracted COVID-19 at work between 3/19/2020 and 7/5/2020.  The presumption itself became effective 5/06/2020, but applies to dates of injury as early as 3/19/2020.

For the COVID-19 Presumption to apply, the employee must meet all four of the following factors:

1. A positive test or diagnosis within 14 days after the employee performed labor or services at their place of employment.
2. The labor or services were performed after 3/19/20.
3. The location where the labor or services were performed was not also the employee’s home or residence.
4. If the presumption was based on a diagnosis (as opposed to a positive test), the diagnosis must have been done by a physician who holds a physician and surgeon license issued by the California Medical Board, and confirmed by further testing within 30 days of the diagnosis.

If the defendant can demonstrate that any of the above four factors do not apply, then they might prove that the presumption does not apply and the employee retains the burden of proof to demonstrate industrial causation.

Second – Once It is Determined That Defendant Has the Burden of Proof,Identify Evidence to Rebut the Presumption.

Once it has been determined that all four factors have been met, the COVID-19 Presumption applies and the burden shifts to the defendant to rebut it. Defendant could look to presumption cases likeBlais and Garcia for a defense.  Applying the defenses below will require a detailed factual inquiry and consultation with a workers’ compensation attorney is highly recommended before denying any such cases.

Employees may argue that COVID-19 does not have an established latency period, but the defense can argue by analogy that the incubation or “pre-symptomatic” period should be used, similar to those used to establish latency period in cancer claims. The “incubation period” is the time between exposure to the virus (becoming infected) and symptom onset.

Note: Medical evidence may support a shorter latency period of 5-11.5 days, but the executive order states 14 days so that will be the legal standard unless rebutted by competent medical evidence in a particular case. According to the World Health Organization (WHO), the incubation period for COVID-19, is on average 5-6 days, however can be up to 14 days.[1]  According to the American College of Cardiology, the median incubation period from infection with COVID-19 to onset of symptoms is approximately 5 days and 97.5% of people infected with COVID-19 will exhibit symptoms by 11.5 days.[2]

Time of Exposure at Work Was Not Within the Latency Period (Too Soon or Too Late)

One way to defend a COVID-19 presumption would be to demonstrate that it is highly unlikely that the employee’s COVID-19 was industrially caused because the period between the claimed exposure and the manifestation of the COVID-19 (symptoms or positive test or diagnosis) is not within the known “latency period.” This defense requires the defendant to (A) obtain medical evidence of the COVID-19 latency period and then (B) show that the period during which the employee worked was not within a reasonable latency period.

The employee’s symptoms manifested too soon before any work exposure: “Too early.”

An employer could alternatively seek evidence that the employee was displaying COVID-19 symptoms or was exposed to / lived with a COVID-19 positive individual 5 – 11.5 days (even up to 14 days) before their alleged workplace exposure.  The argument would be that they were still in the incubation or pre-symptomatic period when they were allegedly exposed at work, while the testing merely happened after being at work.  Again, the defendant’s position would be that there was no workplace “injury” because the exposure occurred somewhere other than at work. Medical and factual evidence supporting this defense needs to be developed through timely investigation and diligent pursuit of a medical opinion based on that investigation.

Even if the employee was back to work for up to 5 days before demonstrating symptoms, a medical opinion should be developed to show that COVID-19 takes at least 5 days to manifest, meaning the symptoms are the result of exposure before the employee started working. The argument would be that the period between the exposure and the manifestation of COVID-19 is not within COVID-19’s incubation or “pre-symptomatic” period.  Given this, the onset of symptoms (aka manifestation) was too soon following any potential work-related exposure.  In short, the injury (the exposure) occurred prior to coming to work. A medical opinion confirming the period between the exposure and the manifestation would likely be required. It would also be helpful to establish that the employee was not exposed to any known COVID-19 cases while working and that no other employee was positive at that time.

Let’s apply this defense to a hypothetical case. Employee Isabel had her first symptoms of COVID-19 on May 10, 2020.  The employer records show she worked from May 8, 2020 through May 10, 2020.  She was sent home immediately when the symptoms started, having worked a total of three days on May 8th, May 9th, and May 10th.  If the defendant proves her symptoms manifested on May 10th, and obtains medical evidence that the reasonable latency / incubation is at least 5 days, the defendant may be able to rebut the presumption because Isabel’s work from May 8-10 was too close in time to her symptoms starting.

In sum, if medical evidence showed that Isabel had not worked after April 26th (i.e.: during the fourteen day period before symptoms started) and that the latency period is at most 14 days, then the defendant could argue that the presumption should not apply because, from a medical perspective, she must have been exposed before working for this employer.

The employee’s symptoms manifested too long after any work exposure, i.e.: “Too late.”

An employer could seek to rebut the COVID-19 Presumption by developing factual evidence that the employee did not become symptomatic or receive a positive test / diagnosis within 14 days after last performing labor or services for the employer and thus the exposure is outside the normal incubation or asymptomatic period.

Let’s apply this defense to our hypothetical case: employee Isabel had her first symptoms of COVID-19 on May 10, 2020.  However, this time factual investigation at the employer level demonstrates Isabel had not worked for this employer for some time, as her employment there ended April 15th, far more than 14 days before her symptoms arose. On these facts, it is more likely the defendant will be able to obtain a medical opinion that her COVID-19 was not related to her work that ended April 15th because the symptoms arose too late in relation to any alleged work exposure and are thus outside of the latency period.

Notably, if the defense tries to argue lack of industrial exposure when the employee last worked less than 14 days after the development of symptoms, this argument might be a tougher sell given that the COVID-19 Presumption allows for positive testing / diagnosis within 14 days and the WHO currently allows for up to 14 days. However, the law is still catching up to the science in this unprecedented pandemic. Further scientific refinement of the incubation period may allow employers to make this argument, so close calls should be carefully documented and considered.

Lack of Connection to the Workplace

An alternative defense is to prove exposure occurred outside of the workplace.  As noted by the court inBlais and Garcia “A link that is merely remote, hypothetical, statistically improbable, or the like, is not a reasonable link.”  This might allow the COVID-19 presumption to be rebutted without clearly establishing causation elsewhere.

The argument in any of the latency scenarios above is that the workplace was not the source of the exposure, but the affirmative defenses asserted in Labor Code sections 3600(a)(2) [injury did not arise out of nor in the course of work] and 3600(a)(3) [injury not proximately caused by work] are implicated, should be plead in an Answer, and remain the defendant’s burden to prove.

If the presumption is applicable, it is not sufficient to merely assert that the employer does not believe it to be work-related. The substantial evidence standard applies to evidence submitted by either party.

Strategic discovery should be undertaken to prove there is no reasonable link to work-related activities. An employer who could develop the evidence to show a link of COVID-19 to the workplace is not reasonable would have an even stronger case if they could additionally demonstrate a more likely link between COVID-19 in a particular employee and a non-work-related source. PerGarcia, the nature of this manifestation may also “be sufficient to show the lack of a connection” to a workplace exposure.  This is particularly true if there are no other known cases at the workplace and evidence could point towards outside exposure. Thus, the inquiry is both factual and medical in nature.

Conclusion

While it is relatively easy for an applicant to claim the benefits of the presumption in Executive Order N-62-20, there are several key factors that we can take away from theBlais panel decision and its predecessor, Garcia. Do not think rebutting the COVID-19 presumption is an insurmountable task. Defendants can and do rebut AOE\COE presumptions, as the panel decision inBlais illustrates.  There is no reason that COVID-19 presumption cannot be rebutted as well.  Analogizing to standards established in earlier presumption cases is a good place to start. The next step is working strategically to develop factual and medical evidence to support the development of appropriate case law to serve as precedent in COVID-19 presumption cases for the workers’ compensation community moving forward.

___________________________________________________

[1]WHO Coronavirus disease 2019 (COVID-19), Situation Report – 73, April 2, 2020

https://www.who.int/docs/default-source/coronaviruse/situation-reports/20200402-sitrep-73-covid-19.pdf?sfvrsn=5ae25bc7_4#:~:text=The%20incubation%20period%20for%20COVID,occur%20before%20symptom%20onset.

[2]American College of Cardiology, Estimated Incubation Period of COVID 19, 5/11/2020

https://www.acc.org/latest-in-cardiology/journal-scans/2020/05/11/15/18/the-incubation-period-of-coronavirus-disease

KY SUPREME COURT EXPANDS OFFSET FOR PRE-EXISTING CONDITIONS Wetherby v. Amazon.com, 580 S.W.3d 521 (Ky. 2019)

H. Douglas Jones, Esq. and Margaret Menefee, Esq., Jones Howard Law, PLLC

The Supreme Court of Kentucky has rendered a significant decision regarding the ability to claim a permanent partial disability offset for a pre-existing condition.

In Kentucky, historically, pre-existing conditions were put in one of two categories: 1) pre-existing dormant condition aroused into a disabling reality by the current injury; or 2) pre-existing active condition. In the seminal case,Finley v. DBM Technologies, 217 S.W.3d 261 (Ky.App 2007), the Court held that a pre-existing active condition (subject to an offset) must be impairment ratable pursuant to the AMAGuides, 5^th Edition (“Guides”), and symptomatic immediately prior to the work injury. This standard made it very difficult to obtain an offset for most pre-existing conditions.

Finally, the Supreme Court in Wetherby rendered a decision finding that because Kentucky uses theGuides as a basis for permanent partial disability awards, it cannot ignore a pre-existing impairment and ratable condition simply because it did not meet the pre-existing active standard set forth inFinley.

Background

In 2012 while working at Amazon, Wetherby experienced pain and numbness in his neck and right arm after moving heavy boxes from a pallet to a conveyor belt. Wetherby underwent cervical surgery in 2014. Wetherby remained symptomatic following the 2014 surgery. Due to a 1980 injury, Wetherby previously underwent cervical fusions in 1980 and 1985.

It was undisputed that Wetherby was asymptomatic after the 1985 surgery, until the 2012 work injury. However, every physician who examined Wetherby acknowledged he had a pre-existing impairment pursuant to theGuides due to the earlier 1980 injury and related surgeries.

The Administrative Law Judge (ALJ) found that Wetherby had a total impairment rating of 31%. Determining that Wetherby had a 25% pre-existing cervical impairment (offset) due to his prior injury and associated surgeries, the ALJ awarded Wetherby a 6% impairment due to his 2012 Amazon injury.

Holding in Wetherby

Appealing to the Supreme Court of Kentucky, Wetherby maintained the ALJ improperly deducted a pre-existing active condition. Rejecting this argument, the Court analyzed language in theGuides regarding deductions for pre-existing conditions in the assessment of permanent impairment for spinal injuries.  The Court determined the 25% pre-existing impairment offset made by the ALJ did not constitute a “carve out” for a pre-existing active condition pursuant to Finley but, instead, was required by the Guides. The Court concluded the ALJ properly excluded the 25% impairment related to Wetherby’s two prior surgeries.

Ultimately, the Court found that Wetherby’s case did not fall within the confines ofFinley because the pre-existing condition was neither dormant nor active. The Court held that in order to be classified as dormant, all of the employee’s permanent impairment must have arisen after the current work injury. Wetherby’s prior condition was not dormant because the physicians assessed a pre-existing impairment rating under theGuides. It also was not active as Wetherby was not symptomatic immediately prior to the work injury. Therefore, the ALJ’s failure to perform an analysis underFinley was not in error.

Conclusion

This is a major “victory” for Kentucky employers. For the first time employers have an argument for a pre-existing impairment offset without having to prove a pre-existing “active” condition pursuant toFinley, i.e., a condition symptomatic immediately prior to an injury.

Employers and workers’ compensation professionals are very familiar with reopener petitions or applications for modification of awards.  A reopener may be filed by the petitioner within two years of the last payment of indemnity benefits or the last authorized treatment date, but not many workers’ compensation professionals realize that employers can also apply for modification of awards.  The pertinent statute, which is N.J.S.A. 34:15-27, allows both employees and employers to file such applications for modification.

When would a respondent move to reopen an award? Suppose the petitioner receives an award of 100% permanent and total disability benefits for physical injuries asserting that he or she can never work again.  Six months after the award is entered, respondent becomes aware that the petitioner is in fact working in a very physical job and can document this fact.  What can the employer do?  The proper step would be to file an application to modify the award, suspend benefits altogether, and pursue any other remedies such as a potential finding of fraud.  That is why Section 27 is so important.  An employer cannot simply stop making payments when there is a court order to do so.  The remedy is to reopen the prior award under Section 27 and file a motion for specific relief.

Consider also a situation where an injured employee receives a very large partial permanent disability award, perhaps 60% paid over 360 weeks.  The large award was influenced by testimony at trial that the injured employee was not able to return to work.  Subsequent investigation reveals that the injured employee has returned to a physical job with even higher wages than at the time of the accident.  Just because the prior award was not for total and permanent disability benefits does not mean that the employer cannot move to modify the award of 60% to a lower percentage.  It is important for workers’ compensation professionals to understand that reopeners can work both ways:  the percentage of award can rise or it can fall.

Lastly, consider a case where the reason for the relatively high award is that the judge is concerned with the employee’s need for ongoing narcotics to reduce pain.  From the date of the accident to the date of the award the employee has been taking prescription narcotics for pain, and the award provides for ongoing use of prescription opioids.  Thereafter respondent’s pain medicine physician does testing noting that the injured worker is not even taking opioids.  The urine tests show no evidence of any narcotics in the petitioner’s system, and the petitioner advises that he or she feels much better and does not need the narcotics any longer.  This would also be an appropriate case to file a modification downward of the prior award.

So Section 27 modifications are premised on this equitable concept:  when the claimant’s condition has worsened, he or she can apply for a higher award; when the condition has improved, the employer can apply for a lower award.

--------------------------------

John H. Geaney, Esq., is an Executive Committee Member and a Shareholder in Capehart Scatchard's Workers’ Compensation Group.  Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at jgeaney@capehart.com. 

As the COVID-19 pandemic rages on, governors in various states have issued executive orders which purport to create a presumption that COVID-19 is a compensable occupational illness for certain employees.  In most states where this has occurred, such presumption is limited to healthcare workers, first responders, and some employees in the public transportation sector.  However, Connecticut Governor Ned Lamont just issued an executive order that creates a rebuttable presumption that COVID-19 is a compensable occupational disease for any employee who  worked outside the home at the direction of the employer and was diagnosed with COVID-19 and missed work between March 10 and May 20.   Connecticut’s order is unique not only because it covers a much broader spectrum of workers, but also because it is retroactive in nature.  This of course begs a few questions: Is such an order valid?  If so, could Governor Ivey do the same thing in Alabama?

Alabama is one of the only states where disputes between employers and employees over workers’ compensation claims are decided by the courts, rather than an administrative body.  Over the years, many states have taken workers’ compensation cases out of the courts in favor of administrative proceedings before a board or administrative law judge.  Generally, the administrative body that is responsible for the administration of workers’ compensation in those states is part of the executive branch of government.  The state legislature actually delegates authority to the executive branch to create an administrative agency responsible for administering workers’ compensation benefits, and those agencies are allowed to promulgate their own rules and regulations.  Governors are the head of the executive branch, and therefore have the power (either express or implied) to direct the administrative agencies under their control to act in a certain way.  Therefore, in states where disputes between employers and employees are decided by an administrative body, rather than the courts, governors have much more authority to levy what may or may not be considered a compensable illness.  Assuming Connecticut is such a state, Governor Lamont’s order may be a permissible exercise of authority under Connecticut law.  The biggest question is whether the retroactive nature of the order violates due process.

In Alabama, an executive order such as the one issued in Connecticut would not be valid.  The Alabama Workers’ Compensation Act was passed by the Alabama legislature, and was codified in the Alabama Code.  A key part of the Act vests jurisdiction for determining disputes between employers and employees regarding workers’ compensation benefits solely in the circuit courts.  In other words, Alabama has a balanced form of government, where laws are passed by the legislative branch, interpreted by the judicial branch, and the executive branch’s role is one of enforcement only.  The governor has no authority to pass laws; nor does she have the authority to tell the courts how to interpret laws that the legislature has passed.  Therefore, it is not likely that Governor Ivey will try to implement an executive order similar to that of Governor Lamont. 

About the Author

This article was written by Charley M. Drummond, Esq. of Fish Nelson & Holden, LLC. Fish Nelson & Holden is a law firm located in Birmingham, Alabama dedicated to representing employers, self-insured employers, and insurance carriers in workers’ compensation cases and related liability matters. Drummond and his firm are members of The National Workers’ Compensation Defense Network (NWCDN). The NWCDN is a national and Canadian network of reputable law firms organized to provide employers and insurers access to the highest quality representation in workers’ compensation and related employer liability fields. If you have questions about this article or Alabama workers’ compensation issues in general, please feel free to contact the author at cdrummond@fishnelson.com or (205) 332-3414.

By: Curtis Wheaton (Associate Attorney - Oakland Office)

Furious advocacy from both supporters and opponents of AB5 throughout its legislative pendency underscored the significant stakes of the legislation. However, it is important to remember that the bill codified a new legal test. It did not define specific results. Those classified as independent contractors did not receive an embossed state certificate entitling them to the rights and benefits of employees. Instead, they received the intangible legal right to hold their employers to the “ABC test” and the considerably more challenging standard it prescribes.[1]

To that end, AB5 was also endowed with an expanded scope of agencies authorized to enforce its provisions, vesting the Attorney General and city attorneys statewide with the authority to bring actions for injunctive relief to correct alleged misclassification. The California Labor Commissioner (authorized to enforce all provisions of the Labor Code) and workers themselves (those claiming harm by alleged misclassification) also remain entitled to bring actions of their own.

Seven months following AB5’s implementation, its expanded enforcement mechanism is already apparent.   On May 5, Attorney General Becerra (joined by the city attorneys of Los Angeles, San Francisco and San Diego) filed a complaint seeking injunctive relief, damages and penalties for misclassification against Lyft and Uber.[2] On July 16, San Francisco District Attorney Boudin filed a complaint on the same basis against DoorDash.[3] Most recently, the California Labor Commissioner targeted “Mobile Wash Inc.,” a gig-based car washing company, with a complaint for allegedly making a “business decision” to misclassify car washers as independent contractors.[4]

Another indicator of the priority being given to enforcement of AB5 is the 2020-21 State budget. Despite being created subject to unprecedented fiscal challenges resultant from the COVID-19 pandemic, over 20 million dollars is allocated specifically for the enforcement of AB5 by the Department of Justice and State agencies. [5] California voters will also play a pivotal role. The consortium of Uber, Lyft, DoorDash, Instacart and Postmates (recently acquired by Uber) raised the requisite signatures for the “Protect App-Based Drivers and Services Act” to appear on the November 2020 ballot as “Proposition 22,” a measure would exempt ride-share and delivery companies from AB5 entirely.[6]

Overall, the takeaway from this surge in prosecution is that various state agencies are watching.  Whether there will be enough results from the initially sacrificed lambs to prevent slaughter of the entire herd is yet to be seen. Business operators and owners who could be deemed “employers” should carefully review their procedures and consult with appropriate employment counsel as to proper classification. If those workers are deemed employees, they are eligible for workers’ compensation benefits as well.  Coverage is required in the state of California for workers’ compensation for any business with even just a single employee. Failure to appropriately misclassify an entire rank of workers could lead to significant exposure for an otherwise uninsured employer.

___________________________________________________

[1] To satisfy the ABC test, a hiring entity must demonstrate that: (1) the worker is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work and in fact; and (2) the worker performs work that is outside the usual course of the hiring entity’s business;and (3) the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed.

[2] https://oag.ca.gov/system/files/attachments/press-docs/2020-05-05%20-%20Filed%20Complaint.pdf

[3] https://sfdistrictattorney.org/sites/default/files/Document/DoorDash%20complaint.pdf

[4] https://www.dir.ca.gov/DIRNews/2020/2020-61.html

[5] http://www.ebudget.ca.gov/budget/2020-21EN/#/BudgetSummary

[6] https://www.sos.ca.gov/elections/ballot-measures/qualified-ballot-measures/

One of the most significant cases for employers in many years is N.J. Transit Corp. v. Sanchez, 2020 LEXIS 520 (N.J. May 12, 2020).  This decision is really a game changer for employers, carriers and third party administrators.  The conventional wisdom has always been that if an injured worker cannot sue for personal injuries in a motor vehicle accident on account of having the limitation-on-lawsuit option (aka “verbal threshold”), then the employer cannot pursue subrogation rights.  The argument has always been that the employer stands in the shoes of the worker.  But the Appellate Division and Supreme Court opinions in Sanchez have upended conventional wisdom.

The key facts were that David Mercogliano was driving a vehicle during the course of his employment when he was rear-ended by a vehicle driven by Sandra Sanchez and owned by Chad Smith.  N.J. Transit owned the vehicle Mercogliano was driving and paid $33,625.70 in workers’ compensation benefits.  Mercogliano never sought or received PIP benefits under his personal automobile policy.  He also never sued Sanchez because he could not meet any of the exceptions under the limitation-on-lawsuit option.

N.J. Transit filed a complaint against Sanchez and Smith to recoup its payments under N.J.S.A. 34:15-40 relying on Section (f), which allows employers which have paid workers’ compensation benefits to injured employees to pursue subrogation rights after a one-year period.  Sanchez and Smith argued in part that N.J. Transit was barred from recovery because Mercogliano could not bring his own suit. The Appellate Division disagreed with Sanchez and Smith, allowing N.J. Transit to recover its payments in the civil suit because Mercogliano had not received PIP benefits and N.J. Transit was trying to recover its own economic losses.  The Supreme Court took certification and came down equally divided in its decision.  When that occurs, it represents an affirmance of the Appellate Division decision.

Why is this a game changer? Because most New Jersey drivers opt for the limitation-on-lawsuit option since that option lowers car insurance premiums.  So the precise situation in this case happens all the time.  The verbal threshold policy means that injured workers in car accidents cannot bring a civil suit against a negligent third party unless they can show one of six exceptions, the main one being a permanent injury.  Unlike workers’ compensation law, permanent injury is defined very strictly under AICRA (Auto Insurance Cost Reduction Act). Sometimes even a herniated disc may not suffice to prove a permanent injury under AICRA.

The Supreme Court found no evidence that when the Legislature enacted AICRA, it intended to bar employers and insurers that have paid workers’ compensation benefits from seeking reimbursement from third-party tortfeasors where the injured worker did not seek or receive PIP benefits.  Normally injured workers who receive medical benefits and temporary disability benefits in workers’ compensation would not also seek or receive PIP benefits.

Another key fact for employers to consider is the percentage of recovery.  An employer’s lien is typically limited to two thirds (the other third represents the contribution to the plaintiff’s counsel fee). But there is no plaintiff bringing suit here, so the employer can recover the entire amount of its payments reduced only by whatever contractual arrangement the employer has with its own subrogation counsel. 

This decision has generated both interest and surprise among employers, carriers and third party administrators.  Frankly, the scope of the decision is just beginning to be fully appreciated in the employer community, and the case has not gotten all the attention it deserves.  Kudos to N.J. Transit and their counsel for taking a creative position that has essentially carved out new law for the benefit of employers.  For large employers, carriers and third party administrators, the decision is huge:  it will literally mean over time millions of dollars in recovery for economic payments made under workers’ compensation. 

In response to client interest, Capehart Scatchard has established a subrogation recovery team comprising partners Betsy Ramos, Chris Carlson and Voris Tejada. Interested clients can email bramos@capehart.com. ccarlson@capehart.com, vtejada@capehart.com or the undersigned for more information and for copies of the decisions of the Appellate Division and Supreme Court.

--------------------------------

John H. Geaney, Esq., is an Executive Committee Member and a Shareholder in Capehart Scatchard's Workers’ Compensation Group.  Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at jgeaney@capehart.com. 

Chronic condition or new injury?

Two cases recent cases decided by the West Virginia Supreme Court of Appeals address the frequent debate in claims management of whether an injured employee's disabling condition was caused by a preexisting chronic condition or a new injury.

In West Virginia University v. Jess Shaffer, No. 18-1067, (W. Va. July 9, 2020) (memorandum decision), the West Virginia Supreme Court of Appeals reversed and remanded the October 30, 2018 decisions of the Board of Review with instructions to reinstate the December 9, 2016, January 16, 2017, and August 10, 2017 claims administrator decisions. The Court's decision demonstrates the importance of discovery of evidence of treatment for preexisting chronic conditions.

In a 6-0 Memorandum Decision, the Court found the Board of Review's decision was so clearly wrong even when all inferences are resolved in favor of the Board's findings, that there is insufficient evidence to support the decision. The Court found the medical evidence clearly shows the claimant had bilateral shoulder degenerative changes several years before the compensable injury, including MRI evidence showing degenerative joint disease with impingement of the rotator cuff causing tendonitis, treatment notes showing rotator cuff tendonitis on the left and degenerative joint disease and impingement on the right, and a physician's record review opinion these conditions indicate a predisposition to degenerative rotator cuff tears.

The court also pointed to the claimant's family physician's deposition testimony that it is difficult for him to determine if the rotator cuff tears are the result of degeneration or trauma. He testified he usually refers patients to a specialist to make a determination, and further stated he did not discuss prior shoulder issues with claimant. The Court noted the family physician was the only physician to opine the injury resulted in bilateral rotator cuff tears. The Court contrasted the opinion of an orthopedist who found chronic degenerative changes throughout both shoulders. The Court also noted two physicians reviewing the medical history had the same findings related to preexisting degenerative changes in the shoulders.

Another decision by the West Virginia Supreme Court demonstrates the importance of documenting preexisting chronic conditions in an injured employee. InKathleen J. Crockard v. Wheeling Hospital, Inc., No. 18-1026, (W. Va. July 9, 2020) (memorandum decision), the Court affirmed the October 29, 2018 decision of the Board of Review which affirmed the May 16, 2018 Administrative Law Judge Decision. The May 16, 2018 ALJ Decision had reversed the claims administrator's November 3, 2017 order rejecting the claim. The issue for appeal was compensability of the claim on a no-lost-time basis.

Claimant suffered a lumbar sprain injury lifting a box while at work. She was immediately taken to the emergency room and diagnosed with a lumbar sprain, but it was indicated she would not be off work for four or more days. While the specific reason for the claim administrator's rejection of the claim is not identified by the Court, it likely was due to evidence claimant had a prior low back injury and MRI evidence of a herniated lumbar disc that predated the injury. The ALJ reversed the claims administrator's rejection of the claim and held the claim compensable for lumbar sprain/strain on a no-lost-time basis. Relying onJordan v. State Workers' Compensation Commissioner, 156 W. Va. 59, 191 S.E.2d 497 (1972), the ALJ found that just because an employee has a preexisting condition, does not mean he or she cannot suffer a new injury in the course of employment. When there is evidence of a preexisting injury, a new claim is compensable when it is the result of a definite, isolated, fortuitous occurrence.

The ALJ determined that the evidence shows the claimant had at least two prior lower back injuries, one of which occurred in the course of her employment. She reported right lower extremity pain prior to the injury at issue, but had no complaints of lower back pain at that time. The ALJ determined that the evidence shows the claimant was lifting a box when she sustained a lower back injury and was escorted to the emergency room, satisfying the requirements of a definite, isolated, fortuitous event. Claimant was diagnosed with a low back strain, and it was indicated that she would not be off work for four days or more. The ALJ found that she eventually underwent L4-5 microdiscectomy surgery for a herniated lumbar disc. The disc was herniated prior to the compensable injury, as seen on MRI, and is therefore unrelated to the claim. The claimant's continued temporary total disability was determined to be the result of the non-claim-related surgery. The ALJ therefore found that while the claim was compensable for a lumbar sprain, temporary total disability benefits should not be granted. The Board of Review adopted the findings of fact and conclusions of law of the Office of Judges and affirmed its Order.

The Court noted that pursuant to West Virginia Code § 23-4-1, employees who receive injuries in the course of and as a result of their covered employment are entitled to benefits. For an injury to be compensable it must be a personal injury that was received in the course of employment, and it must have resulted from that employment. Barnett v. State Workmen’s Compensation Commissioner, 153 W. Va. 796, 172 S.E.2d 698 (1970). Temporary total disability benefits will be granted when the period of disability is greater than three days. W. Va. Code § 23-4-1c. A claimant must submit evidence that he or she is unable to return to employment as a result of the compensable injury.

In this case, the Court found it is clear that the claimant sustained a lumbar sprain in the course of and resulting from her employment. However, MRIs taken shortly before and after the injury show that the claimant's herniated lumbar disc preexisted the compensable injury and is therefore not compensable. The Court found the claimant's continued inability to work is the result of her lower back surgery, necessitated by the noncompensable herniated disc. Accordingly, the claim was properly held compensable on a no-lost-time basis for lumbar sprain.

Article by Dill Battle

If you have questions or need more information, please call or e-mail Dill Battle at 304.340.3823 ordbattle@spilmanlaw.com.

Spilman Thomas & Battle, PLLC
300 Kanawha Boulevard, East
Charleston, WV 25301
304.340.3800 - office
304.340.3801 - fax
www.spilmanlaw.com

Minnesota's Cousineau, Waldhauser, & Kieselbach P.A. is proud to announce that several of our attorneys have been included in the 2020 edition ofMinnesota Super Lawyers. The selection of distinguished Minnesota attorneys is presented annually. Attorneys Jim Waldhauser, Thomas Kieselbach, and Jennifer Fitzgerald have been listed in 2020 Minnesota Super Lawyers. Attorneys Whitney Teel and Elizabeth Cox were listed as 2020 Minnesota Rising Stars. 

We are proud to have recognition for these talented attorneys!

                                                      Simon Law Group, P.C.

                                   720 Olive Street, Suite 1720, St. Louis, MO 63101

                                                              314-621-2828

                      MISSOURI WORKERS’ COMPENSATION CASE LAW UPDATE

                                                      April 2020 – June 2020

Court Found Civil Procedure Rule Regarding Time Limit For Substitution of Parties Did Not Preclude Final Award

Butterball, LLC v. Madeleine Dobrauc and Treasurer of the State of Missouri as Custodian of the Second Injury Fund, Case No. SD36205 (Mo. App. 2020)

FACTS:  The claimant alleged an occupational disease involving his right shoulder. He worked for the employer from 2006 to 2009.

The claimant filed a Claim in March of 2011 and a Hearing was held in April of 2017, at which time the ALJ found that the claimant sustained an occupational disease arising out of and in the course and scope of his employment. 

Employer then appealed and while the Award was still under review, the claimant died of health issues unrelated to his work injury.  The claimant’s counsel did not notify the Commission or employer’s counsel of the claimant’s death at Oral Arguments before the Commission in February of 2018 or any time before May 10, 2018 when the Commission affirmed the ALJ’s Award. 

On June 25, 2018 employer filed a Suggestion of Death, stating that it had just become aware of the claimant’s death.  On September 25, 2018 employee’s attorney filed a Motion for Substitution of Party in which counsel informed the Commission the employee’s daughter had taken the deceased’s place. In October of 2018 the Employer objected to the Motion.

The Commission found that Rule 52.13 of Civil Procedure which requires a 90-day time limit for substitutions did not apply and therefore the Substitution of Party was timely. In March of 2019 the Commission received documentation showing a probate court had named Daughter as PR of employee’s estate on January 29, 2019. The Commission found the daughter to be Employee’s successor in interest. On June 13, 2019 the Commission unanimously adopted the award of ALJ. The employer appealed.

HOLDING: The Court of Appeals found that Rule 52.13 of Civil Procedure did not apply in Workers’ Compensation Cases unless a workers’ compensation statute implicates the application under a specific rule which was not the case here. When an employee dies while his/her claim is pending, the specific workers’ compensation statute that applies is section 287.580 which says nothing about a requirement to file a Suggestion of Death within 90 days of death or about the proceeding being dismissed without prejudice for failure to do so.  The Award was proper because all of the requirements of the statue were satisfied such that the employee’s claim did not abate, and the employee’s personal representative was presumably appointed correctly.

Commission Found Claimant’s Application for Review Deficient as Claimant Did Not Explain why ALJ Ruling was in Error

Hayes v. Sweetie Pies Upper Crust, Injury No. 17-061793

The claimant worked for employer as a cashier and server.  As a server the claimant worked at a steam table and while serving food, the claimant constantly felt steam on her face.  A dial controlled the temperature of the steam but the claimant did not adjust the dial.  The claimant testified corrosion from the water and steam from the steam table affected her throat and caused her to have a stroke. 

While at work in May of 2017, the claimant testified she had difficulty with speech and she lost feeling on her left side.  She reported her symptoms to a co-worker and later her friends noticed she had a slur.  The employer refused the claimant’s request for medical treatment and she treated on her own. 

The claimant proceeded pro se to a hearing at which time the ALJ found that the claimant did not establish that she sustained an unexpected traumatic event or unusual strain identified by time and place which produced at the time objective symptoms of injury from a specific event during a single work shift.  It was noted the claim form lists the date of accident as 2017 and therefore the claim does not identify a single work shift where a traumatic event or unusual strain occurred and produced objective symptoms.  The claimant presented no medical or scientific evidence that rust, corrosion or water from the steam table where she worked affected her throat and caused her to have a stroke.  Therefore, the ALJ denied compensation to the claimant.  The claimant then appealed. 

The claimant’s Application for Review alleged that she was disabled and has a walker, a leg brace and no feeling on her left side.  She further alleged that the ALJ did not understand her case.  The Commission noted that the claimant’s Application for Review was deficient because it did not explain why the ALJ’s finding on the controlling issues are in error.  The Commission affirmed the decision of the ALJ.

Employer’s Application for Review Dismissed Because Untimely Filed

Keeler v. Associated Wholesale Grocers and Treasurer of the State of Missouri as Custodian of the Second Injury Fund, Case No. SD36432 (Mo. App. 2020)

FACTS: The employer appealed a decision from the Commission dismissing the employer’s Application for Review as untimely.  An ALJ found in favor of the claimant and an Award was entered and delivered to the parties on March 26, 2019.  Enclosed with the opinion was a cover letter which stated if an Application for Review is not postmarked or received within 20 days of the above date, the enclosed Award becomes final and no appeal may be made to the Commission or to the Courts.  The 20-day time period expired on April 15, 2019.  Employer’s Application for Review was filed by the Commission on April 17, 2019. 

The Commission issued an Order to Show Cause why the Application should be dismissed as untimely.  The Order stated that: 1. The Commission received Employer’s Application for Review on April 22, 2019; 2. The Application was received via United States Postal Service; and 3. The markings on the envelope containing the Application bore a private postage meter mark that affixed a mailing date of April 17, 2019.  Employer argued that neither the claimant nor The Fund were prejudiced because they received copies of the Application on April 9, 2019.

HOLDING: The Court found that the Commission was correct when it decided that employer’s Application for Review was not timely as the Commission received the Application untimely as the time for filing an Application for Review had expired.

Claimant Entitled to Review of all Motions While Application Pending Before Commission

Rowe v. Southeast Missouri Residential Services, Southeast Missouri Hospital and Treasurer of the State of Missouri as Custodian of the Second Injury Fund, Case No. SD36275 (Mo. App. 2020)

FACTS: The claimant filed a Claim for Compensation against her employer and the Fund. The case was tried and was denied by an ALJ.  The claimant then appealed and while her Application was pending before the Commission, the claimant filed a series of four Motions to Submit Additional Evidence on February 27, 2019, April 5, 2019, April 9, 2019 and May 10, 2019.  The Commission then denied compensation, and in its Award, explicitly identified, addressed and denied the claimant’s first three Motions to Submit Additional Evidence but did not mention or address her fourth motion filed on May 10, 2019.  The claimant then appealed. 

HOLDING: On Appeal, the claimant contended that the Commission failed to properly apply the law – 8CSR20-3.030(2)(B) by failing to agree or deny her fourth Motion to Submit Additional Evidence.  The Court agreed that the Commission failed to properly apply the law and reversed and remanded the Decision back to the Commission with directions to consider and to enter an Order either granting or denying the claimant’s fourth Motion to Submit Evidence filed on May 10, 2019.

Payments Made on Kansas Claim Tolled Statute of Limitations to File Claim in Missouri

Austin v. AM Mechanical Services and Treasurer of the State of Missouri as Custodian of the Second Injury Fund, Case No. WD82778 (Mo. App. 2020)

FACTS:  In November 2010, the claimant began working for employer as a sales and service manager.  The claimant was offered and accepted the job with employer in a telephone conversation which occurred while the claimant was at his home in Missouri.  However, the claimant worked at the employer’s warehouse in Olathe, Kansas.  On March 20, 2011, the claimant was injured while climbing a ladder to retrieve a part located on an upper shelf.  Employer paid TTD from March 20, 2011 through December 21, 2012. On February 28, 2013, a Kansas ALJ approved a settlement between the claimant, employer and its insurer. The claimant filed a Claim for Compensation in Missouri referable to the March 22, 2011 work accident. The claimant sought additional compensation from the employer and its same insurer in the amount of $11,314.38 representing the difference between the claimant’s rate in Kansas of $545.00 and the claimant’s rate in Missouri of $666.67.

The claimant then appealed to the Commission who affirmed the ALJ’s Award that the claim was barred by the statute of limitations. The claimant then again appealed.

HOLDING: The Court of Appeals found that the Commission erroneously misapplied the law when they denied the claim on the basis that it was untimely filed.  Since the claimant appealed within three years from the last payment made on his Kansas claim and these were payments that the employer would have been obligated to pay in Missouri, his Application was timely filed.

Application for Review Submitted by Fund Defective on Face and Therefore ALJ’s Ruling Stands

Treasurer of the State of Missouri as Custodian of the Second Injury Fund v. Mickelberry, Case No. WD82997 (Mo. App. 2020)

FACTS:  On February 6, 2015 the claimant injured his neck when picking up a 50-pound radiator.  Ultimately, he underwent a neck fusion surgery.  Despite the surgery, the claimant testified that he had constant neck pain even using narcotic pain medication. He was also diagnosed with bilateral carpal tunnel syndrome.  Medical testimony supported a finding that although the claimant’s carpal tunnel syndrome pre-dated his neck injury, it only became symptomatic as a result of a secondary crush to the nerves associated with his neck injury; a phenomenon known as “double crush”. 

He never returned to work following his neck injury and once his FMLA expired he was terminated by his employer.  Prior to his neck injury, the claimant had a history of chronic back pain and had changed job positions multiple times while working for the employer in order to accommodate his limitations.  The claimant filed an Amended Claim for Compensation seeking benefits from the Fund for permanent total disability alleging that his pre-existing disabilities combined with his neck injury rendered him PTD. 

A Hearing was held before an ALJ who found that the claimant was PTD as a result of his pre-existing disabilities and work injury.  The Fund then appealed and the Commission adopted the Award and Decision of the ALJ.  The Fund again appealed and the claimant filed a Motion to Dismiss for lack of subject matter jurisdiction based on an allegation of an improper Application for Review filed by the Fund with the Commission.

HOLDING: The claimant argued that the Commission lacked subject matter jurisdiction based on the fact that the Application for Review filed with the Commission by the Fund incorrectly referenced the facts of an entirely unrelated case.  Although the claimant framed his motion as a question of subject matter, the Court interpreted his motion as an argument that the Commission had no statutory authority to entertain the Fund’s appeal from the ALJ’s Award, to which the Court agreed. Additionally, the Fund’s Application for Review plainly failed to identify any of the ALJ’s findings and conclusions that were being challenged and thus failed to “state specifically” why the challenged findings and conclusions were not properly supported by the evidence. By submitting an Application for Review that substantively had nothing to do with the facts and the circumstances of claimant’s case, the Fund submitted an Application for Review that at best challenged the ALJ’s Award without any of the specificity required by law.  Since the ALJ’s Award was never properly challenged by the Fund, the Court set aside the Commission Award and adopted the ALJ’s Award.

Claimant Failed to Meet Burden of Proof to Show his Pre-Existing Condition Combined with the Work Injury Rendered him PTD

Guinn v. Treasurer of the State of Missouri as Custodian of the Second Injury Fund, Case No. SD35694 (Mo. App. 2020)

FACTS:  The claimant began working for employer in February of 1987.  He stopped working for the employer on March 1, 2006 when he was about 56 years old. 

In January of 2013, the claimant filed a Claim against the employer alleging hearing loss and tinnitus due to harmful noise.  The claim was settled on April 11, 2014 and on May 7, 2014 the claimant filed a Claim against the Fund for PTD based on the claimant’s hearing loss and tinnitus and his pre-existing Parkinson’s Disease. 

The claimant developed symptoms of Parkinson’s Disease as early as 2002 and was formally diagnosed in August 2003.  He continued to work for the employer until March of 2006 during which time the claimant was highly accommodated by the employer due to his declining health, tremors, weakness, lack of balance and difficulty concentrating. 

Upon leaving work in 2006, the claimant applied for Social Security Disability and was awarded the same on the basis of his Parkinson’s Disease. 

The Fund obtained a report of Dr. Parmet who opined the claimant was PTD due to the Parkinson’s Disease alone. Also, he opined that he claimant’s hearing loss and subjective complaints of tinnitus could have been secondary to his Parkinson’s Disease in whole or in part.  The ALJ found the Fund responsible for PTD benefits. The Fund appealed. The Commission found Dr. Parmet’s opinion persuasive. Therefore, the Commission denied the claimant’s claim against the Fund because the claimant did not meet his burden of proof to show that his Parkinson’s Disease combined with his work injury rendered him PTD.  The claimant then appealed. 

HOLDING:  The Court found that the claimant failed to convince the Commission that he was PTD due to a combination of his pre-existing Parkinson’s Disease and his primary hearing loss and tinnitus disability and therefore the Commission appropriately denied his claim against the Fund on that basis.  The burden of proving an entitlement to compensation is on the employee.  Additionally, the claimant failed to address or find any relevant legal authority supporting his claim.  Therefore, the Court of Appeals affirmed the Commission’s decision denying PTD.

Court Reversed Commission’s Decision That Claimant Not PTD Due to Not Meeting Burden of Proof

Williams v. Treasurer of the State of Missouri as Custodian of the Second Injury Fund, Case No. ED108262 (Mo. App. 2020)

FACTS: The claimant worked for the employer for approximately 24 years, from 1993 to 2008.  In 2005 the claimant suffered the first work-related injury to her neck, treated with Dr. Lange and had surgery, resulting in almost complete symptom relief and returned to work full duty.  In 2008 the claimant was again injured and treated with Dr. Raskas and underwent an MRI which revealed a cervical disc herniation at C6-7.  She underwent an injection and a selective nerve root block.  When that failed to provide relief, Dr. Raskas ordered an FCE which revealed that the claimant’s maximum work capacity was not up to the level required by her job duties.  Therefore, Dr. Raskas recommended another surgery.  The claimant underwent the surgery with Dr. Lange whom she had treated with previously. 

The claimant reported the second surgery did not ultimately help her symptoms and therefore she started treating with Dr. Coyle.  After examination, Dr. Coyle recommended further surgery and performed two surgeries one in 2010 and one in 2011.  Afterwards the claimant still had ongoing neck pain as well as weakness and numbness in her arm.  Dr. Coyle then re-evaluated the claimant in 2011 and placed permanent lifting restrictions of 20 pounds, and no pushing or pulling greater than 44 pounds. 

The claimant was evaluated by Dr. Berkin first in 2011 and again in 2018.  Dr. Berkin opined that the 2008 work injury was the prevailing cause of the claimant’s herniated disc at C6-7, the resulting surgeries and continuing pain and complications.  He rated the claimant as having 42.5% PPD referable to the 2008 injury.  He further opined that the claimant’s 2005 injury represented 30% PPD to the body as a whole.  In Dr. Berkin’s 2011 report, he implemented lifting restrictions and also noted that the claimant would need to pace herself during exertion and take frequent breaks.  The results of Dr. Berkin’s 2018 report were largely the same. 

The claimant also presented testimony of Mr. Dolan who concluded that the claimant was unable to perform any job in the open labor market and that no reasonable employer could be expected to hire the claimant in her present physical condition. 

The ALJ awarded the claimant PPD but denied the claim for PTD.  The ALJ found the medical evidence insufficient to establish total disability. The ALJ noted the Workers’ Compensation Act requires an individual’s disability “be demonstrated and certified by a physician.” The ALJ found Dr. Berkin had testified and reported extensively on the claimant’s work-related injuries and their resulting limitations on the claimant’s ability to function. However, Dr. Berkin came short of meeting the statutory requirement of demonstrating and certifying total disability.  The claimant appealed and the Commission affirmed the decision of the ALJ.  The claimant again appealed.

HOLDING:  The claimant made two claims of error on appeal.  First, she claimed the Commission misapplied the law by deciding Dr. Berkin’s testimony was statutorily deficient to sustain a claim of PTD.  Second, she claimed the Commission’s decision denying PTD and granting only PPD was against the overwhelming weight of the evidence and unsupported by substantial evidence.  The Court found that while Dr. Berkin did not use the “magic words” of “total disability” in his testimony, nothing in the record suggested he explicitly avoided doing so.  The Court noted that the Commission’s arbitrary and subjective characterization of Dr. Berkin’s testimony was not substantial evidence upon which it may have based its decision.  The Court also found the Commission’s decision to be against the overwhelming weight of the evidence and not supported by sufficient and competent evidence as it arbitrarily ignored the uncontroverted evidence presented by the claimant.  Therefore, the Court reversed the Commission’s decision and found that the Fund was liable to the employee for PTD benefits.

Assault Not Compensable as Claimant Provoked Assault

Ford v. Associated Electric Cooperative Inc., Injury No. 15-047091

The claimant testified by deposition prior to the hearing. On the date of the incident the claimant worked a 12-hour shift from 7 PM until 7 AM. His assignment was to obtain or reclaim coal. The claimant knew that the coemployee’s assignment for the evening was to run shift. He used a truck in the area to go reclaim the coal. He then returned the truck and drove to where the coemployee was working. The claimant testified that at that point he saw that the coemployee had already put his workpapers in the truck, in essence claiming the truck for his use during the work shift. The claimant waited for the coemployee to complete the work he was doing and then offered to let the coemployee drive the truck with the claimant as the passenger to drive around the property. According to the claimant while both men were seated in the truck the coemployee told him to get his own truck and cursed while he said it. The claimant then cursed back at him and then the coemployee exited the truck and started beating the claimant. He then described running away from the coemployee.

The coemployee also testified by deposition. He testified that his shift began at 7 PM and he put his workpapers in a truck and began working. The claimant then drove up in the truck he had put his papers in and the claimant got in the passenger seat and the other employee got into the driver’s seat and he told the claimant to get his own truck and the claimant became angry and was complaining about the personnel and management. The coemployee said that he did not want the claimant riding in his truck because all he did was complain the night before. The claimant became angry and cursed and the coemployee got out of the truck. He further testified that the claimant grabbed him by the collar and started pulling. The coemployee then said that he hit the claimant in self-defense.

Pursuant to statute an accident includes but is not limited to an injury or death of an employee caused by the unprovoked violence or assault against the employee by any person. Therefore provoked assaults are not compensable.

The ALJ noted that the testimonies of both men are consistent, including the coemployee exiting the truck after harsh words were exchanged. The judge noted that the coemployee’s testimony is that the claimant grabbed him by the collar and pulled him towards him and the claimant did not deny the accuracy of this testimony. Therefore the judge found that the claimant provoked the assault since he first laid hands on the coemployee. Therefore, the claim was denied.

The claimant appealed arguing that he never had the opportunity to respond to the testimony of his coworker because the coworker’s deposition was taken after the claimant’s deposition. The Commission found that the claimant could have easily testified and presented evidence at the hearing before the ALJ but chose not to do so. Therefore the Commission affirmed the ALJ’s decision.

Fund Liable for Benefits as Court Found Pre-Existing Injury Does Not Need to Be Symptomatic to Render Claimant PTD

Atchison v. Treasurer of the State of Missouri as Custodian of the Second Injury Fund, Case No. SD36431 (Mo. App. 2020)

FACTS: On July 8, 2007 the claimant fell, sustaining a compensable injury to his back. He was found to have a herniated disc at L4-L5. He also suffered from both degenerative disc and degenerative joint disease from L2-L3 through L5-S1 which was a permanent and potentially disabling medical condition. Dr. Russell testified that the herniated disc from the work resulted in 35% disability and the pre-existing degenerative processes created 65% disability. The Commission determined that the claimant suffered from 35% PPD due to the compensable injury. They further held that the pre-existing condition, combined with the primary injury, rendered the claimant PTD.

HOLDING: The Fund then appealed arguing that the Commission erred when they found that the claimant was PTD as a result of a pre-existing condition combined with the work injury. The Fund argued that the pre-existing permanent partial disability was not symptomatic and therefore not compensable. However, the Commission specifically found, based on expert testimony, that the degenerative diseases were serious enough to be a hindrance or obstacle for future employment or re-employment. The Court held that there was no requirement in the statute that any of the pre-existing injuries be symptomatic. The requirement is simply that the Commission must find that the combination of the last injury and the pre-existing disabilities resulted in permanent total disability. The Court therefore affirmed the Commission’s Award. 

Fund Liable for Benefits After First MMI Release as Claimant’s Condition Did Not Improve with Subsequent Treatment

Williams v. Treasurer of the State of Missouri as Custodian of the Second Injury Fund, Case No. ED108319 (Mo. App. 2020)

FACTS: The claimant sustained a knee injury; the claim was denied and he treated on his own. In May 2002 the claimant underwent a repair of a torn medial meniscus. In August of 2002 he underwent a partial knee replacement. In August of 2003 the claimant underwent a revision of the previous knee replacement. On September 8, 2003 his knee surgeon released him from care. The claimant continued to seek treatment for ongoing left knee symptoms for the next several years and underwent a total knee replacement on April 8, 2016. He was released from care on May 9, 2016.

In the summer of 2006, the claimant attempted to return to work but his job duties increased the pain in his left knee, back and right foot. He did not return to any type of employment. The claimant sought disability from the Fund due to his working injury and his pre-existing condition concerning his right ankle. Dr. Cohen testified on behalf of the claimant and found that he was PTD due to his work injury as well as his pre-existing condition. Dr. Nogalski offered testimony at a deposition on behalf of the employer, which the Fund submitted as evidence at the hearing. He opined the claimant had reached MMI as of February 5, 2004 and that his work injury did not cause his disability. Mr. Lalk testified for the claimant and concluded that he would not be able to maintain employment in the open labor market. The ALJ concluded that his pre-existing disability combined with the work-related disability rendered him PTD. The ALJ found the claimant reached MMI on May 9, 2016 and found the Fund liable for benefits starting on that date. The claimant then appealed and the Commission affirmed. The claimant again appealed.

HOLDING: The claimant’s sole point on appeal was that the Commission erred in finding that he reached MMI on May 9, 2016 rather than September 8, 2003. The Court held that since both physicians testified that the claimant’s condition was of a permanent nature following his third surgery in 2003 and his condition did not improve after his surgery in 2016 he reached MMI on September 8, 2003 and benefits were to begin on that date.

Claimant’s Death Due to Hyperthermia Compensable

Halsey v. Townsend Tree Service Company, LLC and Ace American Insurance Company, Injury No. 16-053905

In July of 2016 the claimant, a 23-year-old was hired by Townsend Tree to perform tree trimming, brush and limb chipping/removal and other activities associated with the employer’s contract with a local electrical cooperative to remove obstacles around or near electrical lines. The claimant worked approximately ten hours a day from July 19-22, 2016. July 22, 2016 was one of the hottest days of the year in Southeast Missouri with heat index temperatures at 2p.m. of approximately 114 degrees. By that afternoon the claimant was suffering from heat exhaustion. Around 4p.m. he was asked to collect some caution signs and in the process of doing so he passed out. 911 was called and the claimant was taken to Poplar Bluff Regional Medical Center where he died the next day. The cause of death was listed as hyperthermia.

Dr. Deidiker, the forensic pathologist who conducted the claimant’s autopsy, was deposed at which time he testified that the claimant’s cause of death was hyperthermia or increased body temperature. Dr. Deidiker identified the claimant’s manner of death as “accident.”

Dr. Studyvin, the doctor who treated the claimant upon arrival to the ER, was deposed and testified that he believed the claimant’s cause of death was hyperthermia.

Dr. Jardine was deposed on behalf of the employer and opined that the claimant’s obesity contributed to the cause of his heat stroke.

Dr. Cantrell also testified on behalf of the employer and opined that the claimant’s occupational activities and the heat on July 22, 2016 were the prevailing factor to cause his heat stroke and ultimate death. It was also his opinion that the claimant’s underlying obesity was not the prevailing factor in the cause of his death.

The ALJ found that the claimant had sustained an accident arising out of in and in the course of his employment on July 22, 2016. Additionally, the ALJ found that Dr. Cantrell’s opinion was more persuasive than Dr. Jardine’s and therefore found that the claimant’s work accident on July 22, 2016 was the prevailing factor in causing the claimant’s death. The ALJ also found that the claimant’s obesity was not an idiopathic condition, ruling that an idiopathic condition qualifies for the exclusion only if it exposes the individual to a special risk of injury that only exists because of the presence of idiopathic condition in that employee. The employer then appealed.

The Commission affirmed the decision of the ALJ.

Last Employer to Expose Claimant to Asbestos Responsible for Benefits

Landis v. St. Luke’s Hosptial, Children’s Mercy Hospital and Truman Medical Center, Injury No: 17-098196

The claimant testified he was exposed to asbestos when he was employed at The Kansas City Star from 1968-1976, St. Luke’s Hospital from 1981-1985 and Children’s Mercy Hospital from 1985-1987. The claimant last worked for Truman Medical Center, however, was not exposed to asbestos at this facility.

Dr. Shen testified by deposition for the claimant that it was his opinion that it was more likely than not that Mr. Landis died of mesothelioma that was contracted and associated with exposure in his employment. He also testified that it was not unusual for 20 to 40 years to lapse between exposure and development of mesothelioma.

Mr. Kannenberg, an environmental scientist, testified by deposition on behalf of St. Luke’s Hospital on August 5, 2019. He concluded that the claimant was exposed to asbestos on every job he had as an operating engineer.

Dr. Kibby testified by deposition for Children’s Mercy Hospital and stated that the exposure likely would have been sufficient to explain the cause of his mesothelioma, since most, if not all mesothelioma is related to some type of asbestos exposure.

The ALJ concluded that the claimant filed his claim timely as his surgical report of his right lung containing his final diagnosis of mesothelioma was dated November 8, 2017 and his claim for compensation was filed December 22, 2017. He amended his claim on May 7, 2018 again within the two-year statute of limitations to add Truman Medical Center. 

With respect to notice, St. Luke’s Hospital was given notice on December 22, 2017 and Children’s Mercy Hospital as well as Truman Medical Center were given notice on May 7, 2018. Therefore, the employers met their burden of proving that the claimant did not provide timely notice of his alleged occupational disease. The burden then shifted to the claimant to prove the employers were not prejudiced by the delay. Due to the testimony of Dr. Shen who testified that a 30-day notice requirement was not feasible with asbestos-related lung diseases, because there was no known medical treatment or medication that would prevent the development of asbestosis and asbestos-related mesothelioma the ALJ concluded that the employers were not prejudiced by receiving notice in 44 days rather than 30.

The ALJ further concluded that the claimant’s son proved that the claimant sustained an occupational disease resulting from his exposure to asbestos in his employment causing his mesothelioma and death. The ALJ found the testimony of Dr. Shen and Mr. Kannenberg credible and that the evidence supported their testimony.

Finally, the ALJ relied on 287.063 which states that the last employer to expose the employee to the hazard of the occupational disease prior to evidence of disability is liable, regardless of the length of time of the last exposure. As the claimant worked for Children’s Mercy Hospital from 1985-1987, they were the last employer to expose the claimant to the hazard and exposure to asbestos. Therefore, they are liable for medical bills and benefits. Children’s Mercy Hospital then appealed.

The Commission affirmed the decision of the ALJ.

Claimant’s Work as Hairdresser Not Prevailing Factor in Causing Mesothelioma

Hayden, Deceased and Hayden v. The Cut-Zaven and Papillon, Injury No. 14-103077

FACTS:  The employee worked as a hairdresser for 47 years. He worked at multiple salons. He alleged that he used hand-held hair dryers which he believed contained asbestos. He could not remember the specific hairdryers he had used over the years. There is documentation that there were certain hairdryers that contained asbestos and most of those were discontinued as of 1979. He was diagnosed with mesothelioma on June 26, 2014 and died on April 26, 2016.

The claimant’s attorney obtained a report of Dr. Hyers who concluded that the employee’s mesothelioma was related back to his use of asbestos-containing hairdryers.

Cut-Zaven obtained a report of Dr. Barkman who did note the employee was diagnosed with mesothelioma but there was no comment regarding whether the disease was asbestos related. He did not believe that the employee’s employment as a hairdresser was the prevailing factor in the  development of his mesothelioma. He also noted that the employee’s hairdryers could have been asbestos free because only certain versions and serial numbers of the hairdryers contain asbestos.

The ALJ concluded that the employee did not meet his burden of proof regarding medical causation. The judge noted that the employee could not specifically recall the types of hairdryers he used. She also noted that Dr. Hyers’ conclusion that the employee’s condition was work-related was simply based on the employee’s deposition testimony. She found Dr. Barkman’s opinion more credible. She went on to note that the employee simply presented a version of events he believes could have happened. The employee could have owned the specific serial numbers and models containing asbestos and it is also possible that he could have used one of the serial numbers that did not contain asbestos. She noted that what “could” have happened is not competent and substantial evidence of what did happen. There was no testimony confirming the employee was ever exposed to any of the specific models of asbestos-containing hairdryers during any particular time with any of the named employers. She noted that the employee’s testimony lacked specificity required to prove his claim, and therefore the claim was denied. The claimant appealed.

The Commission affirmed with a supplemental opinion. The Commission noted that the ALJ denied the claim based on a finding that the opinion of Dr. Barkman was more persuasive than that of Dr. Hyers and they were not inclined to reverse the determination to deny the claim on the issue of medical causation. However they provided a supplemental opinion with respect to the proper burden of proof in occupational disease claims. The Commission noted the case law states that the claimant is not required to present evidence of specific exposure to an occupational disease in the workplace but rather is required to submit medical evidence establishing a probability that working conditions caused the disease. The Commission noted that despite the ALJ’s comments regarding specificity, they were confident that she properly understood the relevant factual and legal issues in the claim and agreed that the testimony of Dr. Barkman was more credible, and therefore affirmed the decision of the ALJ.