eNotes: Workers’ Compensation – October 2021

SIGNIFICANT CASE SUMMARIES

VA CASE SUMMARY

Kenneth Elliott v. Sam Green Vault Corporation
Virginia Workers’ Compensation Commission
VA00001108316

Decided: August 25, 2021

In a stunning reversal of decades of precedent, carriers will now be liable to pay for functional capacity evaluations for purposes of establishing permanent partial disability ratings.

Background

Claimant suffered a compensable injury to his left leg. Once Claimant reached MMI, his treating physician ordered an FCE to seek an impairment rating. Claimant filed a claim requesting authorization for physical therapy. The Deputy Commissioner denied, citing the longstanding precedent that “generally, a visit to a physician for the sole purpose of providing a disability rating does not constitute medical treatment under Virginia Code § 65.2-603 and is not the responsibility of the employer.” Claimant argued that the referral was not solely for the FCE, and included medical treatment.

Holding

The Commission agreed that the referral was seeking only an FCE, and was not medical treatment. In a shocking Opinion issued by Commissioner Newman, the Commission nevertheless reversed, departing from previous precedent and unilaterally finding that carriers are responsible for FCE’s designed to assess a PPD rating, even without addressing the question of whether such an FCE constitutes medical treatment under § 65.2-603.

Commissioner Marshall concurred to applaud the change, which he has been suggesting in many dissents on the issue. Commissioner Rappaport authored a stern dissent, advising that the Commission should hold by its precedent since the Act is silent on the issue.

Takeaway

Commissioner Newman ended his Opinion with: “If, ultimately, we are told that we have exceeded the bounds of our charge to interpret the Act liberally and humanely then so be it.” This and other phrases like it seem to suggest that Commissioner Newman is welcoming a ruling from the Court of Appeals to clarify the issue.

Any questions regarding this case can be addressed to Michael S. Bliley, Esquire, at mbliley@tthlaw.com or (571) 464-0435.

 

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DC CASE SUMMARIES

Moses Riley v. DC Water and Sewer Authority
DC Court of Appeals
No. 19-AA-974

Decided: September 9, 2021

When a Claimant seeks an informal conference, the Employer may not file an application for Formal Hearing before there has been an Informal Conference recommendation.

Background

Claimant developed tinnitus at work after repeated exposures to a loud door alarm. Her symptoms included pain in her ear ears, headache, nausea, and disorientation. Those symptoms worsened until the date of the accident, when she felt like she was underwater with noise in her ears. As she approached a stairway, she reported shocking waves of pain an elevated heartbeat, and trouble breathing. Claimant lost consciousness, only waking up at the bottom of the stairs. The Deputy Commissioner found that Claimant proved tinnitus as an occupational disease, but denied the fall down the stairs, because the cause of the accident was “not entirely clear.”

Holding

The Full Commission affirmed the tinnitus, but reversed on the fall, finding that Claimant proved a compensable injury by accident. The Full Commission found that the evidence preponderated to show that the workplace conditions caused or contributed to the fall. Specifically, the Commission found that the repeated alarms caused the anxiety and pain, and agreed that the symptoms were a direct response to the alarm system. The Full Commission discarded a medical history indicating that Claimant “slipped,” which they felt was not consistent with Claimant’s testimony.

Takeaway

Often times, claims such as this will be denied when the claimant cannot say with 100% certainty how an accident occurred (just as the Deputy Commissioner reasoned). This is a fringe case, and the Full Commission could have easily affirmed, and likely would have if the facts were slightly different. If there are circumstances where the claimant does not precisely know how a fall occurred, it is likely worth denying.

Any questions regarding this case can be addressed to Jamie L. DeSisto, Esquire, at jdesisto@tthlaw.com or (443) 641-0558.

Juana Miranda v. Devon & Blakely/2200 WSH Foot Corp.
DC Court of Appeals
No. 20-AA-92

Decided: August 19, 2021

The Court of Appeals refused to agree that undocumented work status alone prohibits a claimant from meeting their burden under Logan.

Background

After a knee injury, Claimant was cleared to work with restrictions. At hearing, Claimant invoked the Fifth Amendment when asked about her immigration status. The ALJ denied the claim, inferring that Claimant was not authorized to work in the United States. The ALJ analyzed Claimant’s claim under the Logan test, which normally requires a claimant to show that the injury prevented them from performing the pre-injury job; therefore the ALJ concluded that Claimant could not meet her burden, since the immigration status and not the injury prevented her from returning to the employment. The CRB affirmed, holding that the inability of Claimant to obtain employment was due to her undocumented status, not the work injury.

Holding

On appeal, the Court noted that the CRB’s decision was inconsistent with prior decisions. Nor did the CRB set forth any analysis under the Logan test of the evidence presented by the employer vs. what was presented by the Claimant. The CRB’s decision to treat Claimant’s undocumented status as a complete bar to satisfy her burden under step three because the employer is prohibited from re-employing her but does not address facts where undocumented claimants in such circumstances would be entitled to temporary total disability benefits if they could show that they made a diligent search and were unable to obtain a job during the time period at issue for reasons other than their undocumented status. Claimant had presented such evidence, which was not addressed by the CRB.

The case was remanded for the CRB to explain the relationship between this case, Lopez, Gonzales, and Augustin.

Takeaway

Undocumented status alone is not likely to prohibit Claimant from establishing her burden under Logan Step 3 if Claimant can show that her inability to get a job is due to factors other than her undocumented status. It will be interesting to see how the CRB navigates the case on remand.

Any questions regarding this case can be addressed to Michael S. Bliley, Esquire, at mbliley@tthlaw.com or (571) 464-0435.