Workers` Compensation Law Seminar Handbook

Transcription

Dallas
July 18th
Renaissance Dallas
Richardson Hotel
900 East Lookout Drive
Richardson, TX 75082
St. Louis
August 22nd
Sheraton Westport Hotel
Plaza Tower
900 Westport Plaza
St. Louis, MO 63146
Kansas City
October 17th
Overland Park
Convention Center
6000 College Boulevard
Overland Park, KS 66211
Workers’
Compensation
Law
Seminar
Handbook
www.mvplaw.com
TABLE OF CONTENTS
Arkansas Workers’ Compensation ....................................................................... Tab 1
Arkansas Workers’ Compensation 101 ....................................................... Page 1
Frequently Asked Questions from Arkansas Cases .................................. Page 13
Illinois Workers’ Compensation ............................................................................ Tab 2
Illinois Workers’ Compensation 101 ............................................................ Page 1
Frequently Asked Questions from Illinois Cases ....................................... Page 13
Iowa Workers’ Compensation ............................................................................... Tab 3
Iowa Workers’ Compensation 101 ............................................................... Page 1
Kansas Workers’ Compensation .......................................................................... Tab 4
Kansas Workers’ Compensation 101 .......................................................... Page 1
Frequently Asked Questions from Kansas Cases ..................................... Page 15
Decisions Applying the Kansas New Act ................................................... Page 25
Missouri Workers’ Compensation ........................................................................ Tab 5
Missouri Workers’ Compensation 101 ......................................................... Page 1
Missouri Workers’ Compensation: Legislative Update............................... Page 13
Frequently Asked Questions from Missouri Cases .................................... Page 17
Nebraska Workers’ Compensation ....................................................................... Tab 6
Nebraska Workers’ Compensation 101 ....................................................... Page 1
Frequently Asked Questions from Nebraska Cases .................................. Page 11
Oklahoma Workers’ Compensation ...................................................................... Tab 7
Oklahoma Workers’ Compensation 101 ...................................................... Page 1
2013 Legislative Update ............................................................................ Page 15
Frequently Asked Questions from Oklahoma Cases ................................. Page 25
Medicare Set Asides .............................................................................................. Tab 8
Medicare Set Asides.................................................................................... Page 1
ARKANSAS WORKERS’ COMPENSATION
I. JURISDICTION
A. Act will apply where:
1. The injury occurred in the state of Arkansas.
2. The contract of employment is entered into in Arkansas between an Arkansas
resident and an employer who is a resident or who maintains an office in
Arkansas exercising general control over the employee, even if the injury
occurred in a different state in which both parties contemplated the employment
would be performed.
3. Claimant is entitled to a presumption of jurisdiction, but such presumption is
rebuttable. Multiple factors are considered for jurisdiction determinations.
II.
ACCIDENTS
A. Compensable Injury Ark. Code Ann. § 11-9-102(4)(A)
1. Specific Incident – Claimant must prove each element by a preponderance of
the evidence:
a. An injury arising out of and in the course of employment;
i. “Arising out of” refers to the cause of the accident. An injury arises
out of employment if the employee is carrying out the employer’s
purpose or advancing the employer’s interests.
ii. “In the course of” refers to the time, place and circumstances of the
accident. The accident must occur within the time and space
boundaries of the employment
b. That the injury caused internal or external harm to the body which required
medical services or resulted in disability or death;
i. An aggravation of a pre-existing condition can be compensable if all
of these elements are met for the aggravating incident
c. Medical evidence supported by objective findings, as defined in Ark. Code.
Ann. 11-9-102(16);
d. That the injury was caused by a specific incident identifiable by time and
place of occurrence.
2. Gradual Onset/Repetitive Motion: Injuries caused by rapid repetitive motion
(carpal tunnel specifically included) or gradual onset injuries to the back or
hearing loss require proof of the following elements:
a. An injury arising out of and in the course of employment;
b. That the injury caused internal or external harm to the body which required
medical services or resulted in disability or death;
c. The injury was the major cause of the disability or need for treatment;
d. Medical evidence supported by objective findings.
3. Mental illness Ark. Code Ann. § 11-9-113
1
© 2013 McAnany, Van Cleave & Phillips, P.A.
a. For mental illness to be a compensable injury it must be caused by
physical injury to the employee’s body, demonstrated by a preponderance
of the evidence, and diagnosed by a licensed psychiatrist or psychologist.
b. Exception: victims of crimes of violence.
c. Maximum compensation is 26 weeks.
4. Heart or cardiovascular injury, accident, or disease Ark. Code Ann. § 11-9-114
a. Compensable only if an accident is the major cause of the physical harm.
b. The employee must show that the exertion of the work necessary to
precipitate the disability or death was extraordinary and unusual in
comparison to the employee’s usual work or that an unusual and
unpredicted incident occurred which was the major cause of the physical
harm and stress must not be considered.
5. Hernia Ark. Code Ann. § 11-9-523
a. Employee must show that the hernia occurred immediately following and
as a result of sudden effort, severe strain, or the application of force
directly to the abdominal wall; that there was severe pain in the hernia
region that caused the employee to immediately cease work; that the
employee gave the employer notice within 48 hours afterward and that
medical attention was required within 72 hours.
B. Occupational Disease Ark. Code Ann. § 11-9-601
1. Occupational Disease is defined as any disease that results in disability or
death and arises out of and in the course of the occupation or employment or
naturally follows or results from a compensable injury.
2. There must be a causal connection between the occupation and the disease
established by a preponderance of the evidence.
3. An occupational disease is characteristic of an occupation, process or
employment where there is a recognizable link between the nature of the job
performed and an increased risk in contracting the disease in question.
4. The test of compensability is whether the nature of the employment exposes
the worker to a greater risk of the disease than the risk experienced by the
general public or workers in other employments.
5. The amount of compensation will be based on the average weekly wage of the
employee when last exposed to the occupational disease.
III. NOTICE Ark. Code Ann. § 11-9-701
A. Notice of the accident should be given immediately after it occurs and must be
reported on the appropriate form prescribed or approved by the Commission (Form
N).
B. Failure to give notice will not bar a claim if:
1. The employer had knowledge of the injury; or
2. If the employee had no knowledge that the condition or disease arose out of
and in the course of employment; or
2
3. If the Commission excuses the failure due to a satisfactory reason that the
notice could not be given.
IV. REPORT OF INJURY Ark. Code Ann. § 11-9-529
A. Employers must file a report of injury (Form 1) with the Arkansas Workers’
Compensation Commission within 10 days of receiving notice or knowledge of the
injury.
B. The report filed with the Commission must include:
1. Name, address, business of the employer;
2. Name, address, occupation of employee;
3. Cause and nature of the injury; and
4. Date, time and location of the injury.
C. Failure to file a report could result in a $500 fine.
V. CLAIM FOR COMPENSATION
A. A claim for an injury other than an occupational disease must be filed within 2 years
from the date of the injury unless compensation has been paid, in which case a
claim for additional compensation must be filed within 1 year from the date of the last
payment of compensation or 2 years from the date of the injury, whichever is
greater.
1. The date of the injury is defined as the date of the occurrence of the accident
from which a compensable injury results.
B. Claims based on occupational diseases must be filed within 2 years from the date of
the last injurious exposure to the hazards of the disease. The statute of limitations
does not begin to run until the employee knows or should be reasonably expected to
be aware of the extent or nature of the injury.
C. If the employee has not made a request for a hearing within six months of filing a
claim for compensation the employer may move to dismiss the claim without
prejudice.
D. Failure to file a claim within the statutory time limits is not a bar to the right to file a
claim unless the employer objects at the first hearing on the claim.
E. Benefits not claimed on the Form C are barred by the SOL, if later claimed, but more
than 1 year from last payment of compensation. Flores v. Wal-Mart Dist. and Claims
Mgmt. Inc., 2012 Ark. App. 201.
VI. INTENT TO ACCEPT OR CONTROVERT CLAIM Ark. Code Ann. § 11-9-803
3
A. Employer must file a statement of its intent to accept or controvert a claim (Form 2)
within fifteen days of the date upon which it receives notice of the alleged injury.
B. Employer may request a time extension if it has made a good faith effort to obtain
medical records, but has been unable to do so and is therefore unable to determine
the validity of the employee’s claim.
C. Note that this step must be done within fifteen days of the injury, not within fifteen
days of the claim for compensation, so that this step will typically be required before
the employee has even filed a claim for compensation.
VII. MEDICAL TREATMENT Ark. Code Ann. § 11-9-508
A. Employer has the right to select the initial treating physician. If the employer has
contracted with a certified managed care organization, then the employer has the
right to select the initial primary care physician from among those in the
organization.
B. However, the employee may request a one-time change of physician from the
employer or carrier.
1. If the employee’s request for a change of physician is denied, the employee
can petition the Commission and if the Commission agrees, they may select the
physician if they do not agree with the employee’s choice.
2. When the employee petitions for a change of physician, the new physician must
be either:
a. Associated with the managed care entity chosen by the employer, or
b. The regular treating physician of the employee provided the following
factors are met:
i. the physician maintains the employee’s medical records;
ii. the employee has a bona fide doctor-patient relationship with they
physician;
iii. there is a history of regular treatment prior to the onset of the
compensable injury;
iv. the primary care physician agrees to refer the employee to the
managed care entity for specialized treatment; and
v. the primary care physician agrees to comply with the rules, terms,
and conditions regarding services performed by the managed care
entity chosen by the employer.
C. Treatment furnished by any physician other than the ones selected according to
these methods, except emergency treatment, will be at the employee’s expense.
1. Exception: If the employer does not deliver to the employee, either in person or
by certified mail, a copy of a notice which explains the employee’s rights and
responsibilities concerning a change of physician, then the changes of
4
physician rules do not apply and the employer will be responsible for the
unauthorized treatment.
D. If the employer fails to provide prompt medical services within a reasonable time, the
Commission may direct that the injured employee obtain the medical service at the
expense of the employer.
VIII. VOCATIONAL REHABILITATION Ark. Code Ann. § 11-9-505
A. Upon a finding by the commission that a vocational rehabilitation program is
reasonable, an employer will be liable to an employee for vocational rehabilitation
costs if the employee:
1. Is entitled to receive compensation benefits for permanent disability; and
2. Has not been offered an opportunity to return to work or reemployment
assistance.
B. Employer’s responsibility for payments for the program will not exceed 72 weeks.
C. Employee will not be required to enter a program against his or her consent.
1. If employee waives rehabilitation or refuses to participate in an offered
program, the employee will not be entitled to benefits beyond the established
percentage of permanent physical impairment.
D. Employee must request the program by filing a request with the Commission prior to
a determination of the amount of permanent disability benefits payable to the
employee.
IX. AVERAGE WEEKLY WAGE Ark. Code Ann. § 11-9-518
A. Computed based on the contract of hire in force at the time of the accident,
considering the fifty-two weeks prior to the accident, including the reasonable value
of board, rent, housing, lodging, or similar advantage received from the employer as
well as tips and commissions.
B. Piece-basis employees: divide the earnings by the number of hours required to earn
those wages during the fifty-two weeks preceding the week in which the accident
occurred, then multiply this hourly wage by the number of hours in a full-time
workweek.
C. Overtime: add to the regular weekly wages, compute by dividing the overtime
earnings by the number of weeks worked by the employee.
X. DISABILITY BENEFITS
A. Temporary Total Disability (TTD) Ark. Code Ann. §§ 11-9-501(b), 11-9-519
5
1. Compensation rate is two-thirds of average weekly wage (AWW) up to statutory
maximum.
2. If an injured employer refuses suitable employment he loses any entitlement to
compensation unless the Commission determines the refusal is justifiable.
3. Waiting period:
a. For the first seven calendar days, no TTD is due.
b. For more than seven, but less than fourteen days, only the second week is
due.
c. For more than fourteen days of disability, go back to the first day of
disability.
d. The waiting period does not include the date of injury.
4. TTD is calculated using the calendar week with each day being one-seventh of
the week.
5. Failure to pay TTD without an award within fifteen days after it becomes due is
an eighteen percent penalty which must be paid at the same time as the
installment unless notice of controversion is filed or an extension is granted.
6. If a TTD installment payable under an award is not paid within fifteen days after
it becomes due, there is a twenty percent penalty.
7. Willful failure to pay a benefit results in a penalty up to thirty-six percent.
B. Temporary Partial Disability (TPD) Ark. Code Ann. § 11-9-520
1. Compensation rate is 2/3 of the difference between the employee’s average
weekly wage prior to the accident and his wage-earning capacity after the
injury.
C. Permanent Partial Disability (PPD) Ark. Code Ann. §§ 11-9-501(d)(1), 11-9-521
1. Compensable injury must be the major cause (more than 50%) of the injury for
Claimant to receive permanent benefits.
2. Compensation rate is 75% of TTD rate up to the statutory maximum if the TTD
rate is $205.35 or greater. If TTD rate is below $205.35, PPD rate is 2/3 of
average weekly wage.
3. Permanent partial disabilities not listed in the statutory schedule will be
apportioned to the body as a whole with a value of four hundred fifty weeks.
4. In claims for disability in excess of permanent partial impairment for
unscheduled injuries (wage loss claims), the Commission may take into
account the employee’s age, education, work experience, and other matters
that may affect his future earning capacity.
5. Compensation is allowed after twelve months after the injury, for serious and
permanent facial or head disfigurement for not more than $3,500.
6. The clinical impairment rating must be pursuant to the AMA Guides to the
Evaluation of Permanent Impairment (4th Edition).
a. If the employee is back to work, only the clinical rating is due.
b. If the employee is unable to return to work, the rating is negotiable and
can be awarded by the ALJ.
6
7. PPD payments should start from the date the rating is given and notification in
writing should be given to the injured employee.
D. Permanent Total Disability (PTD)
1. Permanent total disability means the inability because of compensable injury or
occupational disease to earn any meaningful wages in the same or other
employment.
2. Compensation rate is 2/3 of the average weekly wage.
3. The employer or carrier may, annually, require the injured worker receiving
permanent total disability benefits to certify that he is permanently and totally
disabled and not gainfully employed.
4. As of January 1, 2008 the cap for PTD is 325 times the maximum total disability
rate established at the date of injury.
E. Death
1. For deaths occurring as the result of an injury that occurred on or after July 1,
1993, the employer is responsible for funeral expenses of $6,000 or less.
2. There is a rebuttable presumption that death did not result from the injury if:
a. death does not occur within one year from the date of the accident; or
b. within the first three years of the period for compensation benefits.
3. Compensation for death of an employee is payable to the dependents in the
following percentages of the average weekly wage and in the following order of
preference:
a. Widow/Widower with no children: 35% paid until his/her death or
remarriage;
b. Widow/Widower with children: 35% paid until his/her death or remarriage
and15% for each child;
c. One child with no widow/widower: 50%;
d. More than one child with no widow/widower: 15% for each child and 35%
to the children as a class to be divided equally among them;
e. Parents: 25% each;
f. Siblings, grandchildren, grandparents: 15% each.
4. If a spouse remarries before complete payment of benefits, he/she must be
paid a lump sum equal to compensation for 104 weeks.
5. Benefits to children will terminate at age eighteen unless the child is a full-time
student under the age of twenty-five.
6. Incapacitated dependants are entitled to compensation regardless of age or
marital status.
F. Illegally Employed Minor
1. Minors employed in violation of federal or state statutes pertaining to minimum
ages for employment of minors are entitled to double the statutory amounts of
compensation or death benefits.
7
2. This provision applies unless the minor misrepresented his or her age, in
writing, to the employer.
G. Attorney’s Fees Ark. Code Ann. 11-9-715
1. Capped at 25% of compensation for indemnity benefits.
2. Attorney’s fees are not payable on medical benefits.
3. Where the Commission determines that a claim has been controverted, in
whole or part, attorney’s fees are paid ½ by employer in addition to
compensation awarded and ½ by the claimant out of compensation payable to
them.
XI. PROCEDURE
A. Pre-Injury Posting (Form P)
1. Employers should have Form P displayed in a conspicuous place to instruct
employees in how to deal with an injury.
B. Employee’s Notice of Injury (Form N)
1. Employee is required to fill out Form N and provide notice of his injury to the
person and place specified by the employer.
2. Employer is not responsible for any benefits to the employee incurred prior to
notification of the injury, except for emergency treatment that occurs outside the
normal business hours of the employer, so long as a report of injury is made
the next day.
3. Employee can be excused for failure to file Form N if:
a. the injury renders the employee incapable of informing the employer of it;
b. the employee did not know a condition arose out of employment; or
c. the employer had actual knowledge of the injury.
C. Employer’s Report of Injury (Form 1)
1. Employer must report an employee’s injury to the workers’ compensation
commission within ten days from receipt of notice of actual knowledge using
Form 1.
2. Failure to do so may result in a fine up to $500.
D. Claim for Compensation (Form C)
1. Employee must file a claim for compensation using Form C within the
limitations period, which is 2 years from the date of injury or 1 year from the last
payment of compensation.
2. The claim will be assigned to one of six geographic districts throughout the
state, based on the county in which the injury occurred or the district in which
the respondent’s place of business is located if the injury occurred outside the
state.
8
3. Ark. Code Ann. § 11-9-704. The Commission must notify the employer and any
interested parties that an employee has filed a Claim for Compensation within
ten days of such a filing.
4. Ark. Code Ann. § 11-9-702. If the employee fails to request a hearing within six
months of filing his or her claim the claim may, upon motion and hearing, be
dismissed without prejudice, allowing the employee to refile his claim within the
two-year statute of limitations.
E. Employer’s Response (Form 2)
1. Employer must file a statement of its intent to accept or controvert a claim
(Form 2) within fifteen days of the date upon which it received notice of the
alleged injury.
2. Form 2 may be required well before the employee files a Form C.
3. Employer may request a time extension if a good faith, but unsuccessful effort
has been made to obtain medical records rendering the employer unable to
determine the validity of an employee’s claim.
F. Payment of Benefits
1. The first installment of compensation must be paid on the fifteenth day after the
employer received notice of the injury, with payments to continue every two
weeks thereafter.
G. Disputed Claims
1. Preliminary Conference
a. Mediation Conferences will be held in all cases in which the amount in
dispute is less than $2,500.
b. For cases in which the amount in dispute is more than $2,500 the parties
may request a voluntary mediation if all parties agree.
c. The conference will be informal, nonbinding, and confidential, by
telephone or in person.
d. Attendance by the parties or a representative is required and the mediator
is authorized to compel attendance, however the mediator is not
authorized to compel settlement.
e. Following the conference, the Report of Mediation Conference (Form R) is
placed in the file and copies are sent to all the parties.
2. Depositions
a. Any party may conduct depositions after the claim has been controverted
by the filing of Form 2, however prior to the time a case has been
controverted, the Commission may order depositions for good cause
shown and upon application of either party.
3. Settlement
a. If both parties agree to a settlement a joint petition must be filed with the
Commission.
b. The Commission will hear the petition, take testimony, and make
investigations to determine whether to allow the final settlement.
9
c. Neither party may appeal an order or award denying a joint petition,
however the denial is made without prejudice to either party.
4. Hearing
a. Either party may file an application for a hearing that clearly identifies the
specific issues of fact or law in controversy and the applying party’s
contentions.
b. If ordered, the Commission must give interested parties ten days notice of
the hearing.
c. The hearing will be held in the county where the accident occurred, or the
county of the employer’s residence or place of business if the injury
occurred outside the state.
d. Evidence may include verified medical reports provided the party using the
reports has given opposing counsel notice and copies of all records and
reports within seven days of the hearing.
e. Expert testimony is only permissible if such testimony complies with the
requirements of Daubert and Kumho.
5. Award
a. The order denying the claim or making the award will be filed in the office
of the Commission and a copy will be sent to each party.
6. Appellate Process
a. Full Workers’ Compensation Commission
i. 30 days from the date of receipt of the order or award to file
application for review
ii. Will review the evidence, or hear the parties, their representatives,
and witnesses.
b. Court of Appeals
i. 30 days from the date of receipt of the order or award to file notice
of appeal
ii. Notice filed in office of commission
iii. Court will review only questions of law and may modify, reverse,
remand for rehearing, or set aside the order or award upon any of
the following grounds, but no others:
(a.) The commission acted without or in excess of its powers
(b.) The order or award was procured by fraud
(c.) The facts found by the commission do not support the order
or award
(d.) The order or award was not supported by substantial
evidence of record
XII. DEFENSES
A. Assault
1. Employee’s claim will be barred if it occurred as a result of an assault absent a
showing by a preponderance of the evidence that the incident arose out of a
10
work related animus or hostility between the claimant and the co-worker who
caused the assault.
B. Horseplay
1. An injury that occurs as a result of horseplay will not be compensable except as
to innocent victims of the playing.
2. Arkansas statutes and cases do not define horseplay, but find it synonymous
with the terms “skylarking,” or “rough or boisterous play.” Morales v. Martinez,
88 Ark. App. 274.
C. Going and Coming Rule
1. Precludes recovery for an injury sustained while the employee is going to or
returning from his place of employment.
2. Premises exception no longer exists in Arkansas. The 1993 Act excludes from
compensation injuries that occur “at time when employment services were not
being performed.”
a. Merely walking through an employer’s parking lot will not qualify as
performing “employment services” and therefore a claim for injury arising
out of that activity will likely be precluded. See Hightower v. Newark Public
School System, 57 Ark. App. 159.
3. The rule does not preclude benefits where the journey itself is part of
employment services, such as in the case of delivery drivers.
4. Dual Purpose Exception
a. An injury occurring during a trip that serves both a business and
personal purpose is within the course of employment.
i. A trip that involves the performance of services for the employer
which would have caused the trip to be taken by someone else
falls under this exception
b. Applies to out of town trips, trips to and from work, and miscellaneous
errands such as visits to bars and restaurants if motivated in part by the
intention to transact business there.
c. Exception will not apply to identifiable deviations from the business trip for
personal reasons until the employee returns to the route of the business
trip, unless the deviation is so small as to be disregarded as insubstantial.
D. Recreational or social activities
1. An employee injured while engaging in or performing or as a result of engaging
in or performing any recreational or social activities for the employee’s personal
pleasure is precluded from receiving compensation benefits.
E. Employment services were not being performed, employee had not yet been hired or
employment relationship had terminated.
F. Intoxication Ark. Code Ann. § 11-9-102(4)(B)(iv)
1. An injury “substantially occasioned” by the use of alcohol or drugs is not
compensable.
11
2. The mere presence of alcohol or drugs creates a rebuttable presumption that
the accident was substantially occasioned by the use of the drugs or alcohol.
3. By performing services for the employer, the employee has impliedly consented
to reasonable drug and alcohol testing for the presence of these substances in
the employee’s body at the time of the accident and refusal to test precludes
the employee from receiving benefits unless he proves it did not substantially
cause the injury.
4. The employee must prove by a preponderance of the evidence that the alcohol
or drugs did not substantially occasion the accident.
5. If a reasonable suspicion of alcohol exists at the time of the accident testing
must be done within eight hours.
6. If a reasonable suspicion of drugs exists at the time of the accident testing must
be done within thirty-two hours.
G. “Shippers Defense” from Shippers’ Transport of Georgia v. Stepp, 265 Ark. 365.
1. A false statement in an employment application will bar workers’ compensation
benefits if the following conditions are shown:
a. The employee knowingly and willfully made a false representation as to
his or her physical condition;
b. The employer relied upon the false representation;
c. The reliance upon the false misrepresentation was a substantial factor in
hiring the employee; and
d. There is a causal connection between the false representation and the
injury.
2. For the defense to apply, the questions asked on the employment application
must request factual information, not an opinion.
Disclaimer and warning: This information was published by McAnany, Van Cleave & Phillips, P.A., and is to be used only for general informational
purposes and should not be construed as legal advice or legal opinion on any specific facts or circumstances. This is not inclusive of all exceptions
and requirements which may apply to any individual claim. It is imperative to promptly obtain legal advice to determine the rights, obligations and
options of a specific situation.
12
FREQUENTLY ASKED QUESTIONS
FROM ISSUES ADDRESSED IN RECENT ARKANSAS CASES
Supreme Court of Arkansas
Q. Does placement at an assisted-living facility and long-term care associated
therewith constitute “nursing services” under Ark. Code Ann. § 11–9–508(a),
which requires that employers provide nursing services to treat injured
employees for work-related injuries?
A. Yes. Section 11–9–508(a) provides in pertinent part: “[t]he employer shall promptly
provide for an injured employee such medical ... and nursing services ... as may be
reasonably necessary for the treatment of the injury received by the employee.” In this
case, Claimant sustained a work-related brain injury. Originally, Claimant’s mother
served as his caregiver. Then, when his mother died, Claimant moved in with an aunt
and uncle, who filed a request for additional benefits for Claimant in the form of nursing
services at an assisted living facility, specifically, Timber Ridge Ranch Neurorestorative
Center (“Timber Ridge”) in Benton, Arkansas, to receive long-term care. The employer
argued that such benefits were not qualified nursing services under the statute. The
ALJ found that Claimant was entitled to nursing services, and that the treatment which
would be provided at Timber Ridge qualified as “nursing services.” The Arkansas
Workers’ Compensation Commission reversed the finding of the ALJ that such services
provided at Timber Ridge qualify as “nursing services,” which was affirmed by The
Court of Appeals.
The Supreme Court held that ‘[t]he services provided at Timber Ridge are part of an
overall medical plan administered to [Claimant]. Accordingly, the services will take care
of, minister to, and tend to [Claimant] as a brain-injured individual and qualify as nursing
services under Ark. Code Ann. § 11–9–508.”
Pack v. Little Rock Convention Center & Visitors Bureau, 2013 Ark. 186, --- S.W.3d -- (Ark. Sup. Ct. 2013)
Q. Is a writ of prohibition warranted in a matter where an injured worker has filed
suit in circuit court involving an injury that is alleged to have occurred at work
without first submitting a claim to the Arkansas Workers’ Compensation
Commission?
A. Sometimes. In this case, Claimant originally filed an occupational disease claim before
the Commission for cancer contracted from asbestos while working. The ALJ applied
the statute of limitations pertinent to asbestosis and found the claim to be time-barred.
Claimant did not then appeal the ALJ’s decision to the Commission.
Instead, Claimant filed suit in circuit court alleging that during his employment he “was
exposed to and did inhale coal tar pitch, coal tar volatiles, and polycyclic aromatic
13
hydrocarbons (PAHs),” which caused his bladder cancer and his disability. The issue of
asbestos was not raised in the civil court pleadings.
The employer filed a motion for a writ of prohibition arguing that the circuit court was
without jurisdiction to consider the claim, due to the exclusive remedy provision of the
Arkansas Workers' Compensation Act, and that occupational diseases are covered by
workers' compensation. Further, the employer argued that the expiration of the statute
of limitations did not allow Claimant to then file a civil claim outside the scope of the Act.
The Supreme Court took the case and requested briefs on the issue.
Upon review, the Court stated that a writ of prohibition is appropriate only when the trial
court is completely without jurisdiction. Claimant had not submitted a claim to the
Commission for an occupational disease resulting from exposure to coal tar pitch, which
is different claim than the original claim that he did file with the Commission, related to
asbestosis. The question before the Court was whether coverage was afforded by the
Act, and the Court found that question was tied to the issue of whether the statute of
limitations has been breached; a question of fact for the Commission to resolve. Thus,
a writ of prohibition was warranted because Claimant's claim for exposure to coal tar
pitch had not been submitted to the Commission, and accordingly the Commission had
exclusive jurisdiction over the claim, while the circuit court lacked jurisdiction.
Reynolds Metal Co. v. Circuit Court of Clark County, --- S.W.3d --- (Ark. Sup. Ct.
2013); similar facts and ruling, though different analysis, in Porocel Corp. v. Circuit
Court of Saline County, 2013 Ark. 172 (Ark. Sup. Ct. 2013).
Q. By enacting Arkansas Code Annotated § 16-118-107, did the Arkansas General
Assembly intend to revive the individual cause of action for common-law
remedies for retaliation under Arkansas workers' compensation law which it
expressly annulled at Arkansas Code Annotated § 11-9-107?
A. No. Strict construction led the Supreme Court to hold that § 16-118-107 does not revive
the individual cause of action for common-law remedies for retaliation under the
Arkansas Workers’ Compensation Act. The language used by the General Assembly in
§ 11-9-107 expressly annulled the actions and remedies at common law.
It
also explicitly states that the workers’ compensation law is the exclusive remedy. The
language of § 11-9-107 is so plain and unambiguous that judicial construction is limited
to the words that expressly state that the exclusive-remedy doctrine applies and that
eliminated the common-law cause of action and remedies for retaliatory discharge for
filing workers’ compensation claims. Therefore, the exclusive-remedy provision of the
Act precludes any recovery under § 16-118-107.
Lambert v. LQ Management, LLC, 2013 Ark. 114 (Ark. Sup. Ct. 2013).
14
Q. Is a co-employee (i.e., one with no supervisory responsibilities) immune from suit
in a tort claim of negligence for an incident that resulted in work-related injuries?
A. Sometimes. In this case, a flight nurse and an EMT tried to sue the helicopter pilot after
he crashed while in the course and scope of their employment. The flight nurse and
EMT brought a negligence suit against the pilot in circuit court, alleging that he did not
safely operate the helicopter according to what he knew or should have known as a
licensed commercial pilot. The pilot argued that he was immune from suit pursuant to
Ark. Code Ann. § 11-9-105. The flight nurse and EMT argued that the existing case law
extending an employer's tort immunity to a co-employee was erroneous and should be
overruled because it was unconstitutional to extend that immunity.
Ultimately, the Court determined that under Brown v. Finney as precedent, the pilot was
immune from suit. 326 Ark. 691, 932 S.W.2d 769 (1996). The Court in Brown held that
co-employees who are fulfilling the employer's duty to provide a safe workplace are
immune from suit under § 11-9-105. This Court noted that it has consistently
interpreted § 11-9-105 to extend immunity to co-employees, such as this pilot, for
actions arising from the alleged failure to provide a safe workplace because those
employees are charged with the employer's nondelegable duty of providing a safe
workplace.
However, the Court did distinguish the facts in this case from another wherein it held
that a negligent co-employee is a third party and that the workers’ compensation law
does not prevent an employee from maintaining an action for the negligence of a fellow
employee. King v. Cardin, 229 Ark. 929, 319 S.W.2d 214 (1959). The decision in King
is distinguishable from the present facts because the third party in King was not fulfilling
the employer’s duties of providing a safe workplace.
Miller v. Enders, 2013 Ark. 23 (Ark. Sup. Ct. 2013).
Employee develops a blister on his left great toe caused by walking back and
forth across a field all day at work wearing a pair of ill-fitting employer-provided
boots. He cannot point to the exact time of the formation of the blister, but he
testified that within a couple hours of starting work that day he began
experiencing pain in his left great toe. Is this an “unexplained injury” thus
leaving Claimant not entitled to workers’ compensation benefits?
A. No. Claimant explained that within a couple of hours of starting work, he felt pain in his
left-great toe. He further noted that his foot continued to be sore throughout the day.
He ultimately discovered that the rubbing and pressing of his steel-toed work boot while
walking to perform his work duties, though not identifiable as to the precise time the
blister visibly emerged, caused him to form a blister on his left-great toe. Though
Claimant could not point to the exact moment that blister formed, he successfully
established that it was formed on the day in question due to excessive walking in illfitting boots, and as such, the claim is compensable.
15
Pearson v. Worksource, 2012 Ark. 406 (Ark. Sup. Ct. 2012).
Court of Appeals of Arkansas
Q. Is a claimant eligible for permanent-partial disability benefits, including wage
loss benefits, in excess of permanent physical impairment if he/she had not yet
been placed at MMI but had returned to work after the injury and subsequently
been discharged for misconduct?
A. No. In this case, Claimant had proven that, even though he had fairly significant
preexisting low back problems, he had sustained one percent permanent impairment as
a result of the work-related injury in question. However, the Court determined that he
was disqualified from receiving wage loss benefits due to the fact that he had been
discharged from employment for misconduct in connection with the work.
Arkansas Code Annotated § 11-9-522 enables an employer “to reduce or diminish
payments of benefits for…disability in excess of permanent physical impairment, which,
in fact, …exists because of discharge for misconduct in connection with the work….”
This is so as long as, subsequent to an employee's injury, one of three contingencies
must have existed: he has returned to work, he has obtained other employment, or he
has a bona fide and reasonably obtainable offer to be employed at wages equal to or
greater than his or her average weekly wage at the time of the accident. Claimant had
returned to work after his injury, was discharged for misconduct related to his work, and
was, therefore, disqualified from receiving wage loss benefits.
Meadows v. Tyson Foods, Inc., 2013 Ark. App. 182 (Ark. App. 2013).
Q. Is a claimant entitled to wage loss benefits pursuant to Ark. Code Ann. § 11-9522(b)(1) if it is not proven that he/she has suffered a permanent anatomical
impairment as a result of the work-related accident or occupational trauma?
A. No. When a claimant has been assigned an anatomical impairment rating to the body
as a whole, the Commission may increase the disability rating and find a claimant
permanently disabled based on the wage-loss factor. The wage-loss factor is the
extent to which a compensable injury has affected the claimant's ability to earn a
livelihood. Wage loss benefits are appropriate only when there has been a finding of an
anatomical impairment. In this case, Claimant did not prove that she had sustained any
permanent anatomical impairment.
Drake v. Sheridan School District, 2013 Ark. App. 150 (Ark. App. 2013).
16
Q. Is an employer entitled to a dollar-for-dollar offset for the benefits received by a
claimant from a group insurance policy for disability for a work-related injury?
A. Sometimes. In a matter of first impression, this Court interpreted Ark. Code Ann. § 119-411(a)(2) in such a manner as to adopt the Commission’s ruling that Employer was
entitled to a dollar-for-dollar offset for its contributions into the policy from which
Claimant was receiving disability benefits related to the work injury in question. This
Court also upheld the Commission’s ruling that, while Employer was entitled to an offset
for its own contributions, it was not likewise entitled to an offset for contributions made
to the policy by Claimant. In the words of the Court, “each party receives the benefit of
the disability-policy payments that it made.”
Brigman v. City of West Memphis, 2013 Ark. App. 66 (Ark. App. 2013).
Q. Is the Arkansas Workers’ Compensation Commission required to adopt a
disability rating within the applicable range provided in the AMA Guides if the
doctor’s rating does not fall within that range?
A. No. There is no authority requiring the Commission to assess its own rating within the
AMA Guides if a doctor’s rating does not fall within the recommended range. If
substantial evidence supports the doctor’s rating, then the Commission may adopt it,
whether or not it falls within the recommended AMA Guides range.
Greene v. Cockram Concrete Co., 2012 Ark. App. 691 (Ark. App. Ct. 2012).
Q. Employee used accrued vacation time while he was recovering after a surgery
performed due to a work-related injury. Since Employee received his full salary in
the form of vacation pay while he was not working, is Employer/ Insurer entitled
to an offset on temporary total disability benefits)?
A. No. In this case of first impression, the Court of Appeals of Arkansas, Division Four,
held that Employee is entitled to temporary total disability benefits even if he/she uses
vacation time while off work. Arkansas Code § 11-9-807(b) provides that “[i]f the injured
employee receives full wages during disability, he or she shall not be entitled to
compensation during the period.” The Court held that "full wages" under 11-9-807(b)
refers to the money rate paid to recompense services rendered and that vacation pay is
that sum received as an employee benefit when no services are rendered. Thus, since
vacation pay does not qualify as “wages,” Employer still must provide Employee with
temporary total disability benefits.
St. Edward Mercy Med. Ctr. v. Howard, 2012 Ark. App. 673 (Ark. App. Ct. 2012).
17
Q. Is a heart attack suffered while working compensable?
A. Maybe. In this case, Employee began experiencing arm pain, nausea, and problems
with sweating while performing regular job duties and had to be transported to an area
hospital. Claimant was diagnosed with acute myocardial infarction. He underwent
urgent left cardiac catheterization and stent implantation in the right coronary artery.
Since Claimant began experiencing the symptoms while performing his regular duties
and he did not have a medical opinion stating that the additional task he was performing
at the time was the major cause of his heart attack, the Court found his heart attack not
compensable. The standard of proof in heart-attack cases, as stated in § 11-9-114 of
the Arkansas Code, is high.
Kimble v. Hino Motors Mfg. United States, Inc., 2012 Ark. App. 646 (Ark. App. Ct.
2012).
18
Notes Pages
19
Notes Pages
20
Notes Pages
21
Notes Pages
22
ILLINOIS WORKERS’ COMPENSATION
I. Compensability Standard
A. Accident or accidental injury must arise out of and in the course of employment.
1. Accident arises out of the employment when there is a causal connection
between the employment and the injury.
2. Injury must be traceable to a definite time, place, and cause.
B. The petitioner must show that the condition or injury might or could have been
caused, aggravated, or accelerated by the employment.
II. Average Weekly Wage (AWW)
A. General Rule: Divide the year’s earnings of an individual by the number of weeks
worked during the year (52).
1. Ex. Sum of wages for previous 52 weeks prior to the accident = $40,000
$40,000/52 = $769.23
B. If an employee lost five or more calendar days during a 52-week period prior to
the accident, then divide annual earnings by the number of weeks and portions of
weeks the employee actually worked.
1. Ex. Sum of wages for previous 52 weeks prior to the accident = $30,000 but
petitioner missed 10 days = $30,000/50 = $600.00
C. If employee worked less than 52 weeks with the employer prior to the injury,
divide amount earned during employment by number of weeks worked.
1. Ex. Employee worked 30 weeks and earned $20,000 during this time
$20,000/30 = $666.66
D. If due to shortness of the employment or for any other reason it is impractical to
compute the average weekly wage using the general rule, average weekly wage
will be computed by taking the average weekly wage of a similar employee doing
the same job.
E. Overtime—Overtime is excluded from AWW computation unless it is regularly
worked.
1. If overtime is regularly worked, it is factored into AWW but at straight time
rate.
2. Overtime is considered regularly worked on a case by case basis, but it has
been determined that it is regular when:
a. Claimant worked overtime in 40 out of 52 weeks
b. Working more than 40 hours 60% of time
c. Working overtime in 7 out of 11 weeks prior to an injury
3. If overtime is infrequently worked by it is mandatory it must be considered in
AWW computation.
F. When calculating a truck driver’s AWW, the only funds to be considered are
those that represent a “real economic gain” for the driver. Swearingen v.
1
Industrial Commission, 699 N.E.2d 237, 240 (Ill. App. 5th Dist. 1998). (Case
handled by McAnany, Van Cleave & Phillips)
1. Claimant’s gross earnings for the 52 weeks prior to the date of loss including
all earnings made per mile are divided by 52 to determine the AWW.
However, any monies that the driver uses to pay for taxes, fees, etc., are not
included in the gross earnings, as they do not represent real economic gain.
III. Benefits and Calculations
A. Medical Treatment—Pre-2011 Amendments: Employee chooses provider, and
employer is liable for payment of:
1. First Aid and emergency treatment.
2. Medical and surgical services provided by a physician initially chosen by the
employee or any subsequent provider of medical services on the chain of
referrals from the initial service provider.
3. Medical and surgical services provided by a second physician selected by the
employee.
4. If employee still feels as if he needs to be treated by a different doctor other
than the first two doctors selected by the employee (and referrals by these
doctors) the employer selects the doctor.
5. When injury results in amputation of an arm, hand, leg or foot, or loss of an
eye or any natural teeth, employer must furnish a prosthetic and maintain it
during life of the employee.
6. If injury results in damage to denture, glasses or contact lenses, the employer
shall replace or repair the damaged item.
7. Furnishing of a prosthetic or repairing damage to dentures, glasses or
contacts is not an admission of liability and is not deemed the payment of
compensation.
B. 2011 Amendments (In effect for injuries on or after September 1, 2011)
1. Section 8(4) of the Act now allows employers to establish preferred provider
programs (PPP) consisting of medical providers approved by the Department
of Insurance. The PPP only applies in cases where the PPP was already
approved an in place at the time of the injury. Employees must be notified of
the program on a form promulgated by the IWCC.
2. Under the PPP, Employees have 2 choices of treatment providers from within
the employer’s network. If the Commission finds that the second choice of
physician within the network has not provided adequate treatment, then the
employee may choose a physician from outside the network.
3. Employees may opt out of the PPP in writing, at any time, but this choice
counts as one of the employee’s two choices of physicians.
4. If an employee chooses non-emergency treatment prior to the report of an
injury, that also constitutes one of the employee’s two choices of physicians.
C. Medical Fee Schedule—Illinois Legislature recently created a Medical Fee
Schedule that enumerates the maximum allowable payment for medical
treatment and procedures.
2
D.
E.
F.
G.
H.
1. Maximum fee is the lesser of the health care provider’s actual charges or the
fee set for the schedule.
2. The fee schedule sets fees at 90% of the 80th percentile of the actual charges
within a geographic area based on zip code.
3. The 2011 Amendments to Section 8.2(a) of the Act reduces all current fee
schedules by 30% for all treatment performed after September 1, 2011.
4. Out of state treatment shall be paid at the lesser rate of that state’s medical
fee schedule, or the fee schedule in effect for the Petitioner’s residence.
5. In the event that a bill does not contain sufficient information, the employer
must inform the provider, in writing, the basis for the denial and describe the
additional information needed within 30 days of receipt of the bill. Payment
made more than 30 days after the required information is received is subject
to a 1% monthly interest fee. (Prior to the Amendments, this fee accrued after
60 days, now it accrues after 30 days.
Temporary Total Disability (TTD)
1. 2/3 of AWW
2. If temporary total incapacity lasts more than three (3) working days, weekly
compensation shall be paid beginning on the 4th day of such temporary total
incapacity. If the temporary total incapacity lasts for 14 days or more,
compensation shall begin on the day after the accident.
3. Minimum TTD rate is 2/3 (subject to 10% increase for each dependent) of
Illinois minimum wage or Federal minimum wage, whichever is higher—as of
02/01/06 the Illinois minimum wage is higher ($6.50/hour).
Temporary Partial Disability (TPD)—2/3 of the difference between the average
amount the employee is earning at the time of the accident and the average
gross amount the employee is earning on the modified job.
1. Normally applicable in light duty situations.
Permanent Partial Disability (PPD)
1. 60% of AWW
2. See rate card for value of body parts
3. Minimum PPD rate is 2/3 (subject to 10% increase for each dependent) of
Illinois minimum wage or Federal minimum wage, whichever is higher—as of
02/01/06 the Illinois minimum wage is higher ($6.50/hour).
Person as a whole—Maximum of 500 weeks
1. General rule if injury is not listed on rate card, it is a person as a whole injury.
2. Common for back injuries.
3. Rate used is 60% of AWW.
Level of the hand for carpal tunnel claims = 190 weeks
1. For claims arising after September 1, 2011, the 2011 Amendments return the
maximum award for the loss of the use of a hand for carpal tunnel cases to
the pre-2006 level of 190 weeks. The maximum award for the loss of the use
of a hand in carpal tunnel cases was previously 205 weeks. For all hand
3
I.
J.
K.
L.
injuries not involving carpal tunnel syndrome, the maximum award for the loss
of the use of a hand remains at 205 weeks.
Carpal Tunnel Syndrome
1. The 2011 Amendments to Section 8(e)9 caps repetitive Carpal Tunnel
Syndrome awards at 15% permanent partial disability of the hand, unless the
Petitioner is able to prove greater disability by clear and convincing evidence.
2. If the Petitioner is able to prove by clear and convincing evidence greater
disability than 15% of the hand, then the award is capped at 30% loss of use
of the hand.
3. The 2011 Amendments apply to injuries arising after September 1, 2011, and
only apply to cases involving repetitive Carpal Tunnel Syndrome. The cap of
15% or 30% does not apply to cases involving Carpal Tunnel Syndrome
brought on by an acute trauma.
Disfigurement
1. Usually scarring.
2. Must be to hand, head, face, neck, arm, leg (only below knee), or chest above
the armpit line.
3. Maximum amount is 150 weeks if accident occurred before 07/20/05 or
between 11/16/05 and 01/31/06.
4. Maximum amount is 162 weeks if accident occurred between 07/20/05 and
11/15/05 or on or after 02/01/06.
5. Disfigurement rate is calculated at 60% of AWW.
6. A petitioner is entitled to either disfigurement or permanent partial disability,
not both.
Death
1. Maximum that can be received can’t exceed the greater of $500,000 or 25
years.
PTD—Only arises when employee is completely disabled which means the
employee is permanently incapable of work.
1. Can be statutory
a. Statutory permanent total disability arises when: loss of both hands, arms,
feet, legs, or eyes.
b. Employee receives weekly compensation rate for life, or a lump sum
(based on life expectancy)
c. PTD payments are adjustable annually at the same percentage increase
as that which the state’s average weekly wage increased, but this is
capped at the maximum rate.
2. Odd-lot permanent total disability
a. A petitioner who has disability that is limited in nature such that he or she
is not obviously unemployable, or if there is no medical evidence to
support a claim of total disability, the petitioner may fall into the odd-lot
category of permanent total disability. The petitioner must establish the
unavailability of employment to a person in his or her circumstances.
4
b. The petitioner must show diligent but unsuccessful attempts to find work,
or that by virtue of the petitioner's medical condition, age, training,
education, and experience the petitioner is unfit to perform any but the
most menial task for which no stable labor market exists.
c. Once the petitioner establishes that he or she falls into this odd-lot
category, then the burden of proof shifts to the respondent to show the
availability of suitable work.
M. Vocational Rehabilitation
1. Employer must prepare a vocational rehabilitation plan when both parties
determine the injured worker will, as a result of the injury, be unable to
resume the regular duties in which he was engaged at the time of the injury,
or when the period of total incapacity for work exceeds 120 continuous days.
2. If employer and employee do not agree on a course of rehabilitation, the
Commission uses the following factors to determine if rehabilitation is
appropriate:
a. Proof that the injury has caused a reduction in earning power.
b. Evidence that rehabilitation would increase the earning capacity, to restore
the employee to his previous earning level.
c. Likelihood that the employee would be able to obtain employment upon
completion of his training.
d. Employee’s work-life expectancy.
e. Evidence that the employee has received training under a prior
rehabilitation program that would enable the claimant to resume
employment.
f. Whether the employee has sufficient skills to obtain employment without
further training or education.
3. Employer is responsible for payment of vocational rehabilitation services.
N. Maintenance
1. Not TTD.
2. A component of vocational rehabilitation.
3. Maintenance is paid once claimant at MMI, and undergoing vocational
rehabilitation.
4. Two common situation:
a. When employee is undergoing vocational rehabilitation and then placed at
MMI, maintenance picks up where TTD ceases (at the TTD rate) –similar
to a continuation of TTD.
b. When employee has completed a vocational rehabilitation program and
has yet to be placed in the labor market.
O. Wage Differential—Compensates for future wage loss
1. To qualify for wage differential, claimant must show:
a. A partial incapacity that prevents him from pursuing his or her “usual and
customary line of employment.”
b. Earnings are impaired.
5
2. Employee receives 2/3 of difference between the average amount he would
be able to earn in the full performance of his duties in the occupation in which
he was engaged at the time of the accident and the average amount which he
is earning or is able to earn in some suitable employment or business after
the accident.
3. The 2011 Amendment to Section 8(d)(1) now provides that for accidents on
or after September 1, 2011, wage differential awards shall be effective only
until the Petitioner reaches age 67, or five years from the date that the award
becomes final, whichever occurs later.
P. Ratings
1. The 2011 Amendments to Section 8.1b of the Act provides that physicians
may now submit an impairment report using the most recent American
Medical Association (AMA) guidelines. In determining the level of permanent
partial disability, the Act states that the Commission shall base its
determination on the reported level of impairment, along with other factors
such as the age of the Petitioner, the occupation of the Petitioner, and
evidence of disability corroborated by the treating medical records. The
relevance and weight of any factor used in addition to the level of impairment
as reported by the physician must be explained in a written order.
IV. Preferred Provider Program
A. The 2011 Amendments to the Workers’ Compensation Act amended Section 8(4)
of the Act to allow employers to establish preferred provider programs (PPP)
consisting of medical providers approved by the Department of Insurance. The
PPP only applies in cases where the PPP was already approved and in place at
the time of the injury. Employees must be notified of the program on a form
promulgated by the Illinois Workers’ Compensation Commission.
B. Under the Act, employees have 2 choices of treating providers from within the
employer’s network. If the Commission finds that the second choice of physician
within the network has not provided adequate treatment, the employee may
choose a physician from outside of the network.
C. An employee may opt out of the PPP in writing at any time, but the decision to
opt out of the PPP counts as one of the employee’s two choices of physicians.
D. Under the Section 8(4), if an employee chooses non-emergency treatment prior
to the report of an injury, that constitutes one of the employee’s two choices of
physicians.
V. Medical Fee Schedule
A. The 2011 Amendment to Section 8.2(a) of the Act reduces all current fee
schedules by 30% for all treatment performed after September 1, 2011, and
reduces the current 76% of charge default to 53.2%. Out-of-state treatment shall
be paid at the lesser rate of that state’s medical fee schedule, or the fee schedule
in effect for the Petitioner’s residence.
6
B. In the event that a bill does not contain sufficient information, the employer must
inform the provider, in writing, the basis for the denial and describe the additional
information needed within 30 days of receipt of the bill. Payments made more
than 30 days after the required information is received are subject to a 1%
monthly interest fee. (Prior to the 2011 Amendments, this fee accrued after 60
days; now it accrues after only 30 days).
VI. Illinois Workers' Compensation Procedure
A. Steps of a Workers’ Compensation Claim and Appellate Procedure:
1. Petitioner files an Application of Adjustment of Claim with the Illinois Workers’
Compensation Commission. The Application for Benefits must contain:
a. Description of how the accident occurred
b. Part of body injured
c. Geographical location of the accident
d. How notice of the accident was given to or acquired by the employer
2. After Application is filed, the claim is assigned to an Arbitrator. The claim will
appear on the Arbitrator’s status call docket every three months unless it is
motioned up for trial pursuant to 19(b) or 19(b-1).
a. Three arbitrators are assigned to each docket location. These three
arbitrators rotate to three different docket locations on a monthly basis.
b. One of the three arbitrators assigned to a particular docket location will be
assigned the case. If a party requests a 19(b) hearing, the hearing will be
held before the assigned arbitrator, even if that arbitrator is not at the
docket where the case is located.
3. If no settlement is reached, the case can be tried before the Arbitrator for a
final hearing.
a. Arbitrator is the finder of fact and law and issues a decision.
B. Pretrial Procedure
1. Depositions – Cannot take the Employee’s deposition.
2. Subpoenas—easy to get, normally Arbitrator has signed in advance
3. Records of Prior Claims—determine if credit allowed
4. Section 12 Medical Examination—employee must comply
a. Used to avoid penalties
b. Used to investigate petitioner's prior treatment and diagnoses
c. Can be scheduled at reasonable intervals
d. Must pay mileage
5. Settlement
C. Arbitration Procedure
1. When application is filed, the Commission assigns the docket location
(normally within the vicinity of where the injury occurred).
2. Cases appear on the call docket on three month intervals until the case has
been on file for three years, at which point it is set for trial unless a written
7
request has been made to continue the case for good cause. (This request
must be received within 15 days of the status call date).
a. The case is referred to as "above the red line," and red line cases are
available on the call sheet at the Illinois Workers' Compensation
Commission website. If no one for the petitioner appears on a red line
case at the status conference, the case can be dismissed by the arbitrator
for failure to prosecute.
3. If a case is coming up on the call docket, a party can request a trial. This
request must be served on opposing counsel 15 days before the status call.
At the status call, the attorneys will select a time to try the case.
4. If both parties are in agreement, they may request a trial at the monthly call
docket.
5. If a case is not coming up on the call docket, and a party has a need for an
immediate hearing, the party can file a motion to schedule the case for a
19(b) hearing. The party requesting the 19(b) hearing must only give the other
party 15 days notice.
a. A 19(b) hearing is not proper where the employee has returned to work
and the only benefit in dispute amounts to less than 12 weeks of
temporary total disability.
6. A pretrial conference can be requested by either party prior to the start of a
trial. The benefit of a pretrial conference is that the same arbitrator over a
pretrial conference will hear the actual trial, so the parties will have a good
idea how the arbitrator feels about the case or a particular issue. Both parties
must consent to a pretrial conference.
7. Emergency Hearings under Section 19(b-1)
a. Employee not receiving medical services or other compensation.
b. Employee can file a petition for an emergency hearing to determine if he is
entitled to receive payment or medical services.
c. Similar to hardship hearings
d. Effectively serves the same purposes as a 19(b) hearing but fixes
deadlines.
8. If a case is tried by an arbitrator and the arbitrator's award resolves the case
(i.e., the parties do not reach a settlement) medical benefits will remain open.
D. Appellate Procedure
1. Arbitrator’s decision can be appealed to a panel of three Commissioners of
the Illinois Workers’ Compensation Commission (ten members appointed by
Governor—no more than six members of same political party).
a. Must file a petition for review within 30 days of receipt of Arbitrator’s
award.
2. Decision of the Commissioners can be appealed to the Circuit Court.
3. Circuit Court Decision can be appealed to the Illinois Appellate Court’s
Industrial Commission Panel.
4. If Appellate Panel finds case significant enough, it will submit it to the Illinois
Supreme Court.
8
VII. Jurisdiction - Illinois jurisdiction is appropriate when:
A. If the employee is injured in Illinois, even if the contract for hire is made outside
of Illinois.
B. The employee's employment is principally localized within Illinois, regardless of
the place of accident or the place where the contract for hire was made.
C. If the last act necessary to complete the contract for hire was made in Illinois.
VIII. Employee must provide notice of the accident.
A. An employee shall give notice to the employer as soon as practicable, but not
later than 45 days after the accident.
B. Defects/Inaccuracy in the notice is no defense unless the employer can show it
was unduly prejudiced. This is difficult to show in Illinois because the employee
directs medical treatment.
IX. Accident Reports
A. Employer must file a report in writing of injuries which arise out of and in the
course of employment resulting in the loss of more than three scheduled
workdays. This report must be filed between the 15th and 25th of each month.
B. For death cases, the employer shall notify the Commission within two days
following the death.
C. These reports must be submitted on forms provided by the Commission.
X. Application filing periods - Statute of Limitations
A. Must file within three years after the date of accident of two years after the last
compensation payment, whichever is later.
B. In cases where injury is caused by exposure to radiological materials or asbestos
the application must be filed within 25 years after the last day that the employee
was exposed to the condition.
XI. Penalties relating to actions of Employer/Insurer
A. 19(k) Penalty for delay—PPD, TTD and/or Medical
1. When there has unreasonably delayed payment or intentionally underpaid
compensation.
2. 50% of compensation additional to that otherwise payable under the Act.
3. This section invoked when the delay is a result of bad faith.
4. Amount of penalty is based on amount of benefits which have accrued.
5. Commission will use the utilization review as a factor in determining the
reasonableness and necessity of medical bills or treatment. Utilization review
can also be utilized to avoid penalties.
B. 19(l) Penalty for delay—TTD
9
1. If employer or insurance carrier fails to make payment “without good and just
cause”
2. The arbitrator can add compensation in the amount of $30/day not to exceed
$10,000.
3. This section invoked even if the payment is not a result of bad faith
4. Generally penalties are not awarded if employer has relied on a qualified
medical opinion to deny payment of benefits.
C. Employer’s violation of a health and safety act
1. If it is found that an employer willfully violated a health/safety standard, the
arbitrator can allow additional compensation in the amount of 25% of the
award.
XII. Penalties relating to actions of the petitioner
A. Intoxication
For accidents before September 1, 2011, if the court finds that accident
occurred because of intoxication then injury is not compensable.
1. Intoxication not per se bar to workers’ compensation benefits.
2. Intoxication will preclude recover if it is the sole cause of the accident or is so
excessive that it constitutes a departure from employment.
For accidents on or after September 1, 2011, the Amended Section 11 of the
Act provides that no compensation shall be payable if:
1. The employee’s intoxication is the proximate cause of the employee’s
accidental injury.
2. At the time of the accident, the employee was so intoxicated that the
intoxication constituted a departure from the employment.
The 2011 Amendment provides that if at the time of the accidental injuries,
there was a 0.08% or more by weight of alcohol in the employee’s blood,
breath, or urine, or if there is any evidence of impairment due to the unlawful
or unauthorized use of cannabis or a controlled substance listed in the
Illinois Controlled Substances Act, or if the employee refuses to submit to
testing of blood, breath, or urine, there shall be a rebuttable presumption
that the employee was intoxicated and that the intoxication was the
proximate cause of the employee’s injury. The employee can rebut the
presumption by proving by a preponderance of the evidence that the
intoxication was not the sole proximate cause or proximate cause of the
accidental injuries.
B. Unreasonable/Unnecessary Risk
1. If employee voluntarily engages in an unreasonable risk (which increases risk
of injury), then any injuries suffered do not arise out of the employment.
C. Fraud
1. The 2011 Amendments provide the Department of Insurance with authority to
subpoena medical records pursuant to an investigation of fraud.
10
2. The 2011 Amendments eliminate the requirement that a report of fraud be
forwarded to the alleged wrongdoer with the verified name and address of the
complainant.
3. The 2011 Amendments provide for penalties for fraud, based on the amount
of money involved. These penalties begin at a Class A misdemeanor (less
than $300) to a Class I felony (more than $100,000). The Amendments also
require restitution be ordered in cases of fraud.
XIII. Workers' Occupational Diseases Act - Covers slowly developing diseases
that do not arise out of an identifiable accident or
occurrence
but
not
repetitive trauma.
A. Occupational Disease—“A disease arising out of and in the course of the
employment or which has become aggravated and rendered disabling as a result
of the exposure of the employment.”
B. Exposure can be for any length of time (even if very brief).
C. The employer that provided the last exposure is liable for compensation no
matter the length of the last exposure (unless claim is based on asbestosis or
silicosis—must be exposed for at least 60 days by an employer for it to be liable).
D. Claimant must prove he was exposed to a risk beyond that which the general
public experiences.
E. Applies only to diseases that are “slow and insidious”
1. Ex: kidney ailment cause from repetitive exposure to liquid coolant.
2. Ex: asthma aggravated by white oxide dust.
XIV. Repetitive Trauma - Covered under the Workers' Compensation Act
A. Date of Injury for Repetitive Trauma
1. Date of injury is the date on which the injury “manifests itself.”
2. “Manifests itself”—General Standard—the date on which both the fact of the
injury and the causal relationship of the injury to the claimant’s employment
would have become plainly apparent to a reasonable person—Landmark
case: Peoria County Belwood Nursing Home v. Indus. Commn., 505 N.E.2d
1026 (Ill. App. 1987).
3. The Belwood Standard has been expanded slightly over the years.
4. Courts have found date of injury to be:
a. Date injury became apparent to a reasonable person. Last date of work at
the employer prior to the disablement (time at which employee can no
longer perform his job).
XV. Third-Party Recovery
A. Workers’ Compensation Act prohibits employees from bringing tort actions
against their employers
B. An injured employee may pursue tort action against a third party.
11
C. The third party has a right to contribution from the employer which is limited to its
liability under the Workers’ Compensation Acts.
D. Typically respondents can recovery around 70 to 75% of what was paid out in
benefits.
XVI. Assaults
A. If subject matter causing altercation is related to work then injuries from an
assault are compensable.
B. Exception: If the aggressor is injured = no compensation.
C. Ex. Waitresses arguing over tables and the argument turns physical when one
waitress strikes the other—this is compensable.
XVII. Minors (under 16 years of age)
A. Receive a 50 percent increase in benefits even if they fraudulently misrepresent
their age.
B. Minors may elect within six months after accident to reject the Workers’
Compensation Remedies and sue in civil court (potentially high payout).
XVIII. Voluntary Recreation
A. Injuries incurred while participating in voluntary recreational programs do not
arise out of and in the course of the employment even though the employer pays
some or all of the cost.
B. If the employer orders the employee to participate then the recreational injury is
compensable.
XIX. Second Injury Fund
A. Only pays when employee has previously lost an arm, leg, etc. and subsequently
loses another arm, leg, etc. in an independent work accident that results in the
employee being totally disabled.
B. Present employer liable only for amount payable for the loss in the second
accident.
12
FROM ISSUES ADDRESSED IN RECENT ILLINOIS CASES
Q: May an employer receive a credit for pension payments received by claimant
against its obligation to pay temporary total disability (TTD) benefits?
A: No. An employer's right to credits against its obligation to pay workers' compensation
benefits, which operates as an exception to liability created under the Workers'
Compensation Act, is narrowly construed. Relying on its precedent in Tee–Pak, Inc. v.
Industrial Comm'n, 141 Ill.App.3d 520, 95 (1986) the Court interpreted section 820 ILCS
305/8(j) to stand for the proposition that the employer receives no credit for benefits
which would have been paid irrespective of the occurrence of a workers' compensation
accident.
Wood Dale Elec. v. Illinois Workers Comp. Comm'n, 369 Ill.Dec. 158 (Ill. App. 1st
Dist. 2013).
Q: Is an injury to a traveling employee that occurs while the employee is walking to a
work site compensable?
A: Yes, when such injuries result from conduct that is reasonable and foreseeable by the
employer. In Mlynarczyk v. Illinois Workers' Comp. Comm'n, the claimant was a
“traveling employee,” and her exposure to the hazards of streets was greater
quantitatively than that of general public. Her walk to a minivan that transported her to a
job site constituted the initial part of her journey to her work assignment and, as such,
was reasonable and foreseeable.
Generally, injuries incurred while traveling to and from the workplace are not considered
to arise out of and in the course of one's employment. The determination of whether an
injury to a “traveling employee” arose out of and in the course of employment, however,
is governed by different rules than are applicable to other employees. For instance, a
traveling employee is deemed to be acting in the course of his employment from the
time the employee leaves home until he or she returns. In this case, the claimant did
not work at a fixed job site, therefore she qualified as a traveling employee.
The evidence in this case was ambiguous as to whether the claimant fell on public or
private property. The Court felt this question was not dispositive, noting a lack of
authority to support the proposition that a traveling employee who has left the physical
confines of his or her home on the way to a job assignment and sustains an accident on
private property cannot be subject to the hazards of the street.
Mlynarczyk v. Illinois Workers' Comp. Comm'n, 2013 IL App (3d) 120411WC.
See also, Kertis v. Illinois Workers' Comp. Comm'n, 2013 IL App (2d) 120252WC
(Claimant who worked as a branch manager for two branches of the employer's bank,
and regularly traveled between these two branch offices, was a “traveling employee.”
13
The claimant’s back injuries suffered when he fell while walking through a public parking
lot on his way back to his office after visiting another office on a work-related task arose
out of his employment, since it was reasonable and foreseeable to the employer that the
claimant would regularly park in a municipal parking lot close to his office and walk to
the office from that lot. Furthermore, the employer did not provide employee parking at
the claimant's office.)
Q: When an award of wage differential payments is made, may those benefits be
awarded pursuant to a step down schedule which terminates on a date certain?
A: No. In United Airlines, Inc. v. Illinois Workers' Comp. Comm'n, the circuit court
reinstated the decision of the arbitrator after the Commission had reversed. The
Arbitrator’s decision had, in part, awarded the claimant weekly wage differential
payments which decreased annually over the course of ten years and terminated on
April 13, 2018. This award was based on the fact that, after claimant’s injury, he was no
longer able to work as a ramp service worker for United Airlines, but was able to secure
a desk job as a station operations representative (“SOR”). The SOR job started at
roughly half the rate of pay as claimant’s previous job, but in ten years time, his pay
would have increased beyond the maximum he could have earned as a ramp service
worker, based on the union contracts in force at the time for both positions.
The Appellate Court reversed, holding that the statute does not provide for a varying
amount to be paid out at various future dates. Rather, the award must be based upon
the average amount of the claimant's wages at the time of the accident and the average
amount which the claimant is earning or able earn in some suitable employment after
the accident. The statute, under its plain and ordinary language, does not contemplate
multiple figures to be computed and awarded at future dates. Therefore, the Court
agreed with the Commission's interpretation of section 8(d)(1), which requires the wage
differential to be determined as of the date of the arbitration hearing.
United Airlines, Inc. v. Illinois Workers' Comp. Comm'n, 2013 IL App (1st)
121136WC
Q: Does an injury to an employee resulting from a fall caused by a bunched or
kinked floor mat at the exit of a facility used by the employer for a mandatory
meeting “arise out of” the employment?
A: Yes. Injuries resulting from a neutral risk generally do not arise out of the employment
and are compensable under the Workers' Compensation Act only where the employee
was exposed to the risk to a greater degree than the general public. The Court found,
contrary to the employer's argument, that this case did not merely involve the risks
inherent in walking on a mat which confront all members of the public. The accident
occurred at an area used by the employer's employees to ingress and egress its facility.
The evidence established that the claimant tripped on a kinked or bunched section of
the floor mat as she was leaving the building.
14
Springfield Urban League v. Illinois Workers' Comp. Comm'n, 2013 IL App (4th)
120219WC
Q: Is a police officer's posttraumatic stress disorder (PTSD), which developed after
the officer responded to a disturbance call, during which an unstable individual
approached the claimant and pointed what appeared to be gun at the claimant,
compensable under the Workers' Compensation Act?
A: Yes. The officer suffered sudden, severe emotional shock, the officer's accident arose
out of and in course of his employment, and his condition of ill-being was causally
related to accident.
This case involved the proof necessary for a claimant to recover for a psychological
disability in the absence of a physical injury, a type of case commonly known as a
“mental-mental” claim. Whether a claimant has suffered the type of emotional shock
sufficient to warrant recovery for a mental-mental claim should be determined by an
objective, reasonable-person standard, rather than a subjective standard that takes into
account the claimant's occupation and training. The claimant, in his appeal, alleged that
he was improperly held to a higher standard of proof than workers in other occupations.
The Commission found the encounter that the claimant had with the subject was not an
uncommon event of significantly greater proportion than what he would otherwise be
subjected to in the normal course of his employment. The Court overturned the
Commission, noting that this case was not one where the claimant developed a mental
disability attributable to factors such as worry, anxiety, tension, pressure, overwork, and
the emotional strain all employees experience. Rather, the incident in question was a
severe emotional shock traceable to a specific time, place, and event that produced the
claimant's disability.
Diaz v. Illinois Workers' Comp. Comm'n, 2013 IL App (2d) 120294WC.
See also Chicago Transit Auth. v. Illinois Workers' Comp. Comm'n, 2013 IL App (1st)
120253WC
(The Commission's finding that the claimant proved that she sustained psychological
injuries arising out of and in course of her employment with employer, such that she
was entitled to benefits based upon the “mental-mental” theory of compensation, was
not contrary to the manifest weight of the evidence; the claimant drove a bus which
struck and killed a pedestrian and the claimant watched the pedestrian die. This
accident was exceptionally distressing and an uncommon work-related experience. The
doctor noted that the claimant had experienced severe levels of depressive and anxiety
symptoms since the accident, and he opined that the claimant was unable to work due
to psychological trauma caused by the accident.)
15
Q: Does an injury to a nursing home worker, incurred while bathing a resident,
where she had her right hand on the resident, turned towards her left, extended
her left arm to reach for the soap dish, and felt her neck “pop,” later diagnosed as
a herniated disc, “arise out of” her employment?
A: Yes. Despite the respondent’s argument that the claimant was merely engaged in the
act of “reaching” at the time of the injury, which respondent categorized as “personal in
nature” and “not in any way peculiar to her employment,” the Court noted that, at the
time of the occurrence, the claimant was engaged in an activity she might reasonably
be expected to perform incident to her assigned duties, i.e., ensuring the safety of a
resident of the assisted living facility.
There was a notation in the respondent's accident report that the claimant was told that
her injury “could have happened anywhere, anytime, and nothing in particular caused it
to happen.” However, that claim was not borne out by any of the medical records
submitted at the arbitration hearing
Accolade v. Illinois Workers' Comp. Comm'n, 2013 IL App (3d) 120588WC
Q: Can an injured worker reopen proceedings to obtain additional TTD benefits more
than five years after the original award was entered?
A: No. The limitations period applicable to the statutory provision that allows either an
employee or an employer to petition the Workers' Compensation Commission to reopen
an installment award for a limited period of time to allow the Commission to consider
whether an injury has recurred, increased, decreased, or ended, applies to TTD
benefits. In this case, the employee attempted a work-around by seeking TTD benefits
in conjunction with filing for additional medical expenses under 820 ILCS 305/8(a). The
Court held that the time period for additional TTD benefits was governed under 820
ILCS 305/19(h), and thus the employer’s claim was untimely.
Curtis v. Illinois Workers' Comp. Comm'n, 2013 IL App (1st) 120976WC, 987 N.E.2d
407
Q: Can a claimant’s refusal to participate in a multidisciplinary pain management
program (i.e., psych-based, and not anesthetic-based) support a finding that the
claimant is at MMI and that no further TTD or medical benefits are due?
A: No. The claimant was employed as launch engineer for an auto maker assembly plant
and was in a job-related vehicle accident. The Commission's finding that the claimant
reached MMI was not supported by the evidence; the employer's medical expert
concluded four months later that the claimant was not at MMI and could not do
overhead lifting with his right shoulder. The claimant's refusal to participate in
16
multidisciplinary pain management program could not be a basis for denying him further
TTD benefits or medical benefits.
Regardless of whether some component of the claimant's conditions of ill-being was
psychological, the record unquestionably established that the conditions of ill-being
were causally related to the work accident. Although the claimant declined to attend the
multidisciplinary pain management program, that fact did not break the chain of events
that led to the claimant's conditions of ill-being he suffered at the time of the arbitration
hearing.
Notably, the claimant did not refuse to participate in all multidisciplinary pain
management programs. He refused because he was not comfortable with that particular
program and because he was concerned with travel requirements. The employer failed
to prove that the pain management program was reasonably essential to promote the
claimant's recovery or that the claimant's refusal to attend the program was in bad faith
or outside the bounds of reason.
Kawa v. Illinois Workers' Comp. Comm'n, 2013 IL App (1st) 120469WC
Q: Where a claimant suffers a back injury in the course of his employment for one
employer, then subsequently suffers another back injury during a car accident
while working for another employer, which changes the nature and extent of his
injuries, is the chain of causation broken, and is claimant entitled to two separate
permanency awards?
A: Yes. A claimant filed a worker's compensation claim for injuries from a 12/08 motor
vehicle accident while employed by National Freight; and on same day filed a workers’
compensation claim for his previous employer, Fischer Lumber, from a 11/06 workrelated accident. Prior to the car accident, back surgery was limited to one level, but
after the car accident, surgery was indicated at multiple levels.
The second accident took place the day before surgery for the first accident was
scheduled. The claimant described pain in his back and down into both legs following
the motor-vehicle accident. The treating surgeon described these complaints as
different than the ones claimant had previously voiced and thus cancelled the surgery.
Prior to the motor-vehicle accident, the claimant was scheduled to undergo a
microdiscectomy at L3–4, whereas after the motor-vehicle accident, a two-level fusion
was needed.
National Freight argued that the motor-vehicle accident merely aggravated the injuries
the claimant sustained as a result of his initial work injury, while employed by Fischer
Lumber. However, the Court held that the evidence showed that the claimant's
symptoms changed after the motor-vehicle accident, that the motor-vehicle accident
caused a change in the pathology of the claimant's condition, the type of surgical
17
intervention the claimant required changed as a result of the motor-vehicle accident,
and the claimant's ability to work changed following the motor-vehicle accident.
Thus, the evidence showed that the car accident changed the nature of the claimant's
injury, was the sole cause of his current condition, and thus broke the causal chain from
the original accident. The second accident was not just a continuation of injury from the
first accident, but caused a separate and distinct injury that broke the causal chain.
Moreover, the Court said it would be “inconsistent” with the above to award no
permanency for the first injury. Since the claimant suffered separate and distinct
injuries arising from two different accidents, he should be allowed to seek a permanency
award for each accident
Nat'l Freight Indus. v. Illinois Workers' Comp. Comm'n, 2013 IL App (5th) 120043WC
Q: Is a claimant who was driving a company truck from his home to a job located on
a customer's premises a traveling employee?
A: Yes. The Court relied on the policy origins of the traveling employee doctrine. It was
originally applied to employees who traveled away from their homes and were exposed
to risks such as driving on unfamiliar roads, staying at hotels, eating in restaurants, and
simply from travel generally. The Court held that employees who travel locally expose
themselves to risks in a similar manner as experienced by other traveling employees.
The Court thought it was unimportant that the claimant may have left early to allow
himself time to have coffee with his supervisor. When he was injured, he was traveling
in furtherance of his employer's business. Thus the claimant's injury was causally
related to his employment.
Admiral Mech. Servs. v. Illinois Workers' Comp. Comm'n, 2013 IL App (2d)
120694WC-U (unpublished opinion)
Q: May a decision of the Illinois Workers’ Compensation Commission, remanding
the case to the arbitrator for further proceedings on the issue of vocational
rehabilitation, be appealed to the circuit court?
A: No. Compensation was denied by the Arbitrator because the Arbitrator found that an
employer-employee relationship did not exist between the claimant and the employer.
The Commission reversed and remanded the case to the Arbitrator for a determination
of the claimant’s need for vocational rehabilitation and/or maintenance, as well as other
things. The employer appealed to the circuit court, who confirmed the Commission’s
decision. The employer then appealed to the Court of Appeals. The Court of Appeals
held that the Commission and the circuit court lacked jurisdiction to hear the appeals
because the remand of the Commission was not a final order. The Court stated, “[I]t
18
does not matter whether the remand is for the purpose of providing the specifics of a
generalized plan ordered by the Commission or for a determination of whether
vocational rehabilitation should be ordered. In either case, further proceedings are
required before an administrative decision is final.”
Supreme Catering v. Ill. Workers' Comp. Comm'n, 2012 Ill. App. LEXIS 673 (Ill. App.
Ct. 2012)
Q: May a claimant be awarded prospective cosmetic medical care when the treating
physician opined that nothing further needed to be done with regard to the
disfigurement, and that the disfigurement would not cause the claimant any
trouble in the future?
A: Yes. The Commission denied the claimant’s request for prospective cosmetic surgery
to repair a small indentation on the claimant’s forehead stemming from a work-related
accident. The Commission determined the evidence was at best unclear as to whether
the claimant had an observable disfigurement. The Court of Appeals reversed. The
Court noted the Supreme Court of Illinois has defined disfigurement as “that which
impairs or injures the beauty, symmetry, or appearance of a person or thing; that which
renders unsightly, misshapen, or imperfect, or deforms in some manner.” Though the
claimant’s treating physician did not believe anything further needed to be done with
regard to the dent on the claimant’s forehead, the Court of Appeals found that the
physician was likely speaking from a neurological standpoint. Finding the claimant’s
disfigurement to be observable to the naked eye, the Court of Appeals held the
Commission erred in denying the claimant’s request for prospective medical care.
Dye v. Ill. Workers' Comp. Comm'n, 981 N.E.2d 1193 (Ill. App. Ct. 2012).
Q: When an employee is involved in an accident while traveling from his motel to a
jobsite, can his injuries be held to arise out of and in the course of his
employment?
A: Yes. The claimant pipefitter bid for a job 250 miles from his home in Springfield, IL. To
avoid having to drive 250 miles home after work every day, the claimant stayed at a
motel 30 miles from the jobsite. While driving to the jobsite one day, the claimant was
involved in a motor vehicle accident. The evidence demonstrated that the employer did
not instruct or require the claimant to stay at the motel, nor did the employer direct
which route the claimant was to take. The employer did not reimburse the claimant for
his travel or lodging expenses, nor was the claimant paid for his time traveling to the job
site.
The Commission reversed the decision of the Arbitrator, who had determined that the
claimant failed to sustain his burden of establishing the accident arose out of and in the
course of the claimant’s employment. Though the Commission noted the general rule
that an accident that occurs while an employee is traveling to or from work is not
19
considered one that arises out of or in the course of employment, the Commission
found that the claimant was in the course of employment while traveling to work
because the course or method of travel was determined by the demands or exigencies
of the job rather than by the claimant's personal preference as to where he chose to
live. The evidence showed that workers could potentially have to be available on short
notice and, as such, it made sense for him to stay at a motel, rather than travel 200
miles to the jobsite each day.
The Court of Appeals affirmed the Commission and classified the claimant as a
“traveling employee” (i.e., one who is required to travel away from his employer’s
premises in order to perform his job). Because the employer must have anticipated that
the claimant, recruited to work over 200 miles from his home, would be required to
travel and arrange for lodging in order to perform his job duties, it was reasonable and
foreseeable that the claimant would travel a direct route from the motel to his place of
employment.
Venture-Newberg Perini Stone & Webster v. Ill. Workers' Comp. Comm'n, 2012 Ill.
App. LEXIS 987 (Ill. App. Ct. 2012)
Q: May a claimant pursue an intentional tort action against his/her employer when
he/she has collected compensation on the basis that his/her injuries were
compensable under the Illinois Workers’ Compensation Act?
A: No. The claimant was accosted by bank robbers while working as a bank teller. The
bank had been robbed twice previously, and the claimant alleged she would not have
accepted a position at the bank had she known about these prior robberies. In addition
to filing in Civil Court against her employer, the claimant filed a workers’ compensation
claim, and received workers’ compensation benefits during the pendency of her claim.
The claimant’s civil claim was dismissed by the trial court on the basis that the Workers’
Compensation Act provided the claimant’s exclusive remedy.
The Court of Appeals affirmed the trial court’s dismissal by stating, “Once an employee
has collected compensation on the basis that his or her injuries were compensable
under the Act, the employee cannot then allege that those injuries fall outside the Act's
provisions.”
Therefore, once the claimant applied for and accepted workers’
compensation benefits, she was barred from pursuing an intentional-tort action against
her employer.
Glasgow v. Associated Banc-Corp, 980 N.E.2d 785 (Ill. App. Ct. 2012)
Q: When a claimant does not work continuously for the 52 weeks preceding his
accident, may the employer still divide his yearly earnings by 52 for the purpose
of determining the claimant’s average weekly wage?
20
A: No. The claimant worked sporadically for the employer for the year preceding the
claimant’s injury. The claimant was paid on a per-route basis. He would earn
approximately $1,550.00 for trips from Illinois to California. Though he was consistently
employed by the employer for the 52 weeks preceding the accident, the claimant did not
work every day or every week. The Arbitrator calculated the claimant’s average weekly
wage at $551.04 reasoning that the claimant did not meet his burden on the issue of
weekly wage because determining the exact duration of each trip would be guesswork.
On appeal, the Commission affirmed.
The Court of Appeals reversed the Commission on the issue of the claimant’s average
weekly wage. The claimant argued the Commission should have divided his wage by
31, the number of weeks he actually worked in the year preceding his accident. Though
the Court of Appeals recognized that the issue of average weekly wage is typically one
of fact and will be upheld unless against the manifest weight of the evidence, the Court
found the Commission did not comply with the Act’s requirements for setting
compensation. Therefore, the Court of Appeals remanded to the Commission for
recalculation of the claimant’s average weekly wage based on the number of weeks the
claimant actually worked.
Labuz v. Ill. Workers' Comp. Comm'n, 981 N.E.2d 14 (Ill. App. Ct. 2012)
Q: When a claimant is shot by a fellow employee while working, can the claimant’s
injuries fall under the exclusivity provision of the Workers’ Compensation Act?
A: Yes. The claimant and a fellow employee were engaged in an altercation stemming
from the claimant’s promotion to fry cook. The employer instructed the fellow employee
to go home and cool off. The employee returned the next day and shot the claimant.
The claimant sued the employer for negligence, and the employer sought dismissal of
the negligence claim on the basis that the claimant’s sole remedy was under the Act.
The circuit court granted the employer’s motion for summary judgment on the claimant’s
negligence claim, and the Court of Appeals affirmed. The Court noted that the purpose
of the Act is to provide financial protections to workers for accidental injuries arising out
of and in the course of employment, and in return for imposing liability without fault on
the employer, the Act prohibits common law suits by employees against the employer.
The Court further noted that an “accidental” injury, in the employment context, includes
injuries inflicted intentionally upon an employee by a co-employee since such injuries
are unexpected and unforeseeable from the injured employee’s point of view. Such
injuries are also accidental from the employer's point of view, at least where the
employer did not direct or expressly authorize the co-employee to commit the assault.
Therefore, because the employer was unaware of any tensions between the parties
before the altercation, and the employer did not expect the shooting to occur, the
claimant’s injuries were considered “accidental” under the Act, and the claimant’s sole
remedy was under the Act.
Rodriguez v. Frankie's Beef/Pasta & Catering, 976 N.E.2d 507 (Ill. App. Ct. 2012)
21
Q: May an arbitrator issue a person-as-a-whole award for a claimant’s shoulder
injury?
A: Yes. The claimant suffered an injury to his right shoulder. He had worked for the
employer for 20+ years as a heavy-equipment operator. The physical demand level for
his job was medium to medium/heavy. The claimant received treatment for his right
shoulder and returned to work. Though he could perform his job duties, the claimant
often had to compensate for his right shoulder problems by using his left side more
frequently. The Arbitrator issued a person-as-a-whole award because the claimant
suffered injuries which “partially incapacitate him from pursing the duties of his usual
and customary line of employment but do not result in an impairment of earning
capacity.”
Though the employer argued on appeal that the claimant should have been awarded for
a scheduled loss to the right arm under § 8(e)(10), the Court of Appeals disagreed. The
Court of Appeals held that the “arm” is defined as “the segment of the upper limb
between the shoulder and the elbow; commonly used to mean the whole superior limb.”
Instead, the claimant could receive person-as-a-whole benefits under the first part of §
8(d)(2) providing for a person-as-a-whole award where the claimant sustains serious
and permanent injuries not covered by § 8(c) (i.e., disfigurement) or § 8(e) (i.e., specific
body parts). Therefore, because the shoulder is not the arm, and the shoulder isn’t
specified in § 8(e), the claimant could receive person-as-a-whole benefits for an injury to
the shoulder.
Will County Forest Pres. Dist. v. Ill. Workers’ Comp. Comm’n, 2012 Ill. App. LEXIS
109 (Ill. App. Ct. 2012).
Q: When a claimant refuses to undergo a multidisciplinary pain management
program prescribed by his physician, does this refusal prevent him from proving
his condition of ill being is causally connected to this work-related injury?
A: No. The claimant suffered a work-related injury to multiple body parts when he was
involved in a motor vehicle accident. After an extensive course of treatment, his
physician opined the claimant could benefit from a multidisciplinary pain management
program that would include a psychiatric or psychological component. However, after
an initial evaluation, the claimant indicated he was uncomfortable with the program
because he felt the evaluators asked inappropriate questions, believed its facility lacked
adequate equipment for physical therapy, and felt that it was located too far from his
home. Based on the claimant’s refusal to attend the pain management program, the
Commission found the claimant failed to prove his conditions of ill being were causally
connected to the work-related accident. The Commission found the claimant’s failure to
participate in the program made it impossible to assess the psychosocial aspect of his
condition of ill-being.
22
The Court of Appeals reversed. The Court found that, regardless of whether the
claimant’s complaints of pain were based on physical findings, psychological conditions,
or a combination of the two, the undisputed evidence established that the onset of the
claimant’s conditions began no sooner than his work-related accident. The Court
further noted that, prior to the vehicle accident, the claimant did not suffer from pain or
complications with respect to his right shoulder, right knee, or low back. Nor did the
claimant suffer from any psychological conditions. The onset of the claimant's pain
symptoms began when the claimant was in the work-related vehicle accident, and he
continued to experience uninterrupted pain since the time of the accident. According to
the Court, the work-related accident was, unquestionably, a line of demarcation in the
claimant's physical and/or mental condition with respect to symptoms of right shoulder,
right knee, and low back pain. The Court held that the record conclusively established
that the conditions of ill-being were causally related to the work accident.
Kawa v. Ill. Workers’ Comp. Comm’n, 2013 Ill. App. Unpub. LEXIS 181 (Ill. App. Ct.
2013).
Q: When a claimant suffers injuries stemming from a fall which occurred while she
was attempting to change her shoes to answer the doorbell, are her injuries likely
to be considered arising out of and in the course of her employment?
A: Probably not. The claimant was employed as a home healthcare provider and
companion to an elderly man. One of her job duties involved picking up the man’s mail.
At trial, the claimant testified that she fell while attempting to change her shoes so she
could go downstairs to answer the doorbell and pick up the mail. Though the
Commission found her injuries arose out of and in the course of her employment, the
Court of Appeals reversed. The Court held that answering the doorbell and picking up
the mail did not involve risks unique to her employment as members of the general
public regularly perform the same actions.
Ill. State Treasurer v. Ill. Workers’ Comp. Comm’n, 2013 Ill. App. Unpub. LEXIS 25
(Ill. App. Ct. 2013).
Q: Is an employer entitled to a credit for pension benefits paid to a claimant after the
claimant’s injury if the claimant would have been entitled to those pension
benefits regardless of disability?
A: No. It was established at trial that the claimant would have been entitled to pension
retirement benefits upon reaching the age of 62 in May of 2008. Though he had initially
planned to wait until her was 65 to retire, as a result of his injury, he applied to receive
the pension benefits in May 2008. The employer and the claimant did not dispute that
the pension payments were the result of normal pension retirement benefits, wholly
unrelated to the claimant’s workers’ compensation accident.
23
The Commission held that the employer should be entitled to a pension credit of
$432/week for any pension benefits that accrued during the claimant’s time working for
the employer. The circuit court reversed finding that, because the claimant’s pensions
were not disability pensions, he would be entitled to receive the same amount from his
pensions as he would have had his injury never occurred.
The Court of Appeals agreed with the circuit court. The Court noted that an employer
receives no credit for benefits which would have been paid irrespective of the
occurrence of a workers’ compensation accident. Therefore, the pension payments did
not entitle the employer to a credit against its liability under the Act.
Wood Dale Elec. v. Ill. Workers Comp. Comm'n, 2013 Ill. App. LEXIS 57 (Ill. App. Ct.
2013)
Q: When an employee refuses to submit to an IME, may the employee’s temporary
total disability benefits be suspended?
A: Probably yes. In this case, the employer scheduled a second IME with Dr. Milne after
the claimant was taken off work completely by a treating physician. When the
claimant’s father was hospitalized, the claimant asked her attorney if the IME could be
rescheduled. The claimant’s attorney wrote a letter to the employer objecting to the
second IME, suggesting the employer might like to reschedule the examination in a
couple of months or once the medical condition changes, but did not mention the
claimant’s request to be with her father on the date of the scheduled IME.
The Court of Appeals affirmed the Commission’s decision to vacate the award of TTD
benefits from the date of the scheduled IME through the date the claimant eventually
underwent the IME, 6 weeks later. The Court noted that the claimant’s condition had
changed in that a different physician had reached a previously undisclosed diagnosis of
thoracic outlet syndrome, and had referred the claimant to another physician to evaluate
her for that condition. Three days after the scheduled IME, the claimant underwent
surgery to relieve the symptoms caused by thoracic outlet syndrome. The Court agreed
that it was reasonable for the Commission to refuse to award TTD benefits because the
claimant’s objection to the IME was not valid.
Warriner v. Ill. Workers' Comp. Comm'n, 2012 Ill. App. Unpub. LEXIS 2340 (Ill. App.
Ct. 2012).
Q: When it appears as though a claimant’s physical therapy is not improving his
condition, is the employer likely to be successful in arguing that they should not
be responsible for paying for the physical therapy because it was not reasonably
required to cure and relieve from the effects of the accident injury?
24
A: No. The evidence in the record demonstrated that, on December 30, 2009, despite
weeks of physical therapy, the claimant reported that his condition had worsened.
Nevertheless, the physical therapy continued to be prescribed. The employer argued
the physical therapy did nothing to improve the claimant’s condition and, as such, they
should not be responsible for paying for it. The Court of Appeals rejected the
employer’s argument based on physical therapy notes indicating that, while the claimant
continued to experience back pain, he had shown improvement since starting therapy
and, therefore, it was not inappropriate for additional physical therapy to be prescribed
while diagnostic tests were conducted to pinpoint the source of the claimant’s
complaints.
Elite Staffing, Inc. v. Avila, 2012 Ill. App. Unpub. LEXIS 3214 (Ill. App. Ct. 2012).
Q: May an employer be required to provide vocational rehabilitation to a claimant if
the claimant manifests no intention to return to work?
A: No. The Court noted that, until the claimant can demonstrate that he is engaging in
some type of “rehabilitation” (whether it be physical rehabilitation, formal job training, or
a self-directed job search), the employer's obligation to provide maintenance is not
triggered. Though the Court noted that a claimant is generally entitled to vocational
rehabilitation when he sustains a work-related injury which causes a reduction in
earning power and there is evidence rehabilitation will increase his earning capacity, if
the injured employee has sufficient skills to obtain employment without further training
or education, that is a factor that weighs against an award of vocational rehabilitation.
Furthermore, an injured employee is generally not entitled to vocational rehabilitation if
the evidence shows that he does not intend to return to work (i.e., if he voluntarily
remains out of the workforce even though he is able to work).
The evidence suggested the claimant was capable of lifting up to 50 pounds, which
would have enabled him to perform the same job he had previously performed for the
employer without accommodations. In addition, labor market survey reports concluded
there were a number of jobs available within the claimant’s work restrictions, and the
claimant couldn’t establish that these jobs paid less than his former job with the
employer. There was no evidence to suggest the claimant lacked the skills to obtain
employment without vocational assistance.
Jiminez v. Ill. Workers. Comp. Comm’n, 2012 Ill. App. Unpub. LEXIS 3145 (Ill. App.
Ct. 2012).
Q: Is a claimant’s injury likely to be held to have arisen out of and in the course of
his employment if he is injured while answering a call from his employer at his
home?
25
A: Probably not. The claimant was a maintenance worker at an apartment complex. This
job often required the claimant to be on call. While fixing himself dinner at this
apartment, the claimant received a phone call from his employer. Though he was still
“on the clock,” the claimant testified he was allowed to do as he pleased in his
apartment. While talking to his employer with one hand, cooking oil caught flame, and
hot oil splashed onto his hands causing injury. There was a question of fact regarding
whether the claimant had set the phone down to tend to the fire.
The Court of Appeals confirmed the Commission in holding that the claimant’s injury did
not arise out of and in the course of his employment. Although the claimant argued the
telephone call from his employer was a causative factor in his accident, the Court found
it was equally reasonable to infer that the phone call was not a causative factor in the
accident, and that the only causative factors involved the claimant’s personal decisions
about how to cook his meals and move a pan full of hot oil. The Court reiterated the
general rule that an injury which results from a hazard to which the employee would
have been equally exposed apart from the employment or a risk purely personal to the
employee is not compensable. According to the Court, the claimant would have been
exposed to the same risks if he had received a personal call. Therefore, the injuries he
received resulted from hazards to which he was equally exposed apart from his
employment and risks that were purely personal to him.
Schneider v. Ill. Workers’ Comp. Comm’n, 2012 Ill. App. Unpub. LEXIS 1734 (Ill.
App. Ct. 2012).
26
Notes Pages
27
Notes Pages
28
Notes Pages
29
Notes Pages
30
IOWA WORKERS’ COMPENSATION
I. PERSONAL INJURY
A. Accident/Injury – Almquist v. Shenandoah, 218 Iowa 724, 254 N.W. 35 (1934)
1. Personal injury:
a. An injury to the body, the impairment of health, or a disease, which
comes about not through the natural building up and tearing down of the
human body, but because of a traumatic or other hurt or damage to the
health or body of an employee. The injury to the human body must be
something that acts extraneously to the natural processes of nature, and
thereby impairs the health, overcomes, injures, interrupts, or destroys
some function of the body, or otherwise damages or injures a part or all of
the body.
b. Repetitive trauma:
i. The injury to the body in repetitive trauma cases occurs when pain or
physical inability prevents the employee from continuing to work.
2. An injury, to be compensable, must arise out of and in the course of the
employment:
a. “Arise out of” – requires proof of a causal connection between the
conditions of the employment and the injury. The injury may not have
coincidentally occurred while at work, but must in some way be caused by
or related to the working environment or the conditions of the employment.
i. Special Cases—
(1).Actual risk: an injury is compensable if the employment subjected
the claimant to the actual risk that caused the injury, i.e. some
causative contribution by the employment must exist.
(2).Idiopathic causes: compensable only if caused or precipitated in
part by some employment-related factor, or that the effects of the
injury were worsened by the employment.
(3). Horseplay: non compensable when an employee of his or her own
volition initiates or actively takes part in an activity that results in
injury. Victim/nonparticipant will be compensated.
(4).Assault: generally compensable if it arises from an actual risk of the
employment. If the assault is a willful act of a third party directed
against the employee for reasons personal to the employee, then it
will not be compensable.
b. “In the course of” – the injury must take place within the period of the
employment, at a place where the employee reasonably may be, and
while the employee is fulfilling work duties or engaged in activities
incidental thereto.
i. Coming and going: an accident that occurs while an employee is
going to or coming from work does not arise out of and in the course of
employment.
1
ii. Exceptions:
(1).Employer-supplied transportation: when an employer controls the
situation, i.e. route and operation of the vehicle, the employee is
being transported to an intended place of employment, injuries
sustained are generally compensable.
(2).Dual purpose trips: If a trip is both personal and for services to the
employer, an injury will only be compensable if canceling the trip
would have caused the employer to send someone else.
(3).Special errand: a trip that would not be covered under the usual
going and coming rule may be brought within the course of
employment if the trip to and from the employer's premises were a
special trip made in response to a special request, agreement, or
instructions.
(4).Parking lots: employer parking lots are generally considered part of
the employer's premises, but the injury must also occur within a
reasonable time limitation related to, or occasion by, the
employment.
(5).Sole mission: a plaintiff incurs the risk of injury while solely on a
mission for his or her own convenience if there is no connection
between plaintiff’s work and his or her injury.
B. Occupational Disease – Defined by Statute, chapter 85A
1. Occupation disease § 85A.8
a. An occupational disease means a disease which;
i. arises out of and in the course of employee’s employment,
ii. is the result of a direct causal connection with the employment and;
iii. follows as a natural incident thereto from an injurious exposure it
occasioned by the nature of the employment
b. The disease must be incidental to the character of the business and not
independent of the employment.
c. Contraction of the disease must have an origin connected with the
employment
d. Hazards to which the employee would have been exposed to outside of
the occupation are not compensable as an occupational disease.
2. Applicable to all "employers" and "employees" as defined by the Iowa
Workers' Compensation Act.
3. Relates to the last occupation in which the employee was injuriously exposed
to the hazards of the occupational disease. § 85A.10
a. Limitations on Disablement or Death from Occupational Disease
i. No recovery shall be had under Iowa Occupational Disease statute for
any condition which is compensable as an “injury” under Iowa Workers’
Compensation Act. § 85A.14
2
ii. Compliance with the findings and orders of the Commissioner or Court
shall discharge the employer and carrier for all future obligations under
the Iowa Occupational Disease statute. § 85A.15
iii. An employer shall not be liable for compensation for an occupational
disease unless:
(1).Disablement or death results within three years in the case of
pneumoconisis.
(2).Employee makes a claim within 90 days after employee knew, or
should have known, of disablement or death for exposure caused
by X-rays, radium, radioactive substances or machines, or ionizing
radiation.
(3).Disablement or death results within 1 year for all other occupational
diseases.
(4).Death from an occupational disease results within seven years after
an exposure following continuous disablement which started within
one of the aforementioned periods.
(5).“Disablement “ – § 85A.4
(a).is the occurrence of an event or condition which causes the
employee to become actually incapacitated from performing
work or from earning equal wages and other suitable
employment as a result of the occupational disease.
4. Compensation – IA § 85A.5
a. Employees who become disabled because of an injurious exposure are
entitled to receive “compensation” and reasonable medical treatment. §
85A.17
i. Compensation is payable to all “dependants” as defined by the Iowa
Workers' Compensation Act.- § 85A.6.
b. Employees that incur occupational disease, but are able to continue in
employment, are not entitled to compensation but are entitled to
reasonable medical treatment.
5. Apportionment – § 85A.7(4)
a. Where an occupational disease is aggravated by a non-compensable
disease or infirmity, or, a non-compensable disease or infirmity is
aggravated by an occupational disease, compensation shall be in
proportion to the amount that is solely caused by the occupational
disease.
b. Either the number of weekly payments, or the amount of such payments,
may be reduced as determined by the Commissioner.
6. Exclusions – § 85A.7
a. Employees are not entitled compensation if they misrepresent, in writing,
that they had not been previously disabled, terminated, compensated, or
missed work because of an occupational disease.
b. Compensation for existing diseases shall be barred if the employer can
prove the disease existed prior to the employment.
3
i.
The employer shall have the right to have an employee examined prior
to employment and may require a waiver, in writing, of any and all
compensation due to an occupational disease. § 85A.25
c. Compensation for death shall not be payable to any dependent whose
relationship to the deceased employee was created after the beginning of
the first compensable disability.
i. This rule does not apply to children born after the first compensable
disability to a marriage existing at the beginning of such disability.
d. Miscellaneous exclusions: no compensation shall be allowed if the
occupational disease:
i. is the result of an employee intentionally exposing themselves to the
occupational disease;
ii. is the result of the employees intoxication;
iii. is the result of employees addiction to narcotics;
iv. as a result of the employees commission of a misdemeanor or felony;
v. as a result of employees refusal to use the safety appliance or
protective device;
vi. as a result of employees refusal to obey a reasonable written rule,
made by the employer, and posted in a conspicuous position in the
workplace;
vii. as a result of the employees of failure or refusal to perform or obey a
statutory duty;
viii. The employer bears the burden of establishing these defenses.
C.
1.
2.
3.
4.
Hearing Loss – Defined by Statute, § 85B.5
Occupational Hearing Loss is the portion of permanent hearing loss that
exceeds average hearing levels that arises out of and in the course of
employment and is causally related to excessive noise exposure.
a. 25 decibels in either ear is equivalent to a 0% hearing loss.
b. An average of 92 decibels in either ear is equivalent to a 100% hearing
loss.
Applicable to all "employers" and "employees" as defined by the Iowa
Workers' Compensation Act.
Limitations:
a. Occupation Hearing Loss does not include loss of hearing attributable to
age or any other condition or exposure not arising out of and in the scope
and course of employment.
b. Compliance with the findings and orders of the Commissioner or Court
shall discharge the employer and carrier for all future obligations under the
Iowa Occupational Hearing Loss statute. § 86B.13
Compensation
a. A claim for compensation for hearing loss may not be made unless and
until there is a change in the claimant’s employment situation generally as
the result of the occurrence of any one of the following events:
4
5.
6.
7.
8.
i. Transfer from excessive noise exposure employment by an employer;
ii. Retirement;
iii. Termination of the employer-employee relationship, which may include
simply a change in ownership of the business
b. Compensation for Occupational Hearing Loss is calculated using 175
weeks for total loss, and a proportional period of weeks relating to partial
hearing loss.
c. Determination of hearing loss shall be made by the employer’s regular or
consulting physician or a licensed, trained, and experienced audiologist.
d. If the employee disputes the assessment, he or she may select a
physician or licensed, trained, and experienced audiologist to provide an
assessment.
Apportionment
a. Any amounts paid under this section by a previous employer, or under a
previous claim, shall be apportioned and the employer is only liable for the
increase in hearing loss sustained in the scope and course of
employment.
Employer/Employee Duty:
a. Employees have an affirmative obligation to submit to periodic testing of
their hearing.
b. If, after testing, the employer learns that the employee’s hearing level is in
excess of 25 decibels, the employer must inform the employee as soon as
practicable after the examination.
c. Employers have an affirmative obligation to inform employees if they are
being subjected to sound levels and duration in excess of the acceptable
limits as indicated in IA § 85B.5.
d. An employer liable for an employee’s occupational hearing loss under this
section must provide the employee with a hearing aid, unless the hearing
aid will not materially improve the employee’s ability to communicate. §
85B.12
Notice
a. An employee may file a claim for Occupational Hearing Loss, at the
earliest, one month after separation of the employment which caused the
hearing loss with a two year statute of limitations.
b. The date used for calculating the “date of the injury” shall be the date the
employee:
i. Was transferred from the environment causing the hearing loss;
ii. Retired;
iii. Was terminated from employment.
c. In the event an employee is laid off for longer than one year, the
Occupational Hearing Loss must be reported within six months after the
date of the layoff.
Exclusions
5
a. If an employee fails to use, or refuses, employer-provided hearing
protective devices, as long as the opportunity and requirement are
communicated to the employee in writing.
b. An employee’s failure to submit to period testing in accordance with IA
85B.7 precludes recovery under this section.
c. If an employee’s prior hearing loss is tested and documented, and the
employee sustained a prior hearing loss, the employer is only liable for the
increase in hearing loss under the Occupational Hearing Loss Act.
D. Mental claims – compensable where the injury arose out of and in the scope and
course of employment
1. Employee has the burden of proving cause in fact and legal causation.
a. Cause in Fact – Supported by competent medical evidence.
b. Legal Causation –
i. whether the stress is greater than that experienced by similarly
situated employees. Dunlavey v. Economy Fire.
ii. manifest happening of a sudden traumatic nature from an unexpected
cause or unusual strain. Brown v. Quik Trip.
2. When a scheduled physical injury aggravates or causes a compensable
psychological injury, the psychological injury is compensable as an
unscheduled injury. Mortimer v. Fruehauf Corp., 502 N.W.2d 12, 1993 Iowa
Sup. LEXIS 146 (Iowa 1993).
II. JURISDICTION - IA Code §85.3, §85.71
1. The injuries occurred or occupational disease was contracted in Iowa while in
the scope and course of employment.
2. Employer is a resident of Iowa.
3. Employer is a nonresident of Iowa, but for whom services are performed
within Iowa by any employee.
4. The employer corporation, individual, personal representative, partnership, or
association has the necessary minimum contact with Iowa.
5. The injury occurred outside of the territorial limitations of Iowa, if:
a. The employer has a place of business in Iowa, and;
i. The employee regularly works from that place of business, or;
ii. The employee is working under a contract which selects Iowa as the
forum state, or;
iii. The employee is domiciled in Iowa.
b. The employee is working under a contract of hire made in Iowa, and the
employee;
i. Regularly works in Iowa, or;
ii. Sustains an injury for which compensation is unavailable in the other
possible jurisdictions, or;
6
iii. Works outside of the United States.
B. Act will not apply where:
1. Injured worker is covered by a federal compensation statute. Isle of Capri
Casino v. Wilson, 2009 Iowa App. LEXIS 1446 (Iowa Ct. App. Sept. 2, 2009)
2. The employee is engaged in service in a private dwelling and earned more
than $1500 in the previous 12 consecutive months before the injury, provided
that the employee is not a relative of the employer. IA 85.1
3. The employer engages in agricultural operations, as long as the employee
earned more than $1500 in the previous 12 consecutive months before the
injury. This exclusion always applies to relatives of the employer, officers of a
family farm Corporation, and owners of agricultural land. IA 85.1
C. Dual jurisdiction claims:
1. Any action filed in Iowa shall be stayed if an employee or employee’s
dependants initiate a workers’ compensation case for the same injury in a
separate jurisdiction, but no order, settlement, judgment, or award has been
had, pending the resolution of the out-of-state claim for benefits. IA § 85.72
a. The employer/insurer must file for a stay of proceedings for the stay to be
granted.
2. If the employee or employee’s dependants have initiated another workers’
compensation case in a separate jurisdiction and benefits have been paid
pursuant to a final settlement, judgment, or award, the employee or
employee’s dependants may not also seek benefits in Iowa. § 85.72
III. NOTICE – § 85.23
A. Notice of an injury is required within 90 days from the date of the “occurrence” of
the injury.
B. If an employer has actual knowledge of the injury there is no need to give notice.
C. The employee or someone on the employee’s behalf or a dependent or someone
on the dependent’s behalf may provide notice
D. Payment of compensation shall be conclusive evidence of notice of an
employee's alleged work-related injury.
IV. REPORTING REQUIREMENTS § 86.11–
A. FROI – First Report of Injury
1. The employer or insurance carrier must electronically file a First Report of
Injury:
a. Within four days of receiving notice or knowledge of an injury, if:
7
i.
2.
3.
4.
5.
The injury results in temporary disability for a period longer than three
days, or;
ii. The injury results in permanent total disability, permanent partial
disability, or death.
b. If the Commission sends a written request to the employer or insurance
carrier.
The time period for calculation excludes Sundays and legal holidays.
A First Report of Injury is required even if liability is denied—it is not
considered an admission of liability.
An Agency file number will not be assigned and the claim cannot be settled if
the FROI has not been filed. The FROI must be filed through EDI. The
Agency will not accept a paper FROI.
A $1,000 fine will be imposed if FROI is not filed within 30 days of notification
from the Commissioner that a FROI must be filed.
B. SROI – Subsequent Report of Injury
1. Following the filing of a First Report of Injury, a Subsequent Report of Injury
must be filed in the event:
a. A claim is denied (in addition to a denial of liability letter);
b. weekly compensation benefits are paid (filed 30 days after the date of the
first payment);
c. Whenever weekly compensation payments are terminated or interrupted;
d. Whenever a claim is open on June 30 of each calendar year;
e. When a claim is closed;
f. Whenever “other” benefits are paid, ie medical, mileage, burial, interest,
vocational rehabilitation, and penalties.
C. Medical reports must be filed if the injury exceeds thirteen weeks of temporary
total disability or when there is permanent partial disability.
D. Final Reports must be filed showing the date of last payment in the employee's
last known address.
V. LIMITATION OF ACTIONS § 85.26 –
A. An employee must file an Original Notice and Petition with the Commission;
1. Within two years of the occurrence of the accident or injury under the
Workers’ Compensation Act, or
2. Within three years of the date of last payment if weekly benefits are paid
pursuant to § 86.13.
3. Within three years of approval of a settlement or issuance of an award.
B. In an original proceeding, all issues subject to dispute are before the
Commission. In a proceeding to reopen an award or settlement, the inquiry will
8
be limited to whether or not the employee’s condition warrants an end to,
diminishment of, or increase of compensation awarded or agreed upon.
VI. ANSWER TO PETITION – IA Administrative Code § 876.4.9(1)
A. Upon receipt of Notice of a Contested Case, the Employer shall answer or file a
motion within 20 days.
B. All medical records and reports in possession of the Employer/Insurer must be
served on all opposing parties within 20 days of filing the Answer and on a
continuing basis within 10 days of receipt of the records.
C. Failure to do either of the above could lead to possible penalties including
preclusion of evidence, sanctions, or judgment by default.
VII.
MEDICAL TREATMENT – § 85.27
A. Employer is responsible for all reasonable surgical, medical, dental, osteopathic,
chiropractic, podiatric, physical rehabilitation, nursing, ambulance, and hospital
services and supplies, plus reasonable and necessary transportation expenses
incurred for such services.
1. If compensability is admitted, employer is not responsible for unauthorized
care, unless the employee shows that the unauthorized care was successful
and beneficial toward improving the employee’s condition in a way that
benefits the employer as well as the employee.
B. The employer’s obligation to provide reasonable and necessary medical care
carries with it the right to select the treating physician, provided that the care is
offered promptly and is reasonable suited to treat the injury without undue
inconvenience to the employee. McKim v. Meritor Auto., Inc., 158 F. Supp. 2d
944 (S.D. Iowa 2001).
1. Exceptions - The employer is not entitled to select the provider when:
a. Emergency care is necessary because of an actual work-related event.
b. The employee notifies the employer in writing of his or her dissatisfaction
with the employer’s provider and provide reasonable proofs of the
necessity of alternate care.
c. The employer denies the claim.
C. If the employer pays medical benefits under a group plan, the amounts paid by
the group plan shall be deducted from the amounts paid under the Workers’
Compensation Act.
D. If the employer believes the charges of a medical provider are excessive, the
employer has the right to have the issue decided by the Commission.
9
E. The employer, insurance carrier, or employee waive any claim of privilege by
virtue of filing or defending a workers’ compensation claim. Failure of a medical
provider to provide medical records may result in a Court order imposing
penalties or sanctions on the provider.
VIII.
VOCATIONAL REHABILITATION – § 85.70
A. To be entitled to vocational rehabilitation benefits, an employee must be unable
to return to gainful employment because of a job-induced disability and must
have permanent partial or permanent total disability.
B. For injuries sustained after September 8, 2004, benefits may be available from
the employer in the form of:
1. $100 per week for 13 weeks,
2. An additional $100 for 13 weeks if the employee can show that the
continuation of benefits will accomplish rehabilitation.
C. For injuries sustained prior to September 8, 2004, benefits may be available from
the employer in the form of:
1. $20 per week for 13 weeks,
2. An additional $20 for 13 weeks if the employee can show that the
continuation of benefits will accomplish rehabilitation.
D. Benefits are paid in addition to any other indemnity owed.
IX. AVERAGE WEEKLY WAGE/COMPENSATION RATE – § 85.36 & § 85.37
A. Average Weekly Wage (AKA Gross Weekly Earnings)
1. The weekly earnings of the employee are computed by averaging the total
spendable earnings in the thirteen weeks prior to the injury. § 85.36.
However:
a. If the employee’s wage is reduced because of reasons personal to the
employee, i.e. sickness or vacation, the employee’s weekly earnings shall
be based on the amount the employee would have earned.
b. If a week “does not fairly reflect the employee’s customary earnings” the
week shall be replaced by the closest previous week which fairly represent
the employee’s earnings.
c. The overtime rate is not included. Overtime hours are computed at
straight time.
i. Exception for part time employees.
d. Irregular bonuses, expense allowances, and employer’s contributions to
benefit plans are not included in the average weekly wage.
2. Special Cases –
a. Part-time employees: If the employee earns less than the usual weekly
earnings of a regular full-time adult laborer in the same industry and
10
locality, then the weekly earnings are 1/50th of the total earnings which the
employee has earned in the prior 12 calendar months, including premium
pay, shift differential, and overtime pay from all employment.
b. Employees with indeterminate earnings: In situations where the
employee’s earnings can not be determined, the gross weekly earnings
are based on the usual earnings for similar services rendered by paid
employees.
c. Volunteer Firefighter, EMT, and Reserve Peace Officers: Any
compensation earned by a volunteer firefighter, emergency medical care
provider, or reserve peace officer shall be disregarded for purposes of
calculating gross weekly earnings in the event of a compensable injury.
The gross weekly earnings are calculated from the greater of:
i. The amount the employee would receive if injured in the scope and
course of his or her regular job.
ii. 140% of the state average weekly wage.
d. Apprentice or Trainee: Gross weekly earnings may be augmented if the
apprentice or trainee’s wages would have increased absent the workrelated injury.
e. Inmates § 85.59: Inmates are due the minimum compensation rates under
85.34 in the event of injury or death.
f. Elected or Appointed Official: An elected or appointed official has the
option of choosing between:
i. Their rate of pay as an elected official, or:
ii. 140% of the state average weekly wage.
3. The employer has an affirmative obligation to produce wage information to
the employee following a workers’ compensation claim. Failure to produce
the information is a simple misdemeanor.
B. Compensation Rate
1. 80% of the employee’s weekly spendable earnings, subject to maximums set
by the Division of Workers’ Compensation
a. No calculations are necessary—Consult the charts available at
www.iowaworkforce.org/wc to determine the correct rate once weekly
spendable earnings, marital status, and number of exemptions have been
established.
b. Charts are updated yearly by Division, consult chart which corresponds to
the date of accident.
c. Rate stays the same through pendency of claim.
2. Minimum rate shall be the lesser of:
a. The weekly benefit amount of a person whose gross weekly earnings are
35% of the statewide average weekly wage (calculated and published by
the Division) OR
b. The spendable weekly earnings of the employee
11
X. DISABILITY BENEFITS - § 85.33, 85.34
A. Temporary Total Disability (TTD)
1. Payable when employee is unable to return to gainful employment because of
a work related injury which will not result in permanent disability.
a. Terminated when:
i. The employee returns to work, or:
ii. There is a finding that the employee is medically capable of returning
to employment substantially similar to the employment in which the
employee was engaged at the time of the injury.
2. Temporary total disability payment shall start on the fourth day of disability.
Benefits must be paid for those days if the employee is disabled for more than
14 days. § 85.32.
3. Can be owed for scheduled as well as whole body injuries.
B. Temporary Partial Disability (TPD) § 85.33(2)
1. Compensation is 2/3rds of the difference between the employee’s weekly
earnings at the time of the injury and the employee’s actual gross weekly
income during the period of temporary disability. § 85.33(4)
2. Payable when the employee is temporarily disabled, but is able to work light
duty for the employer or an alternative employer.
C. Permanent Partial Disability (PPD) – § 85.34
1. Scheduled Member Injuries – “Loss of Use”
a. Payable when the employee sustains a permanent impairment causally
related to an injury in the scope and course of employment.
b. Begin accruing at the end of the healing period or temporary total disability
period and not a stipulated date or date which doctor issues a rating.
c. Based upon a statutory schedule codified in § 85.34
i. Iowa subscribes to the 5th Edition of the AMA Guidelines for permanent
impairment, but adherence to these guidelines is not compulsory.
d. The amount payable for specific injuries contemplates both the impairment
and payment for the reduced capacity to perform labor.
2. Body as a Whole Injuries – “Loss of Earning Capacity”
a. Compensation is 80% of employee’s weekly spendable earnings up to the
statutory maximum, multiplied by the industrial disability rating, multiplied
by 500 weeks.
b. Applies to all injuries causing permanent impairment not specifically
mentioned in § 85.34
c. Industrial Disability (claimant’s lost earning capacity) is determined by
considering:
i. The employee’s age, education, qualifications, and experience;
ii. Employee’s inability, because of the injury, to engage in employment
12
for which he or she is fitted;
(1).The inability can be caused by a physical or emotional condition.
iii. Failure of the employer to provide employment after an employee
suffers an injury;
iv. A change in the employee’s status at his or her employment following
a return to work;
v. Employee’s mitigation of his or her industrial disability.
3. If an overpayment of healing period benefits occurs, a credit may only be
given against weekly benefits for a subsequent injury with the same
employer. Swiss Colony, Inc. v. Deutmeyer, 789 N.W.2d 129 (Iowa 2010).
D. Permanent Total Disability – (PTD) § 85.34
1. Where employee has lost access to the labor market based on personal
factors coupled with the employee’s permanent physical condition caused by
the work-related injury, and the employer has failed to carry its burden of
producing evidence of available suitable employment.
2. The benefits are paid for the employee’s life.
E. Healing Period of Permanent Disabilities § 85.34
1. Compensation will start when employee is unable to return to gainful
employment because of a work related injury which will result in permanent
disability.
a. Benefits terminate when:
i. The employee returns to work, or:
ii. It is medically indicated that significant improvement from the injury is
not anticipated or;
iii. The employee is medically capable of returning to employment
substantially similar to the employment in which the employee was
engaged at the time of the injury, or;
b. To terminate healing period benefits, the employer/carrier must provide
the employee 30 days written notice (“Auxier letter”) prior to the
termination of benefits, and inform the claimant he has the right to file a
claim with the Division unless the employee’s healing period terminates by
a return to work. Failure to provide proper notice of termination, delay or
denial of benefits will result in penalties. Auxier v. Woodward State
Hospital-School, 266 N.W.2d 139 (Iowa 1978).
2. If an overpayment of healing period benefits occurs, a credit may only be
given against weekly benefits for a subsequent injury with the same
employer. Swiss Colony, Inc. v. Deutmeyer, 789 N.W.2d 129 (Iowa 2010).
F. Interest
1. Interest should be volunteered when any late payments are made. Penalties
will not be assessed on late interest payments, but interest will continue to
accrue
13
2. If delay in payment of benefits is due to neglect of the claimant, interest is not
payable
3. Interest is calculated in a 3 step process as follows:
a. Step 1:
i. Locate the number of weeks during which benefits are payable in
column A of the 10% interest table contained in the Division’s manual
for the year corresponding to the late payments
ii. Locate the interest multiplier from that line from the same table in
column B
iii. Multiple the weekly benefit amount by the interest multiplier to
determine interest payable
b. Step 2:
i. Compute the interest from the end of the period during which benefits
are payable until date benefits are actually paid using the following
formula: I = P x R x T
(1).I = Interest
(2).P = principal (the total # of weeks/days to 3 decimal points of
compensation due x compensation rate)
(3).R = rate of interest (10%)
(4).T = time (# of weeks from end of period during which benefits are
payable until date of payment, divided by 52)
c. Step 3:
i. Add result from Step 1 to result from Step 2
XI. DEATH BENEFITS - § 85.31
1. Reasonable burial expenses are payable, not to exceed 12 times the
statewide average weekly wage paid employees as determined and
published by the Division in effect at the time of death.
2. Death benefits are payable to the dependants who are wholly dependent on
the earnings of the employee for support at the time of the injury.
3. A dependant spouse shall receive weekly payments, commencing from the
date of death, for the life of the dependant spouse, provided that that the
spouse does not remarry. In the event of remarriage, two years of death
benefits shall be paid to the surviving spouse in a lump sum if there are no
children entitled to benefits.
4. Dependent children shall receive a proportional share of weekly benefits
commencing from the date of death until the age of 18, unless dependency
extends beyond the age of 18 if actual dependency continues. Full-time
enrollment in any accredited educational institution shall be a conclusive
showing of actual dependency.
5. Dependent children who are physically or mentally incapacitated from earning
at the time of the injury causing death shall receive a proportional share of
weekly benefits for life, or until they shall cease to be physically or mentally
14
incapacitated from earning.
XII.
DEFENSES
A. Statutory:
1. Willful injury/Intoxication. § 85.16. No compensation under this chapter shall
be allowed for an injury caused:
a. By the employee's willful intent to injure the employee's self or to willfully
injure another;
b. By the employee's intoxication, which did not arise out of and in the course
of employment but which was due to the effects of alcohol or another
narcotic, depressant, stimulant, hallucinogenic, or hypnotic drug not
prescribed by an authorized medical practitioner, if the intoxication was a
substantial factor in causing the injury.
c. By the willful act of a third party directed against the employee for reasons
personal to such employee.
2. Statute of Limitations. § 86.13. An action must be filed:
a. Within two years of the occurrence of the accident or injury under the
Workers’ Compensation Act, or
b. Within three years of the date of last payment if weekly benefits are paid
pursuant to § 86.13.
3. Notice. Notice of an injury is requited within 90 days from the date of the
“occurrence” of the injury.
XIII. PENALTIES
A. In order to deny any benefits due and owing under the Iowa Workers’
Compensation Act, the employer must have a reasonable or probable cause or
excuse for the delay, denial, or termination of payments.
B. The employer must show the following:
1. The employer or insurance carrier conducted an investigation and evaluation
of whether benefits were due and owing to the employee;
2. The results of the investigation or evaluation were the contemporaneous
basis of the denial, delay, or termination of benefits;
3. The employer or insurance carrier contemporaneously communicated the
basis for the denial, delay, or termination of benefits to the employee.
C. The employer or insurance carrier must provide the employee thirty days notice
stating the reason for the termination of benefits and advising the employee of
their right to file a claim with the Commission.
D. If the Commission finds that the basis for the denial was unreasonable or without
probable cause, a penalty, up to 50% of the benefits that were denied, delayed,
or terminated.
15
E. Practical tips regarding penalties:
1. The employer/insurer should assume that if the initial weekly payment will not
be made when it is due, the facts of the investigation and delay should be
communicated in writing to the employee no later than the date the initial
payment would otherwise be due
2. At the outset of the claim, communicate with the employee that the claim
report is acknowledged and an investigation is required. Also inform
employee that because it takes time to obtain relevant information, weekly
benefits may be delayed until the investigation is complete.
3. Communication with the employee should indicate that employee’s
cooperation is required in the investigation.
4. The statute does not require that communication to the employee be in
writing, but it be from an evidentiary standpoint.
5. Investigate promptly. This may include:
a. Obtain recorded statement as soon as possible
b. Write for medical records as soon as a list of providers and Patient’s
Authorization are available
c. Medical evaluations/testing should be scheduled as soon as available.
6. If there is a delay in the investigation (i.e. slow response from medical
providers), this should be communicated to the employee in writing
7. If employee fails or refuses to cooperate in the investigation the failure/refusal
should be communicated to employee in writing explaining the delay or
refusal is preventing the investigation and delaying payment of benefits.
8. If the investigation proves the claim is valid this should be communicated to
the employee in writing and all accrued benefits plus interest should be paid.
9. If the investigation reveals information that supports a denial of the claim, this
should be communicated to the claimant in writing with explanation as to the
reason and basis for denial.
10. The duty to investigate continues beyond the initial determination and all
results and consequences of the investigation should be communicated in
writing to the employee.
11. Once the claim is referred to counsel be sure to provide all of the above
communication to defense counsel in the event the claim becomes litigated.
XIV.
SETTLEMENTS - § 85.35
A. Types of Settlements:
1. Agreement for Settlement
a. Parties may enter into an agreement as to the amount and extent of
compensation due and file with the Commissioner.
b. This type of settlement will not end future rights or medical benefits
2. Compromise Settlement (AKA Special Case Settlement or Closed File)
a. When there is a dispute as to whether or not the employee is entitled to
benefits, parties may enter into a compromise settlement
16
i.
There must be at least one issue in dispute and it must be clear what
the dispute is. Nature and extent of the injury are generally not
sufficient without supporting medical to clearly describe the dispute.
b. This type of settlement ends the employee’s future rights to any benefits
B. General Settlement Information:
1. Full Commutation:
a. Lump sum payment of all remaining future benefits
b. Must be at least 10 weeks of benefits remaining from date of the end of
the healing period or temporary total disability period. If less than 10
weeks are remaining full commutation will not be allowed.
c. Once approved this will end all of employee’s future rights to any
additional benefits including medical
d. To be approved, parties must show the employee has a specific need and
the lump sum is in the best interest
i. Pro se employees must complete a Claimant’s Statement expressing
that need
2. Partial Commutation:
a. Lump sum payment of a portion of the remaining benefits
b. Establishes the employee’s entitlement to disability benefits but it does not
end future rights.
3. Settlement language may not include “any and all injuries” or “other states or
jurisdictions.”
XV. PROCEDURE
A. Filing of Original Notice and Petition or Petition for Alternate Care begins the
litigation process
1. Answer or other responsive motion must be filed within 20 days
2. Discovery may commence via Interrogatories, Request for Production,
Request for Admission, Depositions
3. Notice of Service of Medical Records (NOS) served on opposing party on a
continuing basis
a. NOS of all medical records in a party’s possession must be served within
20 days of filing an Answer and within 10 days of receipt of records for the
remainder of the claim. Failure to properly serve records could prevent
admission of the records into evidence.
4. Alternative Dispute Resolution is encouraged through the Division or through
private mediation
5. Hearings:
a. If claim has not been resolved through settlement a hearing will be held
and a Deputy Commissioner will determine Claimant’s rights and issue an
award.
b. All evidence must be submitted at the time of the hearing – the record will
be closed at the conclusion of the hearing.
17
c. Case is left open following a hearing and award for lifetime medical and
Review & Reopening for a period of 3 years from the date of the last
weekly benefits paid.
d. Continuances generally are not granted even if a claimant has not
reached MMI
e. Appeal to Commissioner must be filed within 20 days of Deputy’s decision.
f. Appeal to District Court within 30 days of final agency decision
i. District Court is bound by the factual determinations made by the
Agency unless a different result is required as a matter of law – if the
agency decision is “irrational, illogical or wholly unjustifiable.”
ii. If a decision is supported by substantial evidence the decision will not
be overturned.
g. Appeal to Iowa Supreme Court within 30 days of the District Court’s final
judgment
18
Notes Pages
Notes Pages
Notes Pages
Notes Pages
KANSAS WORKERS’ COMPENSATION
Applies to injuries occurring on or after May 15, 2011.
I. JURISDICTION - K.S.A. 44-506
A. Act will apply if:
1. Accident occurs in Kansas.
2. Contract of employment was made within Kansas, unless the contract
specifically provides otherwise.
3. Employee’s principal place of employment is Kansas.
II. ACCIDENTS
A. Traumatic Accidental Injury
1. “Undesigned, sudden, and unexpected traumatic event, usually of an
afflictive or unfortunate nature and often, but not necessarily,
accompanied by a manifestation of force.”
2. “An accident shall be identifiable by time and place of occurrence,
produce at the time symptoms of an injury, and occur during a single
work shift.”
3. “The accident must be the prevailing factor in causing the injury.”
4. Deemed to arise out of employment only if:
a. There is a causal connection between the conditions under
which the work is required to be performed and the resulting
accident; and
b. The accident is the prevailing factor causing the injury, medical
condition, and resulting disability or impairment.
B. Repetitive Use, Cumulative Traumas or Microtraumas– K.S.A. 44-508(e)
1. “The repetitive nature of injury must be demonstrated by diagnostic or
clinical tests.”
2. “The repetitive trauma must be the prevailing factor in causing the
injury.”
3. Date of accident shall be the earliest of:
a. Date the employee is taken off work by a physician due to the
diagnosed repetitive trauma;
b. Date the employee is placed on modified or restricted duty by a
physician due to the diagnosed repetitive trauma;
c. Date the employee is advised by a physician that the condition
is work related; OR
d. Last day worked, if the employee no longer works for the
employer.
1
e. In no case shall the date of accident be later than the last date
worked.
4. Deemed to arise out of employment only if:
a. Employment exposed the worker to an increased risk or hazard
which the worker would not have been exposed in normal nonemployment life;
b. The increased risk or hazard to which the employment exposed
the worker is the prevailing factor in causing the repetitive
trauma; and
c. The repetitive trauma is the prevailing factor in causing both the
medical condition and resulting disability or impairment.
C. Prevailing Factor
1. Primary factor in relation to any other factor.
2. Judge considers all relevant evidence submitted by the parties.
D. Exclusions
1. Triggering/precipitating factors
2. Aggravations, accelerations, exacerbations
3. Pre-existing condition rendered symptomatic
4. Natural aging process or normal activities of daily living
5. Neutral risks, including direct or indirect results of idiopathic causes
6. Personal risks
III. NOTICE OF ACCIDENT - K.S.A. 44-520
A. Notice requirements depend on the date of accident.
B. For accidents after April 25, 2013:
1. Notice must be given by the earliest of the following days:
a. 20 calendar days from the date of accident or injury by repetitive
trauma;
b. 20 calendar days from the date the employee seeks medical
treatment for the injury; or
c. 10 calendar days from the employee’s last day of actual work
for the employer.
C. For accidents between May 15, 2011, and April 25, 2013:
1. Notice must be given by the earliest of the following days:
trauma;
2
for the employer.
D. For accidents before May 15, 2011:
1. Notice must be given within 10 days of the accident unless the
employer had actual knowledge of the accident.
2. If an employee does not provide notice within 10 days, his claim will not
be barred if his failure to provide notice was due to just cause, provided
that:
a. Notice was given within 75 days; or
b. The employer had actual knowledge of the accident; or
c. The employer was unavailable to receive notice; or
d. The employee was physically unable to give such notice.
E. May be oral or in writing
1. “Where notice is provided orally, if the employer has designated an
individual or department to whom notice must be given and such
designation has been communicated in writing to the employee, notice
to any other individual or department shall be insufficient under this
section. If the employer has not designated an individual or department
to whom notice must be given, notice must be provided to a supervisor
or manager.”
2. “Where notice is provided in writing, notice must be sent to a supervisor
or manager at the employee’s principal location of employment.” The
burden is on the employee to prove that such notice was actually
received by the employer.
F. Notice shall include the time, date, place, person injured and particulars of the
injury and it must be apparent the employee is claiming benefits or suffered a
work-related injury.
G. Notice requirement is waived if the employee proves that
1. the employer or employer’s duly authorized agent had actual knowledge
of the injury;
2. the employer or employer’s duly authorized agent was unavailable to
receive such notice within the applicable period; or
3. the employee was physically unable to give such notice.
IV. REPORT OF ACCIDENT – K.S.A. 44-557
A. Employer / carrier must file with the Division of Workers’ Compensation within
28 days of obtaining knowledge of any accident that requires an employee to
miss more than the remainder of the shift in which the injury occurred.
1. Civil penalties are possible for failure to file.
2. Failure to file within 28 days extends the statute of limitations from 200days to one year from the date the period begins to run.
3
3. Accident report cannot be used as evidence.
V. APPLICATION FOR HEARING- K.S.A. 44-534
A. The employee must file an application for hearing by the later of:
1. 3 years after the date of accident; or
2. 2 years after the last payment of compensation.
B. Once Application for Hearing is filed, claim must proceed to hearing or award
within three years or be subject to dismissal with prejudice – K.S.A. 44-523(f)
VI. MEDICAL TREATMENT
A. K.S.A. 44-510h
1. Employer has the right to select the treating physician.
2. Employee has $500 unauthorized medical allowance for treatment.
3. Rebuttable presumption that employer’s obligation to provide medical
treatment terminates upon the employee reaching maximum medical
improvement.
4. Medical treatment does not include home exercise programs or overthe-counter medications.
B. K.S.A. 44-510k
1. After an award, any party can request a hearing for the furnishing,
termination or modification of medical treatment.
2. ALJ must make a finding that it is more probably true than not that the
injury is the prevailing factor in the need for future medical care
3. If the claimant has not received medical treatment (excluding home
exercise programs or over-the-counter medications) from an authorized
health care provider within two years from the date of the award or the
date the claimant last received medical treatment from an authorized
health care provider, there is a rebuttable presumption no further
medical care is needed.
C. K.S.A. 44-515
1. All benefits suspended if employee refuses to submit to exam at
employer’s request.
2. Employee may request that a report from any examination be delivered
within a reasonable amount of time (no longer 15 day requirement).
4
VII.
AVERAGE WEEKLY WAGE – K.S.A. 44-511
A. Add wages earned during the 26 weeks prior to the accident and divide by the
number of weeks worked during that period. No longer a difference between
full-time and part-time employees.
B. Wages = Money + Additional compensation
1. Money: gross remuneration, including bonuses and gratuities.
2. Additional Compensation: only considered if and when discontinued
i. Board and lodging if furnished by the employer
ii. Employer paid life insurance, disability insurance, health
and accident insurance
iii. Employer contributions to pension or profit sharing plan.
C. Examples
1. Example One
a. 26 weeks worked - $10,400 earned
b. No additional compensation discontinued
c. Average weekly wage = $400
2. Example Two
a. 26 weeks worked - $10,400 earned
b. Additional compensation discontinued following injury
i. Health insurance-$200 per week.
ii. Pension contribution-$150 per week.
c. Average weekly wage - $750
VIII.
TEMPORARY BENEFITS – K.S.A. 44-510c(b)
A. Temporary Total Disability
1. Two-thirds of Average Weekly Wage (AWW) from above, subject to
statutory maximum determined by date of injury
2. Seven-day waiting period.
*No temporary total disability for first week unless off three consecutive
weeks.
3. Exists when the employee is “completely and temporarily incapable of
engaging in any type of substantial gainful employment.”
4. Treating physician’s opinion regarding ability to work is presumed to be
determinative.
5. employee is entitled to temporary total disability benefits if employer
cannot accommodate temporary restrictions of the authorized treating
physician.
5
6. No temporary total disability benefits if the employee is receiving
unemployment benefits.
7. Insurer or self-insured employer MUST provide statutorily mandated
warning notice on or with the first check for temporary total disability
benefits.
B. Temporary Partial Disability
1. Two-thirds of the difference between Average Weekly Wage preaccident and claimant’s actual post-accident weekly wage up to
statutory maximum.
2. available for scheduled and non-scheduled injuries
C. Termination of Benefits
1. Maximum medical improvement
2. Return to any type of substantial and gainful employment
3. Employee refuses accommodated work within the temporary
restrictions imposed by the authorized treating physician
4. Employee is terminated for cause or voluntarily resigns following a
compensable injury, if the employer could have accommodated the
temporary restrictions imposed by the authorized treating physician but
for the employee’s separation from employment.
IX. PRELIMINARY HEARINGS – K.S.A. 44-534a
A. After filing an Application for Hearing pursuant to K.S.A. 44-534, a party may
file an Application for Preliminary Hearing.
B. Seven days before filing Application for Preliminary Hearing the applicant
must file written NOTICE OF INTENT stating benefits sought.
C. An Administrative Law Judge will be assigned
D. Hearing can be set seven days later. If claim denied at preliminary hearing,
failure to proceed to regular hearing within one year and without good faith
reason results in dismissal with prejudice.
E. Benefits to Consider at Preliminary Hearing:
1. Medical treatment (including change of physician).
a. Ongoing or past bills.
2. Temporary total or temporary partial benefits (including rate).
a. Prospective or past benefits.
3. Medical records and reports are admissible.
6
4. Witnesses may be necessary.
5. Opportunity for decision on ultimate compensability issues.
F. Preliminary Awards are binding unless overruled at a later Preliminary
Hearing or Regular Hearing.
G. Limited right to review by the Appeals Board.
1. “whether the employee suffered an accidental injury, whether the injury
arose out of and in the course of the employee's employment, whether
notice is given, or whether certain defenses apply”
H. Penalties – K.S.A. 44-512a
1. Award must be paid within 20 days of receipt of statutory demand.
Penalties can be $100 per week for late temporary total and $25 per
week per medical bill.
I. Dismissal of claim denied at Preliminary Hearing – K.S.A. 44-523(f)
1. Claim dismissed with prejudice, if:
a. Case does not proceed to Regular Hearing within one year
b. Employer files application for dismissal
c. Claimant cannot show good cause for delay
2. Dismissal considered final disposition for fund reimbursement
X. PRE-HEARING SETTLEMENT CONFERENCES – K.S.A. 44-523(d)
A. Must occur before a Regular Hearing can take place.
B. Generally after claimant reaches maximum medical improvement.
C. Court will clear case for Regular Hearing or enter order for appointment of
independent physician to determine permanent impairment of function or
restrictions.
D. Process varies from Judge to Judge.
E. Issues regarding final award or settlement are considered.
XI. PERMANENT DISABILITY – K.S.A. 44-510e
A. Maximum Awards
1. Functional Impairment Only - $75,000
a. Cap now applies even if temporary total or temporary partial
disability benefits were paid.
7
b. $75,000 cap does not include temporary total or temporary
partial disability benefits paid.
2. Permanent Partial Disability - $130,000
a. Cap includes temporary total or temporary partial disability
benefits paid
3. Permanent Total Disability - $155,000
a. Cap includes temporary total or temporary partial disability
benefits paid
4. Death benefits - $300,000
a. Includes $1,000 for appointment of conservator, if required.
B. Reduction for Pre-existing Impairments
1. Basis of prior award in Kansas establishes percentage of pre-existing
impairment.
2. If no prior award in Kansas, pre-existing impairment established by
competent evidence.
3. If pre-existing injury is due to injury sustained for same employer,
employer receives a dollar for dollar credit.
4. In all other cases, the employer receives a credit for percentage of preexisting impairment.
C. Scheduled Injuries
1. Includes loss of and loss of use of scheduled members
2. Combine and rate multiple injuries in single extremity to highest
scheduled member actually impaired
3. Formula
a. (scheduled weeks – weeks TTD paid) x rating % x
compensation rate
4. Example
a. Arm Injury = 210 weeks
b. TTD paid = 10 weeks
c. Rating = 10%
d. Compensation Rate = $546
i. (210 weeks – 10 weeks) x 10% = 20 weeks x $546.00
= $10,920.00
D. Body as a Whole Injuries
1. Presumption is functional impairment
2. Includes loss of or loss of use of: (1) bilateral upper extremities, (2)
bilateral lower extremities, or (3) both eyes.
3. Formula
8
a. (415 weeks – weeks TTD paid in excess of 15 weeks) x rating
% x compensation rate
4. Example
a. TTD paid = 25 weeks
b. Rating = 15% Body as a Whole
c. Compensation Rate = $546.00
i. (415 weeks – 10 weeks) x 15% = 60.75 weeks x
$546.00 = $33,169.50
5. Work Disability
a. High end permanent partial disability.
b. Allows the employee to receive an Award in excess of functional
impairment.
c. Employee eligible if:
i. Body as a whole injury; and
ii. The percentage of functional impairment caused by the
injury exceeds 7 ½% or the overall functional impairment
is equal to or exceeds 10% where there is preexisting
functional impairment; and
iii. Employee sustained a post-injury wage loss of at least
10% which is directly attributable to the work injury.
6. Formula
a. ((Wage Loss % + Task Loss %) / 2) x (415 weeks – weeks TTD
paid in excess of 15 weeks) x compensation rate
i. Wage Loss: “the difference between the average weekly
wage the worker was earning at the time of the injury and
the average weekly wage the worker is capable of
earning after the injury.”
(a) Consider all factors to determine the capability of
the worker, including age, education and training,
prior experience, availability of jobs, and physical
capabilities.
(b) Legal capacity to enter contract of employment
required.
(c) Refusal of accommodated work within restrictions
and at a comparable wage results in presumption
of no wage loss
ii. Task Loss: “the percentage to which the employee, in
the opinion of a licensed physician, has lost the ability to
perform the work tasks that the employee performed in
any substantial gainful employment during the five-year
period preceding the injury.”
9
(a) Task loss due to pre-existing
restrictions not included
permanent
7. Example:
a. TTD paid = 25 weeks
b. AWW on date of accident = $1,000.00
c. AWW after accident = $350
d. Tasks performed during 5 years prior to accident = 25
e. Tasks capable of performing after the accident = 10
f. Compensation Rate = $555.00
i. (65% wage loss + 60% task loss) / 2 = 62.5% work
disability x (415 weeks – 10 weeks) = 253.125 weeks x
$555.00 = $140,484.37
ii. This would be capped at $130,000.00, and the amount of
TTD paid is considered in determining if the maximum
has been reached.
E. Permanent Total Disability
1. Employee is completely and permanently incapable of engaging in any
type of substantial and gainful employment.
2. Expert evidence is required to prove permanent total disability
3. Can only be permanently and totally disabled once in a lifetime.
F. Death Cases – K.S.A. 44-510b
1. Cap - $300,000 total
a. Can exceed as children receive benefits above cap to age 18.
2. 50% to surviving spouse – 50% to surviving children.
3. $40,000 lump sum paid at outset.
4. Conservatorship required for minor children.
5. Children can extend benefit receipt to age 23 if they remain in
accredited school. Can exceed the $25,000.00 cap only to age 18.
XII.
REGULAR HEARING – FULL TRIAL
A. Hearing
1. Claimant generally testifies.
2. Each Party has 30 days after the hearing to put on evidence.
a. Depositions of any and all witnesses.
b. Parties may stipulate records into evidence.
3. Administrative Law Judge will enter an Award within thirty days of
submission of evidence.
a. Review and Modification stays open as a matter of law.
10
b. Future medical treatment only awarded if the claimant proves it
is more probable than not that future medical treatment will be
required as a result of the work-related injury.
c. Penalties again apply per K.S.A. 44-512a.
B. Review:
1. Award can be appealed within ten days to Kansas Appeals Board.
2. Can appeal Board decisions to Court of Appeals.
a. No change at that level if substantial evidence to support Board
decision.
C. Post-Award Hearings
1. Medical – K.S.A. 44-510k
a. Claimant seeking medical treatment.
b. Employer/Insurer seeking to modify or terminate award for
medical treatment.
c. Claimant’s attorney can receive hourly attorney fees.
2. Review and Modification – K.S.A. 44-528
a. Review if change of circumstances; i.e. increase in disability.
b. Claimant’s attorney can receive fees.
XIII.
SETTLEMENTS – K.S.A. 44-531
A. Can obtain full and final settlement if claimant agrees.
1. Would close all issues.
B. Case can settle on Running Award per law.
1. Leaves future medical open on application to Director.
2. Respondent controls choice of physician.
3. Leaves right to Review and Modification open.
C. Most common settlement format is Settlement Hearing before Special
Administrative Law Judge with a court reporter present.
1. FORMAT:
a. Claimant is sworn in.
b. Claimant is asked to describe his/her accident(s).
c. Judge asks claimant if he/she is receiving any medical bills.
i. Court will generally order payment of valid and
authorized bills.
d. Terms of settlement will be explained and read into record by
Employer’s attorney.
e. Unrepresented claimant will receive explanation from Judge that
he/she could hire an attorney.
11
i.
Explanation will detail that attorney could send claimant
to a rating doctor of his/her choice – or claimant does not
have to hire an attorney to get a rating from his/her own
doctor.
f. Most importantly, in a full and final settlement, the court will
explain that claimant is giving up all rights to future medical.
i. Additional payment can be made to compromise future
medical.
g. If claimant is out of state, settlement hearing can occur by
telephone or by written joint petition and stipulation.
XIV.
DEFENSES
A. Drugs and Alcohol – K.S.A. 44-501(b)(1)
1. Employer not liable if the injury was contributed to by the employee’s
use or consumption of alcohol or drugs.
2. There is a .04 level which will establish a conclusive presumption of
impairment due to alcohol. Impairment levels for drugs set by statute.
3. Rebuttable presumption that if the employee was impaired, the accident
was contributed to by the impairment.
4. Refusal to submit to chemical test results in forfeiture of benefits if the
employer had sufficient cause to suspect the use of alcohol or drugs or
the employer’s policy clearly authorizes post-injury testing.
5. Results of test admissible if the employer establishes the testing was
done under any of the following circumstances
a. As a result of an employer mandated drug testing policy in place
in writing prior to the date of accident
b. In the normal course of medical treatment for reasons related to
the health and welfare of the employee and not at the direction
of the employer
c. Employee voluntarily agrees to submit a chemical test
B. Coming and Going to Work – K.S.A. 44-508
1. Accidents which occur on the way to work or on the way home are
generally not compensable.
2. Exceptions:
a. On the premises of the employer.
b. Injuries on only available route to or from work which involves a
special risk or hazard and which is not used by public except in
dealing with employer.
c. Employer’s negligence is the proximate cause
12
d. Employee is a provider of emergency services and the injury
occurs while the employee is responding to an emergency.
3. Parking lot cases – key question is whether employer owns or controls
the lot.
C. Fighting and Horseplay – K.S.A. 44-501(a)(1)
1. Voluntary participation in fighting or horseplay with a co-employee is not
compensable whether related to work or not.
D. Violations of Safety Rules – K.S.A. 44-501(a)(1)
1. Compensation disallowed where injury results from:
a. Employee’s willful failure to use a guard or protection against
accident or injury which is required pursuant to statute and
provided for the employee
b. Employee’s willful failure to use a reasonable and proper guard
and protection voluntarily furnished the employee by the
employer
c. Employee’s reckless violation of safety rules or regulations.
2. Subparagraphs (a) and (b) do not apply if:
a. It was reasonable under the totality of the circumstances to not
use such equipment; or
b. The employer approved the work engaged in at the time of an
accident or injury to be performed without such equipment.
XV.
OTHER ISSUES
A. Retirement Benefit Offset – K.S.A. 44-510(h)
1. Applies to Work Disability cases only.
2. Can offset payments including Social Security Retirement.
B. Medicare Issues
1. Mandatory reporting requirements
2. Reconciliation of Conditional Payment Lien
3. Consideration of Medicare Set-Aside when closing future medical
XVI.
RECENT LEGISLATIVE CHANGES
A. Senate Bill 187 was signed into law by Governor Sam Brownback on April 16,
2013, and published in the Kansas Register on April 25, 2013 (available at
http://www.kssos.org/pubs/register%5C2013%5CVol_32_No_17_April_25_20
13_p_381-444.pdf).
B. Notice
1. Reduces time for the injured worker to give notice of repetitive trauma
or accident.
13
trauma;
for the employer.
C. Selection of Administrative Law Judges and Board Members
1. A seven member committee meets to determine if an ALJ or Board
member should be retained and makes nominations to the Secretary of
Labor for any vacancies.
2. Each of the following entities will have a representative on the
committee:
a. Kansas Secretary of Labor;
b. Kansas Chamber of Commerce;
c. the National Federation of Independent Business;
d. Kansas AFL-CIO;
e. Kansas State Council of the Society for Human Resource
Management;
f. the Kansas Self-Insurers Association; and
g. A selected nominee by the Secretary of Labor from an
employee organization or professional employee's organization.
D. Recusal of Administrative Law Judges
1. If the judge declines a recusal request, an appeal is made to the
Workers' Compensation Appeals Board.
2. If the requesting party is not satisfied with the Board's decision, the
aggrieved party may appeal to the Court of Appeals.
E. American Medical Association Guides to the Evaluation of Permanent
Impairment
1. The AMA Guides 6th Edition will apply to injuries occurring on or after
January 1, 2015.
14
FROM ISSUES ADDRESSED IN RECENT KANSAS CASES
KANSAS SUPREME COURT:
Q: Is the Board’s interpretation of the law entitled to judicial deference under the
doctrine of operative construction?
A: No. When dealing with a statute in a workers’ compensation appeal, no deference is
given to the Board or ALJ’s interpretation or construction of a statute. The doctrine of
operative construction has been “abandoned, abrogated, disallowed, disapproved,
ousted, overruled, and permanently relegated to the history books where it will never
again affect the outcome of an appeal.”
Douglas v. Ad Astra Info. Sys., 293 P.3d 723 (Kan. 2013).
Q: To determine whether an employee is engaged in a “recreational or social
activity” excluded from coverage under K.S.A. 44-508(f), should the Court look
beyond the plain language of the statute?
A: No. Claimant was injured when he was thrown from his go-kart at a work-sponsored
event meant to thank employees for their recent work on a conference. The employer
and insurer argued that claimant’s injury was not compensable because he was
participating in a social activity. The Board found that “social and recreational activities”
were not defined by the statute and applied the factors in Larson’s treatise to determine
if claimant’s injury was compensable.
On review, the Court of Appeals affirmed the Board’s decision and the employer
appealed the award to the Kansas Supreme Court. The Supreme Court noted that
Larson’s factors differ from the criteria set forth in the plain language of K.S.A. 44508(f), which excludes injuries incurred by employees engaged in recreational or social
events "where the employee was under no duty to attend and where the injury did not
result from the performance of tasks related to the employee's normal job duties or as
specifically instructed to be performed by the employer." Because the Board had
applied the incorrect legal standard, the Court reversed and remanded the case to the
Board with directions.
The Supreme Court indicates that there are two possible rationales for finding
claimant’s injury compensable under the statute’s plain language. First, the Court
points out that the claimant was required to be either at the office or at the event and
opines that “[s]uch a conditional duty to attend cannot be said to fulfill the high hurdle of
no duty to attend” under the statutory language.” Second, the Court indicates that
although claimant was not performing his normal duties, racing the go-carts may have
been “specifically instructed to be performed by the employer.” Either reason would be
sufficient to make this a compensable injury notwithstanding the exception for
recreational and social activities in K.S.A. 44-508(f).
15
Douglas v. Ad Astra Info. Sys., 293 P.3d 723 (Kan. 2013).
Q: Can an employee’s immigration status prevent him from collecting work disability
benefits?
A: No. In Fernandez v. McDonald’s, the Kansas Supreme Court affirmed an award of work
disability benefits to an unauthorized alien with no legal authority or documentation to
work in the United States.
On appeal from the Board’s award of work disability, McDonald’s argued that claimant’s
immigration status precluded her from going back to work because it was illegal for
McDonald’s to reemploy Ms. Fernandez under federal law. As a result, her wage loss
was related to her legal inability to return to work. McDonald’s asserted that a work
disability award would be contrary to public policy.
The Court determined that K.S.A. 44-510e has only two exceptions to basing an award
on work disability: 1) where the post-injury earnings are equal to or more than 90
percent of pre-injury wages and; 2) where the functional impairment exceeds the work
disability. Because K.S.A. 44-510e does not contain an exception based on immigration
status, Fernandez was eligible for all benefits under the Act, including work disability.
The logic employed in Fernandez is, in our view, troubling. By tightly limiting the
exceptions to work disability, the Court’s decision implies that defenses to work
disability based on termination for cause or voluntary termination may not be viable.
The Court did not address how the 2011 amendments to the Act would have impacted
this case. After May 15, 2011, a claimant must establish the legal capacity to enter into
a valid contract of employment to establish post-injury wage loss. For this reason,
Fernandez’s impact on post-amendment cases should be limited. But Fernandez will
affect all pre-amendment general body disability claims.
Fernandez v. McDonald’s, 292 P.3d 311 (Kan. 2013).
KANSAS COURT OF APPEALS:
PUBLISHED CASES
Q: Are corporations exempted from coverage by the workers compensation act
under K.S.A. 505(a)(2), which exempts employers with payroll less than $20,000
where no wages paid to family are included?
A: No. Corporate employers cannot exclude the wages of family members to avoid
coverage under the workers compensation act because corporations cannot have a
family. Here, the Court of Appeals determined that K.A.R. 51-11-6 is a valid regulation
and accurately states that the “provisions of K.S.A. 44-505(a)(2) excluding the wages of
employees who are members of the employer's family does not apply to corporate
16
employers.” The Court found that the family member exclusion only applies to natural
persons and is not applicable to artificial entities such as corporations because they are
separate legal entities distinct from those who own shares in the corporation.
Hall v. Knoll Bldg. Maint., Inc., 285 P.3d 383 (Kan. Ct. App. 2012).
Q: Does K.S.A. 2006 Supp. 44-423(f), which provides a claim must be dismissed if it
does not proceed to regular hearing within five years, apply retroactively to
injuries with accident dates prior to when the statute took effect on July 1, 2006?
A: No. This statute applies prospectively from July 1, 2006, when the law took effect.
Because claimant’s date of accident was before this date, the law did not apply.
Welty v. USD 259, Inc., 2013 WL 1912291, ---P.3d --- (Kan. Ct. App. 2013).
Q: Under the coming and going rule, is an employer liable for an employee’s injuries
that occured when he chose to forego the employer provided travel to and from a
work site and instead rode with another employee for his own convenience?
A: No. Because the employee’s travel home was not furthering the employer’s interest
when he chose to ride home with another employee instead of the employer-provided
transportation. Because he was “on a personal mission to get home sooner,” the
proximate cause of claimant’s injury was not the employer’s negligence.
Williams v. Petromark Drilling, 2013 WL 2450535, ---P.3d --- (Kan. Ct. App. June
7, 2013).
Q: If an employer cannot accommodate restrictions from claimant’s personal
chiropractor, is the claimant entitled to temporary total disability benefits?
A: No. Under K.S.A. 44–510c(b)(2), an authorized treating physician needs to determine
the claimant is “completely and temporarily incapable of engaging in any type of
substantial and gainful employment” in order for claimant to be eligible for TTD benefits.
Here, claimant was given restrictions by her personal chiropractor and not an authorized
treating physician.
Messner v. Continental Plastic Containers, No. 107,125, 298 P.3d 371 (Kan. Ct.
App. March 2013).
Q: Under K.S.A. 44-520e(a), does an employer’s full payment of functional
impairment benefits satisfy the claim in full and prevent claimant from modifying
her claim?
A: No. K.S.A. 44-510e(a) provides that the “resulting award shall be paid for the number of
disability weeks at the full payment rate until fully paid or modified.” The employer
argued that once the functional PPD benefits were fully paid, the employee could no
17
longer seek to modify her award and claim work disability. The Court of Appeals
rejected that argument and held that the claimant’s right to seek a modification of her
award did not expire after the weeks fully paid for functional impairment.
Messner v. Continental Plastic Containers, No. 107,125, 298 P.3d 371 (Kan. Ct.
App. March 2013).
KANSAS COURT OF APPEALS:
UNPUBLISHED CASES
Q: Under the Old Act, does a rebuttable presumption of total disability where the
worker has lost both hands or both arms require a complete loss of function?
A: No. Citing Pruter v. Larned State Hospital, 26 P.3d 666 (Kan. 2001), the Court of
Appeals held that a “loss” can be significantly less than 100%. Accordingly, the Court
found the presumption of total disability applied to the claimant who had 15%
permanent partial impairment to her bilateral upper extremities.
Perkins v. Prestige Cabinets, No. 107,233, 2013 Kan. App. Unpub. LEXIS 146
(Kan. Ct. App. Feb. 15, 2013).
Q: Under the Old Act, can an employee recover permanent partial disability benefits
based in part on a 100% wage loss when she voluntarily quit her job?
A: Yes. Under Bergstrom v. Spears Manufacturing Co., 214 P.3d 676 (2009) and K.S.A.
44-510e, a claimant is not required to make a good faith effort to retain or seek
alternative employment after an injury. Here, although the claimant quit her job by
calling in sick one day and never returning to work, the Court upheld the Board’s
calculation of permanent partial disability benefits based on a 100% wage loss. Unlike
in this case, the New Act requires employees to prove their post-injury wage loss is
directly attributable to the current injury.
Chambers v. Wesley Med. Ctr., No. 107,350, 2012 Kan. App. Unpub. LEXIS
1099 (Kan. Ct. App. Dec. 21, 2012); see also Amador v. National Beef Packing, Co.,
286 P.3d 576 (Kan. Ct. App. 2012) (finding no intervening cause can cut off claimant’s
eligibility for work disability and imposing 100% wage loss resulting from an unrelated
car accident).
18
Q: Under the Old Act, when an employee is injured from exposure to outdoor
elements while on the employer’s premises, like wind or lightening, is the injury
always compensable?
A: No. When an injury occurs from the elements, it arises out of employment only if the
employee’s job exposes them to an increased risk greater than the general public.
Here, claimant was walking to the parking lot at the end of her work shift when she was
knocked over by a gust of wind and fell into a fence causing injury to both of her
shoulders. The Court found claimant’s injury was not compensable because her work
did not expose her to any increased risk greater than the general public. In dicta, the
Court indicates that her injury would have been compensable if her accident was
caused by a condition on the employer’s premises instead of the wind. Compensability
will turn on the facts of each individual case.
Bach v. Nat’l Beef Packing Co., No. 107,681, 2012 Kan. App. Unpub. LEXIS
1099 (Kan. Ct. App. Dec. 21, 2012).
Q: In a work disability case under the Old Act, is caring for one’s own children an
economic benefit that amounts to “additional compensation” that can be
considered post-injury wages?
A: No. If the claimant stays home and cares for her own children, this is not the same as
earning wages from an employer and cannot be considered “additional compensation”
under K.S.A. 44-511(a)(2). Not only did the Court reject statutory support for the
employer’s argument, it also found there was no factual evidence to support that the
claimant had an economic gain because she did not pay for childcare when she was
employed.
Parker-Rouse v. Larned Healthcare Ctr., No. 107,221, 2012 Kan. App. Unpub.
LEXIS 946 (Kan. Ct. App. Nov. 2, 2012).
Q: Under the Old Act, is an employee’s injury compensable when the employee has
increased symptoms without any evidence that work accelerated the disease or
caused a change in the employee’s body’s physical structure?
A: No. Although the analysis will depend on each case’s facts and medical testimony, an
employee must still prove an aggravation or acceleration in order for an injury to be
compensable under the Old Act. Here, claimant was diagnosed with stage 4
osteonecrosis in her right hip that necessitated a hip replacement. Although claimant
argued that her work duties accelerated her hip condition based on one doctor’s
testimony, three other doctors concluded that claimant’s work may have increased her
symptoms but did not cause her condition to worsen. Rather, claimant’s condition
would have progressed whether or not she performed her work tasks. The Court
indicates claimant’s injury would have been compensable if she was able to show her
condition was caused by a work-related traumatic event, her work activities caused a
19
change in her body’s physical structure, or her work activities caused her to need a hip
replacement sooner than she otherwise would have needed it.
Huggins v. Haysville Healthcare Ctr., No. 107,407, 2012 Kan. App. Unpub.
LEXIS 880 (Kan. Ct. App. Oct. 26, 2012).
Q: To reduce an award for pre-existing functional impairment under the Old Act,
does a respondent need to prove claimant’s pre-existing impairment with
“competent medical evidence”?
A: No. Under K.S.A. 501(c), respondent has the burden to prove the amount of preexisting functional impairment to be deducted, but the statute does not impose a
standard of “competent medical evidence.” Here, the Board found that respondent
failed to prove by “competent medical evidence” claimant’s pre-existing impairment.
Respondent’s evidence included two physicians’ impairment ratings from the prior injury
(ranging from 7.05% to 10% of each upper extremity) and the settlement award entered
based on those ratings (8% of each upper extremity). In contrast, claimant testified his
symptoms resolved and he had no ongoing impairment. In dicta, the Court indicates
claimant’s testimony is insufficient to overcome respondent’s evidence and a reduction
is appropriate.
Kirker v. Bob Bergkamp Constr. Co., No. 107,058, 2012 Kan. App. Unpub. LEXIS 880
(Kan. Ct. App. Oct. 12, 2012). On March 24, 2013, the Board had not issued a new
decision.
Q: Is a claimant entitled to reimbursement for an unauthorized medical expense for
a doctor’s appointment when the same doctor later performs a separate
independent medical examination and provides a rating?
A: Yes. Because the impairment rating was made based on the second examination, the
first evaluation was not used to obtain an impairment rating and was within the
parameters of K.S.A. 44-510h(b)(2). The Court distinguished this situation from
Deguillen v. Schwan’s Food Manufacturing, Inc., 172 P.3d 71 (2007), where claimant
was denied reimbursement when she saw a physician for a medical examination and
later requested an impairment rating based on the prior examination.
Amador v. Nat’l Beef Packing Co., No. 107,315, 2012 Kan. App. Unpub. LEXIS
885 (Kan. Ct. App. 2012).
Q: When an employee’s leg spontaneously gives out while he is walking and causes
him to fall, does the resulting injury arise out of employment under the Old Act?
A: No. The Court upheld the Board’s decision denying claimant benefits because his injury
resulted from normal day-to-day activities under K.S.A. 44-508(e). Here, there was no
evidence that claimant was walking any differently than he would normally. The medical
records also supported that his leg simply gave out at the time of the accident, i.e. he
20
did not trip or slip. Courts, however, will sometimes stretch to find that claimant’s work
activities caused an increased risk greater than in his non-employment, personal life
and find similar claims compensable.
Meyer v. Neb. Furniture Mart, No. 107,424, 2012 Kan. App. Unpub. LEXIS 887
(Kan. Ct. App. Oct. 12, 2012).
Q: When a co-worker assaults an employee during work, can the employee bring a
tort action against the employer?
A:
No. When a claimant’s injuries arise from an accident covered under workers
compensation, the exclusivity of the Act as a remedy bars the tort claim.
Bernal v. Rubio, No. 106,921, 2012 Kan. App. Unpub. LEXIS 873 (Kan. Ct. App.
Oct. 5, 2012).
Q: If a claimant has a 100% wage loss but 0% task loss, can he still recover a 50%
work disability reward?
A: No. There must be a threshold finding of a permanent impairment or disability before
applying the formula for work disability. Here, claimant had a 0% permanent impairment
and 0% task loss, but had 100% wage loss after his quit his job when his lengthy
commute was too expensive. He argued he was entitled to 50% work disability based
on his wage loss average with his task loss. The Court rejected his argument and found
that K.S.A. 44-510e(a) clearly precludes a finding of permanent partial disability in the
absence of any work task loss or functional impairment.
Blaskowski v. Cheney Door Co., No. 106,899, 2012 Kan. App. Unpub. LEXIS
876 (Kan. Ct. App. Oct. 5, 2012).
Q: When a claimant experiences intermittent groin pain following hernia surgery
from ilioinguinal nerve damage, does the nerve damage constitute a separate and
distinct nonscheduled injury entitling him to work disability benefits beyond
those scheduled for a traumatic hernia?
A: Yes. If claimant proves he sustained a separate and distinct nonscheduled injury, such
as ilioinguinal nerve damage, he may be entitled to work disability benefits beyond
those scheduled for a traumatic hernia in K.S.A. 44-510d(a)(22).
Goudy v. Exide Techs., No. 106,385, 2012 Kan. App. Unpub. LEXIS 734 (Kan.
Ct. App. Aug. 31, 2012).
21
Q: When a claimant has cash-only post-injury earnings, has he met his burden of
proving substantial wage loss when his testimony is inconsistent and he cannot
provide any records?
A: No. A claimant must prove his right to compensation and the various conditions on
which his right depends. Here, claimant’s testimony about post-injury earnings
“primarily consisted of conjecture, estimations, and inconsistencies.” He could not
produce any documentation of his cash-only earnings and the Administrative Law Judge
questioned his credibility. Although the Board found claimant proved a wage loss of
more than 10% of this pre-injury wage, the Court found this decision was not supported
by substantial and competent evidence.
Goudy v. Exide Techs., No. 106,385, 2012 Kan. App. Unpub. LEXIS 734 (Kan.
Ct. App. Aug. 31, 2012).
Q: Under the Old Act, if a physician does not impose permanent work restrictions,
can the factfinder infer that there is no task loss?
A: No. Under K.S.A. 44-510e(a), a physician is required to review the task list for the 15year period preceding the work injury to be qualified to give an opinion on task loss.
Here, the physician was not competent to give an opinion on task loss because there
was no evidence that he reviewed a task list. As a result, his opinion that claimant did
not have any permanent work restrictions could not be interpreted to mean claimant had
no task loss.
Mikesell v. Keim TS, Inc., No. 107,101, 2012 Kan. App. Unpub. LEXIS 699 (Kan.
Ct. App. Aug. 10, 2012).
Q: When claimant alleges a back injury from repetitive trauma and subsequently
settles that claim, is claimant barred from bringing a wrist claim arising out of the
same series of repetitive accidents?
A: Yes. Applying the doctrine of res judicata, the Court of Appeals upheld the Board’s
decision that claimant’s wrist claim should have been raised in his initial claim for his
back injury. As a result, claimant was barred from bringing a wrist claim arising out of
the same repetitive series of accidents.
Hughes v. State, No. 107,108, 2012 Kan. App. Unpub. LEXIS 698 (Kan. Ct. App.
Aug. 10, 2012).
22
Q: Are a claimant’s receipt of benefits upon review and modification limited to 415
weeks from the date of the original accident?
A: Yes. Review and modification proceedings are subject to the limitations provided in the
workers’ compensation act, including the 415-week limitation period.
Camp v. Bourbon Cnty., No. 104,784, 2012 Kan. App. Unpub. LEXIS 612 (Kan.
Ct. App. July 27, 2012).
Q: Can a foreign corporation that contracts work to a Kansas location be covered by
the Kansas Workers’ Compensation Act as a statutory employer?
A: Yes. But only if the work performed by the contractor is an integral part of the principal’s
business or is the type of work ordinarily performed by the principal’s employees. Here,
a German company contracted laboratory testing work to a Delaware corporation with a
Kansas testing facility. Three Kansas employees brought a civil tort claim against the
German company asserting they had developed cancer after being exposed to a
fungicide at a Kansas testing facility. The plaintiffs argued that the German Company
was not their “employer” and was not covered by the Kansas Workers’ Compensation
Act. Ultimately, the Court found the German company qualified as a statutory employer
because the testing done by the Kansas facility was an integral part of the German
company’s business of crop protections and environmental science. Accordingly, the
German company was covered by the worker’s compensation act and immune from tort
liability for plaintiff’s injuries.
Robertson v. Bayer CropScience, AG, No. 107,669, 2013 Kan. App. Unpub.
LEXIS 86 (Kan. Ct. App. Feb. 1, 2013).
23
24
DECISIONS APPLYING THE KANSAS NEW ACT
Kansas Court of Appeals Decisions
Medical Causation:
Chriestensen v. Russell Stover Candies, 263 P.3d 821, 826 (Kan. Ct. App. 2011).
Claimant alleged she was permanently and totally disabled due to exposure to
multiple chemicals during the 20-month period she worked for the employer. Claimant
had a history of multiple chemical sensitivity dating back at least eleven years before
her employment with the respondent. The Court of Appeals held that causation in a
workers’ compensation case must be based on substantial evidence and not on mere
speculation. When the salient question is the cause of a medical condition, the
maximum of post hoc, ergo propter hoc (the symptoms follow the exposure; therefore,
they must be due to it), is not competent evidence of causation. The Court found the
opinion of Claimant’s expert to be insufficient evidence to meet her burden of proving
causation.
Board of Appeals Decisions
Prevailing Factor:
Romeo v. General Motors
Handled by MVP attorney Fred Greenbaum
Appeals Board affirmed ALJ Belden’s Regular Hearing Award
Claimant was working on raised platform when he stepped into a hole with his
right foot. Claimant landed on his right elbow and had immediate pain in his right
shoulder and knee. Claimant was treated and diagnosed with contusions, abrasions,
and stains/sprains. Claimant was referred to an orthopedic surgeon who diagnosed
degenerative joint disease in claimant’s right knee and a Grade III SLAP lesion at the
right shoulder. During right shoulder surgery, however, the surgeon noted claimant did
not have a SLAP lesion and only found degenerative changes similar to those noted in
an earlier surgery on the same shoulder.
Based on this evidence, Administrative Law Judge Belden found claimant’s work
injury was limited to a contusion and strain/sprain of the right knee and shoulder. In
doing so, Judge Belden found the workplace fall was not the prevailing factor in causing
claimant’s degenerative changes in either his knee or shoulder. Even if claimant’s
conditions were rendered symptomatic, an injury is not compensable solely because it
aggravates a pre-existing condition. Judge Belden further determined that claimant
failed to prove any resulting impairment or disability from the work-related strain/sprain
for an award of permanent partial disability compensation. Claimant appealed the ALJ’s
decision to the Board. Ultimately, the Board affirmed Judge Belden’s decision on all
25
grounds. The Board held that the work-related accident only caused temporary sprains
and strains, but no permanent impairment or disability.
Powers v. The Kansas City Star Company, Docket No. 1,060,267 (March 2013).
Appeals Board reversed ALJ Hursh’s Preliminary Hearing Order
Claimant was working delivering newspapers for three months when she began
noticing pain in her hands and wrists after rolling and throwing hundreds of newspapers
daily. Claimant alleged her bilateral carpal tunnel syndrome was work-related, but
respondent argued that her work activities were not the prevailing factor causing her
medical condition and injury.
Both parties presented conflicting medical opinions. Ultimately, the Court judged
the doctors’ credibility and found claimant’s work activities were not the prevailing factor
in causing her bilateral carpal tunnel. The Court found Dr. Walker’s testimony that
claimant’s injuries stemmed from a long-standing underlying condition more credible
given his consideration of claimant’s work activities and diagnostic images. This was
also consistent with claimant’s initial report of a history of pain lasting more than 37
months. Conversely, claimant’s expert did not record a history of the onset of claimant’s
pain, did not look at the x-rays, and inaccurately described claimant’s work conditions
before amending his report. Based on this evidence, the court found claimant failed to
prove her work activities were the prevailing factor in causing her injuries.
Hastings v. Kansas Expocentre, Docket No. 1,062,292 (March 2013).
Handled by MVP attorney Karl Wenger
Appeals Board affirmed Judge Sanders’ Preliminary Hearing Order
Claimant was working as a janitor when he was pushing a big gray trash can and
heard his right ankle snap. Several years before the work incident while working for
another employer, claimant was walking on concrete when his right ankle snapped.
Claimant testified the current snap was in the same place and felt the same as his prior
injury. Claimant admitted that he had ongoing pain in his right ankle since 2008 that he
rated at a level 10. Ultimately, the Board affirmed the Preliminary Hearing Order
entered by ALJ Sanders finding claimant aggravated a pre-existing condition and the
work incident was not the prevailing factor in his current need for workers’
compensation benefits.
Beck v. Nutriject, Inc., Docket No. 1,059,728 (April 2013).
Handled by MVP attorney Katie Black
Appeals Board reversed ALJ Sander’s Preliminary Hearing Order
Claimant was working as a project manager/truck driver when he alleged low
back pain due to repetitive trauma from driving his truck, climbing trailer tanks, and
performing mechanical work on the trucks and trailers. Claimant had several significant
prior back injuries from getting his leg caught in a power shaft and falling off a tanker.
26
Respondent argued claimant’s current work activities were not the prevailing factor in
causing his medical condition and need for treatment to his back. In reaching its
decision, the Board weighed three causation opinions and found claimant’s history is
most compatible with gradual progression of degenerative changes documented before
his alleged work injury. Based on this evidence, the Board determined claimant failed
to prove his work duties were the prevailing factor in the ongoing progression of his low
back problems and reversed the ALJ’s decision awarding benefits for claimant’s low
back complaints.
Rauls v. Preferred Risk Insurance Servs., Docket Nos. 1,061,187 & 1,061,188
(March 2013).
Handled by former MVP attorney Lara Plaisance
Appeals Board affirmed ALJ Belden’s Preliminary Hearing Order
Claimant was working in a desk-based administrative position when she alleged
repetitive trauma injuries to her back and bilateral legs from working at an oversized
desk and twisting to answer the phone. She alleged a second injury to her back when
she was forced to return to work before she fully recovered. Claimant “never had time”
to tell her supervisor about the injuries and pursued treatment on her own. She did not
indicate her injury was work-related on any medical forms. The Board determined
claimant failed to give timely notice on both claims, but noted that respondent’s
argument that claimant merely aggravated a pre-existing condition was “well taken.”
The Board indicated that even if proper notice had been given, there was insufficient
evidence to prove claimant’s workplace incident was anything more than an aggravation
of a pre-existing back condition.
Marquez v. Collectia Ltd., Docket No. 1,056,635 (October 2011).
Appeals Board reversed ALJ Fuller’s Preliminary Hearing Order
Claimant developed low back pain after lifting trash bins onto a flatbed truck
without using a crane lift. Claimant told his employer a few days later that he was
having back pain and going to see a doctor, but did not mention the work accident.
Chiropractor notes indicated “reactivation” of low back pain, but no mention of workrelated incident. The accident was eventually reported one month later.
Respondent argued the work accident was not the prevailing factor causing the
injury. The Board agreed and found claimant failed to carry his burden given the lack of
mention of a work-related incident in the contemporaneous medical records from
several providers.
***Note: The respondent could have potentially pursued a notice defense
because the claimant sought medical treatment on his own, which shortens the notice
period to 20 days from the date of accident. Claimant would have been out of time
before June 14, 2011.
27
Lowrey v. USD 259, Docket No. 1,056,645 (November 2011).
Appeals Board reversed ALJ Clark’s Preliminary Hearing Order
Claimant was working on the third rung of ladder in the boiler room when he
missed a step going down and fell to the floor. He hit his left knee, right shoulder and
back of his right arm. Although his other complaints resolved, he continued to have
complaints related to his knee. An MRI revealed a meniscal tear as well as significant
joint degeneration and clearly preexisting degenerative changes. The respondent
argued that there was no accident and that the accident was not the prevailing factor
causing the medical condition.
The Board held that medical evidence is not necessary to prove an accident or to
prove that the accident caused an injury. The claimant’s testimony can be sufficient.
But before the injured employee is eligible for treatment that employee must prove that
the accident was the prevailing factor causing the injury. The medical evidence
suggested the mensical tear was separate from the degeneration and that the
mechanical symptoms the claimant was having were the result of the meniscal tear.
However, the doctor’s opinion did not address whether the meniscal tear was the result
of the alleged work accident. Accordingly, the Board reversed the ALJ’s order and
found there was an accident and injury, but did not find that the claimant met his burden
of proving the accident was the prevailing factor causing the injury.
Strome v. US Stone Industries, Docket Nos. 1,058,202 & 1,058,204 (February 2012).
Appeals Board affirmed ALJ Sanders’ Preliminary Hearing Order
Claimant alleged injury to his back. As the claimant was walking to the office, he
was startled by the sound of tires on gravel and jerked and twisted his back. Claimant
reported a stabbing pain in the middle of his low back. Claimant alleged a second
accident approximately two weeks later when he lost his footing on a concrete deck,
stepped backwards approximately one foot, and felt a cracking sensation and pain in his
back and neck. Claimant underwent two MRIs which both showed degenerative
changes. Dr. Henry opined that claimant’s twisting motion could have exacerbated his
underlying condition, but it was not the prevailing cause.
The Board found that the evidence established that claimant had no problems
with his back prior to the alleged accident; that claimant probably had degenerative disk
disease in his low back which preexisted the alleged accidents; that claimant’s
preexisting disease was likely made symptomatic, aggravated, triggered, or precipitated
by the accident; and that the degenerative disease probably developed as a result of
the natural aging process. Additionally, the only medical opinion to address the
prevailing factor issue concluded that the alleged accidents were not the prevailing
cause.
Accordingly, the Board held that claimant’s evidence that he was asymptomatic
before the first alleged accident and became symptomatic thereafter is relevant to the
28
issue raised by claimant, but is insufficient to sustain claimant’s burden of proof in light
of the amended Act and unrefuted opinion of Dr. Henry.
Tindell v. Associated Wholesale Grocers
Appeals Board reversed ALJ Hursh’s Preliminary Hearing Order
Claimant alleged injury to his left shoulder arising out of and in the course of his
employment. Claimant worked for the employer for 31 years as a driver/loader in a
warehouse. Although he admitted to various aches and pains over the years from doing
his work, including pain in his left shoulder, he did not note any special problems prior to
February 1, 2012. On that day, Claimant felt a pop and sharp pain in his left shoulder
while moving some product by hand. He finished his shift, but had continued pain and
reported his injury first thing the next day.
Dr. Lingenfelter noted an MRI showed a massive two tendon rotator cuff tear, but
also showed grade II fatty degeneration in the tear, which beyond a doubt meant the
tear did not occur as recently as February 1, 2012. Dr. Lingenfelter said it was possible
the tears were caused by overload from repetitive loading and lifting and remained
unsymptomatic until the February 1, 2012, “flare up.”
Claimant obtained the opinion of Dr. Hopkins who opined that the claimant’s 31
years of heavy repetitive work duties culminating with the specific injury of February 1,
2012 was the prevailing factor causing the left shoulder condition and need for
treatment.
ALJ Hursh denied all benefits and found the February 1, 2012 trauma started the
symptoms in claimant’s left shoulder. The MRI results showed the physical damage to
Claimant’s shoulder was clearly pre-existing. Therefore, the February 1, 2012 traumatic
injury was an aggravation of a pre-existing condition and as such was not an injury
arising out of and in the course of employment. ALJ Hursh also determined there was
insufficient evidence to find Claimant suffered injury by repetitive trauma arising out of
and the course of his employment. Dr. Hopkins’ statement that at least half of the
males over age 50 have similar changes tended to show this was an injury resulting
from natural aging and not claimant’s work activities. The Board disagreed and
reversed ALJ Hursh’s decision finding that a full thickness tear is not characteristic
normal degenerative change. The Board find claimant was exposed to an increased
risk of injury than in his non-employment life and awarded benefits.
Prevailing Factor – multiple employments
Mazouch v. U.S.D. 428 and Mazouch v. Wal-Mart, Docket Nos. 1,058,571 &
1,058,572 (April 2012).
Appeals Board affirmed in part and reversed in part ALJ Moore’s Preliminary Hearing
Order
29
Claimant alleged injury by repetitive trauma against two separate employers.
Claimant had worked part-time for U.S.D. 428 in food service since 1998. In July 2010
Claimant began a second part-time job at Wal-Mart. At Wal-Mart claimant spent two
months in the deli department and then moved to cashier. In July 2011 she transferred
to the floor where she folded clothes and picked up after customers. At some point the
claimant began experiencing numbness in her hands, which eventually radiated up to
her arm and caused tightness and pain in her shoulders and neck.
Claimant was diagnosed with severe carpal tunnel syndrome on October 12,
2011. She first reported her problems to her supervisor at U.S.D. 428 and was told she
also needed to file a workers compensation claim against Wal-Mart, which she did that
same day. Dr. Brown evaluated the claimant and opined that work claimant performed
for U.S.D. 428 and Wal-Mart exposed the claimant to an increased risk and the
increased risk was the prevailing factor in causing her medical conditions and resulting
disability. He further found that the work at U.S.D. 428 was the prevailing factor in 75%
and work for Wal-Mart was the prevailing factor in 25% of the medical conditions and
resulting disability or impairment.
The ALJ found that claimant’s work at U.S.D. 428 was the prevailing factor in
development of her bilateral upper extremity complaints and ordered U.S.D. 428 to pay
benefits. The Board noted the prevailing factor statute cannot be interpreted to mean
that a larger contribution by one employment requires that another employment must be
found not to be a prevailing factor. Under K.S.A. 44-503a, whenever an employee has
multiple jobs and has a work-related injury attributable to both employers, the employers
are liable to pay a proportionate amount of the workers’ compensation benefits. The
Board found this logic applied to repetitive trauma injuries. Accordingly, the Board
found both work at U.S.D. 428 and Wal-Mart contributed the claimant’s bilateral upper
extremity injuries and both employers were liable for a portion of claimant’s benefits.
Future Medical Care
Smith v. Sugar Creek Packing Co., Docket No. 1,057,323 (Feb. 2013).
Appeals Board affirmed ALJ Avery’s Regular Hearing Award
Claimant had a compensable injury to her back. Following treatment, her doctor
made recommendations for future medical care consisting of “anti inflammatory
medicines by mouth, aerobic conditioning exercises, and rotator cuff strengthening
exercises.” Because this conservative care is not considered “medical treatment” under
the new Act, which specifically excludes home exercises programs or over-the-counter
medications, claimant failed to sustain her burden of proving additional medical
treatment is necessary. Accordingly, future medical benefits were denied to the
claimant.
30
Notice
Brooks v. Hawker Beechcraft, Docket No. 1,059,392 (June 2012).
Handled by MVP attorney Brent Johnston
Appeals Board affirmed ALJ Moore’s Preliminary Hearing Order
Claimant notified his employer of an alleged work-related accident twenty-one
days of his last day of actual work. Claimant argued his notice was timely when
calculated from the last day he received compensation from his employer paid as part of
severance package. The Board affirmed the ALJ’s decision finding claimant failed to
provide adequate notice and denying benefits. The Board found the plain and
unambiguous meaning of the term “actual work” is the last day the employee physically
performs work activities for the employer.
Tellington v. General Motors, Docket Nos. 1,062,753 & 1,062,754 (April 2013).
Handled by MVP attorney Elizabeth Dotson
Appeals Board affirmed in part and reversed in part ALJ Hursh’s Preliminary Hearing
Order
Claimant developed wrist pain in 2009 while working in a car assembly plant in
Tennessee. At that time, claimant saw a doctor and was diagnosed with carpal tunnel
syndrome. Claimant continued to work, her symptoms subsided, and she did not
receive any more treatment. Later in 2009, claimant was transferred to Kansas City and
again complained about symptoms in her hands in 2011. Respondent argued
claimant’s date of injury was in 2009 when she was initially diagnosed with carpal tunnel
and told her injury was work-related. The one-member Board disagreed and found
claimant’s date of injury is not in 2009 because claimant was not told in writing her
condition was work-related, was not taken off work, and did not provide the employer
written notice of an injury. Based on a date of injury in 2011, the Board determined
Kansas jurisdiction was proper to decide the claim and awarded benefits to the claimant
based on a repetitive trauma injury.
Arising Out Of and In the Course of Employment
Hayes v. Applebee’s Newton, Docket No. 1,058,936 (August 2012).
Handled by MVP attorney John Emerson
Appeal Board affirmed ALJ Moore’s Preliminary Hearing Order
Claimant was working as a bartender when he developed a corneal infection in
his eye. Although claimant alleged a particle fell into his eye while he was at work, the
medical records showed claimant denied a right eye injury, wore contact lenses too
long, and had bad contact lens hygiene. Claimant’s painful eye condition was also
documented to have persisted for two weeks, which put the origin before the claimed
accident date. Based on the evidence, the Board upheld the ALJ’s decision finding
claimant failed to prove an accident arising out of and in the course of employment.
31
Graves v. Professional Service Industries, Docket No. 1,059,190 (April 2012).
In her job as a field inspector, claimant got in and out of her vehicle twenty to
thirty times per day. When she was stepping out of her work truck and putting weight
onto her foot, claimant felt a pop in her knee. She did not trip, twist, or slip. She could
not describe the type of surface she stepped out on. ALJ Sanders denied benefits to
the claimant finding that her injury came from a neutral risk not associated with her
employment and did not arise out of employment:
Claimant injured her knee while exiting a vehicle that was not excessively high off
the ground and stepping onto a surface that was neither uneven or slippery.
These circumstances constituted a risk that is not particular to her job. While
getting in and out of her truck was inherent to her job, it did not put Claimant at
risk.
After considering the evidence, the Board affirmed the ALJ’s decision on the same
grounds.
Murphy v. State of Kansas, Docket No. 1,054,829 (May 2013).
Appeals Board reversed ALJ Howard’s Regular Hearing Award
This was a decision from the Kansas Appeals Board following a Regular Hearing
wherein Claimant was awarded workers’ compensation benefits. The Board reversed
Judge Howard’s Award and found Claimant's injury did not arise out of and in the
course of her employment under the coming and going rule. Claimant was employed by
the State of Kansas and was working in the Wyandotte County Courthouse as a Clerk.
She was injured in the morning when she tripped over a mat in the Courthouse while
on her way to assume her work duties. She had not clocked in for work and was not on
the floor where she performed her work duties.
We argued that she was not on her employer’s premises as she was a State
employee and the State did not own, operate or control the courthouse. Further, we
argued that Claimant was in an area that was used by the general public and it was not
the only available route to her work station. The Board agreed and reversed the Award
of Judge Howard by finding that the Wyandotte County Courthouse was not the
premises of the State of Kansas and the circumstances surrounding the fall did not
meet the exceptions to the coming and going rule.
Date of Accident - Repetitive Trauma
Burnom v. Cessna Aircraft Co., Docket No. 1,056,443 (November 2011).
Appeals Board reversed ALJ Barnes Preliminary Hearing Order
32
Claimant alleged a series of repetitive injuries to her knees through her last day
worked, which was April 25, 2011. The respondent was not notified of any claim until
receiving the Notice of Intent, which was filed June 21, 2011. Under the old Act the
claimant’s date of accident would be June 21, 2011. Under the new Act, the claimant’s
date of accident would be April 25, 2011. Therefore, if new Act were applied, the
claimant’s claim would be time barred and compensation would be denied. If the old
Act were applied, notice would be timely.
The Board held the new Act did not apply because it would require an
impermissible retroactive deprivation of substantive and vested rights. Applying the old
Act provision regarding date of accident, the Judge fixed the date of accident as June
21, 2011.
Whisenand v. Standard Motor Products, Inc., Docket No. 1,056,966 (January 2012).
Appeals Board reversed ALJ Yates’ Preliminary Hearing Order
Claimant alleged an injury to his left shoulder and low back from constantly
reaching, pulling, bending, twisting, and lifting to unload or break down skids.
Claimant’s last day worked was April 21, 2011. Although the date the claimant provided
notice to her employer was disputed, the Court determined the claimant did not give
notice until July 11, 2011. Application of the new Act would result in a date of accident
of April 21, 2011 and the claimant’s claim would be time barred. Under the old Act, the
claimant’s date of accident would be July 14, 2011, the date the authorized treating
physician provided work restrictions.
In this case, the Board applied the old Act as the claimant last worked for
respondent on April 21, 2011. Therefore, the Board found claimant timely reported her
injury.
Notice
Wilson v. United Parcel Service, Docket No. 1,058,989 (April 2013).
Handled by MVP attorneys James Wolf and Karl Wenger
Appeals Board reversed ALJ Clark’s Regular Hearing Award
Claimant was working as a truck driver when he alleged pain in his left hip due to
repetitive trauma from pushing in the clutch. Claimant testified that he told his
supervisor during a ride-along about the work-related injury; however, his supervisor
denied both having a ride-along with claimant or being notified of the injury. Claimant
pursued treatment with his own primary care physician who wrote that claimant had
arthritis in his left hip. Claimant did not indicate the injury was work-related. Claimant
later discussed his hip injury with a supervisor, but said he was being treated for bursitis
and did not indicate it was work-related.
The Board found that the claimant failed to prove it was more probable than not
that he provided the employer notice of his injury. Although claimant testified he
33
understood workers’ compensation reporting requirements, he did not fill out any forms,
request medical treatment, or indicate his injury was work-related on his application for
short-term disability. Moreover, his assertion that he told his supervisor his hip was
painful was not enough to give notice of a work-related injury. Claimant later testified
that he told his supervisor it was from a specific work activity, but the Board did not find
this testimony credible. Further, the Board found that even if claimant provided timely
notice, he failed to prove an accidental injury arising out of his employment due to his
questionable credibility on the issue of whether his injury occurred at work.
Ferguson v. Resers Fine Foods, Inc., Docket No. 1,057,620 (March 2012).
Appeals Board reversed ALJ Sanders’ Preliminary Hearing Order
Claimant alleged an injury when he tripped and fell at work. Claimant told two
floor supervisors about the accident the day it happened, but he never told his actual
supervisor about the incident as required by respondent’s reporting procedure.
Claimant later met with a member of the human resources department and was again
told he needed to tell his supervisor about the accident and filled out a written document
indicating he had discussed reporting procedure for an alleged accident. Following a
preliminary hearing, the ALJ denied benefits because the claimant did not provide
notice to his supervisor as required by respondent’s accident reporting procedure.
The Board reversed the ALJ’s decision and awarded benefits. The Board noted
that under the new statute, “where notice is provided orally, if the employer has
designated an individual or department to whom notice must be given and such
designation has been communicated in writing to the employee, notice to any other
individual or department shall be insufficient under this section.” K.S.A. 44-520(a)(2).
The Board found that the respondent’s policy only required the claimant notify an
individual with the title of supervisor, which claimant did on the day of accident.
Additionally, the Board noted that notice may also be provided in writing and
further found that the written document signed and delivered to respondent’s human
resources constituted timely written notice of the alleged accidental injury.
***Note: Employers may designate an individual or department to receive notice,
rendering notice to anyone else insufficient. However, this designation must be
communicated in writing to the employee AND is only effective with regard to oral
notice. Notice in writing must be sent to a “supervisor or manager at the employee’s
principal location of employment,” regardless of any other designation by the employer.
Huerter v. Orval Jueneman Dozer Services, Inc., Docket No. 1,058,888 (April 2012).
Appeals Board affirmed SALJ Shelor’s Preliminary Hearing Order
Claimant alleged he was helping his supervisor move a concrete saw when the
saw hit him in his right eye. Claimant testified he was hit hard enough that he saw stars
and was nearly knocked out. Claimant staggered back and sat in a chair holding his
eye. He did not say anything to anyone at his employer about the accident or injuring
34
his eye, but thought his supervisor and a nearby co-worker witnessed the accident.
When claimant got home that evening he had a black eye. When he returned to work
the next day, no one said anything about the black eye nor did claimant report the injury
to anyone. Over one month later, claimant began developing vision problems and had
emergency surgery for a retinal tear. Claimant reported his injury immediately after
being diagnosed with the retinal tear. Both claimant’s supervisor and another employee
claimant alleged witnessed the injury testified they were unaware of any accident and
never saw claimant with a black eye.
The ALJ denied benefits because the claimant failed to provide notice of his
accident within 30 days. Claimant appealed arguing that he was physically unable to
give notice because he was unaware of the retinal tears until over 30 days after his
accident. The Board noted that under prior law, these circumstances could be
considered as just cause to enlarge the time for giving notice but the legislature
removed that portion of the statute. Therefore, the fact that claimant was unaware of
the severity of his injury is irrelevant under the current statute for purposes of extending
the time for giving notice. Additionally, the Board noted that whether or not claimant
knew the severity of his injury, he did know of his accident and that was injured in some
degree, at least to the extent of having a black eye. Moreover, the Board found that the
employer did not have actual knowledge of the injury based on the testimony of
claimant’s supervisor and co-worker. Accordingly, the Board denied benefits based on
claimant’s failure to give timely notice.
Safety Defense
Goodson v. Goodyear Tire & Rubber Co., Docket No. 1,057,615 (January 2012).
Claimant alleged injury by repetitive trauma from lifting and carrying liners on
shells weighing from 30 to 100 pounds. Respondent asserted a safety defense under
K.S.A. 44-501(a)(1)(D) for reckless violation of its workplace safety rules or regulations
because the claimant lifted double liners, which was a violation of what respondent
contended was a safety rule.
The Board held that there was insufficient evidence to show that claimant was
aware of the alleged safety rule prior to his date of accident. No witnesses testified they
told the claimant about the safety rule. Two small notices were posted in the claimant’s
work area, but claimant denied seeing them prior to his injury. Furthermore, the Board
stated that the notices posted did not constitute a safety rule, but rather a request not to
lift double liners unassisted.
Solorzano v. Packers Sanitation Servs., Docket No. 1,056,986 (January 2012).
Appeals Board reversed ALJ Fuller’s Regular Hearing Award
35
Claimant was part of a team that cleaned the Tyson plant. Claimant suffered a
fractured forearm after her glove got caught on a conveyor and crushed her arm
between a roller and a belt. Respondent asserted a safety defense for claimant’s
failure to follow the lockout/tagout safety policy.
Claimant attended several training sessions on lock-out procedures, including
one session specifically on the machine she was cleaning when she was injured.
Claimant had followed the lockout/tagout procedure when cleaning the belts and
conveyors. After she finished, she realized she missed a spot underneath the
conveyors. She did not lock out the machine before cleaning this spot. Claimant
acknowledged that she had been trained to lock out a machine before cleaning it and
that she had done so before cleaning the belts. Nevertheless, she did not think that
safety rule applied to cleaning the area beneath the conveyor where she was cleaning
when her injury occurred. Her testimony was contradicted by her admission that the
respondent’s policy was to lock out a machine when working within six feet of the
machine.
The Board held that a claimant must be aware of and understand a safety rule
before she can be said to have recklessly violated the rule. The Board stated it did not
appear from the record that claimant understood the policy of locking out any machine
within six feet applied to the work she was doing when the accident occurred.
Price v. Baker d/b/a Sunshine Lawn, Docket No. 1,058,418 (Feb. 2012).
Appeals Board reversed ALJ Howard’s Preliminary Hearing Order
Claimant, a tree trimmer, was injured when he fell from a tree after failing to use
a safety harness, lanyard, and rope. Claimant had been instructed to use the safety
harness and was shown how to use it. The Board indicated that even absent a written
policy, verbal instructions coming from a supervisor have the force of a rule.
Accordingly, the employer was held to the lesser burden of proving a reckless violation
under K.S.A. 44-501(D), versus a willful violation under 44-501(D). Even so, the Board
found claimant’s actions would satisfy either burden because he both willfully failed to
use the safety protection provided to him and recklessly violated a safety rule.
Sweger v. Pro-Kleen, Inc., Docket No. 1,057,357 (June 2012).
Appeals Board affirmed ALJ Moore’s Preliminary Hearing Order
Claimant was injured when the vehicle he was driving rolled and he was ejected
through the windshield. The Board determined that it was more likely true than not that
claimant failed to wear or attach his seatbelt at the time of the accident. However, the
Board still found the injury compensable because respondent had failed to prove the
violation was willful or reckless. The Board did not provide any insight into the facts
supporting its conclusion.
Fighting or Horseplay
36
Wenrich v. Duke Drilling Co., Docket No. 1,060,610 (Jan. 2013).
Handled by MVP attorney John Jurcyk
Appeals Board affirmed on other ground ALJ Fuller’s Preliminary Hearing Order
Claimant was working as a driller on an oil rig when he got into a fight with a coworker over where a ditch should be dug. During the fistfight, claimant slipped on oil
and fell causing a fractured hip. Although claimant tested positive for marijuana, the
Board indicated the greater weight of the evidence showed that claimant was not
impaired and the marijuana use did not contribute to his injury. Even so, the Board
denied benefits to the claimant because his injury was caused by his voluntary
participation in a fight.
Future Medical Treatment
Vega v. Lowe’s Home Centers, Inc., Docket No. 1,048,416 (May 2012).
Appeals Board reversed in part and affirmed in part ALJ Hursh’s Regular Hearing
Award
Claimant was awarded permanent disability benefits for an injury on August 15,
2009. The ALJ did not award claimant future medical benefits, relying on the amended
version of K.S.A. 44-510h, which requires claimant to prove his entitlement to future
medical treatment. The Board affirmed the award of permanent disability benefits, but
found K.S.A. 44-510h, as amended effective May 15, 2011, was not applicable to this
claim because that provision was not in effect when claimant sustainer her accidental
injuries. Consequently, it cannot be retroactively applied to this claim. The Board
reasoned the amended version of K.S.A. 44-510h affects the substantive rights of the
parties and there is nothing in the language of the new act which suggests that the
legislature intended for the section to apply retroactively. Accordingly, the Board held
that claimant’s right to future medical treatment remained open upon application to and
approval by the Director.
37
ALJ Level Decisions Applying KS New Act
Prevailing Factor
Way v. Dee Jay's QSR Inc.
Preliminary Hearing Order by ALJ Avery with no review by Appeals Board
Handled by MVP attorney Kendra Oakes on behalf of Eric Lanham
Claimant alleged traumatic injury to his shoulder on August 1, 2011 and testified
that he told his shift manager and wrote out a statement on a plain sheet of paper to
leave for the store manager who was also his friend. Store manager, shift manager and
co-worker all testified that no one had any knowledge Claimant had sustained an injury
to his shoulder on August 1, but the claimant had always complained about a “bone
spur” in his shoulder over the course of his employment with the Respondent.
ALJ Avery denied all benefits finding:
•
Claimant had complained of shoulder pain every 2-3 weeks before the alleged
accident and there was no medical evidence addressing the issue of whether the
alleged accident was the prevailing factor in causing his medical condition.
•
Claimant’s manager testified that the first time he had notice of an alleged
accidental injury was in September 2011 when an attorney contacted him about
the claimant receiving treatment for his alleged injury. This was more than 30
days after his alleged accident. The ALJ found claimant’s testimony to lack
credibility and denied benefits.
MacIntosh v. Goodyear Tire & Rubber Co.
Preliminary Hearing Order by ALJ Sanders with no review by Appeals Board
Claimant was a forklift operator who had to drive his forklift over a ramp multiple
times a day which resulted in a significant jolt where Claimant was bounced up and
down in the seat of the forklift each time. On one occasion when Claimant was
bounced, he felt significant pain going from his low back into his right side. Claimant
had problems with his low back dating back to 2006. He had two MRIs. The first in
2009 showed a mild broad based disk bulge and suspected annular tear within the
bulge at L3-4 and left paracentral mild protrusion at L4-5. The second MRI was in
August 2011 and showed an acute herniated disk at L5-S1 and stenosis of the lateral
recesses on the left at L4-5.
ALJ Sanders denied all benefits and found claimant had preexisting condition in
his lumbar spine prior to this alleged accident which had required medical treatment.
Although there were more severe symptoms following the alleged accidental injury and
the symptoms were on his right side rather than his left, as before, the prevailing factor
38
in Claimant’s need for treatment was an aggravation and exacerbation of the preexisting
condition.
Gitchel v. Philips County Retirement
Preliminary Hearing Order by ALJ Moore with no review by Appeals Board
Handled by MVP attorney James Wolf
Claimant was a CNA in a nursing home. She alleged an injury to her back when
she twisted while reaching for a wheelchair. Claimant had a prior injury to her low back
in 2009 while working for the Respondent.
At some point she left Respondent’s employ and went to work as a cashier at a
convenience store. She returned to Respondent’s employ on August 18, 2011. At her
interview she told Respondent that her back was not giving her any significant
problems. However, she sought medical treatment for low back pain that same day
after leaving her interview. The records from that date indicate that her back had gotten
progressively worse in the preceding couple of weeks. Six days before her alleged
accident Claimant sought treatment for chronic low back pain with her primary care
doctor with some pain radiating down her right leg and no relief from Lortab or
Gabapentin.
The morning of the alleged accident Claimant was complaining of chronic and
severe low back pain as she began her shift and appeared to be walking stiffly early in
the shift. Reports were obtained from Dr. Reiff Brown on behalf of the Claimant and by
Dr. John Estivo on behalf of the Respondent. The doctors’ opinions regarding the issue
of prevailing factor opposed each other.
ALJ Moore denied all benefits and found claimant merely aggravated,
accelerated or exacerbated her pre-existing condition. Thus, Claimant failed to sustain
her burden of proving that her accident was the prevailing factor in causing her injury,
medical condition or resulting disability. Dr. Estivo’s opinion was more persuasive as
Dr. Brown’s opinion offered a conclusion without convincing analysis while Dr. Estivo’s
opinion was based on Claimant’s pre and post accident diagnosis and treatment
recommendations.
Notice
Gardner v. Certainteed Corp.
Preliminary Hearing Order by ALJ Belden pending review by Appeals Board
Claimant was working on a manufacturing line filling bags with insulation when
she alleged repetitive trauma injuries to her wrists. Although claimant’s symptoms
began in 2011, the Court set the date of accident on November 7, 2012, when claimant
was first told by her treating physician that her condition was work-related. The Court
determined claimant’s work activities involving repetitive grasping placed her at an
39
increased risk for developing injury and found her work activity was the prevailing factor
in causing her injury and need for medical treatment. Even so, the Court denied
claimant benefits based on insufficient notice. Claimant was required to provide notice
within 30 days of the accident date, which was set by the court on November 7, 2012.
The Court determined respondent did not receive notice until February 2013. Although
claimant may have had casual conversation with her employer about pain, this was not
sufficient to put her employer on notice that she had a work-related injury or was
claiming workers’ compensation benefits.
Because she failed to provide sufficient
notice, claimant was denied benefits.
Safety Defense
Williams v. General Motors, Docket No. 1,062,816 (Jan. & March 2013).
Preliminary Hearing Order by Judge Howard with no review by Appeals Board
Handled by MVP attorney Elizabeth Dotson
Claimant was working as a forklift driver when he alleged a body as a whole
injury due to repetitive trauma from the use of a defective forklift. Claimant specifically
alleged the seatbelt was not adjustable and the low tires caused the forklift to bounce.
Claimant was required to complete a pre-safety inspection every time he used the
forklift and sign off that the forklift was in working order. Although claimant testified he
told his supervisor that there were problems with the forklift, respondent presented
evidence that claimant marked everything was fine during his inspections. A post-injury
evaluation by the shop also did not find anything wrong with either the tires or seatbelt.
Based on this evidence, Judge Howard determined claimant’s testimony was
inconsistent and terminated benefits awarded in a prior preliminary hearing.
Neutral Risk
Thorne v. Leavenworth Detention Center
Preliminary Hearing Order by ALJ Belden with no review by Appeals Board
Handled by MVP attorney John Emerson
Claimant was working as a corrections officer when she suddenly fell while going
down a three-step stairway. Claimant testified the steps were concrete without any
gripping material, but were not wet when she fell. Her required radio did not interfere
with her walking, and she was not hurrying to respond to an emergency. Judge Belden
found claimant lost her footing for reasons unrelated to her particular employment.
Accordingly, he denied benefits because claimant’s accident arose from a neutral risk
with no particular employment character.
Camacho v. Norcraft Co.
Preliminary Hearing Order by ALJ Moore with no review by Appeals Board
Handled by MVP attorneys Cliff Stubbs and Brent Johnston
40
Claimant was working when she became lightheaded and fell causing her injury.
At a preliminary hearing, respondent presented evidence that claimant had a history of
uncontrolled diabetes persisting at least two years before the workplace fall. Claimant
confirmed within two weeks before her injury, she became lightheaded or passed out at
work as a result of her diabetes. Based on this evidence and the contemporaneous
medical records that documented claimant’s fall occurred as a result lightheadedness,
Judge Moore determined that claimant’s fall occurred as a result of a personal risk and
terminated benefits awarded at an earlier preliminary hearing.
Ayala v. Unified Government of Wyandotte County
Preliminary Hearing Order by ALJ Hursh with no review by Appeals Board
Handled by MVP attorney Kendra Oakes on behalf of David Menghini
Claimant was injured when she was leaving the building of her employer to take
a paid break. The building had an elevator, but she elected to use the stairs. Claimant’s
memory of what happened was not clear, but she thought that one of her strides hit
short and when she tried to correct her balance she either missed or just brushed the
top stair causing her to fall down the stairs. She did not trip on anything on the floor and
there were no defects with the stairs. ALJ Hursh denied all benefits finding:
•
Claimant was not required to go up and down stairs to perform her work or to
take work breaks – she could either take the stairs or the elevator. There was
nothing peculiar to the condition of the stairs that caused the accident. The facts
fit the KSA 44-508(f)(3)(A)(ii) exception to “arising out of and in the course of
employment.”
Drug Defense
Starr v. Garsite Progress LLC
Preliminary Hearing Order by ALJ Yates with no review by Appeals Board
Claimant was a welder who allegedly sustained a crush injury to his finger while
operating a plate press. Claimant reported to the hospital the day of the alleged injury
for emergency treatment and the following day was sent to an occupational health clinic
for a mandatory post-accident drug test. The results of the drug test revealed a level of
50 mg/ml of marijuana. Claimant testified that he had smoked marijuana on his birthday
ten days prior to the date of accident and had not used any drugs since that time. He
also testified that he only took a few puffs while a joint was being passed between two
or three other individuals.
ALJ Yates denied all benefits based on the statutory presumption that claimant’s
impairment contributed to his workplace injury. Because claimant had drugs in his
system over the statutory cutoff, he was impaired as a matter of law and it is presumed
that his impairment contributed to his workplace injury. Although claimant can rebut this
41
presumption by clear and convincing evidence, the claimant did not present sufficient
evidence to overcome the presumption.
Dismissal
Winsky v. American Eagle Outfitters
Preliminary Hearing Order by ALJ Hursh with no review by Appeals Board
Handled by MVP attorney Cliff Stubbs
Claimant missed his last two appointments with his treating physician and failed
to appear for a preliminary hearing setting. Respondent argued claimant’s case should
be dismissed because the employee refused to submit to a medical examination by
missing his scheduled appointments while proceedings were pending. ALJ Hursh
agreed that the proceedings started when claimant filed the application for hearing.
Because claimant refused a medical examination while proceedings were pending, ALJ
Hursh dismissed the claim.
Temporary Total Disability
Williams v. Shawnee County, Docket No. 1,056,128 (Feb. 2013).
Preliminary Hearing Order by ALJ Sanders with no review by Appeals Board
Handled by MVP attorney James Wolf
After a preliminary hearing on the issue of claimant’s entitlement to temporary
total disability benefits, ALJ Sanders found claimant failed to prove he was temporarily
and totally disabled and denied benefits. After he was injured, claimant returned to
work until he was terminated for cause. Claimant collected unemployment benefits until
December 1, 2012. He requested temporary total disability from December 1, 2012,
and continuing. Judge Sanders found claimant was not temporarily and totally disabled
for three reasons: (1) he was working after the injury and cannot be considered
temporarily and totally disabled; (2) unemployment benefits requires an individual to be
able and available to work, so he cannot be temporarily and totally disabled; and (3)
claimant was terminated for cause.
Disclaimer and warning: This information was published by McAnany, Van Cleave & Phillips, P.A., and is to be used only for general
informational purposes and should not be construed as legal advice or legal opinion on any specific facts or circumstances. This is
not inclusive of all exceptions and requirements which may apply to any individual claim. It is imperative to promptly obtain legal
advice to determine the rights, obligations and options of a specific situation.
42
Notes Pages
43
Notes Pages
44
Notes Pages
45
Notes Pages
46
MISSOURI WORKERS’ COMPENSATION
I. JURISDICTION RSMo §287.110.2
1. Injuries received and occupational diseases contracted in Missouri.
2. Contract of employment made in Missouri, unless contract otherwise
provides.
3. Missouri is the principle place of employment for the employee for thirteen
calendar weeks prior to injury.
II. ACCIDENTS
A. Traumatic RSMo §287.020
1. An unexpected traumatic event or unusual strain identifiable by time and
place of occurrence and producing at the time objective symptoms of an
injury caused by a specific event during a single work shift.
2. An "injury" is defined to be an injury which has arisen out of and in the course
of employment. An injury by accident is compensable only if the accident was
the prevailing factor in causing both the resulting medical condition and
disability.
3. "The prevailing factor" is defined to be the primary factor, in relation to any
other factor, causing both the resulting medical condition and disability.
4. An injury shall be deemed to arise out of and in the course of the employment
only if:
a. It is reasonably apparent, upon consideration of all the circumstances, that
the accident is the prevailing factor in causing the injury; and
b. It does not come from a hazard or risk unrelated to the employment to
which workers would have been equally exposed outside of and unrelated
to the employment in normal non-employment life.
c. An injury resulting directly or indirectly from idiopathic causes is not
compensable.
d. A cardiovascular, pulmonary, respiratory, or other disease, or
cerebrovascular accident or myocardial infarction suffered by a worker is
an injury only if the accident is the prevailing factor in causing the resulting
medical condition.
5. An injury is not compensable because work was a triggering or precipitating
factor.
B. Repetitive Injuries/Occupational Disease RSMo §287.067
1. Occupational disease is an identifiable disease arising with or without human
fault out of and in the course of the employment.
1
2. Ordinary diseases of life to which the general public is exposed outside of the
employment shall not be compensable, except where the diseases follow as
an incident of an occupational disease as defined in this section.
3. The disease need not to have been foreseen or expected but after its
contraction it must appear to have had its origin in a risk connected with the
employment and to have flowed from that source as a rational consequence.
4. With regard to occupational disease due to repetitive motion, if the exposure
to the repetitive motion which is found to be the cause of the injury is for a
period of less than three months and the evidence demonstrates that the
exposure to the repetitive motion with the immediate prior employer was the
prevailing factor in causing the injury, the prior employer shall be liable for
such occupational disease.
5. The employer liable for occupational diseases is “the employer in whose
employment the employee was last exposed to the hazard of the
occupational disease prior to evidence of disability.”
a. For repetitive motion claims, if exposure is for less than three months and
exposure with prior employer is prevailing factor in causing the injury, prior
employer is liable.
b. “Evidence of disability” is a new legislative term, and the courts have not
ruled on its meaning.
III. NOTICE RSMo §287.420
A. 30 days to report traumatic accident to employer.
B. In repetitive trauma/occupational diseases, the employee has 30 days from the
diagnosis of the condition to report the accident to the employer.
C. The notice must be written and include the time, place and nature of the injury,
and the name and address of the person injured.
D. Employer must show prejudice by claimant’s failure to report accident within 30
days to sustain notice defense.
E. If Employee can show that employer had actual notice of the injury, even if the
notice was not provided by the employee, the written notice defense may fail.
IV. REPORT OF INJURY RSMo §287.380
A. A Report of Injury should be filed for all claims that result in lost time or require
medical aid other than immediate first aid.
B. Advise all employers to complete a Report of Injury as soon as possible and file
with the Division of Workers’ Compensation in Jefferson City, Missouri.
2
C. Failure to file Report of Injury within 30 days of accident results in
extension of statute of limitations from two to three years from the date of
accident or date of last benefits paid, whichever is later.
D. File Report of Injury regardless of whether a claim is being denied. Filing is not
an admission of compensability.
E. Civil and criminal penalties possible for failure to file the Report of Injury.
V. CLAIM FOR COMPENSATION RSMo §287.430
A. Employee has two years from the date of accident or the last date payment was
made for benefits to file a timely Claim for Compensation.
B. If Employer did not file a Report of Injury within 30 days of accident, the
employee has three years from the date of accident or the last date payment was
made for benefits to file a timely Claim for Compensation.
VI. ANSWER TO CLAIM FOR COMPENSATION
A. If you receive a Claim for Compensation, assign the claim to counsel ASAP.
B. Answer must be filed within 30 days of notice from Division of Workers’
Compensation.
C. Failure to file timely answer may result in acceptance of facts in claim.
D. Continue investigation, attempt settlement if appropriate.
VII.
MEDICAL TREATMENT RSMo §287.140
A. Employer provides and selects.
B. Change of doctor only when present treatment results in a threat of death or
serious injury.
C. Under the new legislative changes, mileage is only paid when the exam or
treatment is outside of the local metropolitan area from the employee’s
principal place of employment.
D. Vocational Rehabilitation
1. Never mandatory.
2. Used to take a potential permanent total to another vocation.
3. Under the new legislative changes, the claimant must now submit to
“appropriate vocational testing” and a “vocational rehabilitation
assessment.”
3
4. 50 percent reduction if claimant fails to cooperate.
VIII.
AVERAGE WEEKLY WAGE RSMo §287.250
A. Need thirteen weeks of wage history in most cases.
B. Add gross amount of earnings and divide by number of weeks worked.
1. The denominator is reduced by one week for each five full work days missed
during the thirteen weeks prior to the date of accident.
2. Compensation rate = 2/3 average weekly wage up to maximum.
3. Minors: consider increased earning power.
C. Part-timers: for permanent partial disability only, use thirty hour rule (30 hours x
base rate). The thirty hour rule does not apply to temporary total disability.
D. Multiple employments: base average weekly wage on wages of employer where
accident occurred only. Do not include wages of other employers
E. New employees: if employed less than two weeks, use “same or similar” full-time
employee wages, or agreed upon hourly rate multiplied by agreed upon hours
per week.
F. Gratuity or tips are included in the average weekly wage to the extent they are
claimed as income.
G. EXAMPLES:
1. Full-Time Employee
a. Employee earned $9,600 in gross earnings for 13 weeks prior to injury.
b. Employee missed five days of work during the 13 weeks prior to date of
injury.
c. Average weekly wage is $800.00 ($9,600.00/12)
2. Part-Time Employee
a. $10 per hour
b. Use 30 hour rule (30 hours X base rate)
c. Average weekly wage is $300 (30 X $10.00)
IX. DISABILITY BENEFITS
A. Temporary Total Disability RSMo §287.170
1. Compensation rate two-thirds Average Weekly Wage (AWW) up to maximum.
(See rate card)
2. Multiple employments
a. Base AWW on wages of employer where accident occurred only
b. Do not include wages of other employers
4
3. Waiting period – three days of business operation with benefits paid for those
three days if claimant is off fourteen days.
4. May not owe temporary total disability benefits if claimant is terminated for
cause.
B. Temporary Partial Disability RSMo §287.180
1. Two-thirds of difference between pre-accident wage and wage employee
should be able to earn post accident.
C. Permanent Partial Disability RSMo §287.190
1. "Permanent partial disability" means a disability that is permanent in nature
and partial in degree.
2. Permanent partial disability or permanent total disability must be
demonstrated and certified by a physician and based upon a reasonable
degree of medical certainty.
3. On minor injury claims, the Administrative Law Judge (ALJ) may allow
settlement without a formal rating report.
4. Part-time employees must use “same or similar” full-time employees wage.
(For PPD only)
5. No credit for temporary total disability benefits paid.
6. There are no caps for benefits.
7. Disfigurement:
a. Applicable to hands, arms, neck and face
b. Maximum is forty weeks.
c. Must be decided by ALJ if claimant is unrepresented.
d. If claimant is represented, disfigurement can be compromised.
8. If a claimant sustains severance or complete loss of use of a scheduled body
part, the number of weeks of compensation allowed in the schedule for such
disability shall be increased by 10 percent.
9. When dealing with minors, you must consider increased earning power for
PPD (not TTD).
10. Calculation of Permanent Partial Disability
a. Claimant has a rating of 10 percent permanent partial disability to the body
as a whole.
b. Claimant qualifies for the maximum compensation rate for his date of
accident of $422.97.
c. Value of rating would be $16,918.80. (400 wks X 10% X $422.97)
D. Permanent Total Disability RSMo §287.190
1. Definition: inability to return to any employment or not merely the employment
in which the employee was engaged at the time of the accident.
2. Benefits are paid weekly over the claimant’s lifetime.
3. Law does allow lump sum settlements based on a present value of a
5
permanent total award.
4. If the permanent total disability is the result of the work-related accident and a
pre-existing condition(s), rather than the work accident alone, the Second
Injury Fund would be liable for the permanent total award.
E. Death RSMo §287.240
1. Death resulting from accident/injury.
a. Total dependents (spouse and children) receive lifetime benefits.
b. If spouse remarries, he/she receives only two additional years of benefits
from remarriage date.
c. Children receive benefits until the age of 18, or 22 if they continue their
education full-time at an accredited school.
d. Total dependents take benefits to the exclusion of partial dependents.
e. Partial dependents take based on the percentage of dependency.
f. Lump sum settlements are allowed.
2. Death unrelated to accident.
a. Any compensation accrued but unpaid at the time of death is paid to
dependents.
b. General Rule: if no PPD rating by time of death, no PPD is paid.
c. Benefits may continue to the dependents of the employee if claimant dies
from unrelated causes.
X. PROCEDURE
A. Walk-through Settlement Conference
1. Scheduled at Division on a first come, first serve basis. Depending on venue,
backlog generally two weeks to two months.
2. Settlement cannot be completed without claimant sitting before Administrative
Law Judge with explanation of rights and benefits.
3. ALJ now must approve settlement agreed to between employer and
employee as long as employee informed of rights and done without undue
influence. The old unwritten minimum disability percentages for various
injuries are essentially voided.
4. Settlement values can vary 3-7 percent between venues.
5. If claimant has scarring to upper extremities, head, neck or face, ALJ will
assign disfigurement and the amount will be added to the amount of agreed
settlement.
B. Conference
1. Set by the Division of Workers Compensation or at the request of Employer’s
counsel.
2. Purpose is to see if the Claimant is in need of treatment or is ready to settle
the claim.
3. Claims need to be assigned to counsel.
6
4. Need to have a rating report, if applicable.
5. Many cases settle at this time.
6. If claimant fails to attend two conferences, Division will administratively close
the claim.
C. Pre-Hearing
1. After Claim for Compensation has been filed, the Division of Workers’
Compensation will set Pre-Hearings.
2. Generally requested by a party.
3. Administrative Law Judges may not offer any legal advice.
4. Informal settings used to facilitate settlement or outlining of issues.
5. Alternatives at conclusion are:
a. Mediation
b. Continue and reset
c. Settlement
Note: Unrepresented claimants are entitled to Mediations, Hardship
Mediations and Hearings; however, Judges generally recommend they
obtain counsel before any of these procedures.
D. Mediation/Hardship Mediation
1. Set before ALJ.
2. Both parties are typically required to have ratings/or medical reports regarding
treatment needs.
3. Defense counsel required to have costs of medical, temporary
total
disability, permanent partial disability and physical therapy.
4. Formal discussion on all issues in case, potential for settlement and
defenses.
5. Defense counsel must have access to client for settlement authority.
6. Alternatives at conclusion:
a. Settlement
b. Reset for Mediation
c. Reset for Pre-Hearing
d. Moved to Trial docket
E. Hearing/Trial - RSMo §287.450
1. Before Administrative Law Judge only.
2. St. Louis: 10:30 AM. Mediation conference before Chief Judge with
assignment of trial judge if case not settled.
3. Each party can receive one change of judge.
4. Award generally issued within 30 days of trial.
5. All depositions and medical evidence must be ready to submit the day of trial.
F. Hardship Hearings - RSMo §287.203
7
1. Only issues are medical treatment and temporary total disability benefits
currently due and owing.
2. Claim must be mediated first.
3. After the mediation, hearing can occur 60 days thereafter.
4. Court can order costs of the proceeding to be paid by party if they find the
party defended or prosecuted without reasonable grounds.
5. All depositions and medical evidence must be ready to submit the day of trial.
G. Notice to Show Cause Setting
1. Will be set by the Division if Claim for Compensation has been filed and claim
has been inactive for one year.
2. Can be requested by Employer or Carrier if thirty-day status letter was sent to
opposing counsel and no response was received.
3. If claim is dismissed, claimant has twenty days to appeal the dismissal.
H. Appellate Process
1. The Labor and Industrial Relations Commission
a. 20 days to appeal ALJ’s award.
b. Review of the whole record.
c. Labor member, commerce member and neutral member.
2. Court of Appeals
a. 30 days to appeal LIRC decision.
b. Review questions of law only.
3. Supreme Court
a. 30 days to appeal Court of Appeals decision.
b. Review questions of law only.
I. Liens and Offsets
1. Spousal and Child Support Liens
a. Lien must be filed with the Division of Workers’ Compensation.
b. Temporary Total Disability: the maximum withheld is 25 percent of the
weekly benefit.
c. Permanent Partial Disability: the maximum withheld is 50 percent of the
total settlement.
d. Benefits generally paid to the Clerk of the Circuit Court.
2. Attorney Liens
b. Must be satisfied prior to payout of proceeds.
XI. DEFENSES
A. Arising out of and in the course of:
8
1. There must be a causal connection between the conditions under which the
work was required to be performed and the resulting injury. The injury results
from a “natural and reasonable incident” of the employment, or a risk
reasonably “inherent in the particular conditions of the employment” AND the
injury is the result of a risk “peculiar to the employment.”
a. Risks to Public at Large-generally not compensable
b. Acts of God-not compensable
c. Personal Assault-generally not compensable
d. Horseplay-generally not compensable
e. Personal Errands/Deviation-Generally not compensable
f. Personal Comfort Doctrine: Accidents occurring while an employee is
engaged in acts such as going to and coming from the restroom, lunch or
break room are generally compensable.
g. Mutual Benefit Doctrine: An injury suffered by an employee while
performing an act for the mutual benefit of the employer and employee is
usually compensable.
h. Mental Injury: (RSMo. §287.120.8) Claimant must show that mental injury
resulting from work-related stress was extraordinary and unusual to
receive compensation. The amount of work stress shall be measured by
objective standards and actual events. Mental injury is not compensable if
it resulted from any disciplinary action, work evaluation, job transfer, layoff,
demotion, termination, or any similar action taken in good faith by the
employer.
B. “In the course of”
1. Must be proven that the injury occurred within the period of employment at a
place where the employee may reasonably be, while engaged in the
furtherance of the employer’s business, or in some activity incidental to it.
a. Coming and going: Broad exceptions to this rule.
b. Parking Lot: If the employer exercises ownership and controls the parking
lot, an accident occurring on the lot will generally be found compensable.
c. “Dual Purpose Doctrine” If the work of the employee creates the necessity
for travel, he/she is in the course of his employment, though he is serving
at the same time some purpose of his own.
d. Frolic: “Temporary Deviation”
C. Other Defenses
1. Recreational Injuries: (RSMo. §287.120.7) Not compensable unless the
employee’s attendance was mandatory.
2. Violation of Employer’s Rules or Policies: An employee is not necessarily
deprived of the right to compensation where his injury was received while
performing an act specifically prohibited by the employer. Compensation is
denied where the employee’s violation is such that it removes him from the
sphere of his employment.
9
3. Found Dead Presumption: Where a worker sustains an unwitnessed injury at
a place where the worker is required to be by reason of employment, there is
a rebuttable presumption that the injury and death arose out of and in the
course of employment. However, in almost all cases the courts have failed to
permit recovery based on this presumption.
4. Statute of Limitations: (RSMo. §287.430) Two years from the date of last
benefits paid, unless the Report of Injury is not timely filed by the employer.
The statute increases to three years from the date of last benefits paid if the
Report of Injury is not timely filed. Employer has 10 days to contact the
Division of Workers’ Compensation from the date they are notified of the
accident; thereafter they have 30 days to file the Report of Injury with the
Division.
5. Notice of Accident to Employer: (RSMo. §287.420) Claimant must give written
notice of the time, place, and nature of the injury as soon as practicable after
the happening thereof, but not later than 30 days after the accident. If notice
is given after the 30 day period, the claimant must show that the employer
was not prejudiced by the failure to give notice.
6. Alcohol/Controlled Substance
a. Total Defense: [RSMo. §287.120.6(2)] Must show that the use of the
alcohol or controlled substance was the proximate cause of the accident.
b. Partial Defense: [RSMo. §287.120.6(1)] Employer is entitled to a 50
percent reduction in benefits (medical, TTD, and PPD) if employer has
policy against drug use and if injury was sustained “in conjunction” with
use of alcohol or non-prescribed controlled drugs.
7. Medical Causation
8. Employer/Employee Relationship
a. Owner and Operator of Truck: Complete defense if the alleged employer
meets the standards set out in RSMo. §287.020.
b. General
Contractor-Subcontractor
Liability:
(RSMo.
§287.040)
Subcontractor is primarily liable to its employees and general contractor is
secondarily liable. Under the Workers’ Compensation Act, the general
contractor has a right to reimbursement from the subcontractor if the
subcontractor’s employee receives benefits from the general contractor.
c. Independent Contractor: The alleged employer must prove that the
claimant is not only an independent contractor, but must also show that
the claimant is not a “statutory employee.”
9. Intentional Injury (RSMO §287.120.3)
10. Last Exposure Rule (RSMo. §287.063 and 287.067.7)
11. Idiopathic (Unexplained or Unique to the Individual) Fall
12. Accidental Injury:
a. Old Law – (RSMo. §287.020.2) An injury is compensable if it is clearly
work related. An injury is clearly work-related if work is a substantial
factor in the cause of the resulting medical condition or disability. An
injury is not compensable merely because work was a triggering or
10
precipitating factor.
b. New Law– (RSMO §287.020.2-3) prevailing factor
i. Unexpected traumatic event or unusual strain.
ii. Identifiable by time and place of occurrence.
iii. Caused by a specific event during a single shift.
iv. Not compensable if work was a precipitating factor.
v. Accident is prevailing factor in causing medical condition AND
disability. Prevailing factor is the primary factor.
vi. Does not come from a hazardous risk unrelated to the employment to
which employee would be equally exposed to both in and out of
employment.
13. Failure to Use Provided Safety Devices: (RSMo. §287.120.5) If the injury is
caused by the failure of the employee to use safety devices where provided
by the employer OR from the employee’s failure to obey any reasonable rules
adopted by the employer for the safety of employees, the compensation shall
be reduced at least 25 percent, but not more than 50 percent. Employee
must have actual knowledge of the rule and employer had made reasonable
effort to enforce use of safety devices in compliance with rules.
XII.
TORT ACTIONS AGAINST EMPLOYERS – The Missouri Alliance Decision
A. Labor groups challenged the constitutionality of the 2005 amendments.
B. If a work-related incident meets the definition of “accident” and if it causes “injury”
as defined by the Act, then workers’ compensation is the “exclusive remedy.”
C. If not, the employee is free to proceed in tort.
D. Types of injuries and accidents at issue:
1. Injuries that do not meet the definition of “accident,” including repetitive
trauma injuries;
2. Accidents that do not meet the definition of “injury”;
3. Injuries for which the accident was not the “prevailing factor,” but was the
“proximate cause”;
4. Injuries from idiopathic conditions.
E. Likely types of claims:
1. Common law negligence;
2. Premises liability;
3. Respondeat superior.
11
12
MISSOURI LEGISLATIVE UPDATE
SENATE BILL NO. 1
The following is a summary of the conference committee substitute for what was initially
Senate Bill No. 1, which changes significant portions of the Missouri Workers’
Compensation Act. This bill has been moved out of the House and the Senate and is
expected to be signed in to law by the Governor.
The first change is the adding of language to 287.020.1 that redefines the term
“employee” to NOT include any person performing services for board, lodging, aid, or
sustenance received from any religious, charitable, or relief organization.
Another minor addition deals with the payment of medical bills under 287.140.4 when
there is a dispute about the charges for the medical services. The added language
limits the time frame for health care providers to bring an application for hearing to
resolve the dispute to two years from the first date notice of the dispute was provided if
the services were rendered prior to July 1, 2013 and one year for services rendered
after July 1, 2013.
The bill also adds statute 287.220.1, which creates a special fund within the Second
Injury Fund exclusively for special weekly benefits in rehabilitation cases as provided in
287.141.
Another change to the Second Injury Fund will have a significant impact on injuries
occurring after the effective date of the bill, which is believed to be January 1, 2014, but
will not be retroactive. Under 287.220.3, no claims for permanent partial disability
occurring after the effective date of this section shall be filed against the Second Injury
Fund. Any permanent partial disability claim against the Second Injury Fund concerning
an injury date prior to this effective date can still be pursued. The controlling factor is the
accident date, not the date that the claim is pursued.
This change could positively impact Employer/Insurers. Currently, in order for an
employee to qualify for Second Injury Fund benefits, the primary current injury must
settle for 12.5% of the body as a whole or 15% to an extremity. Therefore, attorneys for
employees typically push for settlements that meet those thresholds, which can drive up
the cost to settle the primary injury. Without the availability to pursue Second Injury
Fund permanent partial disability benefits, this may prevent employee attorneys from
pushing primary settlements above those thresholds when such a settlement is not
warranted.
Claims for permanent total disability against the Second Injury Fund may still be
maintained, under 287.200, but only when the following conditions are met:
1. an employee has a medically documented pre-existing disability equaling a
minimum of fifty weeks of permanent partial disability compensation
according to the medical standards that are used in determining such
compensation which is:
a. a direct result of active military duty; or
13
b. a direct result of a compensable injury; or
c. non-compensable pre-existing injuries that aggravate or accelerate the
subsequent work injury, but they are only included if the aggravate or
accelerate the subsequent work-related injury; or
d. pre-existing disability of an extremity, loss of eyesight in one eye, or
loss of hearing in one ear where the subsequent work injury is to the
opposite extremity / body part and results in a permanent total disability.;
AND
2. such employee thereafter sustains a subsequent compensable work-related
injury that, when combined with the pre-existing disability, results in a
permanent total disability.; or an employee is employed in a sheltered
workshop under sections 205.968 to 205.972 or sections 178 to 178.960 and
suffers an injury when combined with the preexisting disability renders the
employee permanent and totally disabled.
Note that the employer at the time of the last work-related injury shall only be liable for
the disability resulting from the subsequent work-related injury considered alone and of
itself.
The fact that this legislation still allows for combination permanent total disability claims
against the Second Injury Fund is very significant for employer/insurers. If this provision
had been removed, the only remedy for permanent total disability cases would have
been against the employer/insurer that happened to employ the worker at the time of
the last injury, regardless of how debilitating any pre-existing conditions would be. This
legislation keeps the combination remedy in place and prevents employer/insurers from
having to bear the burden of such claims when the primary injury would not have
otherwise caused a person to be permanently and totally disabled.
Additional changes to the Second Injury Fund remove the ability to obtain compensation
from the fund if the employee files a claim for compensation under the workers’
compensation law of another state with jurisdiction over the injury, accident or
occupational disease. This is most significant for employers who are close to bordering
states, such as in St. Louis or Kansas City. Employees who choose to pursue benefits
in Kansas or Illinois will not be able to maintain Second Injury Fund claims in Missouri
as well. It appears this would allow a third-party negligence action in the district or circuit
court of another state. There is also a mandate that the division provide rules that will
establish a reasonable standard test to determine whether life payments to an injured
employee may be suspended based on his or her ability to obtain suitable gainful
employment or be self-employed.
Changes affecting Occupational Disease
SB 1 makes a number of important changes to the law regarding occupational diseases,
including re-establishing workers’ compensation as the exclusive remedy for most, but
not all, occupational diseases. In addition, the law essentially creates two new
14
classifications of occupational diseases. Along with repetitive traumas and the standard
occupational diseases found in Section 287.067.1, there are new enhanced remedies
for employees suffering from exposure to certain toxic substances and a specific
mechanism for dealing with mesothelioma. Further, the new law precludes the
employer from subrogating against negligent third parties in those newly defined toxic
exposure cases
Re-establishing Exclusive Remedy to Occupational Disease Claims
After the 2005 amendments, occupational diseases were not included under the
exclusive remedy provisions of 287.120.1. State ex. rel. KCP&L Greater Missouri
Operations Co. v. Cook, 353 S.W.3d 14 (Mo. App. W.D. 2011)(holding that the
exclusivity of the workers’ compensation act does not apply to occupational disease
claims). The current amendments specifically include occupational diseases and bring
them within the Act’s exclusive remedy protections, except in the case of an employer
who does not elect to accept mesothelioma liability (discussed below).
Creation of enhanced remedies for certain “toxic exposure” claims.
Section 287.200.4 creates additional benefits for employees suffering permanent
total disability or death from occupational diseases due to certain toxic exposures. First,
the legislature created a category for “occupational diseases due to toxic exposure,”
which only include the following diseases: mesothelioma, asbestosis, berylliosis, coal
worker’s pneumonconiosis, brochiolitis obliterans, silicosis, silotuberculosis,
manganism, acute myelogenous leukemia, and myelodysplastic syndrome.” Any other
disease – even if due to toxic exposure – is ineligible for the enhanced remedy but still
may be compensable under the Act.
For any compensable “occupational disease due to toxic exposure” other than
mesothelioma, that results in permanent total disability or death, an employee (or his or
her dependants) first receives 100 weeks paid at 200% of the state’s average weekly
wage. After that, the regular rate for permanent total disability or death benefits as in
other claims applies.
Section 287.150.7 takes away an employer’s ability to subrogate against a liable
third party where an employer has paid an employee or his dependents for injuries or
wrongful death resulting from an occupational disease due to toxic exposure.
Mesothelioma Carve-Out
In the case of mesothelioma, employers have the option to either elect a superenhanced remedy through the workers’ compensation system or take their chances in
the civil arena. If the employer has elected to accept mesothelioma liability under the
workers’ compensation statutes, the employee receives 212 weeks paid at 300% of the
state’s average weekly wage. An employer may elect to accept mesothelioma liability
by insuring their liability, by qualifying as a self-insurer, or by becoming a member of a
15
group insurance pool. The statute provides a mechanism for the latter, which involves
an additional assessment and participation in the “Missouri Mesothelioma Risk
Management Fund.” If the employer does not accept mesothelioma liability, the
exclusive remedy provision does not apply and employees can pursue a civil claim.
This section provides one limitation on an employee’s benefits where an employee
obtains an award for asbestosis, but later gets a second award for mesothelioma. In
that case, the employee cannot receive more benefits than he would have for a single
award for mesothelioma.
Disclaimer and warning: This information was published by McAnany, Van Cleave & Phillips, P.A., and is to be used only for general
informational purposes and should not be construed as legal advice or legal opinion on any specific facts or circumstances. This is
not inclusive of all exceptions and requirements which may apply to any individual claim. It is imperative to promptly obtain legal
advice to determine the rights, obligations and options of a specific situation.
16
FROM ISSUES ADDRESSED IN RECENT MISSOURI CASES
Q: Once it has been found that the employee sustained an accident, is the employer
automatically responsible for all injuries and disabilities that flow from it?
A: No. In Armstrong, the court was called upon to determine whether the claimant had
sustained a compensable injury. Claimant incorrectly argued that once an accident has
been sustained, the employer is responsible for all injuries flowing from the disability.
There is a marked distinction between determining whether a compensable injury has
occurred, and determining what medical treatment is necessary to treat a compensable
injury. This case involved the former, while the court’s previous case of Tillotson v. St.
Joseph Medical Center involved the former.
In Tillotson, the claimant tore her meniscus while working, and it was deemed a
compensable injury. Because of her preexisting arthritis, however, the arthroscopic
repair would not provide full relief of symptoms and she required a total knee
replacement. The court in Tillotson held that the “prevailing factor” analysis was not the
correct legal standard for the determination of medical treatment. Rather, once a
compensable injury is shown, a claimant must show that a particular medical treatment
is “reasonably required to cure and relieve the effects of the injury.” Thus, Tillotson
addressed the legal standard for entitlement to compensation for medical treatment,
while Armstrong simply dealt with the compensability of an accident.
Armstrong v. Tetra Pak, Inc., 2012 Mo. App. LEXIS 1542, ___ S.W.3d ___ (Mo. App.
S.D. 2012).
Q: Can the Commission attribute a disability solely to subsequent deterioration
when no medical expert testifies that subsequent deterioration was the sole
cause of a disability?
A: No. In this case, the Commission stated that the record clearly supported a finding that
the claimant’s permanent total disability was a result of subsequent deterioration and
not a work injury. Rather than choosing one of the numerous medical opinions offered,
all attributing injury to both work accident and deterioration, the Commission made a
finding that was not consistent with any medical opinion in the record. Because no
medical expert concluded that the disability was a result of deterioration, the
Commission’s finding was not supported by substantial and competent evidence.
Abt v. Missouri Lime Co., 2012 Mo. App. LEXIS 1547, ___ S.W.3d ___ (Mo. App.
E.D. 2012).
17
Q: Considering that an employer admits all of Claimant’s factual allegations upon
filing an untimely answer, is a Claimant’s allegation that her average weekly wage
was “max rate” a factual allegation or a legal conclusion?
A: Factual allegation. Wage rate is a question of fact to be determined according to
computations provided by statute. The court held that it is an immaterial distinction
between alleging a specific dollar amount and stating “max rate,” because the maximum
weekly rate is an undisputed and specific dollar amount determined by the computation.
Given that Employer failed to file a timely answer, the “max wage” rate as alleged in
Claimant’s claim for compensation was a factual allegation deemed admitted by
Employer.
T.H. v. Sonic Drive In of High Ridge, 2012 Mo. App. LEXIS 1585, ___ S.W.3d ___
(Mo. App. E.D. 2012).
Q: Is an employee’s allegation that he suffered a disability percentage a factual
allegation deemed admitted when an employ files an untimely answer?
A: No. When an employer’s answer is not timely filed, the factual allegations deemed
admitted do not extend to the disability percentage determination. That determination is
strictly within the special province of the Commission to determine, regardless of the
facts presented or stipulations by the parties.
Taylor v. Labor Pros, 2013 Mo. App. LEXIS 30, ___ S.W.3d ___ (Mo. App. W.D. 2013).
Q: Is the wife of an employee entitled to collect benefits as a dependent of her
deceased husband after his death which occurred after the 2008 statutory
amendments changing the definition of “employee”?
A: Yes. The Commission originally found that the employee's right to permanent total
disability benefits terminated at the time of the employee’s death because his wife's
right to such benefits had not vested prior to the 2008 statutory amendments that
eliminated dependents from the definition of "employee" in section 287.020.1. The
Supreme Court held contrary to the finding of the Commission on appeal, holding that
the statutes in effect at the time an employee’s injury govern. Those statutes provide
that the dependents of an injured worker, who was entitled to permanent total disability
benefits and who died of causes unrelated to the work injury, are included within the
definition of "employee;" therefore, they are entitled to continuing permanent total
disability benefits. Additionally, section 287.240(4) states that an employee's
dependents are determined "at the time of the injury" and include the spouse of an
injured worker. Because Ms. Gervich's status as a dependent was set on the date of her
husband's injury, and she fits within the statutory definition of "employee" in effect on
18
the date of the injury, she is entitled to receive continuing permanent total disability
benefits as his dependent.
Gervich v. Condaire, Inc., 370 S.W.3d 617, 624 (Mo. 2012).
Q: Does a penalty under 287.120.5 for violation of a company’s safety policy, which
reduces an employee’s compensation award, violate the Missouri Constitution?
A: No. The employee argued that the disparity between the twenty-five to fifty percent
reduction applicable to employees under 287.120.5, compared to the fifteen percent
increase applicable to employers under § 287.120.4, violates his right to equal
protection of the laws, because the disparity is not rationally related to any legitimate
state interest and further that 287.120.5 was unconstitutional because the statute is
vague and allows for arbitrary and discriminatory enforcement in that it fails to specify
any criteria, standard, principle or other means of determining what percentage the fact
finder should actually apply.
The Court of Appeals held that § 287.120.5 does not require an ALJ, the Commission,
or this Court to read any additional provisions into the statute in order to impose a
reduction on an employee's workers' compensation award. Instead, 287.120.5's plain
and unambiguous terms provide that a compensation reduction can be assessed
against an employee when specified conditions are met; the statute also plainly and
unambiguously specifies the range of the reduction which may be imposed. Additionally,
the court held that there was nothing ambiguous about 287.120.5. The statute provides
the fact finder with discretion to assess a reduction within the statutory range, based on
the fact finder's assessment of the relevant circumstances of a particular case. Strict
construction of the statute does not prohibit a factfinder from exercising the discretion
which § 287.120.5 affords.
Carver v. Delta Innovative Servs., 379 S.W.3d 865, 873-875 (Mo. Ct. App. 2012).
Q: Is the wife of an employee entitled to receive his compensation benefits as a
dependent if she qualifies as an “employee” under the pre-2008 Amendments but
her husband is currently alive?
A: No. Before the 2008 Amendments to the Act, 287.020.1 stated dependents of an injured
worker, who was entitled to permanent total disability benefits and who died of causes
unrelated to the work injury, were included within the definition of employee and
therefore, they were entitled to continuing permanent total disability benefits.
The Court of Appeals held that although the employee’s wife qualified as a dependent,
she had not been denied any legal right. She had no enforceable claim for benefits at
that time, citing the fact that the wife could predecease her husband and or the two
could divorce, which would result in the wife losing her dependent status. The
dependency status at that time of her husband’s injury was established, but the
19
adjudication of her claim to entitlement to successor benefits was not ripe for review on
appeal or on determination at the Commission.
White v. Univ. of Mo., 375 S.W.3d 908, 913 (Mo. Ct. App. 2012).
Q: If an injury occurs, which arises out of and during the course of employment, and
caused by the unprovoked violence or assault against the employee by another
person, is the employee’s exclusive remedy a workers’ compensation claim?
A: Yes. Section 287.120.1 states an accident as defined in the statute includes an injury or
death of an employee caused by the unprovoked violence or assault against the
employee by any person. Section 287.120.2 further states that the remedies herein
granted shall exclude all other remedies of the employee.
The Court of Appeals here noted as of recently Missouri appellate decisions have
uniformly held that injuries sustained by employees in assaults at work arising from
personal quarrels are not compensable. However, the Court of Appeals failed to follow
this approach highlighting the fact the legislature made numerous changes to Chapter
287 in 2005 and the violence and assault provision remained as part of definition of
accident under 287.120.1. The court stated they presume the legislature acted with a
full awareness and complete knowledge of how the assault doctrine had been applied in
Missouri cases, and although other changes were made to § 287.120, the legislature
reenacted the language in § 287.120.1 stating that the term accident as used in this
section shall include, but not be limited to, injury or death of the employee caused by
the unprovoked violence or assault against the employee by any person. When the
Supreme Court and the legislature reenact the same statutory language without
change, the court presumed the legislature knew about and adopted this construction of
the statute. Thus, the court held a worker’s compensation claim is the exclusive remedy
for an injury arising out of and during the course of employment and caused by an
individual’s unprovoked assault.
Flowers v. City of Campbell, 384 S.W.3d 305, 313 (Mo. Ct. App. 2012).
Q: Employee’s job duties included parking motorcycles in an upstairs showroom,
and then descending a staircase to check in with his supervisor on the main
floor. In the process of going down the stairs, employee fell and fractured his
ankle. Is this an injury occurring within the course and scope of employment?
A: Yes. The employee was required to wear a helmet while parking the motorcycles, and
then had to carry the helmet with him when we went to check in with his supervisor.
Carrying his helmet with him increased his risk of falling and sustaining injury. The
court engaged in a thorough analysis of the facts to consider whether employee was
injured because he was at work as opposed to becoming injured merely while he was at
work. This led the court to consider whether the risk—here, walking down steps while
20
wearing work boots and carrying a work required helmet—is a risk the employee is
equally exposed to in his non-employment life.
In finding a causal connection between the injury and the work activity, the court noted
that employee was required to check in with his supervisor before leaving work.
Because the supervisor was on the first floor, employee was required to descend the
staircase connecting the two floors. These facts supported the finding that his injury
was causally connected to his work activity.
Pope v. Gateway to the West Harley Davidson, 2012 Mo. App. LEXIS 1335, ___
S.W.3d ___ (Mo. App. E.D. 2012).
Q: Does the Commission have authority to approve a settlement agreement to
commute the award for more than the present value of future permanent total
disability payment?
A: Yes. The appellate court held the Commission erred when it denied the request on the
grounds that the present value of future installments due under the award was zero.
When the parties have reached a settlement agreement as to the disputed issues, the
Commission is to review the agreement and either approve or disapprove it. Because
there was no evidence that either party to the agreement was subject to undue
influence or acted fraudulently, the Commission was without discretion to reject the
settlement agreement. The fact that Respondent, in hindsight, felt it made a “bad deal”
as a result of Claimant’s death, did not create grounds to reject the settlement.
Nance v. Maxon Electric, Inc., 2012 Mo. App. LEXIS 1401, ___ S.W.3d ___ (Mo.
App. W.D. 2012).
Q: Is the Commission’s decision supported by competent and credible evidence
when it follows the testimony of one doctor over another, yet fails to describe in
the record its reason for disputing the doctor’s testimony or finding his testimony
not credible?
A: No. The Commission must make specific credibility findings as to which doctor
presented the more credible medical opinion. In this case, such findings were implicit
only to the extent that where the two doctors disagreed, the Commission’s findings
show it believed one over the other. Because nothing in the record disputed one
doctor’s testimony that the Claimant needed medication for depression stemming from
her work, and because the Commission did not find his testimony incredible, the finding
that the Claimant failed to meet her burden regarding the medications was not
supported by competent and substantial evidence.
Noel v. ABB Combustion Engineering, 2012 Mo. App. LEXIS 1433, ___ S.W.3d ___
(Mo. App. E.D. 2012).
21
Q: Does application of judicially-created exceptions to the final awards rule violate
the legislative intent of the 2005 amendments to the Worker’s Compensation Act?
A: Yes. RSMo Section 287.495, the statutory source for appellate jurisdiction to review
issues decided under the Workers Compensation Act, allows the appellate court to
review only final awards of the Commission. Before the Act’s 2005 amendments,
appellate courts created two exceptions to the “final award” rule: (1) review of an
award’s designation as temporary or partial to determine if it is actually permanent total;
and (2) review where an employer disclaimed all liability for paying compensation.
The 2005 amendments did not specifically alter appellate jurisdiction, but did, however,
change the rules of construction for all provisions of the Act by requiring strict
construction. The court previously concluded that application of the prior judiciallycreated exception for disclaiming liability would violate the clear legislative intent to limit
appellate review of Commission awards to final awards. Smalley v. Landmark Erectors,
291 S.W.3d 737 (Mo. App. E.D. 2009).
In this case, the court was asked to review the Commission’s finding under the second
exception, temporary or partial awards. Aligning with prior precedent, the court declined
jurisdiction and dismissed the appeal.
White v. Anderssen Mobile X-Ray Service, 2012 Mo. App. LEXIS 1584. ___ S.W.3d
___ (Mo. App. E.D. 2012).
Q: Does the Commission have authority to render a final order on appeal from an
ALJ’s issuance of a temporary award?
A: Yes. Claimant filed two separate claims for workers’ compensation in 2009. One claim
alleged injury to his back and the other alleged injury by occupational disease. When
Land Air denied all liability and provided no treatment, Johnson requested a hardship
hearing. The Division of Workers’ Compensation held the hearing and issued two
separate awards. The Administrative Law Judge issued a final award finding no
compensability for the occupational disease claim, but found Land Air liable for medical
treatment and temporary total disability benefits with regard to the back injury claim. On
appeal by Land Air, the Commission overturned the ALJ’s ruling and issued a final
award denying all compensation and medical treatment to Johnson.
The Court of Appeals ruled that the Commission has authority in issue a final award
after an appeal from a temporary award by an ALJ. No one disputed that had the ALJ
believed the evidence and found no liability to claimant, that the ALJ could have entered
a final award. In this case, the Commission entered the final award, which is what the
ALJ could have done following the hardship hearing. No additional hearing, after the
hardship hearing, is required to enter a final award.
22
Johnson v. Land Air Express, Inc., 2012 Mo. App. LEXIS 1642, ___ S.W.3d ___
(Mo. App. W.D. 2012).
Q: Is Missouri’s Second Injury Fund unconstitutional given the General Assembly’s
mandate that an injured employee’s ability to recover for the preexisting portion
of second injuries is restricted to solely to SIF?
A: Possibly. The Missouri Court of Appeals essentially found the Missouri Second Injury
Fund to be legally insolvent, and expressed serious reservations about the mechanism
by which the Missouri General Assembly has committed to funding SIF.
The SIF is currently funded by a legislatively authorized Surcharge assessed against all
workers’ compensation insurance policies and self-insurance coverages.
The
Surcharge was capped at 3% by the Missouri Legislature in 2005. The SIF program
manager for the Missouri Division of Workers’ Compensation explained that the fiscal
status of the SIF is so dire that in order to have sufficient funds to pay SIF’s past and
future obligations, the Surcharge which funds SIF would need to be as high as 9% or
10%.
In Skirvin, the claimant was deemed permanently totally disabled in May of 2011. His
award required SIF to pay $99.37 per week for sixty weeks, with weekly payments
thereafter for life in the amount of $464.45. In July of 2011, the SIF wrote to claimant
advising him that SIF was unable to make payments due to its current balance and
projections for the remainder of the fiscal year.
The Court of Appeals was called upon to determine whether the Treasurer and the
Director of the Division of Workers’ Compensation can be compelled by mandamus to
pay permanent total disability awards on a first-come/first served basis where the SIF is
unable to pay all present and future permanent total disability awards. The Court
determined that SIF is legally insolvent, and mandamus cannot compel the Treasurer or
Director to make full payments to the claimant.
The examination of SIF by the courts is far from over. This case was transferred to the
Missouri Supreme Court to examine these issues, as well as the constitutionality of the
SIF as it currently exists. The Court of Appeals expressed reservations and concern as
to the constitutionality of the General Assembly’s 3% cap on the Surcharge.
Historically, second injuries were compensated by the employer in the same manner as
other workplace injuries. SIF was established in 1951 as the exclusive fund from which
an employee could be compensated for the portion of a second injury attributable to the
preexisting injury. Missouri’s SIF currently faces a deficit estimated as high as $25
million. If left unresolved, and the exclusivity of SIF is found to be unconstitutional,
employers and insurers would likely begin to face potential liability in civil proceedings
or increased liability in workers’ compensation proceedings.
23
Skirvin v. Treasurer of the State of Missouri, 2013 Mo. App. LEXIS 84, ___ S.W.3d
___, (Mo. App. W.D. 2013).
Q: Must the appellate court Recall and Modify its Mandate instructing the
Commission to make further factual findings, if the Commission only makes
those findings and refuses to issue a new Final Award?
A: No. In this case, claimant appealed the Commission’s Final Award, which awarded
compensation but reduced the award by 50% for safety violations. The Court of
Appeals did not address the merits of that appeal, however, because it felt the
Commission’s findings of fact were inadequate to allow meaningful review of the issues.
The court reversed the award imposing the 50% reduction and remanded the case for
further factual findings on the issue of the safety violation.
The Commission issued further factual findings, which implied that any reduction of the
award was foreclosed. However, the Commission did not issue a final award fully
compensating claimant, explaining that the appellate court mandate did not instruct the
Commission to resolve the issues and make legal conclusions, but rather only
instructed it to make further factual findings.
Claimant filed a motion asking the appellate court to modify its mandate and instruct the
Commission to make legal conclusions consistent with its factual findings. The court
refused to do so, stating that although the opinion and mandate may not have explicitly
directed the Commission to issue a new final award consistent with its factual findings,
the entry of such a final award was “necessarily implied” by the court’s decision.
Because claimant’s award remained unsolved, the Commission was instructed to issue
a new final award with the instruction from this decision.
Carver v. Delta Innovative Services, 2013 Mo. App. LEXIS 129, ___ S.W.3d ___
(Mo. App. W.D. 2013).
Q: Can the Commission properly award future medical treatment if the claimant has
reached maximum medical improvement?
A: Yes. An employer is require to provide care as may be reasonable require to cure and
relieve from the effects of the injury, which includes allowance for the cost of future
medical treatment. Future care to relieve the pain should not be denied simply because
the claimant has achieved maximum medical improvement.
In this case, claimant had a spinal cord stimulator implanted in her back. The
examining physician concluded the claimant was at maximum medical improvement
because there was nothing more to be done except manage pain. The doctor did,
however, testify that the stimulator device would have to be replaced every one to ten
years. In light of that, the court upheld the award of future medical treatment.
24
Pennewell v. Hannibal Regional Hospital, 2013 Mo. App. LEXIS, ___ S.W.3d. ___
(Mo. App. E.D. 2013).
Q: When calculating the liability of the Second Injury Fund, must a court include any
disability that does not individually meet the statutory threshold of Section
287.220.1?
A: The Second Injury Fund asserted that RSMo Section 287.220.1 requires a permanent
partial disability to meet certain qualifications: If the injury is to the body as a whole, the
disability must equal at least 50 weeks of compensation or, if the injury is to a major
extremity only, the injury must have caused at least a 15 percent permanent partial
disability. In giving meaning to every word of the minimum threshold language in
Section 287.220.1, the court found that the legislature intended each primary disability
to be considered in isolation when determining whether the 50-week or 15% PPD
minimum thresholds are satisfied. Accordingly, the statutory language does not
authorize consideration of below-threshold disabilities when calculating Fund liability,
only those disabilities that alone satisfy the minimum thresholds of the statute.
Because of the general interest and importance of this issue, the case was transferred to
the Missouri Supreme Court. Oral arguments were held on December 11, 2012.
Buhlinger v. Treasurer of Missouri as Custodian of Second Injury Fund, 2012 Mo.
App. LEXIS 1212, ___ S.W.3d ___ (Mo. App. E.D. 2012).
Q: Is an occupational disease a “compensable injury” for purposes of triggering
Second Injury Fund liability?
A: Yes. The plain language of Section 287.220, outlining the liability of the Second Injury
Fund, states that a “compensable injury” triggers liability. An injury by occupational
disease is a compensable injury if it meets Section 287.067’s requirements that it arise
without human fault out of and in the course of employment, and that it be the prevailing
factor in causing both the resulting medical condition and disability. Therefore, an injury
by occupational disease that is compensable under Section 287.067 constitutes a
compensable injury triggering Second Injury Fund liability.
The court specifically distinguished this case from its prior holding in KCP&L, in which it
found that Worker’s Compensation Law distinguishes between two categories of
compensable injuries: (1) injuries by accident; and (2) injuries by occupational disease.
While other statutes may limit the provision’s application to injuries by accident, Section
287.220 requires only a “compensable injury” for Second Injury Fund liability, and,
therefore, includes both compensable injuries by accident and occupational disease.
25
Treasurer of The State of Missouri - Custodian of the Second Injury Fund v. Stiers,
2012 Mo. App. LEXIS 1273, ___ S.W.3d ___ (Mo. App. W.D. 2012).
Peters v. Treasurer of Missouri as Custodian of Second Injury Fund, 2012 Mo. App.
LEXIS 1394, ___ S.W.3d ___ (Mo. App. E.D. 2012).
Kirkpatrick v. Missouri State Treasurer as Custodian of Second Injury Fund, 2012
Mo. App. LEXIS 1621, ___ S.W.3d ___ (Mo. App. S.D. 2012).
Q: What is the standard to be applied when determining if an employee’s exercise of
rights under the Workers’ Compensation Act led to retaliatory termination?
A: Since 1984, Missouri courts have held that there must be an “exclusive causal
relationship” between the employee’s exercise of rights under the Act, and the
employer’s retaliatory firing. In this case, Claimant argued that the instruction submitted
to the jury, requiring “exclusive causation,” was in error and that the correct standard to
apply was “contributing factor.”
The court found nothing in the language of Section 287.780 (the retaliatory discharge
statute) requiring the application of the “exclusive causation” standard. However, the
court noted that it was bound by precedent and that it is up to the Missouri Supreme
Court to overturn its prior holdings if it sees fit. For that reason, the standard to prove in
a retaliatory termination case remains “exclusive causation.”
Templemire v. W&M Welding, Inc., 2012 Mo. App. LEXIS 1639, ___ S.W.3d ___
(Mo. App. W.D. 2012).
Q: Following a workers’ compensation award, does an attorney fee lien have priority
over the Department of Social Services’ lien for Medicaid reimbursement?
A: Yes. The Workers’ Compensation Act states that the department shall have the right to
recover the full amount of its payments, but goes on to state that this debt shall be
subordinate to the fee rights of the claimant’s attorney. The court read these two
competing subsections in harmony, not in conflict. The debt due to the state from the
employer is not reduced by giving priority to a lien for attorney fees. Instead, it is simply
a matter of prioritization of recovery from a limited fund. Attorney’s who represent
claimants in workers’ compensation matters perform a service that ultimately benefits
the Medicaid program, in that claimant’s attorney is the one pursuing payment of
medical expenses. The court believed that the legislature’s priority determination was
soundly based in policy to incentivize claimants’ attorneys to pursue Medicaid
reimbursement.
Lake v. Levy, 2013 Mo App. LEXIS 63, ___ S.W.3d
(Mo. App. W.D. 2013).
26
Q: Can an employee’s injuries, and their subsequent permanent partial disability
ratings, be stacked together to meet the minimum thresholds for Second Injury
Fund liability under 287.220.1?
A: No. Under RSMo Section 287.220.1, in order for the Second Injury Fund to be liable a
disability for an injury to the body as a whole must equal at least 50 weeks of
compensation; if the injury is to a major extremity, the injury must have caused at least
a 15 percent permanent partial disability.
In this case, the Commission held the SIF liable for the employee’s injuries after including a
7.5% disability to the employee’s ankle. The Court of Appeals reversed holding that
Missouri's Workers' Compensation laws are subject to strict construction, and strict
construction means that a statute can be given no broader application than is by its
plain and unambiguous terms. Section 287.220.1 makes no allowance for combining
body as a whole injuries together or combining a body as a whole injury with a major
extremity injury and had the legislature intended to allow for that type of stacking and its
resultant circumvention of the thresholds, it would have done so. Thus, an injury or
disability below the 287.220.1 statutory thresholds cannot be combined with other
injuries in order to achieve SIF liability.
Dyson v. Treasurer of the State of Mo., 2012 Mo. App. LEXIS 1205, 13-15 (Mo. Ct.
App. Sept. 25, 2012).
Q: When determining Second Injury Fund liability, may a court combine all of the
employee’s permanent partial disability and covert them into weeks of
compensation in order to determine if an employee’s disability exceeds the 50
week threshold under 287.220.1?
A: No. The Commission originally concluded that in order to establish SIF liability for
permanent partial disability benefits, all of an employee’s preexisting PPDs must be
converted to a common unit of measurement, which the Commission determined should
be weeks of compensation, to determine if an employee's overall preexisting permanent
partial disability meets or exceeds 50 weeks.
The Court of Appeals held when strictly construing § 287.220.1, it is difficult to reconcile
the Commission's interpretation of § 287.220.1 with the plain and ordinary language
found therein. Section 287.220.1 provides that the preexisting permanent partial
disability, if a body as a whole injury, equals a minimum of fifty weeks of compensation
or, if a major extremity injury only, equals a minimum of fifteen percent permanent
partial disability. Accordingly, in giving meaning to every word found within the minimum
threshold provision in 287.220.1, it followed that the legislature intended each singular
preexisting PPD to be considered in isolation when determining whether the 50-week or
15% PPD minimum thresholds were satisfied, not a claimant's overall preexisting PPD.
27
Treasurer of Mo. - Custodian of the Second Injury Fund v. Witte, 2012 Mo. App.
LEXIS 1093, 11-12 (Mo. Ct. App. Sept. 4, 2012).
Q: Does a 15% penalty for an employer’s violation of a statute under Section
287.120.4 apply to the portion of an award from the Second Injury Fund?
A: No. The purpose of the Second Injury Fund (“SIF”) is to compensate an employee when
his work-related injury combines with a preexisting disability and causes a greater
disability than the work-injury alone would have caused. As laid out in section
287.220.1, the SIF provides for fund liability if the preexisting disability and the
combined effect of it and the new injury are each of such seriousness that they are a
hindrance or obstacle to employment. When the SIF statute is applicable, the employer
is liable only for the amount of disability caused by the employee's current injury, and
the SIF fund is liable for the amount of the increase in disability caused by the
synergistic effect of the two injuries.
Because the award from the SIF is intended to reflect an employee’s preexisting
condition, not the injury caused by his work with the employer, the Supreme Court found
it would be inappropriate to order an employer to pay a penalty on that award. In effect,
imposing a penalty on the SIF award would force an employer to provide compensation
based on an employee’s disability over which it had no control, which would be contrary
to the purpose of the SIF. Thus, the 15% penalty under 287.120.4 is inapplicable to the
portion of an award that is received from the SIF.
Hornbeck v. Spectra Painting, Inc., 370 S.W.3d 624, 630-631 (Mo. 2012).
Q: Can the dependents of a claimant, as defined under Section 287.240(4), be
entitled to Claimant’s PTD benefits for the remainder of their lifetime?
A: Yes. Claimant had three minor children at the time he suffered a work-related accident
that resulted in the award of permanent total disability benefits, for which the Second
Injury Fund was liable. The Claimant later passed away from causes unrelated to any
work-related injury. Section 287.240(4) provides an employee’s dependents are
determined “at the time of the injury” and includes as a dependent a child of an injured
worker. Furthermore, the law in effect at the time of Claimant’s injury is the law to be
applied. Under the law in effect at the time of Claimant’s injury, when an injured worker
dies, dependent status is determined at the time of the injury, not the time of death.
Claimant had three minor children at the time of injury.
The Court determined that Schoemehl v. State of Missouri is controlling in this case.
(Schoemehl v. State of Missouri, 217 S.W.3d 900 (Mo. Banc 2007). The Schoemehl
court found that when an injured worker dies from causes unrelated to the work injury,
the worker’s dependents assume his or her place to become the “employee” for
purposes of receiving permanent total disability benefits. Id. at 901-902. Thus,
28
because Claimant was entitled to permanent total disability benefits and subsequently
died of a cause unrelated to his work injury, his Dependents – as Claimant’s minor,
dependent children at the time of the injury – are entitled to receive Claimant’s awarded
permanent total disability benefits for the remainder of their lifetime.
Spradling v. Treasurer of State, No. SD 31907, 2013 WL 1755763 (Mo. Ct. App.
S.D. Apr. 24, 2013).
Q: Can a Claimant be deemed permanently and totally disabled even though he is
functionally able to work in the light to medium category?
Yes. In this case, a functional capacity evaluation showed Claimant could return to
work at the medium level. However, the Commission determined that due to his chronic
pain and failed back, Claimant would be unable to perform work on a repetitive basis or
constant basis in the work force at large. Thus, he was permanently and totally
disabled. The test for determination of permanent total disability does not require that
the claimant be completely inactive or inert and is not purely a medical question.
Because there was competent substantial evidence to support the Commission’s
conclusion, Claimant may receive permanent total disability benefits despite the fact
that was also evidence that might have supported a different determination.
Grauberger v. Atlas Van Lines, Inc., Nos. SD 32139, SD 32154, 2013 WL 791537
(Mo. Ct. App. S.D. Mar. 4, 2013).
Q: Does a doctor need to be board certified for his testimony to constitute
competent substantial evidence to support a workers’ compensation award?
No. In this case, Claimant’s witness was not a specialist in the treatment of the low
back and lumbosacral spine, yet testified regarding Claimant’s low back injury and
resultant pain. Because Claimant’s witness was a medical doctor who had training in
evaluating patients’ abilities and restrictions with respect of future employment, his
testimony was competent and substantial evidence. The lack of any additional
qualifications was merely a factor the Commission could consider in determining what
weight to afford his testimony.
Grauberger v. Atlas Van Lines, Inc., Nos. SD 32139, SD 32154, 2013 WL 791537
(Mo. Ct. App. S.D. Mar. 4, 2013).
Q: Must a Claimant prove a specific source of injury before his employment can be
considered a substantial factor in causing his occupational disease?
No. Claimant worked as a laboratory technician and withdrew blood from patients,
worked with blood and blood products for a number of years before the implementation
29
of safety measures, which are commonplace today. Claimant also underwent a blood
transfusion after a hunting accident. Claimant’s expert testified that Claimant’s work
was the most probable source of his hepatitis C. Employer’s expert testified that
Claimant likely contracted hepatitis C from his blood transfusion. The Commission
found that the claimant produced no evidence that Smith was exposed to hepatitis C in
the workplace and that the causation opinion of claimant’s expert lacked credibility. The
Commission reasoned that although it would seem that one or more patients with
hepatitis C must have treated at Claimant’s employment, Claimant did not produce
evidence that he actually withdrew blood or handled blood from a hepatitis C patient.
The Commission’s decision was reversed. The Court of Appeals held that Claimant’s
expert established a probability that Claimant’s working conditions caused hepatitis C,
and such evidence was sufficient to meet the Claimant’s burden of proof on the issue of
causation. For a Claimant to meet his burden of proof as to causation, the Claimant
must submit medical evidence establishing a probability that working conditions caused
the disease, although they need not be the sole cause. Claimant is not required to
establish by a medical certainty that is his or injury was caused by an occupational
disease in order to be eligible for compensation. Furthermore, even where the causes
of the disease are indeterminate, a single medical opinion relating the disease to the job
is sufficient to support a decision for the employee.
Smith v. Capital Regional Med. Ctr., No. WD 75078, 2013 WL 1197499 (Mo. Ct.
App. W.D. Mar. 26, 2013).
Q: Is an independent contractor’s work in the usual course of the alleged statutory
employer’s business (under Section 287.040.1) when the independent contractor
performs his own business that is the same line of work as and in the same
building as the owner of the alleged statutory employer’s business?
No. In this case, the owner of the business was a hairstylist who let Claimant use her
facility to act as a barber. He brought all of his own tools and own clients to the facility
and paid the business owner fifty percent of the profits he received from each client.
The test to use to determine if the work is in the usual course of the alleged statutory
employer’s business is whether the independent contractor’s work would have existed
to be done in the absence of the independent contractor. Whether the independent
contractor’s work was financially lucrative to the business owner is not the test. Here,
the Claimant’s clients were his own clients and the business owner would not have
received a profit from these clients if the Claimant was not working there. Thus,
Claimant’s work would not have existed in the absence of Claimant and the business
owner simply provided a facility for Claimant to run his business. Because the owner of
the business simply provided Claimant with a facility within which he could ply his trade
in exchange for a share of the revenue he generated, rather than contracting with him to
have him perform some portion of the business owner’s work, the Claimant was not
deemed to be a statutory employee.
30
Brito-Pacheco v. Tina’s Hair Salon, No. WD 75062, 2013 WL 1801709 (Mo. Ct. App.
W.D. May 28, 2013).
Q: Can a veteran’s hospital intervene as a party in an underlying workers’
compensation proceeding in order to assert a claim for unpaid medical
expenses?
Yes. Claimant alleged that he received an injury during the course of his employment
with Employer and received care and treatment for that injury at the VA. However,
Employer did not authorize the care Claimant received from the VA. The VA filed a
motion in Claimant’s workers’ compensation proceeding asserting its right, under 38
U.S.C. § 1729 (2006), to “intervene or join in any action or proceeding brought by the
veteran . . . against a third party” to “recover charges ‘incurred incident to the veteran’s
employment an . . . covered under a workers’ compensation law or plan.’ “ The
administrative law judge overruled the VA’s motion on the ground that she had no
authority to permit intervention. She found the Missouri workers’ compensation statutes
do not allow such intervention because they were silent on the issue. The circuit court
later denied the VA’s petition for a writ of mandamus.The VA appealed the denial of its
petition for a writ of mandamus to compel the chief administrative law judge to allow the
VA’s intervention in the workers’ compensation proceeding. The Court of Appeals
found that 38 U.S.C. § 1729 gives the VA the right to intervene, and issued a permanent
writ of mandamus. The lack of a provision in chapter 287 authorizing intervention
cannot impede the VA from intervening under the applicable federal statutes, which
clearly and unequivocally provide authorization for the VA to intervene in Claimant’s
workers’ compensation proceedings.
U.S. Dept. of Veterans Affairs v. Boresi, 396 S.W.3d 356 (Mo. 2013).
31
Notes Pages
32
Notes Pages
33
Notes Pages
34
NEBRASKA WORKERS’ COMPENSATION
I. JURISDICTION - Neb. Rev. Stat. §§ 48-106, 48-186
1. Injuries occurred or occupational diseases contracted in Nebraska while in
the scope and course of employment.
2. Employer is a resident employer performing work in Nebraska who employs
one or more employees in the regular trade, business, profession, or vocation
of the employer.
3. Injuries received and occupational diseases contracted outside Nebraska,
unless otherwise stipulated by the parties, if—
a. The employer was carrying on a business or industry in Nebraska; and
b. The work the employee was doing at the time of the injury was part of or
incident to the industry being carried on by employer in Nebraska.
i. Domicile of the employer or employee and the place where the
contract was entered into may be circumstances to aid in ascertaining
whether the industry is located within the state.
B. The Act will not apply where:
1. Employer is a railroad engaged in interstate or foreign commerce.
2. The employee is a household domestic servant in a private residence.
3. The employer is engaged in agricultural operations and employees only
agricultural employees, with certain exceptions.
4. The employee is subject to a federal workers’ compensation statute.
II. PERSONAL INJURY
A. Accident – Neb. Rev. Stat. § 48-151
1. An unexpected or unforeseen injury happening suddenly and violently, with or
without human fault, and producing at the time objective symptoms of an
injury.
a. For repetitive trauma—
i. “Unexpected or unforeseen" requirement is satisfied if either the cause
was of an accidental character or the effect was unexpected or
unforeseen;
ii. "Suddenly and violently" element is satisfied if the injury occurs at an
identifiable point in time requiring the employee to discontinue
employment and seek medical treatment.
2. An "injury" means violence to the physical structure of the body and such
disease or infection as naturally results therefrom.
a. Special cases—
i. Heart attack – legal and medical causation;
1
(a) Legal: Court determines what kind of exertion satisfies “arising out
of employment.”
(b) Medical: Medical evidence establishes employee’s exertion in fact
caused his or her heart attack.
ii. Mental/Psychiatric – requires a physical component and medical
testimony linking mental health disorder with physical injuries
sustained or occupational disease contracted.
iii. Mental/Mental – requires condition causing the injury to be
extraordinary or unusual when compared to the normal conditions of
employment and causation established by competent medical
evidence. Applies only to First Responders, ie Police, Firefighters, and
EMTs.
3. An injury, to be compensable, must arise out of and in the course of the
employment:
a. “Arise out of” – there must be a causal connection between the conditions
under which the work was required to be performed and the resulting
injury.
i. Special Cases—
(a) Risks to Public at Large/Acts of God: generally not compensable
unless employment duties put employee in position they might not
otherwise be in which exposes them to risk, even though risk is not
greater than that of general public (positional risk doctrine).
(b) Idiopathic cause: non-compensable unless employment placed
employee in position of increased risk.
(c) Horseplay: compensable if deviation from work was insubstantial
and did not measurably detracted from work.
(d) Assault: injury may be compensable depending on reason for
assault—
(i.) Work conditions: generally compensable.
(ii.) Personal animosity: generally not compensable.
b. “In the course of” – the injury must arise within the time and space
boundaries of employment, and in the course of an activity whose purpose
is related to the employment.
i. Coming and going: No recovery for injury while coming to or going
from employer’s workplace or jobsite. Injuries which occur on the
employer's premises are generally compensable if no affirmative
defenses apply.
ii. Exceptions:
(a) Dual Purpose: If the employee is injured while on a trip which
serves both a business and personal purpose, the injuries are
compensable if the trip involves some service to the employer
which would have caused the employee to go on the trip, and the
employee selected a “reasonable and practical” route.
2
(b) Employer Created Condition: when a distinct causal connection
exists between an employer-created condition and the occurrence
of an injury, the injury will be compensable.
(c) Minor deviation: acts incidental to employment.
(d) Personal convenience: acts an employee may normally be
expected to indulge in under the conditions of his work, if not in
conflict with specific instructions, are generally compensable.
(e) Parking lot: If owned, maintained, or otherwise sponsored by
employer.
(f) Employer-supplied transportation: If provided for work-related
reason and not merely for employee benefit or convenience.
(g) Commercial traveler: If the employee’s occupation requires that he
or she travel, and there is no easily identifiable labor hub.
B.
1.
2.
3.
4.
Occupational Disease – Neb. Rev. Stat. § 48-151
Occupational disease is a disease which is due to the causes and conditions
which are characteristic of and peculiar to a particular trade, occupation,
process or employment.
Ordinary diseases of life to which the general public is exposed outside of the
employment shall not be compensable.
Employee “disabled”, and thus eligible for compensation, when permanent
medical impairment or medically assessed work restriction results in labor
market access loss.
Date establishing employer liability is based on “last injurious exposure” or
last exposure which bears a causal relationship to the disease. Employment
need only be of the type which could cause the disease, given prolonged
exposure.
III. NOTICE – Neb. Rev. Stat. § 48-133
A. Notice of injury is required “as soon as practicable” following the accident.
B. In repetitive trauma/occupational diseases, notice is required as soon as
practicable from time employee’s condition becomes an “injury.”
C. The notice must be written and include the time, place and cause of the injury,
except that if employee can show that employer had actual or constructive notice
of the injury, no written notice is required.
D. Notice given five months after the injury is “unreasonable” per se.
IV. REPORT OF INJURY – Neb. Rev. Stat. § 48-144.01
A. FROI – First Report of Injury
3
1. For every Reportable Injury (including medical only injuries) arising out of and
in the course of employment, a report of injury must be electronically filed with
the Nebraska Workers’ Compensation Court within ten days of the reportable
injury.
a. Reportable Injury means those injuries or diagnosed occupational
diseases that result in:
i. death, regardless of the time between the death and the injury or onset
of disease;
ii. time away from work;
iii. restricted work or termination of employment;
iv. loss of consciousness; or
v. medical treatment other than first aid.
b. Failure to file injury report within 10 days of accident results in tolling of
statute of limitations under § 48-137 such that two year statute of
limitations does not begin to run until the report is filed.
2. A First Report of Injury is required:
a. In the event of an injury, even if liability is denied;
b. A change is necessary to a previously filed report;
c. A denial is made at any time;
d. The claim has been acquired by another carrier.
3. Any employer who fails to file a report is guilty of a Class II Misdemeanor for
each such failure.
B. SROI – Subsequent Report of Injury
1. in every case where a benefit payments have been made, a subsequent
report of injury shall be electronically filed with the court by the employer or its
insurance carrier.
2. A Subsequent Report of Injury is required when:
a. The first indemnity payment has been made;
b. A change is necessary to a previously filed report;
c. A claim has been denied;
d. Every 180 days the claim has been open
e. Benefits have been reinstated;
f. The claim has been closed;
g. Jurisdiction has been changed.
V. CLAIM FOR COMPENSATION – Neb. Rev. Stat. §§ 48-137, 48-144.04
A. Employee has two years from the date of accident or the last date payment was
received by the intended recipient for benefits to file a timely Petition.
B. If Employer fails to file an injury report within 10 days of accident, the two year
statute of limitations does not begin to run until such report is filed.
4
VI. ANSWER TO PETITION – Neb. Rev. Stat. § 48-176
A. Petition served upon employer and carrier with Summons. Summons to be
returned to Division within 7 days of service. Answer to Petition must be filed
within 7 days of summons return to Workers’ Compensation Court.
B. Failure to file timely answer may result in acceptance of facts in claim and
default judgment.
VII.
MEDICAL TREATMENT – Neb. Rev. Stat. § 48-120
A. Employer responsible for all reasonable medical/surgical/hospital services
required by the nature of the injury, plus mileage for travel and incidental
expenses necessary to obtain such services.
B. If employer does not participate in Managed Care Plan—
1. Following injury, employer must notify employee of right to select a physician
who has maintained the employee’s medical records and has a documented
history with the employee prior to an injury.
a. If employer fails to notify employee, employee may choose any provider.
b. If, after notification, employee fails to exercise the right to choose his or
her provider, then employer may choose.
2. Change of doctor only by agreement of the parties or by order of the
compensation court.
C. If employer participates in Managed Care Plan—
1. Employer must notify employee of right to select primary treating physician in
accordance with above—
a. Chosen physician, if outside Plan, must agree to the rules of the Plan; or
b. Employee may choose among doctors already signed up with the Plan.
2. Choice of physician rules do not apply if:
a. Employer denies compensability;
b. Injury involves dismemberment or major surgical operation;
c. Employer fails to provide notice of right to select treating physician.
d. Must be careful when answering petition for benefits. If employer denies
compensability, employee may leave Plan and employer is liable for
medical services previously provided.
3. Employee may change primary treating physician within the Managed Care
Plan at least once without agreement or court order.
4. Employer, insurance carrier, or representative of the employer or insurance
carrier has right to access all medical records of the employee. Failure to
provide medical records may result in a Court order striking the medical
provider’s right to payment.
5. Bills are paid pursuant to the Nebraska Fee Schedule.
5
VIII.
VOCATIONAL REHABILITATION – Neb. Rev. Stat. §48-162.01
A. Employee entitled to vocational rehabilitation services if unable to perform
suitable work for which he or she has previous training or experience.
B. Used to take a potential permanent total to another vocation or to
reduce/eliminate loss of wage earning capacity.
C. Claimant must submit to evaluation by a vocational rehabilitation counselor who
will, if necessary, develop and implement a vocational rehabilitation plan.
D. Claimant has right to accept or decline rehabilitation services, but refusal to
participate in a court-approved plan, without reasonable cause, can result in
penalties – vocational rehabilitation services may be terminated and
compensation court may suspend, reduce, or limit compensation otherwise
payable under Workers’ Compensation Act.
E. Costs of vocational rehabilitation paid from Workers’ Compensation Trust Fund;
weekly temporary benefits and medical costs paid by employer.
IX. AVERAGE WEEKLY WAGE – Neb. Rev. Stat. §§ 48-121, 48-126
A. For continuous employments where the rate of wages was fixed by the day or
hour or by the output of the employee, wage is average weekly income for the
period of time ordinarily constituting his week’s work, with reference to the
average earnings for a working day of ordinary length, and using as much of
preceding six months as was worked prior to accident. Overtime earnings
excluded, unless the premium for the policy includes a charge for overtime
wages.
B. Gratuity or tip and similar advantages are excluded in calculation of average
weekly wage to the extent that the money value of such advantages was not
fixed by the parties at the time of hiring.
C. Special Cases—
1. Part-time employees: for permanent disability only, must base average
weekly wage on minimum 5-day workweek if paid by the day, minimum 40hour workweek if paid by the hour or on whichever is higher if paid by output.
2. Multiple employments: base average weekly wage on wages of employer
where accident occurred only, unless seasonal employee.
3. Seasonal employment: in occupations involving seasonal employment or
employment dependent on the weather, average weekly wage is determined
to be one-fiftieth of the total wages earned from all occupations during the
year immediately preceding the accident.
4. New employees: where worker has insufficient work history to calculate
average weekly wage, what would ordinarily constitute that employee’s
6
average weekly income should be estimated by considering other employees
working similar jobs for similar employers. Where available, such similar
employees’ work records should be considered for the 6-month period prior to
the accident.
A. Temporary Total Disability (TTD) – Neb. Rev. Stat. § 48-121(1)
1. Compensation rate two-thirds Average Weekly Wage (AWW) up to maximum.
2. Payable until maximum medical improvement reached, provided the
employee does not secure alternative employment for the same, or a
different, employer.
3. Waiting period (Neb. Rev. Stat. § 48-119) – seven calendar days. Benefits
must be paid for those seven days if claimant is disabled six or more weeks.
B. Temporary Partial Disability (TPD) – Neb. Rev. Stat. § 48-121(2)
1. Employee able to return to work part-time while under medical care.
2. Compensation rate two-thirds of difference between wages received at time
of injury and earning power of employee afterwards, up to maximum.
C. Permanent Total Disability (PTD) – Neb. Rev. Stat. § 48-121(1)
1. Definition: inability of the worker to perform any work which he or she has the
experience or capacity to perform; workers who, while not altogether
incapacitated for work, are so handicapped that they will not be employed
regularly in any well-known branch of the labor market.
2. Compensation rate two-thirds AWW up to maximum, paid for life.
3. Law does allow lump sum settlements based on present value of permanent
total award if filed with and approved by the workers’ compensation court –
Neb. Rev. Stat. § 48-139. Generally saves 34% of total cost of obligation.
D. Permanent Partial Disability (PPD) – Neb. Rev. Stat. § 48-121(2), (3)
1. Definition: a disability that is permanent in nature and partial in degree.
2. Scheduled Member Injuries – “Loss of Use”
a. Injury to a body member – ex. Arm, leg, foot, hand, etc.
b. Compensation rate of two-thirds AWW, up to maximum, in accordance
with schedule.
i. Nebraska favors the 5th Edition of the AMA Guidelines for Permanent
Impairment, but will accept a rating pursuant to the 6th Edition of the
Guidelines to assist the trier of fact. The Court is not bound by the
guidelines or a rating provided by a physician.
c. Two-member injury rule – – total loss or total permanent loss of use of two
members in one accident constitutes permanent total disability.
d. If loss of use of more than one member does not constitute permanent
7
total disability, compensation is paid for each member with periods of
benefits running consecutively.
e. No deduction for TTD benefits paid.
3. Body as a Whole Injuries – “Loss of Earning Capacity”
a. Injury to trunk of body, neck or head, but not including shoulder or injuries
below the trochanteric neck of the femur.
b. Injuries to two scheduled members from the same accident which
combine to create a loss of earnings of more than thirty percent are
compensated on the basis of loss of earning capacity.
c. Compensation rate is percentage of lost earning capacity multiplied by
two-thirds of AWW.
d. Payable for 300 weeks.
e. Deduction for weeks TTD benefits paid.
a. Scheduled Member Injury:
i. Claimant has a rating of 10 percent permanent partial disability to the
foot, which qualifies for 150 weeks of benefits.
ii. Claimant qualifies for maximum compensation rate for his date of
iii. Award would be $9660.00 (150 wks X 10% X $644).
iv. No credit for TTD paid.
b. Body as a Whole:
i. Claimant qualifies for maximum compensation rate for his date of
ii. Claimant has a 50% loss of earning capacity.
iii. Claimant received TTD benefits for 20 weeks (300 – 20 = 280 wks
payable).
iv. Award would be $90,160.00 (280 wks X $644.00 X 50%).
E. Death - Neb. Rev. Stat. § 48-122
a. Widow(er) entitled to weekly compensation benefits for life or until
remarriage.
i. No children - rate of compensation two-thirds AWW at time of death,
up to maximum.
ii. Children - rate of compensation three-quarters AWW at time of death,
up to maximum.
b. If spouse remarries, he/she receives two years of benefits in lump sum
and payments cease.
c. Dependent children receive weekly benefits payable to children during
dependency or until age 19, or age 25 if incapable of support or a full-time
student at an accredited institution.
d. Lump sum settlements are allowed if filed with and approved by the
8
workers’ compensation court – Neb. Rev. Stat. § 48-139
e. Reasonable expenses of burial, not exceeding $10,000.00.
XI. DEFENSES
A. Statutory:
1. Willful Negligence (Neb. Rev. Stat. §§ 48-127, 48-151): employer must prove
(a) a deliberate act knowingly done; (b) such conduct as evidences a reckless
indifference for safety; or (c) intoxication.
a. “Reckless indifference for safety” means more than want of ordinary care.
The conduct of the employee must manifest a reckless disregard for the
consequences coupled with a consciousness that injury will naturally or
probably result.
b. Intoxication:
i. Burden on employer; must show that employee was intoxicated, either
by alcohol or non-prescribed controlled substance, and that the
intoxication was the cause of the accident.
ii. Defense unavailable if employee was intoxicated with consent,
knowledge, or acquiescence of employer.
2. Statute of Limitations (Neb. Rev. Stat. § 48-137): two years from date of
accident or of last benefits paid, unless the injury report is not timely filed by
the employer. In that case, the statute tolls the two-year limitation until the
injury report is filed. Employer has 10 days from the date they are notified of
the accident to file the injury report with the Workers’ Compensation Court.
3. Timely Notice of Accident to Employer (Neb. Rev. Stat. § 48-133): Claimant
must give written notice of the time, place, and nature of the injury as soon as
practicable after the happening thereof. The Supreme Court has ruled that
five months is per se unreasonable.
B. Other Defenses:
1. Failure to Use Provided Safety Devices: compensable only if failure to use
safety devices amounted to willful negligence.
2. Intoxication: Intoxication will bar recovery if, at the time of the injury, the
Plaintiff was in a state of intoxication and the intoxication caused or
contributed to the cause of the injury. The employer must not have known
about the intoxication.
3. Violation of a Safety Rule: An employer may prevail where the employer has:
a. a reasonable rule designed to protect the health and safety of the
employee,
b. the employee has actual notice of the rule
c. the employee has an understanding of the danger involved in the violation
of the rule
d. the rule is kept alive by bona fide enforcement by the employer, and
e. the employee has no bona fide excuse for the rule violation.
9
4. Recreational Injuries: Generally compensable when:
a. they occur on the premises as a regular incident of employment;
b. the employer, by expressly or impliedly requiring participation brings the
activity within the orbit of employment; or
c. the employer derives substantial direct benefit from the activity beyond
value of improvement in employee health and morale.
5. Independent Contractor:
a. "Independent Contractor" – one who, in course of independent occupation
or employment, undertakes work subject to will or control of person for
whom the work is done only as to result of the work and not as to methods
or means used; such person is not employee within meaning of workers'
compensation statutes.
i. Exception – if the employer has created a scheme, artifice or device to
enable them to execute work without providing workers’ compensation
coverage, then liability will be imputed to the employer.
b. To be eligible for compensation under Workers’ Compensation Act,
alleged employee must prove that he or she is an “employee” in order to
invoke jurisdiction of Workers’ Compensation Court.
XII.
PENALTIES
A. Absent a reasonable controversy, the employer or insurance carrier must pay,
within thirty days, all medical and indemnity benefits due and owing to the
employee and medical providers. Failure to do so will result in;
1. A 50% penalty on all indemnity benefits due and owing, plus interest and/or;
2. Attorney’s fees and interest for securing payment of all medical expenses not
timely made.
B. A reasonable controversy is;
1. The existence of any reasonable factual dispute that, if proven true, would
absolve the employer or insurance carrier of liability, or;
2. Any unanswered question of law which bears on the outcome of
compensability.
10
FROM ISSUES ADDRESSED IN RECENT NEBRASKA CASES
Q: Does the Nebraska Workers’ Compensation Court have jurisdiction over a motion
filed by a party after a release of liability was filed by with the Nebraska Workers’
Compensation Court (“Court”)?
A: Yes. In Holdsworth v. Greenwood Farmers Cooperative, 286 Neb. 49 (2013) the
Nebraska Supreme Court determined that the Court has jurisdiction to hear a motion
filed by a party after the parties file a release of liability with Court.
Employer’s argument was that the 2009 revisions to Neb. Rev. Stat. 48-139(3) absolved
the Court from jurisdiction to resolve any motion filed by the parties after the release of
liability was filed. Those revisions included language that with the filing of the release of
liability the Employee waives “his rights to have a judge of the compensation court
decide the rights and liabilities of the parties” under the Nebraska Workers’
Compensation Act.
The Supreme Court found that the Nebraska Workers’ Compensation Court had
jurisdiction to hear a motion filed by a party after a release of liability is filed for public
policy reasons.
Q: Is an Employee entitled to penalties, attorney’s fee’s and interest when the
settlement proceeds are mailed to Employee’s attorney more than 30 days after a
release of liability is filed with the Court?
A: No. In Holdsworth v. Greenwood Farmers Cooperative, 286 Neb. 49 (2013) the
Nebraska Supreme Court determined that Employee waived all rights to receive
penalties, attorney’s fees and interest when the parties filed a release of liability
pursuant to Neb. Rev. Stat. 139(3).
In Holdsworth, the parties entered into a settlement agreement and decided to settle the
case by a release of liability under Neb. Rev. Stat. 48-139(3). The release of liability
was filed with the Court on January 11, 2012. The settlement check was check mailed
to Employee’s attorney on February 22, 2013.
There was no question under the facts of the case that the settlement check was mailed
to Employee’s attorney more than 30 days after the filing of the release of liability
possibly creating exposure for Employer penalties, attorney’s fees, and interest under
Neb. Rev. Stat. 48-125.
The Supreme Court determined that Employee waived his rights to obtain penalties,
attorney’s fee’s and interest as soon as the parties filed a release of liability with the
Court based on the 2009 revisions to 48-139(3).
11
Q: Is an employee entitled to compensation based on their loss of earning capacity
when the employee suffered permanent impairment to multiple scheduled
members as a result of a single accident when the law permitting such
compensation was enacted after the employee’s date of injury?
A: No. In Smith v. Mark Chrisman Trucking, Inc., 285 Neb. 826 (2013), the Supreme Court
determined that an employee is not entitled to compensation based on their loss of
earning capacity when Employee sustained permanent impairment to multiple
scheduled members as a result of the accident when the Nebraska Legislature enacted
a law allowing for such compensation after the Employee’s date of injury.
In Smith, the employee suffered a compensable injury on October 23, 2007. Employee’s
physician opined that Employee suffered permanent impairment in his left lower
extremity and left upper extremity as a result of the accident. The 2007 Nebraska
legislature enacted a law where an employee is entitled to compensation based on their
loss of earning capacity when they suffered permanent impairment to multiple
extremities in a single accident so long as the loss of earning capacity is greater than or
equal to 30%. This revision was intended by the Nebraska Legislature to be enacted on
January 1, 2008.
The employee’s argument was that the changes should apply to all injuries incurred
before the enactment of the revisions. The Supreme Court determined that the revisions
did not apply retroactively to injuries sustained before the revisions were enacted.
Q: Does an employee suffer a recurrence, and not an aggravation, of a condition
when there is no medical evidence that the employee suffered a new and separate
injury?
A: Yes. In Tuttle v. Bunge Milling, Inc., 20 Neb. App. 615 (2013) the Court of Appeals
determined that Employee suffered a recurrence of a previous worker’s compensation
injury, instead of a new workers’ compensation injury, when there was no medical
evidence that a second injury occurred.
In Tuttle, the employee suffered a compensable injury on May 7, 1992. The employee
sought treatment for the injury until 1995 when treating physician indicated that
Employee had reached MMI and that no additional medical treatment was necessary as
a result of the accident.
The employee continued to work for the employer with a 75 pound work restriction until
February 13, 2003 when employee sought treatment for the same injuries he suffered in
1992.
Employee’s argument was that Employee suffered a separate injury on February 13,
2003 in the form of an aggravation because Employee had not treated for the 1992
workers’ compensation injury to the same area of the body between 1995 and 2003.
12
The Court of Appeals dismissed this argument finding that there was a lack of medical
evidence supporting the conclusion that a new injury occurred on February 13, 2003.
Q: Is an employee entitled to additional loss of earning capacity (“LOEC”) when
employee was previously compensated in full for a loss of earning capacity but
the settlement agreement was not submitted to or approved by the Nebraska
Workers’ Compensation Court?
Yes. In Tuttle v. Bunge Drilling, Inc., 20 Neb. App. 615 (2013) the Court of Appeals
determined that the employee was entitled to additional loss of earning capacity even
though he was already compensated in full for a previous loss of earning capacity
evaluation because the settlement agreement was not submitted to or approved by the
Nebraska Workers’ Compensation Court.
In Tuttle, the employee suffered a compensable injury on May 7, 1992. The employee
was certified at MMI in 1995. He was then compensated for a 20% loss of earning
capacity, but the parties did not submit those payments to the court for approval of a
final settlement.
The Employee sought treatment again for the same portion of his body in 2003 that was
involved in the 1992 injury. Employee filed a petition for compensation in 2010 and
received an Award for a 40% loss of earning capacity as a result of the accident.
Employer’s primary argument was that it had fully compensated the employee for his
1992 injury when it paid out the 20% LOEC. The Court of Appeals dismissed employer’s
argument because employer did not reduce the 20% LOEC to writing and submit it to
the Nebraska Workers’ Compensation Court either by filing a release of liability or by
submitting an application for order approving lump sum settlement. Therefore, the Court
of Appeals held that Employee was entitled to a 40% LOEC as a result of the accident.
Q: Is an employee entitled to modification of an Award granting future medical
treatment for employee’s right knee when employee underwent a subsequent
knee replacement that was related to a pre-existing condition?
A: No. In Pearson v. Archer-Daniels-Midland Milling Co. 285 Neb. 568 (2013), the
Nebraska Supreme Court determined that an employee is not entitled to a modification
of an Award that ordered employer to pay for future medical treatment for Employee’s
right knee when the need for Employee’s knee replacement was related to a preexisting condition.
In Pearson, the employee suffered a compensable sprain/strain injury to his right knee
on October 27, 2006. A trial was conducted on June 16, 2008 where the employee’s
need for a right knee replacement was discussed but the Award subsequently entered
did not specifically address the compensability of a right knee replacement. The Award,
13
however, granted future medical treatment to employee’s right knee related to the
accident.
Sometime after the Award was entered, employee underwent the right knee
replacement and filed an application for modification when the employer refused to pay
for medical expenses associated with the knee replacement. The Court of Appeals
upheld the Nebraska Workers’ Compensation Court’s denial of the compensability of
the knee replacement because the record contained opinions of three doctors who
opined that employee’s need for the knee replacement was related to a pre-existing
arthritic condition, and not the work accident.
Q: Is an employee entitled to temporary total disability compensation when their new
employer cannot honor light duty restrictions but the employer where the
employee worked on the date of the accident could?
A: Yes. In Zweiner v. Becton Dickinson-East, 285 Neb. 735 (2013), the Nebraska Supreme
Court determined that an employee is entitled to temporary total disability compensation
when their new employer could not honor employee’s light duty restrictions but the
employer where employee worked on the date of the accident could have honored
employee’s restrictions.
In Zweiner, the employee suffered a compensable shoulder injury while working for
employer on August 2010. Employee was originally diagnosed with a strain and
employee continued to work for employer without restrictions until March 12, 2010 when
employee voluntarily resigned their employment to go work for a new employer.
Employee’s reason for leaving their employment with employer was unrelated to the
accident. New employer offered to pay employee more money compared to what he
was making with employer.
Employee sought a second opinion after leaving their employment with employer and
was diagnosed with a rotator cuff tear. Employee underwent surgery on May 12, 2010.
Employee was release to return to work light duty after the surgery but was not released
to return to full duty until July 8, 2012. New employer could not accommodate
employee’s light duty restrictions during the recovery period. Employer did not pay
employee temporary total disability compensation during the recovery period because it
could have accommodated employee’s light duty restrictions if employee was still
working for employer.
The Nebraska Supreme Court ruled that Employee was entitled to temporary total
disability compensation from employer during the recovery period because new
employer could not accommodate employee’s restrictions. The Court reasoned that an
employee never forfeits his right to receive temporary total disability benefits and is not
obligated to maintain his employment with employer on date of accident in order to
receive benefits.
14
Q: Is an employee’s estate permitted to bring a tort action against an employer in
lieu of seeking benefits through the Nebraska Workers’ Compensation Act when
the employee died as a direct result of an egregious safety violation of a coemployee?
No. In Teague v. Crossroads Cooperative Association 286 Neb. 1 (2013) the Nebraska
Supreme Court determined that an employee’s estate was not permitted to bring a tort
action against employer instead of seeking benefits under the Nebraska Workers’
Compensation Act when the employee died as a direct result of an egregious safety
violation of a co-employee.
In Teague, the employee was instructed by his supervisor to enter a grain bin and
shovel grain into the bin’s conical base in order to facilitate removal of grain from the
bin. The depth of the grain was high enough to create an engulfment hazard.
Employee’s supervisor sent employee into the grain bin without a lifeline or any other
equipment that could prevent employee from being engulfed in grain in violation of
OSHA regulations. Employee died of asphyxiation after being engulfed in grain.
Employee’s estate brought an action in district court against employer alleging wrongful
death, assault and battery, and for a declaratory judgment that either the Nebraska
Workers’ Compensation Act (“Act”) does not apply or, alternatively, that the Act is
unconstitutional on its face. The district court granted a motion to dismiss filed by
employer because an egregious safety violation does not take the employer’s conduct
outside the exclusivity of the Act.
The Court further concluded that the exclusive remedy doctrine under the Act did not
violate employee’s Constitutional rights.
Q: Did the Nebraska Workers’ Compensation Court (“Court”) err by rejecting a
stipulation made by the parties that employee sustained multiple scheduled
injuries arising out of the same accident?
A: Yes. In Cervantes v. Omaha Steel Castings Co., 20 Neb. App. 695 (2013), the Court of
Appeals determined that the Court erred by rejecting a stipulation by the parties that the
employee sustained injuries to multiple scheduled members arising out of the same
accident.
In Cervantes, Employee suffered a compensable injury on August 14, 2006 while
working for the employer. On that date employee slipped and fell off a steel beam that
was suspended approximately 5 feet in the air. Employee sought treatment for both
shoulders as a result of the accident.
The Judge entered a pretrial order requiring the parties to enter stipulations prior to trial
on issues that were not in dispute. One of the stipulations was that employee suffered
injuries to both shoulders as a result of the August 14, 2006 accident. The judge
15
entered an Award rejecting the stipulation and concluded that the medical evidence in
the record did not support employee’s left shoulder injury arose out of and in the course
of the August 14, 2006 accident.
The Court of Appeals held that the Nebraska Workers’ Court erred by rejecting the
stipulation. It reasoned that even if there was evidence on the record that tends to show
that the stipulation was incorrect, the Court could not simply reject the stipulation.
Q: Can the Nebraska Workers’ Compensation Court award vocational rehabilitation
benefits when employee has not yet reached maximum medical improvement?
A: No. In Hernandez v. JBS USA, L.L.C., 20 Neb. App. 634 (2013), the Court of Appeals
determined that the Nebraska Workers Compensation Court could not award vocational
rehabilitation benefits to an employee who has not yet reached maximum medical
improvement.
In Hernandez, employee suffered three compensable injuries to his back arising out of
and in the course of his employment in June 2009, January 2010, and November 2010.
It was undisputed at the time of the trial that employee had not yet reached maximum
medical improvement. The Court issued an Award granting employee vocational
rehabilitation benefits.
The Court of Appeals found that the Court exceeded it’s authority by awarding
vocational rehabilitation benefits before Employee reaches maximum medical
improvement, reasoning that entitlement to vocational rehabilitation benefits can only be
determined after determination of permanent disability and need for permanent work
restrictions.
Q: Did the Nebraska Workers’ Compensation Court err by awarding employee
temporary partial disability benefits during the period that employee received
unemployment benefits instead of awarding temporary total disability benefits?
A: Yes. In Hernandez v. JBS USA, L.L.C., 20 Neb. App. 634 (2013), the Court of Appeals
determined that the Nebraska Workers Compensation Court erred by awarding
temporary partial disability benefits during the period that employee received
unemployment benefits instead of providing temporary total disability benefits.
In Hernandez, employee suffered three compensable injuries to his back arising out of
and in the course of his employment in June 2009, January 2010, and November 2010.
Employee worked for the employer after the accident but was eventually terminated by
the employer. Employee applied for and received unemployment benefits for a period of
time after the termination. During that period, Employee had not yet reached maximum
medical improvement. The Court awarded Employee temporary partial disability
16
benefits during the period of time that employee received unemployment benefits for the
difference between his average weekly wage and rate of unemployment benefits.
The Court of Appeals found that the Court erred by awarding employee temporary
partial disability benefits instead of temporary total disability benefits during the time
employee received unemployment because the Nebraska Workers’ Compensation Act
prohibits an employer from considering compensation received from any other source
then the employer when determining the amount of workers’ compensation benefits to
be paid to the employee.
Q: Is an employee entitled to waiting time penalties when the settlement check was
sent to the employer’s attorney within the 30 day waiting period but the check
was not sent to employee’s attorney until after the 30 day waiting period expired?
A: Yes. In Harris v. Iowa Tanklines, Inc., 20 Neb.App. 513 (2013) the Court of Appeals
determined that employee was entitled to waiting time penalties when the settlement
check was sent to the employer’s attorney within 30 days of an order approving a
settlement agreement, and then delivered by the employer’s attorney to the employee’s
attorney more than 30 days after entry of the order.
In Harris, the employer and employee reached a settlement agreement and submitted
that agreement to the Nebraska Workers’ Compensation Court for approval. The
Nebraska Workers’ Compensation Court approved the settlement agreement on May
11, 2010. The settlement check was issued and sent to employer’s attorney on June 10,
2010 (30 days after the order was filed). Employer’s attorney received the check on
June 11, 2010 (31 days after the order was filed) and delivered the check to employer’s
attorney on the same date.
The Court of Appeals determined that the employee was entitled to waiting time
penalties because the settlement check was not mailed to employee’s attorney within
30 days of the order approving the lump sum settlement.
Q: Does an employer deny compensability of an employee’s workers’ compensation
claim by failing to provide medical treatment when it had sufficient knowledge of
the employee’s injury and that medical treatment was necessary?
A: Yes. In Clark v. Alegent Health Nebraska, 285 Neb. 60 (2013) the Supreme Court
determined that an employer denied medical care to an employee when it failed to
communicate with employee and provide additional medical treatment at a time when
the employer had sufficient knowledge of employee’s injury and that medical treatment
was necessary.
On April 18, 2010, employee suffered a compensable injury arising out of and in the
course of her employment. Employee completed a Form 50 identifying Dr. Nystrom as
17
her primary care physician. Employee began treating with Dr. Nystrom on April 27,
2010. Employee missed three days of work. She allegedly made several attempts to
contact the case worker assigned to the claim in regards to workers’ compensation
benefits. According to employee, she never heard back from the case worker or the
employer.
Employer hired Dr. Gammel to conduct a records review. On July 30, 2010, Dr. Gammel
issued a report that employee suffered a temporary exacerbation injury on April 18,
2010 and that she had returned to her base line pre-accident condition on May 1, 2010.
After the issuance of Dr. Gammel’s report, employee treated with seven other doctors
for the injuries she allegedly suffered on April 18, 2010. Dr. Nystrom did not refer
employee to any of these doctors.
The Supreme Court concluded that the employer must pay medical bills associated with
the treatment of the seven doctors that Dr. Nystrom did not refer employee to for
treatment because employer denied employee workers’ compensation benefits by
failing to maintain contact with employee, doing away with the “chain of referral”
requirement. The Court determined that employer denied employee workers’
compensation benefits when it failed to provide benefits to employee when it had
sufficient knowledge of the employee’s accident and that medical care was needed. The
Court opined that under the circumstances the employer had an affirmative and
continuing duty to provide employee medical treatment.
Q: Does the Nebraska Workers Compensation Act apply to undocumented workers?
A: Yes. In Moyera v. Quality Pork International, 284 Neb. 963 (2013) the Supreme Court
determined that the Nebraska Workers’ Compensation Act applies to undocumented
workers.
In Moyera, the employee suffered a compensable injury arising out of and in the course
of his employment. It was determined after the accident that he was an undocumented
worker. The Supreme Court interpreted that the definition of employee in the Nebraska
Workers’ Compensation Act to cover all employees, not just those who have permission
to work lawfully in the United States.
Q: Does an employee’s immigration status as an undocumented worker preclude
him from an award of permanent and total loss of earning capacity?
A: No. In Moyera, the Supreme Court determined that a workers immigration status as an
undocumented worker does not preclude him form an award of permanent and total
loss of earning capacity.
18
The Supreme Court determined a loss of earning capacity assessment is intended to
gauge employee’s ability to perform specific tasks that they were accustom to
performing prior to the accident. The Court concluded that an employee’s ability to
perform certain tasks has no bearing on whether the employee has the right to legally
work in the United States.
Q: Is an employee entitled to compensation based on their loss of earning capacity
when they sustained scheduled member injury that was the proximate cause of a
body as a whole injury by the time that employee reached maximum medical
improvement?
A: Yes. In Moyera, the Supreme Court determined that an employee is entitled to
compensation based on their loss of earning capacity when employee suffered a
scheduled member injury that proximately caused a body as a whole injury by the time
that Employee reached maximum medical improvement.
In Moyera, the employee sustained an injury to his right foot when it was run over by a
forklift. Employee’s foot injury led to reflex sympathetic dystrophy (RSD). The pain
caused by employee’s RSD led to an altered gait that in turn led to problems with
employee’s hip and low back.
The Supreme Court determined that an employee is entitled to compensation for a body
as a whole impairment if he sustained injury to scheduled member that proximately
caused a body as a whole impairment prior to employee reaching maximum medical
improvement. The Court concluded that Employee’s foot injury proximately caused
injuries to his hip and back.
Q: Does an employee’s condition meet the “latent and progressive” exception to the
two year statute of limitations when doctors opined that employee would suffer
arthritis in the future when employee was released from care and employee was
diagnosed with an arthritic condition over two years after the last benefit was
paid?
A: Yes. In Wissing v. Walgreen Co., 20 Neb.App. 332 (2012) the Nebraska Court of
Appeals held that an employee established that his condition was latent and
progressive and his claim was not barred by the statute of limitations when he was
diagnosed with a post traumatic arthritic condition over two years after last benefits
were paid despite the fact doctors informed him he would suffer from the condition in
the future at the time he was released from care.
In Wissing, employee suffered a work-related injury to his right shoulder on January 1,
2007. Employee’s surgeon’s released him from care assigning a 15% permanent partial
impairment to the right upper extremity. In the rating report, the surgeon indicated that
employee would likely develop post-traumatic arthritis in the future that would cause
19
further symptoms. Employer paid last benefit that employee was entitled to on or about
April 30, 2008.
The employee continued to have problems with pain. He returned to his surgeon for a
consultation on August 24, 2010. The surgeon diagnosed employee with post-traumatic
arthritis and referred employee to a spine surgeon. The spine surgeon diagnosed
employee with significant congenital cervical stenosis.
Employee filed a Petition for compensation with the Nebraska Workers’ Compensation
Court on October 20, 2010 alleging that his current problems were related to his
January 1, 2007 work-related accident. The parties stipulated at trial that employee’s
claim was time barred unless an exception to the two year statute of limitations applied.
The Court of Appeals noted that in the case of latent and progressive injuries, the
statute of limitations will run one year after it became, or should have become,
reasonably apparent to the employee that he is suffering from a compensable disability.
The Court of Appeals concluded that employee’s condition met the latent and
progressive exception to the two year statute of limitations because employee’s current
condition was not discoverable within two years.
Q: Does the Nebraska Workers’ Compensation Court possess jurisdiction to award
attorneys fees to an attorney from a private health insurer for enforcing its
subrogation interest?
A: No. In Heesch v. Swimtastic Swim School, 20 Neb.App. 260 (2012) the Nebraska Court
of Appeals determined that the Nebraska Workers’ Compensation Court lacked
jurisdiction to award attorneys fees to an attorney from a private health insurer for
enforcing its subrogation interest.
In Heesch, employee’s private health insurance carrier paid $22,683.39 towards
medical expenses associated with employee’s workers’ compensation claim. The trial
judge ordered the employer to reimburse the employee’s private health insurance
carrier for the $22,683.39 it paid for employee’s medical expenses but declined to hold
that the private health insurance carrier must pay employee’s attorney a fee for
enforcement of its subrogation interest. Employee’s attorney appealed to the Nebraska
Court of Appeals.
The Court of Appeals determined that it the Nebraska Workers’ Compensation Court
lacked jurisdiction to order the private health insurance carrier to pay employee’s
attorney a fee for enforcing his subrogation interest because the private insurance
carrier was not a party to the case.
Q: Should an employee’s average weekly wage be based on a 40 hour work week for
purposes of determining vocational rehabilitation priority when the employee
20
only worked part time but was physically capable of working full time at the time
of the accident and at the time of trial?
A: Yes. In Becerra v. United Parcel Service, 284 Neb. 414 (2012) the Nebraska Supreme
Court held that wages for a 40 hour work should be used to calculate employee’s
average weekly wage for purposes of determining vocational rehabilitation priority even
though the employee was only working part time at the time of the accident.
In Becerra, employee was working part time while attending school. He testified that he
was capable of working full time at the time of the accident and that the only reason he
worked part time was to permit him to attend school. He further testified that he was
capable of working full time at the time of trial despite the permanent disability caused
by the accident.
The Supreme Court concluded that employee was entitled to a calculation of his
average weekly wage based on a minimum of a 40 hour work week so long as an
employee’s wages are fixed by the hour for any wage calculation pertaining to indemnity
for permanent disability or indemnity in death claims. The court reasoned that employee
was entitled to an average weekly wage based on a 40 hour work week because his
injury resulted in permanent disability, nothing prevented him from working full time on
at the time of the accident or at the time of trial, and that the goal of restoring an
employee to comparative employment would not be met by returning him to full-time
employment paying him an average weekly wage earned while working part time.
Q: Is an employee entitled to workers’ compensation benefits for injuries suffered in
a motor vehicle accident when employee left work during their work shift to
retrieve their access card from home?
A: Yes. In Parks v. Marsden Bldg. Maintenance, 19 Neb. App. 762 (2012) the Nebraska
Court of Appeals held that employee’s injuries arose out of and in the course of
employment when employee was involved in a motor vehicle accident because he left
work during his shift in order retrieve his access card.
In Parks, the employee was employed as a janitorial supervisor. Employer issued
employee an access card to gain access to a building he was responsible for cleaning.
It was employee’s understanding that he was required to have his access card in order
to perform his work-related duties and he was not permitted to use anyone else’s
access card if he forgot his at home. Employee left work on several occasions to go
home to retrieve his access card over the course of several years.
On the day of the accident, employee showed up at work and realized that he left his
access card at home. Employee went home to retrieve the access card and was
involved in a serious motor vehicle accident and sustained multiple injuries.
21
Employee filed a claim for compensation. The Workers’ Compensation Court found in
favor of the employee and required employer to provide employee with benefits. The
Court of Appeals affirmed the Workers’ Compensation Court’s decision holding that the
motor vehicle accident arose out of and in the course of employee’s employment with
employer.
Q: Does a common-law spouse under the law of a different state qualify as a
dependent under the Nebraska Workers Compensation Act?
A: Yes. In Spitz v. T.O. Haas Tire Co., 283 Neb. 811 (2012), the Nebraska Supreme Court
determined that a third party was not the common-law spouse of the deceased
employee under Colorado law.
In Spitz, employee was killed during a work-related accident while working for employer.
Companion brought a claim for compensation against employer alleging that he was
entitled to employee’s benefits because he was employee’s common-law husband.
Companion moved in with employee in either 1990 or 1991 while the two were living in
the state of Colorado, a state that recognizes common-law marriage. Companion and
employee moved to Nebraska in 1999. Companion lived with employee with only a few
short interruptions until employee’s death in 2006.
Companion gave employee what was believed to be a wedding ring in 1998, though the
two never went through any formal process of becoming married. At least some of
companion’s friends and family members believed that companion and employee were
married. Companion believed that he was the employee’s common law husband.
Companion and employee represented themselves as single on virtually all legal and
government documents and never purchased property together.
Applying Colorado law, the Workers’ Compensation Court denied companion’s claim.
Citing the numerous times that both companion and employee referred to themselves
as single on official documents, the Court concluded that companion and employee
never had intent to have a marital relationship. The Supreme Court of Nebraska noted
that a common-law spouse would be entitled to benefits under the Nebraska Workers
Compensation Act. However, The Supreme Court agreed that companion failed to
establish that he was employee’s common-law husband.
Q: Can an employer deny workers’ compensation benefits if the employee’s injury
was proximately caused by his or her own misrepresentation during the hiring
process?
A: No. In Bassinger v. Nebraska Heart Hospital, 282 Neb. 835 (2011), the Nebraska
Supreme Court overruled Hilt Truck Lines v. Jones, 204 Neb. 115 (1979) and abolished
the equitable misrepresentation defense.
22
In Hilt, the employee misrepresented his driving history to his employer, a trucking
company. Had the employee been truthful, he would not have been hired. The
Supreme Court of Nebraska endorsed the “equitable misrepresentation” defense, and
held that benefits could be denied to employees who misrepresented their physical
condition and abilities, provided that the employer relied on the misrepresentation and
the misrepresentation caused the injury.
In Bassinger, the employee failed to disclose a prior permanent restriction limiting her to
“light duty” work only. Nebraska Heart Hospital hired her as a CNA, and required her to
lift patients which exceeded her permanent restrictions. The employee sustained a
back injury and sought benefits.
The employer denied benefits, and argued that had the employee been truthful in her
pre-employment interview and disclosed her permanent restrictions, she would not have
been hired, and therefore, she should not be entitled to benefits. The Trial Court
agreed, and denied Employee benefits.
On appeal, the Supreme Court reversed and held that the equitable misrepresentation
defense was a “common law” defense that is not explicitly authorized by the plain
language of the Nebraska Workers’ Compensation Act, and is therefore incompatible
with the Act.
Q: In an action by an injured employee against a third-party, can an employer’s
negligence be considered in the allocation of fault?
A: No. In Downey v. Western Community College, 282 Neb. 970 (2012), the Supreme
Court held that an employer’s negligence can not be compared with that of a third-party
under a comparative fault allocation.
Employee Downey was a laborer who worked for Ferguson Signs. Ferguson Signs was
hired to replace a large scoreboard on the premises of Western Community College.
Unbeknownst to Downey, the floor of the scoreboard was rotted and weak. Downey fell
through the floor of the scoreboard and sustained severe injury.
Downey recovered workers’ compensation benefits from Ferguson. Downey also sued
Western Community College in District Court, alleging negligence. Western argued that
Ferguson was negligent in failing to provide Downey with fall protection and training,
and that Western’s share of the negligence should be reduced accordingly.
The District Court rejected this argument and held that because Ferguson enjoyed the
exclusive remedy provisions and was immune from liability, negligence could not be
apportioned against Ferguson. The Supreme Court affirmed, and held that an employer
was not subject to the apportionment of negligence in any case in which the exclusive
23
remedy attached because apportioning negligence against a party that can not be held
liable for the negligence is a legal nullity.
Q: Can the Workers’ Compensation Court dismiss a party’s Petition or enter a
Directed Verdict for failure to comply with discovery requests and failure to
cooperate with medical treatment?
A: Yes and No. In Hofferber v. Hastings Utilities, 282 Neb, 215 (2011), the Supreme Court
noted that the Workers’ Compensation Court has the inherent authority to impose
severe sanctions for discovery violations.
The Workers’ Compensation Court has adopted the Nebraska Rules of Discovery in
Civil Cases, which authorizes the Court to impose reasonable sanctions for
noncompliance with a discovery order, including but not limited to dismissal of a
Employee’s pending action or a verdict directed against a Employer.
Failure to answer written discovery, appear for a deposition, or respond to other
properly propounded requests may result in sanctions including fines, imprisonment, or
a verdict entered against a non-compliant party.
However, if an injured worker unreasonably refuses to avail himself or herself of medical
or surgical treatment offered by the employer, his or her Petition may not be dismissed
on those grounds alone. Neb. Rev. Stat. §48-120(2)(c) allows the Compensation Court
to “suspend, reduce, or limit the compensation otherwise payable” under the Act if an
employee unreasonably refuses medical care, but it does not authorize the Court to
dismiss the injured workers’ case on those grounds alone.
Q: Does the Workers’ Compensation Court have the inherent authority to punish
contemptuous conduct by fine and imprisonment?
A: Yes. In Hofferber v. Hastings Utilities, 282 Neb, 215 (2011), the Court abrogated the
holding of Burnham v. Pacesetter, 280 Neb. 707 (2010), and found that the Workers’
Compensation Court did in fact have the power to hold parties in contempt.
The Workers’ Compensation Court is a tribunal of limited jurisdiction and has only the
authority conferred upon it by statute. However, it is a “court of record” and as such,
has the power inherent in any “court of record” in the State of Nebraska. Pursuant to
Neb. Rev. Stat. §25-2121, any “court of record” in the State of Nebraska has the
inherent authority to “punish by fines and imprisonment. . . persons guilty of
contemptuous conduct.” Pursuant to the Uniform Declaratory Judgments Act, the
Workers’ Compensation Court is a “court of record.”
24
Therefore, the contemptuous conduct of either party may be punishable by fine or
imprisonment. However, the Workers’ Compensation Court may not have the authority
to enforce or execute the fines and sentences it may impose for contemptuous conduct.
Q: May employees that only work a portion of the year, but receive their income over
the course of the entire year, calculate their average weekly wage by dividing
their total income by the actual number of weeks worked?
A: No. In Mueller v. Lincoln Public Schools, 282 Neb. 25 (2011), the Supreme Court
considered how to calculate the Employee’s average weekly wage based upon her
agreed upon payment structure.
Mueller, a school teacher, worked for nine months out of the year, but was paid weekly
for twelve months. Her total income per year was fixed, then divided by the number of
hours she worked in order to give her an hourly rate.
The Employee calculated her hourly wage by dividing her total income by the number of
hours she worked in nine months. The Employer calculated Employee’s hourly wage by
dividing Employee’s total income by average number of hours she worked per week,
and applied it over twelve months.
The Supreme Court concluded that both parties were incorrect. Specifically, the parties
and the Trial Court erred by assuming that Employee’s wage must be calculated on an
hourly basis and held that Nebraska law allowed for flexibility in order to determine
income from what “ordinarily constitutes a Employee’s work week.”
The Supreme Court did not issue a mandate, but instead remanded the matter for the
Trial Court to determine the average weekly wage.
Q: Can the opinion of an advanced practice registered nurse or physical therapist
serve as causation for a work-related injury?
A: No. In Lopez v. Austin Maintenance, 2011 Neb. App. Lexis 65 (2011), the Employee
sought treatment from a physician, APRN, and physical therapist.
At trial, Employee offered the history taken by the APRN, which included the statement
that he sustained an “on-the-job injury” when he “got off ladder – knee twisted and
popped.” Employee also offered the reports of his physical therapist which recited a
similar history. However, Employee neglected to have his physician comment and
agree upon the substance and findings in the reports.
The Trial Court awarded benefits, and incorrectly referred to the APRN as a “doctor.”
The Court of Appeals reversed this decision and held that neither a nurse nor a physical
25
therapist are included in the definition of “physician” and that only a physician may
render an opinion as to the causation of an injury.
Q: Does an employer’s gross negligence negate the exclusive remedy of the
Nebraska Workers’ Compensation Act?
A: No. In Estate of Teague v. Crossroads Cooperative Association, 2011 Neb. App. Lexis
56 (2011), the Employee’s estate sued the employer in District Court for an injury which
occurred outside the scope and course of employment.
The Employee was killed when he was shoveling grain inside a grain bin and became
asphyxiated when he was trapped by a large amount of flowing grain. The employer
was charged with criminal negligence in Federal Court and fined heavily by OSHA for
failures to follow applicable safety rules.
The Employee’s estate alleged that the employer’s “gross negligence” and “intentional
act” of failing to follow the applicable safety rules removed the exclusivity of the
Workers’ Compensation Act and allowed the Employee’s estate to sue in District Court.
The Court of Appeals rejected this argument and found that, even if the employer’s
conduct was intentional or grossly negligent, the conduct still arose out of an in the
course of employment, which subjects the Employee to the exclusivity of the Act. The
Court of Appeals did note that the Employee’s estate accepted benefits pursuant to the
Nebraska Workers’ Compensation Act, and held that when an employee, or his or her
dependants, claim or accept workers’ compensation benefits, the Act becomes the
exclusive remedy available to the employee or his or her dependants.
Q: Does the employee have to prove any permanent impairment or restriction to
obtain an award of future medical?
A: No. In Pearson v. Archer-Daniels-Midland, 282 Neb. 400 (2011), the Supreme Court
held that all that was necessary for an injured worker to obtain a “running award” of
future medical care was a showing that future medical care would “relieve or cure” the
work-related injury.
In Pearson, the employee sustained compensable back and knee injuries. At trial, the
Court found that Employee’s knee injury was at maximum medical improvement with no
impairment and no restrictions, but that his back injury required additional treatment.
After trial, Employee filed a request to modify the original Award, citing an opinion from
a physician that he needed a total knee replacement. At the hearing on his request to
modify, the Judge refused to admit any evidence of Employee’s need for a knee
replacement, finding that the Court had previously ruled on that issue, and declared that
no further medical care was necessary.
26
The Supreme Court reversed, finding that the Judge erred by failing to admit evidence
of Employee’s need for a knee replacement because permanent impairment or
restriction are not prerequisites for a finding of entitlement to future medical care. In
order for future medical care to be awarded, a Employee must simply show that care
would “relieve or cure” symptoms from the work-related injury.
Q: For purposes of the exclusive remedy provisions of the Nebraska Workers’
Compensation Act, are two businesses that share common ownership, structure,
and location both the “employer” of an injured worker?
A: No. In Howsden v. Roper’s Real Estate Company, 282 Neb. 666 (2011), the Supreme
Court determined the limits of joint corporate ownership for purposes of the exclusive
remedy of the Nebraska Workers’ Compensation Act.
In Howsden, the Employee worked for a real estate company. The shareholders of the
real estate company also owned a mortuary. The mortuary leased space in an office
building to the real estate company.
Employee fell and sustained injury in an elevator accident. She filed suit in District
Court against the mortuary that owned the building, alleging that the mortuary
negligently maintained the elevator. The mortuary filed a motion for summary judgment,
and the District Court granted that motion.
The Supreme Court reversed, finding that the exclusive remedy provisions of the
workers’ compensation act did not apply to a “legally distinct” entity, despite the
commonality of ownership, structure, or location. In doing so, the Court noted that a
parent company may assert the exclusive remedy against an employee of a subsidiary,
but two “distinct” entitles may not assert the exclusive remedy against each other’s
employees.
27
Notes Pages
28
Notes Pages
29
Notes Pages
30
OKLAHOMA WORKERS’ COMPENSATION
I. JURISDICTION - 85 O.S. §310
1. Injuries received and occupational diseases contracted in Oklahoma.
2. Contract of employment made in Oklahoma and employee was acting
in the course of such employment under the discretion of the employer.
3. Claimant may not receive workers’ compensation benefits in Oklahoma
if claimant received benefits in another state for said injury and the
claim was prosecuted to final determination in said state.
II. EXCLUSION FROM THE ACT – 85 O.S. §311
A. Any person who is employed as a domestic servant or as a casual worker in a
private name household which has a gross annual payroll of less than
$10,000 for such workers.
B. Any person who is employed in agriculture or horticulture whose employer
has a gross annual payroll of less than $100,000 for such workers.
C. Agricultural employees who are not engaged in operation of motorized
machines.
D. Those who provide services in a medical care or social services program
administered by the Department of Human Services.
E. An employer with five or fewer employees, all of whom are related by blood or
marriage to the employer.
III. ACCIDENTS
A. Compensable Injury - 85 O.S. §308
1. An unexpected traumatic event or unusual strain identifiable by time
and place of occurrence and producing at the time objective symptoms
of an injury caused by a specific event during a single work shift.
2. “Compensable Injury” means any injury or occupational illness,
causing internal or external harm to the body which arises out of and in
the course of employment if such employment was the major cause of
the specific injury or illness.
3. Must be established by objective medical evidence.
a. Objective medical evidence is defined as not based on anything
under voluntary control of the patient.
4. “Compensable Injury” includes heart-related or vascular injury, illness
or death only if an accident or the claimant’s employment is the major
cause of the heart-related or vascular injury. Such injury shall be
compensable only if it is demonstrated that the exertion necessary to
produce the harm was extraordinary and unusual in comparison to
1
other occupations and that the occupation was the major cause of the
harm.
5. No mental claim without physical injury unless the trauma is rape.
6. Does not include the ordinary, gradual deterioration caused by the
aging process.
7. Does not include injury while participating in recreational or social
activities.
8. An injury resulting directly or indirectly from idiopathic causes is not
compensable.
9. “Major cause” is defined as the predominant cause of the resulting
injury or illness.
10. Major Cause has been redefined as “more than 50% of the resulting
injury, disease or illness” and must be proved by a preponderance of
the evidence.
B. Repetitive Injuries/Occupational Disease - 85 O.S. §308
1. “Occupational disease” means only that disease or illness which is due
to causes and conditions characteristic of or peculiar to the particular
trade, occupation, process or employment in which the employee is
exposed to such disease. An occupational disease arises out of the
employment only if the employment was the major cause of the
resulting occupational disease and such is supported by objective
medical evidence, as defined in this section.
2. Ordinary diseases of life to which the general public is exposed outside
of the employment shall not be compensable, except where the
diseases follow as an incident of an occupational disease as defined in
this section.
3. The disease need not to have been foreseen or expected but after its
contraction it must appear to have had its origin in a risk connected
with the employment
4. With regard to occupational disease due to repetitive motion, if the
exposure to the repetitive motion which is found to be the cause of the
injury is for a period of less than 90 days and the evidence
demonstrates that the exposure to the repetitive motion with the
immediate prior employer was the prevailing factor in causing the
injury, the prior employer shall be liable for such occupational disease.
5. The employer liable for occupational diseases is “the employer in
whose employment the employee was last exposed to the hazard of
the occupational disease prior to evidence of disability.”
a. For repetitive motion claims, if exposure is for less than three
months and exposure with prior employer is prevailing factor in
causing the injury, prior employer is liable.
b. “Evidence of disability” is a new legislative term, and the courts
have not ruled on its meaning.
2
IV. NOTICE - 85 O.S. §323
A. 30 days to report traumatic accident to employer. 85 O.S. §323(A).
B. 30 days starts from the date of accident or the date the claimant received
medical attention. 85 O.S. §323(A).
C. If no notice within 30 days, rebuttable presumption is that the injury is not
work-related. 85 O.S. §323(A). Notice includes the claimant getting medical
treatment; notice does not require claimant also report to accident directly to
the employer.
D. Unless an employee gives oral or written notice to the employer within ninety
(90) days of the employee's separation of employment, there shall be a
rebuttable presumption that an occupational disease or cumulative trauma
injury did not arise out of and in the course of employment. 85 O.S. §323(B).
E. The time within which an act is to be done under 85 O.S. shall not include the
first day and legal holidays if they fall on the last day. 85 O.S. §309.
V. EMPLOYER’S FIRST NOTICE OF INJURY - 85 O.S. §322
A. An employer’s First Notice of Injury should be filed for all claims that result in
lost time beyond the shift or require medical aid away from the work site.
B. Advise all employers to complete the employer’s First Notice of Injury as soon
as possible and file with the Division of Workers’ Compensation.
C. Employer’s First Notice of Injury is to be filed within 10 days of or a
reasonable time thereafter.
D. File employer’s First Notice of Injury regardless of whether a claim is being
denied. Filing is not an admission of compensability.
E. Civil penalties possible for failure to file the employer’s First Notice of Injury.
F. Form 2
VI. CLAIM FOR COMPENSATION – 85 O.S. §318
A. Employee has two years from the date of accident or the last date payment
was made for benefits to file a timely Claim for Compensation.
B. Special exceptions for asbestos, silicone or exposure to nuclear radiation.
C. Form 3, 3A, 3B or 3E
D. New Law - Any claimant is authorized to a dismissal, without prejudice, of any
claim brought by the claimant before final submission of the case to the Court
for decision and may file a new claim within one year after the first claim was
dismissed. 85 O.S. §319.
VII.
ANSWER TO CLAIM FOR COMPENSATION
A. If you receive a Claim for Compensation, assign the claim to counsel ASAP.
3
B. Entry of appearance must be filed 10 days of notice from Division of Workers’
Compensation. In practice we also file an initial Form 10 at that time.
C. Answer (Form 10) must be filed within 30 days of filing of a Form 9.
D. Failure to file timely answer may result in waiver of affirmative defenses.
E. Continue investigation, attempt settlement if appropriate.
VIII. MEDICAL TREATMENT – 85 O.S. §326 & 85 O.S. §332
A. Employer provides and selects, unless it is emergency treatment.
B. New Law - Change of Doctor occurs by utilizing a Form A. (Regardless of the
number of body parts injured, Claimant now only gets two Form A, Change of
Physician, per claim). 85 O.S. §326(E).
C. New Law - If employer fails or neglects to provide treatment with seven days
of actual notice of injury, employee may select the doctor at employer’s
expense. 85 O.S. §326(B).
D. New Law - The treating physician shall notify the employee and employer or
the employer's insurer in writing within seven days after the employee has
reached maximum medical improvement and is released from active medical
care. 85 O.S. §332(F).
E. Rebuttable presumption in favor of the treating physician. 85 O.S. §332(C).
F. Court can appoint a medical case manager at employer’s expense.
G. New Law - Mileage owed if travel required in excess of 20 miles roundtrip
from claimant’s residence to the medical provider. 600 miles round-trip limit
with $8 per meal, per four hours. 85 O.S. §326(K).
H. Vocational Rehabilitation – 85 O.S. §338.
1. Never mandatory.
2. Claimant may request vocational rehabilitation if, due to the injury, they
are unable to perform the same pre-injury job.
3. New Law - Vocational rehabilitation will not be provided to any
undocumented employees who are unable, by law in Oklahoma, to be
hired. 85 O.S. §338(A).
4. Used to take a potential permanent total to another vocation.
5. Only lasts 52 weeks.
6. Claimant receives temporary total disability benefits during
participation in vocational rehabilitation.
7. New Law – No person will be adjudicated to be permanently and totally
disabled unless first having obtained an evaluation through vocational
rehabilitation services. 85 O.S. §338(E).
IX. AVERAGE WEEKLY WAGE – 85 O.S. §331
A. Consists of the average annual earnings divided by 52.
4
B. Multiply average daily wage by 260 and divide by 52.
C. EXAMPLE:
Full-Time Employee
Employee makes $10 an hour/eight hours a day.
Employee’s average annual earnings are $20,800 ($80 x 260)
Average weekly wage is $440 ($20,800 ÷ 52)
A. Temporary Total Disability – 85 O.S. §332.
1. 70 percent of employee’s average weekly wage not to exceed
maximum (see rate card).
2. Temporary total disability not to exceed 52 weeks without the judge’s
approval.
3. New Law - Total payments of compensation for temporary total
disability shall not exceed 156 weeks, unless the Court makes a
finding of a consequential injury, then the Court may order an
additional period of compensation not to exceed 52 weeks. 85 O.S.
§332(A).
4. There are limits for temporary total disability on injuries such as
hernias, soft tissue, non-surgical injuries.
5. New Law - Employer has 10 days to pay compensation payments
owed or a 15 percent penalty may be applied. 85 O.S. §332(E).
6. Thirty dollars ($30) per week minimum.
7. New Law - An employee who is convicted of a misdemeanor or felony
in Oklahoma or any other jurisdiction should not be entitled to
temporary total disability benefits during any period of incarceration. 85
O.S. §332(I).
8. New Law - Waiting period – seven days. 85 O.S. §332(A).
B. Temporary Partial Disability – 85 O.S. §332
1. 70 percent of the difference between the employee’s average weekly
wage and the employee’s wage-earning capacity.
2. New Law - Maximum of 156 weeks and in no event should the total
payment exceed 80 percent of the average weekly wage of the
employee at the time of the injury. 85 O.S. §332(J).
3. No temporary total disability benefits to be paid when claimant is
receiving unemployment benefits or short-term disability.
C. Permanent Partial Disability – 85 O.S. §333
1. "Permanent impairment" means any anatomical abnormality after
maximum medical improvement has been achieved, which abnormality
or loss the physician considers to be capable of being evaluated at the
time the rating is made.
5
2. “Permanent partial disability” means permanent disability which is less
than total and shall be equal to or the same as permanent impairment.
3. Uses the AMA Guides to Permanent Impairment, 5th Edition.
4. Employer gets a credit for pre-existing injuries.
5. Minimum permanent partial disability rate is raised to $150.00 and the
maximum permanent partial disability rate is reduced to $323 per week
+ frozen for five years.
6. Disfigurement.
a. Applicable when there is serious and permanent disfigurement.
b. Maximum is $20,000, prior to November 1, 2005, $50,000, after
November 1, 2005.
c. Must be decided by Workers’ Compensation Judge.
d. Cannot be paid in addition to any other compensation.
7. If a claimant sustains severance or complete loss of use of a
scheduled body part, the number of weeks of compensation allowed in
the schedule for such disability shall be increased by 10 percent.
8. When dealing with minors, you must consider increased earning power
for PPD (not TTD).
a. Claimant has a rating of 10% permanent partial disability to the
body as a whole.
b. Claimant qualifies for the maximum compensation rate for his
date of accident of $289.00.
c. Value of rating would be $14,450.00. (500 wks X 10% X
$289.00)
D. Permanent Total Disability – 85 O.S. §336
1. “Permanent Total Disability” means incapacity because of accidental
injury or occupational disease to earn any wages in any employment
for which the employee may become physically suited and reasonably
fitted by education, training or experience, including vocational
rehabilitation, loss of both hands, or both feet, or both legs, or both
eyes, or any two thereof, shall constitute permanent total disability.
2. New Law - Payable until age of maximum Social Security retirement
benefits or for 15 years whichever is longer. 85 O.S. §336(A).
3. 70 percent of the employee’s average weekly wage.
4. Benefits are paid weekly during the continuance of such total disability.
E. Death – 85 O.S. §337
a. Surviving spouse receives 70 percent of the deceased
claimant’s average weekly wage for life or until remarriage.
6
b. If spouse remarries, he/she receives only two additional years of
benefits from remarriage date which is paid in one lump sum.
c. Surviving children receive benefits of 15 percent of the
deceased claimant’s average weekly wage for each child. If
more than two children, benefits are shared equally.
d. If there is no surviving spouse, 50 percent of the average
weekly wage of the deceased claimant is paid to the child with
20 percent paid for each additional child to be shared equally
among the children.
e. Children receive benefits until the age of 18, or 23 if they
continue their education full-time at an accredited school.
f. Actually dependant parents receive 25 percent of deceased
claimant’s average weekly wage.
g. Brothers, sisters and parents and grandchildren can also
receive benefits if actually dependant.
h. After three years of dependency, there is a rebuttable
presumption that actual dependent is no longer dependant.
i. The amount of benefits can change if the number of dependents
change due to death, marriage, etc.
j. Total death benefits paid cannot exceed the average weekly
wage of the deceased claimant’s average weekly wage at the
time of death, whichever is less.
k. Lump sum payments for deaths after November 1, 2005 $100,000 to surviving spouse and $25,000 to children
(maximum of two) and $10,000 burial expense. If there are
more children, $50,000 is divided equally.
2. Death unrelated to accident.
a. Benefits cease on the date of death.
b. New Law – Any person entitled to revive the action shall receive
a one-time lump sum payment equal to twenty-six weeks of
weekly benefits for permanent total disability awarded the
claimant. 85 O.S. §336(A).
XI. SUBROGATION – 85 O.S. §348
A. Claimant must elect to either seek compensation from workers’ compensation
or against the third party.
B. If claimant seeks benefits from third party, workers’ compensation is only
responsible for the deficiency.
C. If claimant elects workers’ compensation benefits, the third-party suit is
assigned to the workers’ compensation carrier.
D. The Court must approve any third-party settlement which is less than the
workers’ compensation amount spent.
7
E. The employer or employer's insurance carrier shall have the right of
subrogation to recover money paid by the employer or employer's insurance
carrier for death claims or death benefits under the Workers' Compensation
Code from third persons.
XII.
PROCEDURE
A. Compromise Settlements – 85 O.S. §339
1. If claimant is not represented, employee and employer can reach a
settlement agreement which must be approved by the administrator or
judge.
2. Testimony is taken at a settlement hearing and a transcript is made.
3. Must have competent medical evidence.
4. New Law - In the event all issues of a claim are not fully, finally and
completely settled by a Compromise Settlement, the issues not settled
by the parties and subject to the Court's continuing jurisdiction must be
noted by appendix to the Compromise Settlement or on a form created
for such purpose by the Administrator. 85 O.S. §339(B).
B. Judicial Settlement Conference
1. Set by the Division of Workers Compensation or at the request of
either party.
2. Purpose is to see if the Claimant is in need of treatment or is ready to
settle the claim.
3. Claim needs to be assigned to counsel.
4. Need to have a rating report, if applicable.
5. Discussions are confidential and information cannot be used at trial.
6. Many cases settle at this time.
7. Informal settings used to facilitate settlement or outlining of issues.
8. Most effective for claims with significant or difficult issues. Not
routinely used.
C.
TID Docket (Temporary Issue Docket)
1. Docket managing tool
2. Non-binding
3. Precursor to a pre-hearing trial
4.
Issues discussed are compensability, temporary total disability,
permanent partial disability and medical issues.
5. Need to tell the court if there are witnesses and how many so judges
can allot additional time or special setting, if necessary.
D.
Pre-Hearing
1. Form 9s also result in Pre-Hearings.
8
2. After Claim for Compensation has been filed, the Division of Workers’
Compensation will set Pre-Hearings within 45 days of the filing of the
Form 13.
3. Generally requested by a party.
4. Two or more carriers:
a. New Law - Whenever two or more carriers disagree as to which
carrier shall be liable for benefits, including medical care and
temporary total disability compensation, to an injured employee, the
Court may order one of the carriers to start paying benefits
immediately. 85 O.S. §409.
b. New Law - The decision of the Court to choose one carrier over
another to pay benefits shall not be appealable until the Court's
final order as to the disability of the employee. 85 O.S. §409.
5. Workers’ Compensation Judges may not offer any legal advice.
6. Alternatives at conclusion are:
a. Mediation
b. Set for trial
c. Continue and reset
d. Settlement
e. Stricken if all issues are resolved
7. New Law - Pre-hearings are also set if a Form A, Request for Change
of Physician, is filed. Claimant, as a matter of right, can have two changes
of physician per claim, regardless of the number of parts of the body
injured. Claimant provides list of three. If parties cannot agree,
employer/insurer may also provide list.
E. Mediation
1. Set before a third party Mediator and can be requested by either party
or the Court.
2. Both parties are typically required to have ratings and/or medical
reports regarding treatment needs.
3. Defense counsel required to have costs of medical, temporary total
disability, permanent partial disability and physical therapy.
4. Formal discussion on all issues in case, potential for settlement and
defenses.
5. Defense counsel must have access to client for settlement authority.
6. Alternatives at conclusion:
a. Settlement
b. Reset for Mediation
c. Moved to Trial docket
7. If either party does not have a person available with full settlement
authority, can be subject to attorney’s fees, costs and expenses.
9
F. Hearing/Trial – Form 9 or Form 15 (Temporary Total Disability)
1. Must be requested by a claimant within three years of filing the Claim
for compensation or last payment for treatment or claim is dismissed.
2. At least 20 days before the trial date, all parties shall exchange medical
reports, evidence, witness lists. This includes surveillance video.
G. Change in Medical Condition – 85 O.S. §342
1. Within three years after the date an award is entered, a claimant can
file a request for additional medical treatment or temporary total disability
benefits if they have a change in medical condition for the worse. 85 O.S.
§318(F).
2. New Law - Change in condition for the worse can only be found to the
body parts that were adjudicated in the previous Award or as a result of a
consequential injury and must be proved by objective medical evidence of
the change of condition.
3. New Law - Additional permanent partial impairment award after a
change of condition and the permanent partial impairment from the
previous award shall not exceed 520 weeks, except for additional
permanent partial impairment resulting from amputation or surgery as a
result of the change of condition.
3. Employer/Insurer can use this process to show improvement in a
permanent, total disability to reduce or discontinue benefits. Change of
condition for the better.
H. Appellate Process
1. Three Judge Panel.
a. Ten days to appeal Trial Judge’s award.
b. Review of the whole record.
c. Application must give a specific statement of each error or they
will be waived.
d. A court reporter will record all proceedings of the Court En Banc
and findings must be stated with specificity.
I. Liens and Offsets
1. Spousal and Child Support Liens
b. Temporary Total Disability: the maximum withheld is 25 percent
of the weekly benefit.
c. Permanent Partial Disability: the maximum withheld is 50 percent
of the total settlement.
d. Benefits generally paid to the Clerk of the Circuit Court.
2. Attorney Liens
b. Lien must be filed with the Division of Workers’ Compensation.
c. Must be satisfied prior to payout of proceeds.
10
XIII. DEFENSES
A. Arising out of and in the course of:
1. There must be a causal connection between the conditions under
which the work was required to be performed and the resulting injury.
The injury results from a “natural and reasonable incident” of the
employment, or a risk reasonably “inherent in the particular conditions
of the employment” AND the injury is the result of a risk “peculiar to the
employment.”
a. Personal Assault-generally not compensable.
b. Horseplay-generally not compensable.
c. Personal Errands/Deviation-Generally not compensable.
d. Mental Injury. Must be a physical injury unless the trauma is
rape.
e. Injury due to the ordinary, gradual deterioration caused by
the aging process – not compensable.
B. “In the course of”
1. Must be proven that the injury occurred within the period of
employment at a place where the employee may reasonably be, while
engaged in the furtherance of the employer’s business, or in some
activity incidental to it.
a. Coming and going: Broad exceptions to this rule.
b. Parking Lot: If the employer exercises ownership, control of the
parking lot, or has some form of right to use the lot, an accident
occurring on the lot will generally be found compensable.
2. Employment starts when an employee arrives at the place of
employment to report for work and terminates when the employee
leaves the place of employment, excluding areas not under the control
of the employer or areas where essential job functions are not
performed.
3. When an employee is instructed by the employer to perform a workrelated task away from the employee’s place of employment the
employee is in the course of employment when the employee is
engaged in the performance of job duties related to the instructions by
employee, including travel time that is solely related and necessary to
the performance of the task.
C. Other Defenses
1. Recreational or Social Activity Injuries. Not compensable
even
if
encouraged by employer. 85 O.S. §308(10)(c).
2. Statute of Limitations. (85 O.S. §318). Two years from the date of
accident or last day benefits were paid.
a. New Law - Claims related to cumulative trauma have to be dealt
within two years from the date the employee was last employed
by the employer. 85 O.S. §318(B).
11
b. New Law – Court is also authorized to re-open any cause upon
application based upon a change of condition for worse within
three years from the date of the last Order, unless there is a
failure to comply with the medical treatment ordered by the
Court. 85 O.S. §318(F).
c. New Law – Mentally incompetent or minor people being
exempted from this time limitation. 85 O.S. §318(G).
3. Notice of Accident to Employer. (85 O.S. §323). Claimant must give
written notice of the time, place, and nature of the injury as soon as
practicable after the happening thereof, but not later than 30 days after
the accident or the employee receives medical attention from a
licensed physician during the thirty-day period from the date a single
event injury occurred. If notice is given after the 30 day period, there is
a rebuttable presumption that the injury is not work-related. 85 O.S.
§323(A).
4. Some domestic servants and agriculture workers.
5. Alcohol/Controlled Substance – 85 O.S. §312(3)
a. New Law - Any injury which occurs when an employee is using
substances defined and consumed pursuant to Section 465.20
of Title 63 of the Oklahoma Statutes, or is using or abusing
alcohol or illegal drugs, or is illegally using chemicals; provided,
this paragraph shall only apply when the employee is unable to
prove by a preponderance of the evidence that the substances,
alcohol, illegal drugs, or illegally used chemicals were not the
major cause of the injury or accident. For the purposes of this
paragraph, post-accident alcohol or drug testing results shall be
admissible as evidence.
6. Medical Causation
7. Employer/Employee Relationship
a. Owner and Operator of Truck.
b. General Contractor-Subcontractor Liability.
c. Independent Contractor.
8. Intentional Injury – 85 O.S. §312(1)
9. Last Exposure Rule – 85 O.S. §317
10. Idiopathic (Unexplained or Unique to the Individual) Fall
11. Accidental Injury:
a. 85 O.S. §308
i. Unexpected traumatic event or unusual strain.
ii. Identifiable by time and place of occurrence.
iii. Caused by a specific event during a single shift.
iv. Must be established by objective medical evidence.
12
v. Work must be the major cause which is defined as the
predominant cause of the resulting injury or illness.
12. Failure to Use Provided Safety Devices: 85 O.S. §312(2). The injury is
caused by the willful failure of the employee to use a guard of
protection against accident furnished for use pursuant to any statute or
by order of the Commission of Labor.
purposes and should not be construed as legal advice or legal opinion on any specific facts or circumstances. This is not inclusive of all exceptions and
requirements which may apply to any individual claim. It is imperative to promptly obtain legal advice to determine the rights, obligations and options of
a specific situation.
13
14
OKLAHOMA WORKERS’ COMPENSATION UPDATE
OKLAHOMA SENATE BILL 1062
1. DEFINITIONS, Sec. 2
“Continuing medical maintenance” – Removed provision which allowed court to award
even when not recommended by treater or CIME.
“Course and scope of employment” – Now specific provisions regarding parking lot and
injuries occurring on work breaks. Injuries occurring in parking lots or common areas
adjuacent to place of employment are not compensable
“Cumulative Trauma” – Directly/independently of all other causes and the employee
shall have completed at least 180 days of continuous active employment with employer.
“Gainful employment” – Does not include part-time, occasional or sporadic employment
but new statutes fail to define full-time or part-time employment.
Intoxication- Claimant must over have clear and convincing evidence to overcome
presumption that use of alcohol and drugs did not cause accident.
“Major cause” – More than 50% of resulting injury, disease or illness. It must be
established by a preponderance of the evidence. If the workplace was not the major
cause of the injury, then Claimant does not have a cause of action outside of the
workers’ compensation act.
“Misconduct definitions” – Includes 9 specific incidents of misconduct, ranging from
unexplained absenteeism/tardiness to violation of a law.
AMA Guides – ALJ/Commission shall apply the most current version (which is the 6th
edition) Prior to this Oklahoma used the 5th edition.
“Surgery” – Injections still are not considered surgery.
“Common law spouse” – Found in Section 47 and pertaining to payment of death
benefits – There must be a court order finding common law marriage.
2. EXCLUSIVE REMEDY, Sec. 5
Exclusive remedy shall apply even if injured worker is deemed ineligible to receive
compensation under workers’ compensation laws.
15
3. FELONY CHARGE AGAINST ATTORNEY, Sec 6.
Makes it a felony for attorney to omit or conceal material information relation to claim.
4. DISCRIMINATION/RETALITORY PROVISIONS, Sec. 7
This section notes that an employer may not retaliate or discriminate against an
employee for:
1. Filed a claim under this act;
2. Retained a lawyer for representation regarding a claim under this act;
3. Instituted or caused to be instituted any proceeding under the provisions of this
act; or
4. Testified or is about to testify in any proceeding under the provisions of this
act.
The Commission has exclusive jurisdiction to determine if a violation of this Section has
occurred and may award back pay up to $100,000.00. The prevailing party can receive
attorney fees and costs. Based on the wording of the statute, it is unclear if there
remains a separate cause of action in district court for the “wrongful termination” of a
Claimant during a period of temporary total disability for the sole reason of being absent
from work or for the purpose of avoiding payment of temporary total disability benefits to
the injured employee.
5. LIMITATION ON SURVIVOR BENEFITS FOR ALIEN NON RESIDENTS, Sec 11
Benefits in death claims involving alien non resident shall be limited. Compensation to
alien nonresidents of the United States or Canada shall be the same in amount as
provided for residents, except that alien nonresident dependents in any foreign country
shall be limited to the surviving spouse or children or, if there is no surviving spouse or
children, to the surviving father or mother whom the employee has supported, either
wholly or in part, for the period of one (1) year before the date of the injury.
6. PSYCHOLOGICAL OVERLAY, Sec. 13
No mental injury/illness is compensable unless caused by a physical injury to the
Claimant (unless arises out of an act of violence), and diagnosed by licensed
psychiatrist or psychologist. In addition disability limited to 26 weeks unless it is shown
by clear convincing evidence that benefits should be continued but not to exceed 52
weeks. In addition death within a year of original injury due to the consequential
psychological overlay would allow claim for death benefits; death more than a year then
no compensable injury.
16
7. HEART ATTACKS/VASCULAR INJURIES, Sec. 14
First 2 provisions about the same but now provision which finds “physical/mental stress
shall not be considered in determining whether the employee or claimant has met his
her burden of proof”. The physical stress portion is not likely to withstand judicial
review.
8. CREATION OF THE COMMISSION, Sec. 19
The Commission shall consist of three full time Commissioners with minimum of three
years of WC involvement. Said individuals are appointed by the Governor and
confirmed by the Senate. One of the three has to be selected from a three person slate
selected by the Speaker of the House.
Commissioners are to serve six year terms and can be reappointed one time.
Commissioners then appoint the Administrative Law Judges – who must have been
licensed to practice law at least three years and have three years of OK WC
experience.
9. THIRD PARTY CLAIMS, Sec. 43 and 44
Carrier shall have 2/3 lien on net subrogation after reasonable cost of collection.
Appears that carrier has an absolute right to intervene and must intervene in third party
case in order to protect its subrogation rights. Subrogation is allowed in death claims.
Carrier can now file subrogation claim on its own; but will have to advise claimant of
said filing and provide any balance awarded above the subrogation amount to the
claimant. Need to advise claimant of right to obtain private attorney. Carrier can go
after Employers’ uninsured/underinsured motorist coverage.
10. TEMPORARY TOTAL DISABILITY, Sec. 45
There is a 104 week maximum for TTD at 70% of AWW not to exceed 70% of state
AWW. One 52 week extension if there is a consequential injury upon a showing of
medical necessity by clear and convincing evidence. Can file to terminate TTD if
claimant misses 3 consecutive appointments without valid excuse; claimant can object
within 10 days and hearing to be set within 20 days. Failure to have transportation to
and from appointments is not considered valid excuse.
11. TEMPORARY PARTIAL DISABILITY, Sec. 45
Claimant can receive 70% of the difference between their light duty wages and his pre
injury AWW. The total cannot exceed their TTD rate.
17
Temporary partial disability is limited to 52 weeks.
12. PPD AWARDS, Sec. 45
No PPD to body parts which received no treatment.
Except where a claim is Joint Petitioned (going back to joint petition term instead of
compromise settlement) payment of PPD awards are deferred/held in reserve by the
employer or insurance carrier. If the employee has reached MMI and has been
released to return to work and then returns to his pre-injury or equivalent job for a terms
of weeks determined by dividing the total dollar value of the PPD award by 70% of the
employee’s AWW (TTD rate) – then reduce award by 70% of AWW (TTD rate) for each
week the claimant works pre-injury job. If the claimant is terminated for misconduct
while working post PPD award, the burden is on the employer to show the misconduct.
But if prove misconduct, then affects payment of any balance of PPD order left after
previously described reductions. If employee/claimant refuses offer of work, the PPD
order is deferred and reduced by 70% of AWW for each week the employee/claimant
refuses. Claimant attorney fees for PPD is calculated upon total PPD award and paid
in full at time of deferral. Overall this new provision reads if the claimant returns to
his job and works long enough his PPD award will eventually be reduced to zero
although his attorney will get paid. Max PPD award is 350 weeks.
PPD reports submitted to the ALJS may come from MDs, DOs or chiropractors.
13. PREVIOUS DISABILITY, Sec. 45
Pre-existing impairment with same employer:
Any award shall be reduced by current dollar value of percentage of permanent partial
disability determined to be pre-existing. The current dollar value is calculated by
multiplying the % of the pre-existing PPD by the compensation rate in effect on the date
of the accident or injury against which the reduction will be applied.
Pre-existing impairment with different employer:
Employer against whom benefits are being sought shall be entitled to a credit for the
percentage of pre-existing permanent partial disability.
14. PERMANENT TOTAL DISABILITY, Sec. 45
18
Shall be paid at 70% of AWW, but not in excess of state’s AWW. Award shall be paid to
employee until such time as employee reaches the age of maximum Social Security
retirement benefits or for a period of 15 years, whichever is longer.
Employee must annually file an affidavit under penalty of perjury stating that he or she
has not been employed and is not capable of gainful employment.
15. VOCATIONAL REHABILITATION, Sec. 45
Long list of types of workers and specific injuries which create a presumption that
vocational rehabilitation will be ordered. List is pretty ridiculous as includes injuries
rarely ever seen (knee fusion) and provides for specifics like heel fracture for a
roofer but no mention of presumption of roofer tears rotator cuff, etc.
16D benefits still exist for up to 52 weeks.
If claimant refuses training/services ordered or fails to complete in good faith the
ordered training (in the discretion of the ALJ) can be deducted from any awards of
benefits.
Employer can deduct tuition for vocational rehabilitation benefits from weekly
compensation.
Request for vocational rehabilitation must be filed within 60 days of “receiving
permanent restrictions”
16. DISFIGUREMENT, Sec. 45
Still limited to $50,000.00 for “serious and permanent disfigurement.” However, no
disfigurement awards for at least 12 months after injury date.
Employee does not get disfigurement if he or she also receives PPD for the same body
part.
17. DEATH BENEFITS, Sec. 47
If death does not result within one year from date of accident or within first three years
of the period for compensation payments fixed by the compensation judgment, a
rebuttable presumption shall arise that the death did not result from the injury.
“Common law spouse”: Shall not be entitled to benefits unless court of competent
jurisdiction rules that a common law marriage existed.
19
18. MEDICAL TREATMENT, Sec. 50
Employer must provide medical treatment within five days after actual knowledge of
injury or the injured employee may select a physician to provide medical treatment at
employer’s expense.
Emergency treatment may be provided at expense of employer if employer does not
provide it.
Employer must reimburse employee for actual mileage in excess of 20 miles roundtrip
from employee’s home to location of medical service provider. In no event shall the
reimbursement of travel for medical treatment or evaluation exceed 600 miles roundtrip.
Employee/claimant to reimburse carrier/employer for missed appointment charges.
Medical providers shall disclose any ownership interest in clinics, pharmacies, etc.
The ALJ can take into consideration if claimant refuses surgery when recommended by
two qualified doctors when awarding PPD/PTD.
If employer provides medical services through a certified workplace medical plan, the
employee may apply for a change of physician through dispute resolution in the CWMP.
If employer is not in a certified workplace medical plan, then the employee gets one
change of physician. At that point, the employer provides a list of three physicians from
whom the employee may select the replacement.
21. HERNIA, Sec. 61
Employee must prove it is a “compensable injury” by a preponderance of the evidence
and meet a five factor test.
If compensable, the injured employee shall be entitled to six weeks of TTD.
If employee refuses hernia operation, said employee is entitled to 13 weeks of TTD in
addition to appropriate medical care.
If employee dies within one year as a direct and sole result of hernia or a radical hernia
operation, dependents are entitled to death benefits pursuant to Sec. 48.
20
Notice of a hernia must be given within 5 days of occurrence or benefits are barred.
22. SOFT TISSUE INJURY, Sec. 62
“Soft tissue injury” is defined as damage to one or more tissues that surround bones
and joints, including sprains, strains, contusions. Tendonitis and muscle tears.
Cumulative trauma is a soft tissue injury.
TTD shall not exceed 8 weeks, regardless of the number of parts of the body to which
there is a nonsurgical soft tissue injury.
If employee receives an injection, he or she gets an additional 8 weeks.
An epidural steroid injection is not surgery.
23. OCCUPATIONAL DISEASE, Sec. 65
If occupational disease is aggravated by a non-compensable disease or infirmity,
compensation shall be reduced and limited to the proportion only of the compensation
that would be payable if the occupational disease were the major cause of the disability
or death as the occupational disease, as a causative factor, bears to all causes of the
disability or death.
Causal connection between employment and occupational disease shall be established
by a preponderance of the evidence.
Last exposure rule applies.
No compensation shall be payable for any contagious or infectious disease unless
contracted in the course and scope of employment in or immediately connected with a
hospital or sanatorium in which persons suffering from that disease are cared for or
treated.
No compensation shall be payable for any ordinary disease of life to which the general
public is exposed.
24. NOTICE, Sec. 68
If employee does not give oral or written notice of injury within 30 days of injury, there is
a rebuttable presumption that the injury was not work-related. The presumption must
be overcome by a preponderance of evidence.
21
If employee does not give oral or written notification of occupation disease or cumulative
trauma injury within 30 days of leaving employment, there is a rebuttable presumption
that the injury did not arise out of the course and scope of employment. The
presumption must be overcome by a preponderance of evidence.
25. JOINT PETITOIN FOR SETTLEMENT, Sec. 87
If employer/employee wants to settle, they shall file a joint petition for settlement with
the Commission.
26. STRICT CONSTRUCTION, Sec. 106
The provisions of the Act are to be strictly construed.
27. OKLAHOMA EMPLOYEE INJURY BENEFIT ACT, Sec. 107-120
Employer can elect to be exempt from workers’ compensation act and follow this act
instead.
In order to elect into this Act, the employer must:
a. Notify the insurance Commissioner and its employees; and,
b. Establish a written benefit plan
The written benefit plan basically must provide the same or better benefits than the
workers’ compensation act (Sec. 110 – TTD, TPD, PPD, vocational rehabilitation, PTD,
disfigurement, amputation or loss of use, death, etc.).
The written benefit plan does not have to follow the workers’ compensation act with
respect to “covered injuries, medical management, dispute resolution, funding, notices
or penalties.”
Lump sum payouts are possible.
Benefit plan provides benefits regardless of whether employee, employer or third party
caused the injury.
The benefit plan is the exclusive remedy unless the injury is the result of an intentional
tort on the part of the qualified employer. Sec. 116.
Drug/alcohol use can totally bar benefits unless the employee can prove by a
preponderance of the evidence that said drug/alcohol use was not the major cause of
the injury.
22
28. WORKERS’ COMPENSATION ARBITRATION ACT, Sec. 121-149
Agreements to arbitrate claims are valid and enforceable if certain elements met,
including, among other things, that the employer file an alternative dispute resolution
program with the Commission and the employer’s Certified Medical Plan file such a
program with the Commission. Section 122.
Act governs agreements to arbitrate made on or after February 1, 2014.
Act can apply to agreements before that date if all parties agree in writing.
Generally, if there are problems with the selection of an arbitrator or a dispute as to
whether an arbitration is mandatory or not, the Commission resolves those issues.
Sections 126-132.
The arbitrator has the power to hold conferences and hearings, determine the
admissibility, relevance, materiality and weight of evidence, and ask witnesses
questions during the proceedings. Section 136.
The arbitrator has subpoena powers. Section 138.
The arbitrator has the power to modify or correct the award under limited scenarios
upon the motion of a party. Section 141.
The arbitrator may award the benefits set forth in Sections 45, 46, 47 and 51 and may
also award reasonable attorney fees and expenses if a party did not act in good faith
throughout the arbitration. Section 142.
The arbitrator’s award shall set forth the facts and law justifying the award. Section 142.
After an arbitrator’s award has been issued, a party may request that the Commission
enter a judgment confirming the award. Section 143.
If there are problems with the manner in which the arbitration was conducted or if the
award was procured by corruption, fraud, or other undue means, then a party may
request that the Commission vacate the award. Section 144.
Under certain conditions, the Commission shall modify or correct an award. Section
145.
A confirming judgment (Section 143) may be recorded, docketed and enforced like any
other judgment in the Commission’s jurisdiction. Section 146.
A party can appeal the Commission decision to the district court where the arbitration
hearing is to be held pursuant to the arbitration agreement or to the district court where
the arbitration was actually held. Section 148-149.
23
29. ALTERNATIVE DISPUTE RESOLUTION, Sec. 153
The Commission shall develop an ADR program which affords an injured employee the
right to obtain benefits by request or informal procedure.
Participation in ADR is not a prerequisite to filing a claim for compensation.
If the matter goes to mediation, the employer/insurer pay the mediator.
30. IMEs, Sec. 155
The Commission shall create a list of licensed physicians who shall serve as
independent medical examiners.
An independent medical examiner shall be certified by a recognized specialty board in
the area or areas appropriate to the claim.
The employer pays the cost of the IME.
The opinion of the independent medical examiner shall be followed unless there is clear
and convincing evidence to the contrary.
31. COMMUTATION OF BENEFITS, Sec. 159
PTD awards shall not be commuted.
32. INFO ABOUT PRIOR CLAIMS, Sec. 163
Employer can ask employee if he or she has ever had a workers’ compensation claim
with a previous employer, subject to state or federal law.
Sets forth procedure for obtaining information about prior workers’ compensation claims
from the Commission.
24
FROM ISSUES ADDRESSED IN RECENT OKLAHOMA CASES
Q: Can an employee ever stop being an employee and become a volunteer for the
employer?
A: Sometimes; The course and scope of an employee’s employment does not stop just
because the employee is not actually engaged in specific tasks of his employment. If
an employee is performing some act which he deems necessary for the benefit or
interest of him employer then injuries resulting from this act can be compensable.
Yzer, Inc. v. Rodr, 2012 OK 50
Q: What is the standard for an employee to allege an intentional tort against an
employer outside the jurisdiction of the Workers’ Compensation Court?
A: The law in effect at the time of the injury establishes the standard.
Jordan v. Western Farmers Electric Cooperative, 2012 OK 94
Q: Can a change in the statute for appointment of Court Independent Medical Exam
be applied retroactively?
A: Sometimes; If the Legislature has made its intent clear to apply a statute retroactively
then it can if the change in the statute does not increase or decrease the amount a party
can recover or change the elements of the claim or the defense of the claim.
Hillcrest Medical Center v. Powell, 2013 OK 1
Q: Does a positive drug test guarantee a denial order?
A: No; An employee who tests positive or refuses to take a drug or alcohol test can still
receive benefits if the employee can show their use of illegal substances was not the
major cause of their injury.
Hogg v. Oklahoma County Juvenile Bureau, 2012 OK 107
Q: What is the correct standard of review for a workers’ compensation case?
A: The standard of review is the law in effect on the date of injury.
Williams Companies Inc. v. Dunkelgod, 2012 OK 96
25
Rural Waste Management and Indemnity Ins. Of North America v. Mock, 2012 OK
101
Prince v. Brake Rebuilders & Friction Products, Inc., 2012 OK 104
Controls Components, LTD. v. Weaver, 2013 OK 8
Westoak Industrics, Inc. v. Deleon, 2013 OK CIV APP 32
Controls Components, LTD. v. Weaver, 2013 OK 8
Westoak Industries, Inc v Deloen, 2013 OK CIV APP 32
Q: Should an employee’s return to his prior work duties diminish his PPI award?
A: Probably not. A motorcycle police officer was involved in a number of work related
accidents resulting in injuries. He returned to work after each accident and resulting
treatment. Following his last injury the court awarded him 71% PPD to the body over a
prior 41% PPD to the body. He was able to receive in excess of 500 weeks because of
credits fro surgical injuries. The 71% award was within the range of rating medical
provided to the trial court (143% by the employee and 41% by the employee).
City of Oklahoma City v. Johnson, 2013 OK CIV APP 6
Q: Does failure to provide an affidavit under oath negate a rebuttable presumption
when dealing with Independent Contractors?
A: Probably. The execution of an Affidavit of Exempt Status does establish a rebuttable
presumption that the person executing the Affidavit is not an employee and therefore
not covered by the employer’s workers’ compensation purposes; however failure to
execute an affidavit under oath can negate this presumption.
Uniue Painting & Remodeling v. Porterfield, 2013 OK CIV APP 14
Q: Can TTD for soft tissue injuries be limited when the employee has surgery prior
to filing a claim and without employer/carriers knowledge?
A: Yes. The legislature intended to limit pre-surgery TTD for soft tissue injures even with
surgical recommendation. The Court of Civil Appeals seems to further extend this
limitation when the employee has surgery prior to notice to the employer/carrier of injury
and without court approval.
Scott v. Sprint PCS, 2012 OK CIV APP 36
Q: Is an employer/carrier’s affirmative defense waived if it is not specifically pleaded
on a Form 10?
26
A: Probably not. The Workers’ Compensation Court has the authority to relax rules within
its discretion. The court can determine if the defenses not explicitly stated were at least
adequately explored during discovery and therefore waiver of strict compliance with the
rules can be excused.
Harvey v. Auto Plus of Woodward, 2012 OK CIV APP 92
Q: Does the Workers’ Compensation Court continue to recognize common law
spouses in death claims?
A: Yes. The court is free to consider the evidence presented including a District Court
finding of spouse and personal representative. The finding of common law spouse just
need not be against the clear weight of the evidence.
Oklahoma Dept. of Mental Health & Substance Abuse v. Pierce, 2012 OK CIV APP
73
Q: Can the Workers’ Compensation Court award attorney fees, costs and penalties
for a party’s failure to assert a reasonable basis for denying benefits?
A: Maybe. The facts of each denial case should be evaluated to determine if a denial was
reasonable i.e. was there a valid reason to deny the cause other than “just because”.
Oklahoma Dept. of Mental Health & Substance Abuse v. Pierce, 2012 OK CIV APP
73
Q: Can an employee be compensated for mental injuries when there are no physical
injuries? Is PTSD a physical injury?
A: No to both. The statute clearly states injury does not include mental injury that is
unaccompanied by physical injury. The court declines to find PTSD causes physical
damage to the brain.
City of Norman v. Helm, 2012 OK CIV APP 106
Q: Does the Trial Court’s failure to provide a specific basis for its decision to grant
or deny a claim indicate it made a meaningful review of the claim?
A: No. The Trial Court must makes its determination clear in its order and the basis of its
decision.
First Staffing Group USA v. Brawley, 2013 OK CIV APP 26
27
Q: Can the exemption of the first 20 miles of mileage reimbursement be applied
retroactively?
A: No. The law in effect at the time of the injury applies. The change in the mileage
reimbursement rule is not consider just procedural but a substantive change to an
injured workers’ benefits.
Bertrand v. Laura Dester Center, 2013 OK 18
28
Notes Pages
29
Notes Pages
30
Notes Pages
31
Notes Pages
32
THE MEDICARE SECONDARY PAYER STATUTE (MSP)
BACKGROUND:
As a federal cost-saving statute enacted in 1980 to combat increasing costs of
Medicare, the MSP makes the government a secondary payer when a Medicare
recipient has another source of primary insurance coverage. In 2003, the MSP was
expanded to include other responsible sources, such as tortfeasors, as primary payers
responsible for payment of the beneficiary’s medical expenses. Under the MSP,
Medicare may not pay for a beneficiary’s medical expenses when payment “has been
made or can reasonably be expected to be made” by a primary payer. 42 USCA
§1395y(b)(2). This statute implicates payment for past medical expenses (those
incurred prior to a settlement, judgment or award) and future medical expenses (those
incurred after a settlement, judgment, or award). Medicare’s interests must be taken into
account regarding both past medical and future medical expenses.
There are four main resources to help the parties decipher their rights and
responsibilities under the MSP: (1) the Act itself; (2) the federal regulations promulgated
by the Secretary of Health and Human Services; (3) case law; and (4) memoranda and
statements issued by the Centers for Medicare and Medicaid Services (CMS). Not all of
these sources are equal and may give conflicting information.
PAST MEDICAL: Conditional Payments
Statutory Authority: 42 USC §1395y(b)(2)
• Medicare has been given authority to make payment for an item or service if a
primary plan has not made or cannot reasonably be expected to make payment
promptly. 42 USC §1395y(b)(2)(B)(i).
•
These payments are conditioned on reimbursement from “a primary plan, and an
entity that receives payment from a primary plan . . . if it is demonstrated that
such primary plan has or had a responsibility to make payment with respect to
such item or service.” 42 USC §1395y(b)(2)(B)(ii).
•
A primary plan’s responsibility for payment may be demonstrated by “a judgment,
a payment conditioned upon the recipient’s compromise, waiver or release
(whether or not there is a determination or admission of liability) of payment for
items or services included in a claim against the primary plan or the primary
plan’s insured, or by other means.” 42 USC §1395y(b)(2)(B)(ii).
•
Medicare may bring an action against “any or all entities that are or were required
or responsible (directly as an insurer or self-insurer, as a third-party
administrator, as an employer that sponsors or contributes to a group health
plan, or large group health plan, or otherwise) to make payment under a primary
plan.” 42 USC §1395y(b)(2)(B)(iii).
1
•
Medicare may collect double damages. 42 USC §1395y(b)(2)(B)(iii).
•
In addition to a direct cause of action, Medicare is subrogated to any right of an
individual or other entity to payment under a primary plan. 42 USC
§1395y(b)(2)(B)(iv).
•
Additionally, “There is established a private cause of action for damages (which
shall be in an amount double the amount otherwise provided) in the case of a
primary plan which fails to provide for primary payment (or appropriate
reimbursement). “ 42 USC §1395y(b)(3)(A).
•
Medicare has three years from the date of the receipt of notice of a settlement,
judgment, award, or other payment made to bring an action for reimbursement.
42 USC §1395y(b)(2)(B)(iii).
Regulatory Authority: 42 C.F.R §411
Agency regulations interpreting statutes are given deference if (1) Congress has not
“directly spoken to the precise question at issue,” and (2) the agency's interpretation is
reasonable. Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842–
44, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Federal Courts have held that certain
regulations interpreting the MSP are entitled to Chevron deference. See Bio-Medical
Applications of Tennessee, Inc. v. Central States Southeast and Southwest Areas
Health and Welfare Fund, 656 F.3d 277 (6th Cir. 2011) (interpretation reasonable
because it furthers the Act's goal of preventing private plans from shifting costs to
Medicare). Therefore, the regulations may be given the same force as the actual MSP
statute, but must be scrutinized in conjunction with the MSP.
•
Recovery of Conditional Payments 42 C.F.R §411.24
o CMS may initiate recovery as soon as it learns that payment has been made
or could be made under workers’ compensation, any liability or no-fault
insurance, or an employer group health plan.
o Amount of recovery is the lesser of (a) the amount of the Medicare primary
payment or (b) the full primary payment amount that the primary payer is
obligated to pay
o If legal action is necessary to recover from the primary payer, CMS may
recover twice the amount of the Medicare primary payment.
o CMS has a right of action to recover its payment from any entity, including a
beneficiary, provider, supplier, physician, attorney, State agency or private
insurer that has received a primary payment.
o Must reimburse Medicare within 60 days. Interest may accrue from the date
when notice or other information is received by CMS that payment has been
or could be made under a primary plan.
o If Medicare makes a conditional payment with respect to services for which
the beneficiary has not filed a proper claim with a primary payer, and
Medicare is unable to recover from the primary payer, Medicare may recover
2
from the beneficiary or provider or supplier that was responsible for the failure
to file a proper claim.
 This section does not apply in the case of liability insurance or when
failure to file a proper claim is due to mental or physical incapacity of the
beneficiary
 “Proper claim” means a claim that is filed timely and meets all other claim
filing requirements specified by the plan, program, or insurer.” 42 C.F.R
§411.24.21
 See Caldera v. Ins. Co. of the State of Pa. ---F.3d ----(5th Cir. 2013)
(claimant could not recover from carrier under MSP when claimant failed
to obtain necessary pre-authorization required by state workers’
compensation law).
•
•
Amount of Medicare recovery when a primary payment is made as a result of a
judgment or settlement. 42 C.F.R §411.24.37
o Recovery against the party that received payment:
 General rule: Medicare reduces recovery for procurement costs if costs
incurred because the claim was disputed and the costs are borne against
the party against CMS seeks to recover.
 Special rule: If CMS must file suit because the party that received
payment opposes CMS’s recovery, the recovery is the lower of (a) the
Medicare payment or (b) the total judgment or settlement amount, minus
the party’s total procurement cost.
Limitations on Medicare payments for services covered by workers’ compensation.
42 C.F.R. §411.40-47.
o Medicare does not pay for any service which payment has been made or can
reasonably be expected to be made under a workers’ compensation law or
plan. 42 C.F.R §411.24.40
o Beneficiary is responsible for taking whatever action is necessary to obtain
any payment that can reasonably be expected under workers’ compensation.
42 C.F.R §411.24.43(a)
o If a claim is denied for reasons other than not being a proper claim, Medicare
will pay for the services if covered under Medicare. 42 C.F.R §411.24.43(d)
o A conditional payment may be made if either:
 The beneficiary has filed a proper claim, but the intermediary or carrier
determines that the workers’ compensation carrier will not pay promptly.
This includes cases in which a workers’ compensation carrier has denied
a claim.
 The beneficiary, because of physical or mental incapacity, failed to file a
proper claim.
Case Law
The United States may recover, against “any entity.”
3
In U.S. v. Harris, 2009 WL 891931 (N.D.W. Va 2009), the United States sued plaintiff’s
attorney for failing to pay demand from Medicare for reimbursement of Medicare
conditional payments arising out of product liability lawsuit. The claim settled for
$25,000.00 releasing defendants of all liability. CMS asserted $22,500 in conditional
payments and requested reimbursement in the amount of $10,253.59. After receiving a
final demand letter, plaintiff’s attorney failed to reimburse CMS within 60 days.
The court granted summary judgment to the U.S. against Harris for $11,367.78 plus
interest. The court held “Mr. Harris is individually liable for reimbursing Medicare in this
case because the government can recover ‘from any entity,’ including an attorney.”
In U.S. v. Stricker, 2010 WL 6599489 (N.D. Ala) (currently in litigation), the United
States sued plaintiff’s attorneys, defendant drug companies, and defendant drug
companies’ insurance carriers to recover conditional payments. This is the first case
where Medicare has named parties on both sides of the fence as responsible for
resolution of conditional payments.
The underlying lawsuit involved pharmaceutical class action for injuries resulting from
individual plaintiff’s exposure to Monsato PCBs dating back to 2003. The class action
suit settled for $300,000,000.00 and involved 907 Medicare beneficiaries who had
received a total of $67,156,770.01 in conditional payments. Several claims against
defendants have been dismissed under statute of limitations defenses, but final
resolution of all claims against all parties is still pending.
Allocation of settlement proceeds
In Bradley v. Sebelius, 621 F.3d 1330 (11th Cir. 2010), a plaintiff settled wrongful
death tort claims for the full amount of the defendant’s insurance policy limit of
$52,500.00, which was approximately 10% of the claims’ total value. This settlement
involved the estate’s claims as well as loss of consortium or companionship claims of
the decedent’s ten children. Counsel for the estate and the children filed an application
with the probate court to adjudicate the proper allocation of the settlement proceeds
among the estate and children. Medicare was given notice of the probate court
proceedings, but declined to appear or participate.
The probate court ordered that based on principles of equity, the medical expense
recovery in the case was $787.50 and the independent survivors’ claims recovery was
$51,712.50. CMS refused to recognize that the medical expense claim had been settled
for less than 100% and demanded a net amount of $22,480.89 in conditional payment
reimbursements. CMS relied on the “Medicare Secondary Manual” which states that
“the only situation in which Medicare recognizes allocations of liability payments to nonmedical losses is when payment is based on a court order on the merits of the case.”
The court held that the field manual was not entitled to Chevron-style deference and
was not entitled to the force of law. The circuit court found CMS was only entitled to
$787.50 as CMS’s position “would have a chilling effect on settlement.” Furthermore,
the Court stated “Without citing any statutory authority, regulatory authority, or case law
4
authority, the Secretary and the district court’s reliance upon language in a field manual
is unpersuasive.”
In Mason v. Sebelius, 2012 WL 1019131, (D.N.J. 2012) (unpublished), the plaintiff
slipped and fell at the Showboat casino. Plaintiff agreed to release Showboat for all
claims against it for liability stemming from the fall, including his wife’s claim, in
exchange for a lump sum payment of $40,000.00. As a term of the settlement, the
plaintiff agreed to indemnify Showboat against any liability for Medicare liens or claims
for reimbursement.
The plaintiff sought an order from the Superior Court apportioning the settlement
proceeds and declaring that no portion of the settlement was attributable to medical
expenses. In this case, CMS intervened in the state court to oppose the motion and the
court denied the motion concluding that such a determination must be made first
through the Medicare administrative review process. CMS demanded reimbursement of
$1,423.43 after reduction for procurement costs. Plaintiff paid the reimbursement, but
sought a waiver and refund through the Medicare administrative appeals process.
Ultimately, the appeals council denied the appeal.
Among other arguments, Claimant sought judicial review of the administrative decisions,
after exhausting the administrative appeal process, asserting that Medicare
reimbursement is not authorized under the MSP because his settlement was for an
undifferentiated lump sum and not explicitly allocated to his medical expenses. The
Court interpreted 42 U.S.C. §1395y(b)(2)(B)(ii) to clearly state that a lump sum
settlement through a release and waiver such as plaintiff’s demonstrates the
responsibility of the tort defendant primary plan for the subject medical expenses.
Therefore, the Court affirmed the administrative finding that the plaintiff was required to
reimburse the full conditional payment amount to CMS.
Interplay between MSP and workers’ compensation law
In Caldera v. Ins. Co. of the State of Pa., ---F.3d ---- (5th Cir. 2013), the claimant
brought suit against a workers’ compensation insurance carrier seeking double
damages for past medical expenses paid by Medicare (**Note: suit brought by workers’
compensation claimant under private cause of action, NOT by CMS). Defendant
insurance carrier denied responsibility for payment of the disputed medical expenses
because the claimant failed to obtain pre-authorization in accordance with Texas
workers’ compensation law.
Plaintiff argued the MSP preempts the Texas
preauthorization requirement.
Citing numerous regulations found in 42 C.F.R. §411, the Court concluded that
Congress intended the MSP to complement, not supplant, state workers’ compensation
rules, including the preauthorization requirement. The Court found the claimant failed to
file a proper claim in accordance with state-law requirements, and therefore, could not
recover benefits from the primary payer. The Court held “Medicare can refuse to make a
conditional payment, or it can seek reimbursement from the claimant himself. In any
event, the claimant cannot succeed under the MSP.”
5
Collection practices of CMS
In Haro v. Sebelius, 789 F.Supp.2d 1179 (D. Ariz. 2011), a class action lawsuit
challenged CMS’s administration of the MSP program, specifically with regard to
seeking conditional payment reimbursement. The Court found that CMS’s application of
the 60-day reimbursement requirement to support immediate collection activities against
beneficiaries when the reimbursement claim is in dispute was neither rational nor
consistent with the statutory scheme providing for waiver and appeal rights.
Additionally, CMS had no authority to keep a claimant’s attorney from distributing
undisputed settlement funds to the claimant pending the dispute.
Following this decision, CMS revised it’s standard “Rights and Responsibilities Letter,”
conditional payment demand letters, and other publications to conform to the court’s
opinion.
FUTURE MEDICAL: MSAs
Statutory Authority
• Medicare may not pay for a beneficiary’s medical expenses when payment “has
been made or can reasonably be expected to be made” by a primary payer. 42
USCA §1395y(b)(2).
•
No other statutory guidance
Regulatory Authority
• The regulations only address future medical under workers’ compensation
claims. The regulations are silent regarding future medical in liability claims.
•
If a lump sum compensation award stipulates the amount paid is intended to
compensate the individual for all future medical expenses required because of
the work-related injury or disease, Medicare payments for such services are
excluded until medical expenses related to the injury or disease equal the
amount of the lump-sum payment. C.F.R §411.24.46(a)
•
Lump sum compromise settlement is deemed to be a workers’ compensation
payment for Medicare purposes even if the settlement agreement stipulates that
there is no liability under the workers’ compensation law or plan. C.F.R
§411.24.46(b)(1)
•
“If settlement appears to represent an attempt to shift to Medicare the
responsibility for payment of medical expenses for the treatment of work-related
condition, the settlement will not be recognized. For example, if the parties to a
settlement attempt to maximize the amount of disability benefits paid under
workers’ compensation by releasing the workers’ compensation carrier from
liability for medical expenses for a particular condition even though the facts
6
show that the condition is work-related, Medicare will not pay for treatment of that
condition.” C.F.R §411.24.46(b)(2)
o Regulation indicates Medicare will not pay for treatment of that condition, but
what if it does. Can Medicare disregard the settlement and claim all
payments as conditional payments?
o This provision cannot be used by an employee to challenge terms of lump
sum settlement under private cause of action when employee had never been
required to pay for medical care arising from the injury and was not eligible for
Medicare benefits. Frazer v. CNA Ins. Co., 374 F.Supp.2d 1067 (N.D.Ala
2005).
•
Basic rule: if settlement forecloses the possibility of future payment of workers’
compensation benefits, medical expenses incurred after the date of the
settlement are payable under Medicare. C.F.R §411.24.46(d)(1)
•
Exception: If the settlement agreement allocates certain amounts for specific
future medical services, Medicare does not pay for those services until medical
expenses related to the injury or disease equal the amount of the lump sum
settlement allocated to future medical expenses. C.F.R §411.24.46(d)(2)
CMS Publications
• Publications and information posted by CMS, such as regional office memoranda
or information on the CMS website is NOT given Chevron-style deference.
Therefore, it has no force of law. See Bradley v. Sebelius discussed above.
•
CMS only gives guidance in workers’ compensation cases. There is no formal
guidance in liability context, although CMS has repeatedly emphasized that while
liability settlements and MSAs will not be reviewed for approval, the parties need
to take Medicare’s interest into account.
•
Workers’ Compensation Medicare Set-Aside Arrangement (WCMSA) Reference
Guide published March 29, 2013, reflects information compiled from all WCMSA
Regional Office Memoranda and information provided on CMS website.
•
CMS admits there is no statutory or regulatory requirement to submit WCMSA
proposal to CMS for review in any case.
•
“In many situations, the parties to a WC settlement choose to pursue a CMSapproved WCMSA amount in order to establish with certainty with respect to the
amount that must be appropriately exhausted before Medicare begins to pay for
care related to the WC settlement, judgment, award, or other payment.”
(Reference Guide p. 3.)
•
“Any claimant who receives a WC settlement, judgment, or award that includes
an amount for future medical expenses must take Medicare’s interests with
respect to future medicals into account. If Medicare’s interests are not
7
considered, CMS has a priority right of recovery against any entity that received
a portion of a third party payment either directly or indirectly. Medicare may also
refuse to pay for future medical expenses related to the WC injury until the entire
settlement is exhausted.” (Reference Guide, p. 3.)
•
“Once the CMS-approved set-aside is exhausted and accurately accounted for to
CMS, Medicare will pay primary for future Medicare-covered expenses related to
the WC injury that exceed the approved set-aside amount.” (Reference Guide, p.
3.)
•
The primary benefit of seeking CMS approval is “the certainty associated with
CMS reviewing and approving the proposed amount with respect to the amount
that must be appropriately exhausted.”
•
“If the parties to a WC settlement stipulate a WCMSA but do not receive CMS
approval, then CMS is not bound by the set-aside amount stipulated by the
parties, and it may refuse to pay for future medical expenses in the case, even if
they would ordinarily have been covered by Medicare. However, if CMS
approves the WCMSA and the account is later appropriately exhausted,
Medicare will pay related medical bills for services otherwise covered and
reimbursable by Medicare regardless of the amount of care the beneficiary
continues to require.” (Reference Guide, p. 6.)
•
CMS states establishing a WCMSA is not necessary when ALL of the following
are true:
o The employee is only being compensated for past medical expenses;
o There is no evidence that the individual is attempting to maximize the
other aspects of the settlement; AND
o The employee’s treating physicians conclude in writing that to a
reasonable degree of medical certainty the individual will no longer require
any Medicare-covered treatments related to the WC injury.
•
CMS threshold for review and approval of a WCMSA
o Claimant is currently Medicare eligible and total settlement is over $25,000
 “Medicare eligible” includes:
• Age 65 or older;
• Receiving SSDI benefits for more than 24 months; or
• End stage renal failure
o Claimant is reasonably expected to become Medicare eligible within 30
months and total settlement is over $250,000
 “Reasonably expected to become Medicare eligible” includes:
• Age 62.5 or older;
• Applied for SSDI benefits;
8
•
•
Appealing denial of SSDI benefits; or
End stage renal disease, but not yet qualified for Medicare based on
that disease.
•
CMS review thresholds are not a “safe harbor.”
Medicare’s interests in all WC cases.
•
“No statement in the settlement of the amount needed to fund the WCMSA is
binding on CMS unless and until the parties provide CMS with documentation
that the WCMSA has actually been funded for the full amount that adequately
protects Medicare’s interests as specified by CMS as a result of its review.”
(Reference Guide, p. 23.)
•
“CMS does not compromise or reduce future medical expenses related to a WC
injury. Some submitters have argued that C.F.R §411.24.47 justifies reduction to
the amount of a WCMSA. The compromise language in this regulation only
addresses conditional (past) Medicare payments. The CMS does not allow the
compromise of future medical expenses related to a WC injury.” (Reference
Guide, p. 31.)
The parties must consider
Case Law
All federal case law discussing the requirements for protecting Medicare’s interests
relative to future medical expenses results from liability claims. There are no published
federal cases involving the merits of establishing MSAs under workers’ compensation.
In fact, as discussed in more detail below, federal courts cannot exercise jurisdiction
over Medicare claims under federal subject matter jurisdiction basis until the Medicare
administrative appeals process has been exhausted. Although outside the scope of this
discussion, the liability cases that have evaluated the MSP on its merits have had to
submit federal jurisdiction through alternate methods, such as diversity jurisdiction or an
underlying federal question claim.
Therefore, obtaining meaningful discussion
regarding MSA issues in the courts is quite limited.
Subject Matter Jurisdiction
In Walters v. Leavitt, 376 F.Supp.2d 746 (E.D. Mich 2005), a Medicare recipient
brought declaratory judgment suit against the acting Secretary of the Department of
Health and Human Services concerning the rights of parties under MSP provisions. The
plaintiff submitted he was unable to settle his state law tort action without knowing the
amount the federal government will require in reimbursement or the amount to be set
aside for future payments.
The Court held that until a claimant has exhausted his administrative remedies by going
through the agency appeals process, a federal district court has no subject matter
jurisdiction over his lawsuit seeking to recover on any claim arising out of the Medicare
Act. Practically, this means the plaintiff could not have federal review of Medicare’s
rights until he received a demand from Medicare and went through the administrative
9
process. Plaintiffs must wait for Medicare to request recovery or deny payment for
services to obtain federal review.
Allocation of settlement for future medical expenses and determination of amount
needed to set-aside to adequately protect Medicare’s interests
In Benoit v. Neustrom, 2013 WL 1702120 (W.D. La. 2013), a plaintiff asked the court
to enter a judgment approving settlement and declaring the interests of Medicare were
adequately protected by the terms of the settlement, which included a possible
allocation proportionate to Plaintiff’s recovery. The parties agreed to settle all issues for
a lump sum payment of $100,000.00. After payment of fees, expenses, and Medicare
conditional payments, the settlement amount reduced to $55,707.98.
The court set the matter for hearing and ordered service be made on the Secretary of
Health and Human Services, Chief Counsel of the HHS/OGC for region VI and the Civil
Chief of the Office of the US Attorney for the Western District of Louisiana. The US
Attorney’s office sent a letter advising of a demand for conditional payment
reimbursement, but did not participate in the hearing.
At the hearing, an MSA vendor gave cost projections for future Medicare-covered
medical expenses ranging from $277,758.62 to $333,267.02. Plaintiff argued that 10%
of the gross settlement proceeds would be an equitable amount to set aside to protect
Medicare’s interests because the recovery he obtained was approximately 10% of the
possible recovery he would obtain if he had prevailed on the liability issues.
The Court rejected Plaintiff’s suggested methodology, but did find that an equitable
allocation was in order for the family to fund a special needs trust for much needed
items not otherwise covered by Medicare. The court found the net amount to the plaintiff
under the settlement was $18.2% of the mid-point in MSA ranges. Accordingly, the
Court found that 18.2% of the net amount, or $10,138.00 was an adequate amount to
set aside to protect Medicare’s interests. The court held that “Since CMS provides no
other procedure by which to determine the adequacy of protecting Medicare’s interests
for future medical needs and/or expenses in conjunction with the settlement of third
party claims, and since there is a strong public interest in resolving lawsuits through
settlement, the Court finds that Medicare’s interests have been adequately protected in
the settlement within the meaning of the MSP.”
Determination of necessary MSA Amount
In Sipler v. TransAm Trucking, Inc., 881 F.Supp.2d 635 (W.D. N.J. 2012), on the eve
of trial, the parties verbally agreed to a lump sum settlement to settle all liability claims
arising out of a personal injury action. Defendant sent Plaintiff a proposed release that
included terms related to the plaintiff’s health insurance and obligations to Medicare.
Plaintiff refused inclusion of the additional terms and moved to enforce the verbal
settlement agreement.
Applicable state law provided a settlement agreement between parties to a lawsuit
would be enforced notwithstanding the fact the writing does not materialize because a
10
party later reneges. Therefore, the settlement agreement was enforceable. The issue
was the appropriate terms of the settlement.
The court held that no federal law requires set-aside arrangements in personal injury
settlements for future medical expenses. Although the court indicated MSAs are
prudent in the workers’ compensation context (and incorrectly cited to the regulations as
the MSP), the court found that unlike the workers’ compensation scheme which
generally determines recovery on the basis of a rigid formula, tort cases involve
noneconomic damages not available in workers’ compensation cases and a victim’s
damages are not determined by an established formula. The Court stated “to require
personal injury settlements to specifically apportion future medical expenses would
prove burdensome to the settlement process, and, in turn, discourage personal injury
settlements. In sum, the parties in this case need not include language in the settlement
documents noting [plaintiff’s] obligations to Medicare or fashion a Medicare set-aside for
future medical expenses.”
In several other liability cases, federal district courts have made determinations
regarding the appropriate amount to set-aside and made specific findings that
Medicare’s interests had been adequately protected. Guidry v. Chevron USA, Inc.,
2011 WL 6815626 (W.D. La. 2011) (Longshore and Harborworkers’ Compensation
Act); Frank v. Gateway Ins. Co., 2012 WL 868872 (W.D. La. 2012) (diversity
jurisdiction); Early v. Carnival Corp., 2013 WL 462580 (S.D. Fla. 2013) (presumed
diversity jurisdiction); Cribb v. Sulzer Metco (US) Inc., 2012 WL 4787432 (E.D. N.C.
2012) (diversity jurisdiction); Bessard v. Superior Energy Services LLC, 2012 WL
3779162 (W.D. La. 2012) (Outer Continental Shelf Lands Act)
All the above claims were liability claims with federal jurisdiction separate and distinct
from Medicare questions. The courts set the matter for hearing and ordered service be
made on CMS representatives, including the Secretary of Health and Human Services,
Chief Counsel of the HHS and the Civil Chief of the Office of the US Attorney. CMS did
not appear or participate, but sent similar letters advising of no appearance or
participation. The courts held evidentiary hearings admitting testimony of the claimant,
testimony or reports of an “MSA expert,” and reports of treating physicians.
Based on the evidence presented, the courts made findings regarding the proper
amount of an MSA and found that Medicare’s interests had been adequately protected
in the settlement within the meaning of the MSP. None of the decisions have been
selected for publication by the district courts or have been challenged on appeal or by
other collateral methods. All courts found establishing an MSA in the approved amount
adequately protected Medicare’s interests within the meaning of the MSP.
11
Notes Pages
Notes Pages
Notes Pages
We’re Moving
in St. Louis!
Bank of America Tower
100 North Broadway
Suite 2000
St. Louis, MO 63102
New
Kansas City, MO
Office
2700 Bi-State Drive
Suite 400
Kansas City, MO 64108
Save the Date
for 2014!
MVP’s Annual
Kansas City Seminar
will be
August 7th, 2014
Kansas City, KS
St. Louis, MO
Springfield, MO
Kansas City, MO
Omaha, NE
Tulsa, OK
10 E. Cambridge Circle Dr.
Suite 300
Kansas City, KS 66103
ph 913.371.3838
fax 913.371.4722
2700 Bi-State Drive
Suite 400
Kansas City, MO 64108
ph. 816.912.4446
515 Olive St.
Suite 1501
St. Louis, MO 63101
ph 314.621.1133
fax 314.621.4405
10665 Bedford Ave.
Suite 101
Omaha, NE 68134
ph 402.408.1340
fax 402.493.0860
www.mvplaw.com
4650 S. National Ave.
Suite D-2
Springfield, MO 65810
ph 417.865.0007
fax 417.865.0008
1874 S. Boulder Ave.
Tulsa, OK 74119
ph 918.771.4465
fax 918.213.4551

Workers` Compensation Law Seminar Handbook

Transcription

Similar documents

DEMANDE DE RELEVÉ D`EMPLOI

THE EMPLOYER SOLUTION

application for employment

Wyoming Report of Injury - Wyoming Department of Workforce

APPLICATION FOR EMPLOYMENT

Please our employment application

WORKING COPYX Page 1 - Carl B Klean Gift Shoppe

Atlanta, GA - Plato`s Closet

Datasheet TotalCompBuilder.com Platform

Testengeer Application