WSIA Fall 2010 presentation
Benefits do not include pain and suffering (third party election)
Tobin v. Dep’t of Labor & Indus., (August 12, 2010).
The claimant was injured when a crane boom, operated by a third party, injured him. The claimant received workers’ compensation benefits, including a pension. The claimant brought a lawsuit against the third party responsible for the accident. The claimant entered into a settlement agreement with the third party for $1.4 million in damages, $793,083 (57%) of which was categorized as pain and suffering. The Department used the entire settlement sum in its reimbursement calculation.
The Department (and self-insured employers) is not entitled to be reimbursed out of the injured worker’s pain and suffering (non-economic) damages recovered in the third party action. The Department’s calculation was limited to $29,326.84 for actual medical expenses, $14,647.00 for future medical expenses, and $562.943.00 for lost wages.
- Non-economic damages (i.e., pain and suffering, loss of consortium, etc.) cannot be used in your distribution calculation. Only economic damages (i.e., lost wages, medical expenses, etc.) can be used in the calculation.
- Carefully monitor third-party lawsuits because the Supreme Court is not worried about fraud or collusion.
- Detail medical expenses for pain management, psychiatric treatment for pain disorders, complex regional pain syndrome, etc., to avoid theTobin effect.
- Claimants may receive windfalls from third party injuries, and employers may have a difficult time recovering their fair share of the costs.
- RCW 51.24.060 should be amended to allow for the distribution from non-economic damages in light of Adams v. Dep’t of Labor & Indus., 128 Wn.2d 224, 231-33 (1995) (“Providing the worker produces sufficient evidence of loss of earning capacity and expert medical evidence that working causes serious discomfort or pain or puts his or her life or health in immediate danger, total disability is a question for the jury.”)
Double dipping prohibited . . . for now
Williams v. Leone & Keeble, Inc., 152. Wn. App. 150 (2009) (unpublished, but review granted April 1, 2010).
The claimant, a Washington resident, was injured while working for his employer, an Idaho subcontractor, on a school remodeling project in Idaho. The general contractor’s main office was in Washington. The claimant filed his workers’ compensation claim in Idaho and was awarded benefits. Later, the claimant brought an action against the general contractor for negligence in Washington.
An injured worker who applies for and receives workers’ compensation benefits for the injury under an exclusive remedy workers’ compensation system may be barred from later seeking a common law remedy for the injury under the doctrine of res judicata. Where the worker first files for workers’ compensation coverage for the injury, the agency’s decision to pay benefits is dispositive of the issue of jurisdiction and is res judicata as to any other proceedings on the question of a remedy for the injury.
- Workers may not receive workers’ compensation benefits in another state against a sub-contractor, and then hope to double-dip by suing the general contractor in a civil action in Washington for the same injury.
- May not limit third party claims.
- The issue is still unresolved until the Supreme Court issues a decision. If the decision is reversed, workers may receive double benefits for same injury.
All it takes is an Application of Benefits?! (Injury)
In re David Lopez, Dckt. No. 09 12902 (June 24, 2010).
The claimant alleged a left shoulder injury in February 2008 while installing drywall. The claimant did not complete an Application for Benefits or seek medical treatment until July 2008 (four months later!). A chiropractor completed the Application for Benefits for left shoulder subluxation and sprain. The claimant said his interim foot surgery delayed the claim, and he knew he had a year to file a claim. The Application for Benefits was admitted into evidence.
An injury is established by showing: (1) a tangible happening or incident, which may be termed an accident; (2) a resulting physical (or mental) condition, or other bodily harm; and (3) a causal relationship between the incident and the condition established by medical testimony.
“This documentary medical evidence [i.e., the Application of Benefits] is sufficient to establish that the incident caused a medical condition.”
- Carefully review the Application for Benefits. Was a causation opinion given?
- Speak with the medical provider who completed the Application for Benefits. Question their qualifications, understanding of the medical history, etc.
- Obtain an IME with a more qualified medical expert to disprove the mechanism of injury caused the condition.
- Interview potential witnesses and family about history of complaints. Obtain affidavits to preserve testimony.
MapQuest: Getting you benefits faster (Course of employment)
In re Patricia C. Glenham, Dckt. No. 08 18373 (June 15, 2010); In re John L. Tullis, Dckt. No. 08 18591 (June 15, 2010).
Poor performing apartment managers in Shoreline, WA were scheduled to meet with their employer in Seattle, WA at 9:00 a.m. According to MapQuest, the distance was only 13.01 miles, an estimated drive of 16 minutes. The apartment managers were involved in a car accident at 7:30 a.m. The evidence showed the apartment managers left early to go to Home Depot on a personal matter. According to MapQuest and the police report, the accident occurred on the same route they would have taken had they gone directly to the meeting in Seattle. The apartment managers were not on-call at the time of the accident.
Employees are not in the course of employment as they commute to and from work (“Going and coming rule”). Exception: employees traveling at the employer’s direction between the employer’s premises (i.e., apartments to business meeting). Exception to the exception (personal errand): an employee on a business trip that leaves the course of employment by deviating from the route on a personal errand, and does not return to the route before the injury.
“The mere intention to take care of a personal matter before attending to business is not enough to remove a worker from the course of employment. Until the worker actually leaves the business route on the personal mission, he or she remains in the course of employment.”
- MapQuest, GPS, etc. may be used as evidence in “course of employment” cases.
- Determining “the route” may differ depending on the map, GPS device, etc. that is used.
- Intent may not matter, but if you are suspicious, thoroughly investigate the employee’s actions after an accident.
Eat, drink, and be merry, for tomorrow you get benefits (Supervening cause)
In re Brian I. Shirley Dec.’d, Dckt. No. 08 15270 (April 28, 2010).
The claim had been closed with no PPD award for two years, and there was no pending application to reopen the claim. However, the claimant was taking prescription drugs for his injury-related pain, which was not authorized by the Department. The employee died. His alcohol blood level at the time of death was .07 (.08 is legal intoxication in WA). Claimant also tested positive for high levels of oxycodone, Celexa, Xanax, amitriptyline, and nortiptyline. The claimant had been diagnosed with alcoholism and was recently hospitalized for treatment. He also had chronic pancreatitis due to drinking. Some doctors testified he should not have mixed alcohol with the drugs. Other doctors testified they prescribed the drugs for injury-related conditions. The Coroner testified there was a mixed cause of death.
A widow’s pension was allowed because the original injury was a proximate cause of the claimant’s death. But for the claimant’s use of pain medication, the alcohol would not have caused his death. For alcohol to be the supervening cause, it had to be the sole cause of the death.
“While [the claimant’s] use of alcohol while taking the prescription medications was not a wise decision, it does not rise to the level of a supervening cause . . .. Benefits under the Industrial Insurance Act are not denied even when the injury is due to the worker’s own act of negligence.”
- Had the treatment been unauthorized and unnecessary, the chain of causation would have been broken.
- It is not enough to prove there was no PPD at closure. You need to prove the pain and the medication are not related to the injury.
- Carefully monitor alcohol and drug use when the claim is open and closed.
Did you smell that? (Intalco OD)
In re Diana R. Gegg, Dckt. No. 08 16647 (April 16, 2010).
The employee was bulldozing 600 yards from chemical and radioactive waste materials at Hanford. She and others smelled chemical fumes, and the wind blew dust on her throughout the day. She had elevated liver enzyme levels the same day (consistent with toxic exposure), and she developed flu like symptoms. She later developed cognitive and mental health symptoms. The claim was initially rejected based in part on a negative field chemical test.
The Board could not specify the toxins that caused the cognitive and mental conditions. However, the claim was allowed because the toxins in the vicinity (600 yards away!) were dangerous, the symptoms were immediately present, and there were no other causative agents.
The Board also found jurisdiction to allow the following conditions: avoidant personality disorder; toxic encephalopathy; organic brain dysfunction; and neurotoxicity syndrome.
- The Board is still applying Intalco liberally.
- Hire well-qualified experts, even nation experts, in toxic exposure cases.
- Try to identify other causative agents in the community, at home, etc.
- The Board will not only allow a claim, but it may also determine the specific conditions that are allowed. The evidence should focus on both aspects to limit exposure.
“I look at every case as a pension case.” D.S. (PTD)
In re Joan S. Easley, Dckt. No. 09 10286 (April 22, 2010).
The claim was closed without time loss from December 7, 2006, to January 2, 2009, and no low back impairment. The claim was previously allowed for lumbar sprain, aggravation of low back degenerative disc disease, and radicular pain into left lower extremity. The claimant could lift and carry 10 pounds on an occasional basis, but needed to alternate between sitting, standing, and walking. The claimant had an abnormal gait, stiffness and muscle spasms, positive straight leg raises, MRI findings of degenerative disc disease, but increased muscle tone. If impairment had been rated, it may have been a Category II.
“[A] worker need not establish the existence of a specific permanent impairment rating in order to qualify for permanent total disability benefits. Instead, the pre-requisite for such benefits is showing of some permanent loss of function.”
The Board “acknowledged that there are several Board Decisions and Orders suggesting that a worker cannot be permanently and totally disabled unless there is a permanent impairment rating.” The Board stated: “However, the better view is that there must be some permanent residual loss of function to form the basis for placing permanent restrictions on the claimant’s ability to work.”
- Look to the employee’s ability to work prior to closure to analyze PTD exposure. A claimant may get a PTD award, even though no PPD award was ordered.
- If the claimant has not returned to work before closure, consider an updated IME and/or PCE, even if there is no PPD award, if the claim is likely to be appealed.
- WAC 296-19A-010(1)(c) states: “If there are no physical or mental restrictions caused by the worker’s industrial injury/occupational disease, the worker must be found employable under the Industrial Insurance Act.” Work carefully with a vocational counselor before closure if it appears employability is an issue.
(PTD continued . . .)
In re Randy L. Brown, Dckt. Nos. 09 14595 & 09 17896.
The claim was closed with a pre-existing Category IV low back impairment, not increased by the injury. The order was appealed and litigated. After the record closed, the claimant filed a motion requesting a pension under the evidence presented. The IAJ denied the motion as untimely since the PTD issue was not raised prior to the record closing.
The only difference between temporary total and permanent total disability is the duration of disability. Since the parties presented evidence of total disability, the case was remanded to obtain evidence regarding duration of disability. Even though a claimant does not specifically request a pension benefit on appeal, when the general issue of employability is raised from a closing order, “the parties can anticipate that pension will be an issue.”
- A pension argument should be anticipated prior to claim closure if the worker received TTD benefits for a significant period of time.
- If a pension argument is suspected, steps should be taken before claim closure to obtain favorable evidence, and/or to neutralize treating physicians.
- Once a claim is on appeal, discovery should address temporary and permanent disability.
- Consider surveillance with a biomechanical analysis if the pension is significant.
Claimant’s actions speak louder than words
(Brett Favre voluntary retirement rule)
In re Robert E. Lee, Dckt. Nos. 09 11993 & 09 13994 (April 7, 2010).
The claimant had carpal tunnel syndrome for many years. One day, the claimant got into a heated argument with his manager, turned his keys in, and left never to return. The Employment Department denied unemployment because the employee was found to have voluntarily quit. The claimant took an early retirement union benefit (not a disability retirement), and never signed up for the union’s out-of-work list. He did not look for work in the next six months. The claimant then had a carpal tunnel release, and returned to part-time work thereafter. The claimant argued he never intended to remove himself from the workforce, and he could not work pre-surgery due to his hands.
The claimant’s actions demonstrated he voluntarily retired for a period of time, so he was not entitled to TTD benefits for that period. Eligibility for TTD benefits vary from day to day, depending on whether the worker has returned to work, whether the condition no longer prevents the worker from working, whether the injured worker can return to some work but not to the job of injury, or whether the voluntarily retired worker becomes reattached to the labor market. The worker may be voluntarily retired for a period of time, but then receive TTD benefits if there is proof of an effort to return to gainful employment.
- An employee may be voluntarily retired for a period of time, and then entitled to TTD benefits for another period of time based upon their actions.
- Employers should document the reason why an employee leaves, and contest unemployment benefits if the employee voluntarily quits.
- Identify any bona fide attempts to return to the workforce.