The “Top 10”A survey of recent cases

James BarnesCarmine D’Alessandro

Hopkins v. Uninsured Employer’s Fund, et al. Montana Workers’ Compensation Court (2010)

pending before Montana Supreme Court

• Hopkins was alleged to be a volunteer helping out at a private bear park when he was attacked by a grizzly bear

• On day of attack, Hopkins admitted to using marijuana prior to coming to the park– Two issues:

• Volunteer status• Intoxication

Statutes: Volunteers not considered employees; perform services, not for wages

As to intoxication, was non prescription drug use MAJOR cause of incident

On both issues, Court found for claimant

• Volunteer?– Hopkins worked at bear park– Was paid cash daily– Other “employees” had copious records of

payments (employer testified to no employees)– Bears were fed at direction of employer– Cash only business– Hopkins was asked to feed bears during “shoulder”

season – preparing for hibernation– Payment made after attack, but claimed not to be

wages – used to purchase “skunk bud”Clearly not a “volunteer”

• Intoxication– Several workers, including employer smoked

marijuana– Hopkins smoked morning of attack– Before entering bears’ pen, Hopkins put his

marijuana pipe in storage shed– Went in to feed bears and was severely injured in

an attack• What was major cause of incident? “The Bear”

• “When it comes to attacking humans, grizzlies are equal opportunity maulers; attacking without regard to race, creed, ethnicity, or marijuana use.”

• Attack occurred performing work duties as opposed to claimant simply wondering into den.

Gutierrez v. Masterson & Clark, et al.Arizona Court of Appeals (2010)

Issue: Whether Industrial Accident Commission improperly delegated its rule making authority by allowing the “most recent” edition of AMA Guides to be used when rating an impairment?

Facts: Claimant injured back moving a stack of plywood; received conservative care and was eventually returned to work, with restrictions.

Finding of Administrative Law Judge (ALJ) that there was no permanent impairment; claimant appealed.

• Before ALJ, medical evidence conflicted as to impairment.– Insurance expert relied on Sixth Edition of AMA

Guides (0%)– Claimant’s expert used Fifth Edition (5%)• Which edition applied?

– Regulation in effect said that “most recent” was to be used• At time of writing of regulation: 5th Edition• At time of claimant’s evaluations: 6th Edition

Court: “Most recent” means edition in effect at time of evaluation of alleged impairment.

• Did Industrial Commission improperly delegate authority to AMA? (No)– Although use of Guides is required, physician has

discretion as to how to use the Guides, or whether to use other rating criteria.

– Arizona Court relied on similar finding by New Mexico Supreme Court• Cannot expect a legislature to come up with these

types of rating mechanisms.

Kulawas v. Rhode Island HospitalSupreme Court No. 2008-223

• Kulawas was employed as an administrative secretary at hospital

• Injured on way to lunch (also liability issues)– Claimant settled on a denial/dismissal basis, not

traditional lump sum commutation– Employer never accepts liability/never pays bills– Injury deemed “not work related”

• Kulawas then files a suit against hospital alleging negligence

• Does exclusive remedy apply?– There was a finding that injury not work related.– Claimant argued that took this claim out of exclusive

remedy.• Court disagreed (with a dissent)– Workers’ compensation designed to provide

expeditious relief under no fault system.– This system was clearly supposed to be exclusive

remedy.– Based on these “traditional principles” suit

dismissed.Word of caution: Review your release!

Carreon v. Commerce & Industry Ins. Co., et al. 233 Ore. App. 440 (2010)

Issue: Department of Consumer and Business Services ruled that vocational assistance benefits to Carreon, who was not authorized to work in United States, not allowable.

Rule: “ A worker entitled to an eligibility evaluation is eligible for vocational services if all of the following additional conditions are met:

(a) The worker is authorized to work in the United States.”

• Carreon sustained a compensable injury receiving an award for permanent impairment.

• She was then notified she was not eligible for vocational assistance, due to her status

• She claimed test, conditions to be viewed were her “handicap” or inability to return to former employment” which were also set forth in statute: further claimed that “status” condition exceeded rule promulgation authority.

• Two statutes at issue– General workers’ compensation statute– Statute allowing director to add conditions

• Claimant met the workers’ compensation criteria; not additional criteria

• Reading statute as a whole, and applying everyday meanings to word condition, court upheld denial.

• Right to vocational assistance is not unqualified – Peacock v. Veneer Services (claimant could not

leave Tennessee by terms of probation)

In sum, these rules are valid exercise ofDirector’s authority.

Paint Connection Plus v. Industrial Claim Appeals Office Colorado Court of Appeals (No. 09CA0598)

Facts: Claimant was injured in fall, sustaining right rotator cuff tear and right shoulder slap tear. After two surgeries and recovery time, a physician opined that claimant was at MMI, for shoulder.

• However, physician noted probable C6-7 right facet syndrome (i.e., neck pain)• Physician reported claimant not at MMI for this

condition

• Carrier filed Final Admission of Liability (FAL) – admitting PPD for shoulder but denying neck was related

• Claimant filed for penalties/hearing alleging invalid FAL

• ALJ upheld claimant’s argument maintaining that the FAL (noting MMI) was inconsistent with physician report

• Affirmed on review

Requirements for FAL• If predicated on medical reports, those

reports must accompany the FAL (did not happen here)

• Procedural requirements promoting prompt payment

• More importantly, FAL was inconsistent with the supporting physician’s report – that report did relate neck to injury and found no MMI.

• How, then, can one accept one injury and deny another in the same accident?

Can partial MMI exist? No• The legally significant date is date upon which

claimant has attained MMI from all injuries sustained in a compensable accident.

• MMI is not divisible among injuries• Carrier should not have filed FAL until MMI on

neck• Contest at that point • Could have asked for hearing• Contested treatment to neck

• Because Carrier violated Act, penalties were appropriate

Merten v. Portland General Electric Co. 234 Ore.App. 407 (2009)

Facts: Claimant filed workers’ compensation claim for injuries sustained to shoulder and back; both were originally denied, but the shoulder later accepted.

Claimant later sued alleging self-insurer had fraudulently promised to open claim for back.

– Injury was caused by a fall from a power pole– When claim was denied, claimant had limited time to

request hearing– Instead of asking for hearing, claimant stayed in touch

with administrator (TPA)– Claimant wad told, “submit medical records, back claim

would be opened”– Records came in after time for requesting hearing

• Employer did not open claim even though it continued to investigate after denied deadline

– Claimant had three prior claims with employer, all accepted, and, in each one, TPA secured medical records

– Lastly, administrator encouraged claimant not to seek a lawyer (claimant did not take that advice)

• Claimant sued, alleging fraud seeking economic and non-economic damages

“exclusive remedy”?• Lower court dismissed claim; reversed an appeal– Exclusive remedy pertains to injuries arising out of

and in course of employment– Fraud did not arise out of and in course of

employment• Caused by intentional, non-work related conduct

– Fraud cannot be compensated under Workers’ Compensation Act.• Similar to wrongful discharge claim

• Word of caution: on facts presented, employer was not entitled to summary judgment

• Oregon’s Supreme Court denied review• Case proceeded to trial ….

Ruff v. City of Manassa, et al.Slip Opinion; Colorado Supreme Court (June 21, 2010)

• ALJ and Claim Appeals Office refused to disqualify an independent medical examiner due to an alleged conflict of interest.

• Are examiners “quasi-judicial” personnel?• Does relationship with insurer matter?

Facts: After suffering knee injury and a dispute as to MMI, claimant challenged IME physician’s connection with Pinnacol, employer’s insurer.

• Request for protective order denied.

• Physician was chosen according to rules set forth in both statute and regulation (Concentra)

• IME physician also was part of Pinnacol’s managed care program (Select Net)

• Physician also worked as a medical advisor for Pinnacol

• Contracts stress use of independent judgment

Facts (continued): • After IME findings, claimant again challenged

connection, but refused to offer evidence of bias. Again, request denied. Decision upheld by Claims Board

Issue: Was IME physician required to disclose his connections with Pinnacol and to disqualify himself?– Intermediate appellate court rejected “quasi-judicial”

personal assertion, but remanded to ALJ for findings on appearance of conflict.

Supreme Court affirmed former; reversed as to later.

Statute: Conflicts are discussed only in context of prior relationships with treating physician.– Independent Medical Examinations not addressed.• Discussions of financial interest apply only to

relationships with prior treating physicians.

“Independent Medical Examinations” simply means a new exam; no focus on word independent.

* There was a dissent

Schlosser et al v. Uninsured Employers Fund, et al414 Md 195, 994 A. 2 d 956 (2010)

Facts: Claimant was injured while in the employ of Rose Industrial Services; claimant resided in Maryland.

• Rose was a sub-contractor of Schlosser• Injury occurred in District of Columbia on a job

that was only intended for District.• Prior to beginning work, Schlosser confirmed

Rose did in fact have coverage in D.C.

Facts (continued):• After injury, Claimant filed claim in Maryland.• Rose did not have insurance in Maryland.

Schlosser did.• Schlosser never checked status of Maryland

coverage

Issue: Was Schlosser, as statutory employer of Rose, liable for compensation in connection with Johnson’s claim?

Lower court rulings• Both WCC and Circuit Court determined that

while Schlosser was a statutory employer, it was NOT liable for the claim.

• Claimant could not have filed direct claim against Schlosser in Maryland

• Injury in D.C.• No nexus to Maryland• No jurisdiction• Only liable if liable as direct employer

Appellate Review

A. Court of Special Appeals (Reversed)• Johnson was covered employee of Rose• Purpose of act is to ensure coverage• Schlosser should have investigated all potential

coverage possibilities• UEF’s mission is to find coverage; accomplished with

Schlosser

• Court of Appeals (reversed; WCC finding re-instated

• Policy issue• Cannot expect general contractor to undertake this

lever of investigation• Statute is clear; simply being general contractor does

not impose liability• The UEF’s mission is to cover these claims

Satterlee v. Lumberman’s Mutual, et al Supreme Court of Montana (2009)

Facts: • Satterlee was one of three claimants suffering

work related injuries leading to findings of permanent total disability.

• When Saterlee became eligible for Social Security Retirement Insurance (SSRI), benefits were terminated; termination upheld by Montana’s WCC, based upon Montana statute

• Equal protection challenge• Due process challenge

A. Equal Protection (Basic rule is that persons similarly situated must receive like treatment)

• Similarly situated: PTD eligible claimants who are eligible for SSRI and PTD eligible claimants who are not• Both have been injured• Both cannot return to work• Both must rely on Act for benefits• Only difference : age

Age was not sufficient to change fact that both sets of claimants or similarly situated.

• Level of scrutiny: Rational basis test• Receiving workers’ compensation benefits is not a

fundamental right that would trigger strict scrutiny (again, age not focus)• Rational basis for treating similar elements differently?

• Applying that test: PTD benefits differ from PPD in that PTD could be lifetime benefits.

• PTD benefits are not meant to supplement wages; rather; they assist someone who cannot return to work.

• Benefits are meant to bear a reasonable relationship to benefits lost

• When retired, “work life has ended.” It would be consistent to terminate wage loss benefits at that time.

• Rational to terminate benefits at a time when most people have ended their working lives.

• Cost containment is also rational basis for treating individuals differently (when not used as only factor).

Due Process: Was statute reasonably related to a permissible purpose?

• Is it inconsistent to allow claimants who have worked less (not qualify for SSRI) to receive lifetime PTD benefits (no)

• Power of legislature to fix amounts, terms and manner of workers compensation benefits cannot be doubted.

• One reason for distinction – vulnerability of those not qualifying for SSRI (other reasons were also cited)

Dissent: Utah’s Supreme Court (in 2009) held the reverse; this type of offset was a violation of equal protection.

Parry et al v. Allstate Insurance Company408 Md 130; 968 A. 2d 1053 (2009)

Facts: Parry, a police officer, was involved in an “on duty” motor vehicle accident in 2001; succumbed to injuries several weeks later.

• Medical expenses for time in hospital totalled $169,000.

• On its own initiative, Baltimore County (employer) responded quickly to pay medical expenses; workers’ compensation adjuster was assigned care and processed bills. (Ms. Parry signed authorization).

• NO WCC CLAIM FILED

Facts (continued):• Ms. Parry decided not to file claim; instead

pursued UM/UIM policy of $100,000• Policy contained clause that benefits were offset

by any workers’ compensation payments• Allstate sought and received declaratory relief

that no money was payable due to offset provision

• Issue: Were the medical benefits paid by County paid pursuant to Workers’ Compensation Law?

(YES)

Statute: When third party is at fault, choice between filing claim or proceeding with suit.

• Ms. Parry chose suit

• Provisions affecting potential double recovery

• Parry contended that with no claim filed, no workers’ compensation benefits were recovered (to hold otherwise, precludes Parry from making the decision to sue).

• Allstate contended the County was obligated by law to do exactly what it did – provide prompt payment of medical bills; benefits were payable even without a claim being filed.

Court: Purpose of workers’ compensation is to provide efficiency and stability

• County responded pursuant to obligations imposed by law

• County’s actions were communicated to Parry’s attorneys (claim number referenced)

• Payment was never refused• “Recover” means to obtain; nothing to do

with formal claim filing