Welcome to Fowler Bell PLLC

Formerly, Fowler Measle & Bell PLLC

Fowler Bell’s attorneys are widely respected for their integrity, responsiveness and no-nonsense style. The firm continues to be highly sought after for our ability to handle complicated matters in an efficient, highly competent manner, since 1950. You want us on your side.

Fowler Bell Blog – Worker's Comp

Court of Appeals Decisions for October 9: ALJ Rudloff reversed, the UEF gets a bad deal, so does UPS. Meanwhile Plaintiffs get it all.

  • 15 Oct 15

  • 0 Comments

Three cases were issued, two were published by our Court of Appeals (“COA”). Let’s delve into each.

Miller v. Go Hire Employment Dev., Inc.

2014-CA-000379-WC

Rudloff—reversed.

Plaintiff was involved in a MVA, suffering various alleged injuries to her low back and both wrists, the ALJ awarded PPD benefits. At issue on appeal is whether Plaintiff’s carpal tunnel syndrome (“CTS”) is work related or not.  The employer argues there is no substantial evidence to support a finding of work relatedness, and that the ALJ failed to provide any specific factual basis for his conclusion that it was work related.

Two months prior to Plaintiff’s deposition, Dr. Hughes had examined her and assigned a permanent impairment rating for her CTS, and concluded she was not at MMI for the same.  Further complicating this case is that at her discovery deposition Plaintiff testified she had no problems, issues or complaints with either hand.  Later, at the hearing, Plaintiff changed her tune to sing the blues in order to follow the conclusions of Dr. Hughes, but the song runs contrary to her prior sworn testimony.

The Board reversed the ALJ on the CTS on a wholesale basis. The COA did not.  This matter has “less to do with whether substantial evidence supported the award, and more to do with what substantial evidence supported such an award.”  The employer has been deprived of knowing the evidentiary basis for the ALJ’s conclusions, the matter is remanded to him to do so.

“When multiple work-related injuries are alleged, it is imperative that an ALJ’s opinion distinguish the condition to which factual findings pertain. An ALJ’s discretion to pick and choose from the evidence does not authorize conflicting findings of fact.”

Upon providing the necessary specific findings of fact from the very conflicted evidence the ALJ may ultimately end up awarding both PPD benefits and medicals for the CTS. The COA instructs us that the Board missed the mark in reversing the ALJ, instead the proper action was to vacate the decision and remand for further findings and explanation.

There is also the issue of Dr. Hughes concluding that Plaintiff was not at MMI for her CTS, yet he assigned an impairment. The COA speculates that perhaps Dr. Hughes was placing Plaintiff at MMI for her low back condition, not her CTS. They instruct the ALJ to figure it out.

Justice Kramer, in a separate opinion, would have affirmed the Board in whole, reversing the ALJ’s award for the CTS. Dr. Hughes assigned a permanent impairment before the ALJ found that Plaintiff had reached MMI.  The AMA Guides mandate that an impairment can only be assigned after reaching MMI, thus Dr. Hughes impairment could not be relied upon. “A hypothetical or conditional WPI rating—essentially what Dr. Hughes offered herein—is prohibited by the AMA Guides and cannot be relied upon as substantial evidence.”

Comment:  I agree with Justice Kramer. An impairment rating can only be assigned after reaching MMI.  Dr. Hughes admitted she was not at MMI.  The ALJ found she reached MMI on a date after Dr. Hughes examined Plaintiff and assigned his impairment.   Plaintiff has the burden of proof on each element of the claim and failed in this case.  At most she could be awarded medical benefits, with no impairment. She would retain the right to reopen her CTS.  Why did the majority ignore the mandates of the AMA Guides?

No three times multiplier from ALJ Rudloff, interesting.

 

UPS v. Woods

2014-CA0000570-WC (not to be published)

Borders—affirmed.

This case involves a MVA wherein the claimant suffered a back injury, underwent a fusion surgery and had ongoing mental health issues. The ALJ awarded PTD benefits for the back and mental health issues. UPS appeals arguing claimant is not at MMI for the mental issues, thus Plaintiff should have been awarded TTD, not PTD. “[I]t it would have been permissible for the ALJ to have determined Woods was temporarily totally disabled, the ALJ was not required to do so in light of all the evidence proffered.”  The COA suggests that UPS is free to reopen should claimant’s mental condition improve.

Comment:  I agree with UPS.  The ALJ specifically found that Plaintiff is incapable of work due to a combination of his physical and mental injuries.  If Plaintiff is not at MMI for his mental injury then we can’t reach a final determination.

Perhaps more troubling is the double standard between this case and Miller v. Go Hire Employment Dev., Inc. discussed above.  In Miller if the ALJ awarded medicals she could reopen later to argue for a worsening, i.e., permanent impairment.  There’s no need to try and cobble together some way to give her PPD benefits now, her IME doctor screwed up and she didn’t correct the problem.  No need for the COA to try and fix it. But if you must fix it then can’t we have a level playing field in UPS v. Woods?

Miller will get PPD benefits when her evidence does not support the same. Meanwhile UPS gets saddled with a PTD when it’s agreed that Woods is not at MMI.

 

UEF v. Poplar Brook Development, LLC, et al.

2014-CA-01758-WC (to be published)

Overfield—reversed.

Claimant was framing a house, fell from a ladder and suffered a compression fracture in 2004. The parties entered into an agreed order in 2004 wherein the UEF agreed to pay TTD benefits and medicals until “terminated by order of the [ALJ].”  Over time the claim evolved with Plaintiff claiming he suffered a traumatic brain injury as well.  TTD and medicals continued to be paid by the UEF through 2012—a period of eight years.  That is when the ALJ issued an order terminating TTD benefits.

In his final decision the ALJ found that Plaintiff reached MMI in 2005, as such TTD was overpaid by seven years. The ALJ awarded a 5% for the lumbar compression fracture and dismissed the traumatic brain injury claim.  The ALJ awarded a credit to the UEF for the seven years of overpaid TTD.  However, the COA found the Agreed Order dispositive…

The claimant “argues that regardless of when he reached MMI, the terms of the agreed order entered December 21, 2004, provided that he was entitled to collect temporary total disability benefits until such time as an order ending them was entered. We agree.”

There were other substantial evidence issued presented by the claimant, none of which gained any traction.

The UEF cross-appealed, arguing that liability should have climbed further up the ladder so as to strike someone with coverage, or greater assets. The ALJ found Mr. Terry to be the employer, acting in his individual capacity, and he was uninsured.  Here’s where it gets a little complicated because the company, and its members, weren’t very good at record keeping.  The UEF pointed at Poplar Brook, LLC and/or its three members which included Terry as well as Tobiason and Negroe as liable up the ladder

Poplar Brook is in the business of land development. In this instance it bought land, subdivided it into a subdivision, and sold the lots. Negroe bought a lot from Poplar Brook, in order to build a house on it.  Negroe then signed a contract with Poplar Brook to have the company build the house.  This was signed by Terry on behalf of Polar Brook. Terry that was to be paid 8% of the appraisal value of the house upon completion.  Terry undertook a number of things as an individual such as receiving reimbursements, paying contractors, etc. on a personal bank account.  Terry hired Baker, Baker hired claimant.  Terry opened an account on behalf of Poplar Brook at a local lumber yard and authorized Baker to purchase materials from the same.  It was during this construction that claimant was injured.

Confusing right? The COA affirmed the ALJ concluding there was substantial evidence to support the ALJ’s conclusion that the employer was Terry individually, not Poplar Brook or its other members.

Comment:  I’d like to see the exact language of the agreed order, the whole order.  The UEF got a really, really bad bargain.  I suspect that if the crafty agreed order prevented a plaintiff from getting eight years of benefits then the result would have been different.

As for the contractual arrangement clearly it is conflicted. Sometimes it was Poplar Brook acting, sometimes Terry individually.  It’s difficult to follow the reasoning of the COA that there is “scant” evidence that Poplar Brook authorized Terry to bind them to build a house.  Negroe signed the contract, as the house owner, and clearly saw that the contract was with Poplar Brook.  So that’s one member that gave her consent.  Terry signed on behalf of Poplar Brook.  That’s two members that gave their consent.  Whether those two had the authority to bind Poplar Brook is a matter between the three members, and is a different cause of action, if one exists.  Based upon the contract Poplar Brook agreed to build the house, they should be liable for injuries suffered by its employees as well as the employees of any sub-contractors who did not have WC coverage.  Again, the UEF took quite a lump on this one when it shouldn’t have.  Poplar Brook, and its members, should have to pay the price for their sloppy record keeping between the company and arrangements with its individual members.