Courts address claims with successive injuries

Supreme Courts throughout the country this spring addressed statutory considerations for workers compensation claims that deviate from typical patterns and involve successive injuries.

High courts tackled questions about statutory deadlines for claims alleging multiple injuries and the effects of pre-existing conditions on subsequent injuries. They also examined how a multiplier for people who can’t return to their at-injury employment as the result of an injury should be applied to a claimant hurt in successive accidents. 

North Carolina

Last month, the North Carolina Supreme Court in Cunningham v. Goodyear Tire & Rubber Co. addressed the timeliness of a worker’s claim for benefits from one of the multiple injuries she suffered.

Doris Cunningham injured her back twice in 2011. She filed workers comp claims for both injuries and settled both claims. In May 2014, Ms. Cunningham injured her back again.

She saw a physical therapist at an onsite medical facility in June 2014, then went a few months without treatment. When she returned to see the therapist in February 2015, Ms. Cunningham reported her back pain had never completely subsided since the 2014 injury and that she felt a recent increase in pain.

In April 2017, Ms. Cunningham suffered yet another back injury. She then filed workers comp claims for the 2014 and 2017 injuries. 

Goodyear moved to dismiss the 2014 claim as time barred. In North Carolina, a claim must be filed within two years after the last payment of medical compensation.

A deputy commissioner agreed the 2014 claim was untimely and the Industrial Commission affirmed. 

The Court of Appeals reversed, with a majority finding Ms. Cunningham’s 2014 claim was timely since her April 2017 visit to the physical therapist was related to the 2014 injury, and she filed her claim within two years of that date.

The state’s supreme court agreed the April 2017 visit for treatment of the 2014 injury made the claim timely. 

Kentucky

In April, the Kentucky Supreme Court addressed how to apply a statute requiring permanent disability benefits be tripled when an injured worker doesn’t retain the physical ability to return to the type of work he or she was doing at the time of injury to a worker with two separate injuries.

In Apple Valley Sanitation Inc. v. Stambaugh, the employer argued that the multiplier should not be applied to successive injury claims if the employee had no significant change in job duties between the first injury and the second.

Jon Stambaugh suffered two injuries 85 days apart while working for Apple Valley as a garbage collector. An administrative law judge applied the three-times statutory multiplier to Mr. Stambaugh’s benefits for both injuries, finding he lacked the physical capacity to return to the type of work he performed at the time of either injury.

The Workers’ Compensation Board affirmed, as did the Court of Appeals and Kentucky Supreme Court. 

The high court said the three-times multiplier was intended to compensate an injured worker who has a permanent alteration to his ability to labor and earn money due to his injury. The court ruled that its application depends solely on whether an employee has the physical capacity at the time of the benefits hearing to do the type of work performed pre-injury.

Given the extent of Mr. Stambaugh’s injuries and the medical evidence that his injuries would prevent him from performing his job duties, the court said application of the three-multiplier
was proper. 

Oregon

The Oregon Supreme Court was also presented with a situation in April involving a worker with two injuries — but in Johnson v. SAIF Corp., one injury was ruled compensable and the other was not.

Marisela Johnson was injured when her hand was caught in an elevator door at work. Her employer’s insurer, SAIF Corp., accepted liability for a sprain of Ms. Johnson’s left shoulder and trapezius, as well as an injury to the hand, but it denied liability for a rotator cuff tear, elbow sprain and forearm sprain.

A medical arbiter examined Ms. Johnson and identified a loss of grip strength. The arbiter attributed 50% of the loss of Ms. Johnson’s grip strength to the hand injury and 50% to the shoulder injury that SAIF had not accepted as compensable.

Based on the arbiter’s report, the Workers’ Compensation Division’s Appellate Review Unit issued an order on reconsideration awarding Ms. Johnson benefits for a 7% whole person impairment. 

An administrative law judge overturned this decision, finding there should not have been apportionment for Johnson’s loss of grip strength since her hand injury was at least 50% of the cause of her loss in grip strength.

The Workers’ Compensation Board ruled that the benefits for Ms. Johnson’s hand injury could not include the portion of impairment attributable to the denied claim for injuries to the left shoulder, and the Court of Appeals initially agreed.

After the Oregon Supreme Court remanded the case for reconsideration, the Court of Appeals reversed its earlier decision and ruled that when a worker’s impairment is due to a combination of the compensable injury and a preexisting condition, he or she is entitled to be fully compensated for a new impairment if it is due in material part to the compensable injury, except where an employer has made use of the statutory process for reducing liability after issuing a combined condition denial.

The Supreme Court upheld the decision, concluding that a worker is entitled to benefits for the full measure of his or her impairment where the accepted conditions are a material contributing cause of the impairment as a whole.

Wyoming

Lastly, the Wyoming Supreme Court upheld a denial of benefits to a retail worker in Boylen v. State ex rel. Department of Workforce Services, finding she failed to prove her alleged back injury was a second compensable injury.

The decision from March involved Rhonda Boylen, a sales associate at a motorcycle dealership. In 2019, she allegedly felt discomfort in her back while moving a heavy motorcycle. She did not report the incident to anyone that day or during her next shift.

Three days later, Ms. Boylen allegedly experienced excruciating pain in her back while turning away from her kitchen sink. When she sought medical treatment, she attributed her injury to moving the heavy motorcycle at work.

Ms. Boylen filed a workers comp claim, which the Department of Workforce Services denied. The Office of Administrative Hearings upheld the denial, finding Ms. Boylen had not carried her burden of proof.

The Wyoming Supreme Court noted that a subsequent injury may be compensable when an initial compensable injury ripens into a condition requiring additional medical treatment, but in this case, since the second alleged injury occurred just three days after the first, “the second injury can hardly be described as a ripened condition from an initial compensable injury that required additional medical treatment.”

The court also expressed reservations about whether the initial injury had occurred since it went unreported, did not require treatment and was never determined to be compensable. The court also said it was clear from the record that the OAH had rejected the idea the first incident was connected to the latter.

The court said the OAH identified inconsistencies in Ms. Boylen’s reports and testimony, and her expert failed to provide a reasoned medical explanation as to how she had “progressed from a minor injury, with no significant symptoms for three days, to an explosion of muscle spasms,” and so substantial evidence supported the OAH’s conclusion that Ms. Boylen failed to prove that her alleged second injury was caused by the first.