Transcript Slide 1

The “Top 10”
A survey of recent cases
James Barnes
Carmine 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 Hospital
Supreme 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 of
Director’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 al
414 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 reinstated
• 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 Company
408 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