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Published in the NDCA
Written by Julie Jorgensen and Chriska Francois
Morrow, Willnauer & Church

The term “comorbidity” describes two or more disorders or illnesses occurring in the same person, at the same time or one after the other. SeeWhat is Comorbidity,” National Institute of Drug Abuse, March 2011.  Comorbidities can also imply interactions between the illnesses that can worsen the course of both.  Id.  Because comorbid conditions are by definition medical disorders or diseases that can either accompany or affect the primary condition or injury, comorbidities can have a significant impact on litigation. See generallyCommon Comorbidities Found in Workers’ Compensation:  How Comorbid Conditions Impact Claims,” Optum, 2017.  Common comorbidities include:  high blood pressure, heart disease, chronic pain, insomnia, obesity, depression, arthritis, diabetes, tobacco use, alcohol abuse, and previous traumas.

In workers’ compensation, the existence of comorbid factors has significant impact on claims, particularly the length of time until a claimant reaches maximum medical improvement.  In 2012, the National Council of Compensation Insurance (“NCCI”) investigated the impact of comorbidities on workers’ compensation claims.  See generally Law, C. & Colon, D., “Comorbidities in Workers’ Compensation,” NCCI, October 2012.  In that study, the NCCI found that the percentage of worker’s compensation claims with a comorbid diagnosis, such as diabetes, hypertension, or obesity, increased from 2.4% to 6.6% between the years 2000 and 2009.  Id.  The NCCI attributed this significant increase to the overall progression of illness rates among the general population.  The study also found claims with a comorbidity diagnosis have about twice the medical costs of otherwise comparable claims.  Id.

Depression as a Comorbidity

An emerging body of evidence demonstrates that depression and physical disorders are commonly comorbid.  Depression as a comorbidity is related to a poor quality of life, worse outcomes of the physical disorders, increased mortality, higher medical costs, greater disability, and a heightened functional impact than when either depression or a medical disease is present alone.  See Kang, Hee-Ju, Kim, Seon-Young, Bae, Kuyng-Yeol, Kim Sung-Wang, Shin II-Seon, Yoon, Jin-Sang, and Kim, J, “Comorbidity of Depression with Physical Disorders: Research and Clinical Implications,” Chonnam Medical Journal, April 14, 2015.

In injured workers, the combination of stress, a decrease in daily activities, concerns over money, feelings of worthlessness or hopelessness, and even the side effects from some medications can result in feelings of depression.  See id.  The injured workers’ resulting depression can prolong and increase the effects of pain, which in turn increase medication use and/or extend claim duration.  Id.  Approximately 50% of patients with chronic pain have some degree of depression, and chronic pain patients are four times more likely to experience anxiety or depression than those not affected by chronic pain.  Id.

According to a study published in the Journal of Occupational & Environmental Medicine in 2012, the odds of injured workers being treated for depression were 45 percent higher than those of non-injured workers.  The study, which was conducted by researchers at the Centers for Disease Control and Prevention, points out that while additional costs related to depression are present, on a nationwide basis they sometimes are not covered by the workers’ compensation system, so employers or the claimants themselves are responsible for the costs.  Id.  However, Nebraska courts have illustrated a willingness to include treatment for depression as work related when it also involves a claim for physical injury.

Depression and Nebraska Workers’ Compensation

Under the Nebraska Workers’ Compensation scheme, with the exception of a small carve out for first responders, psychological injury on its own is not compensable.  Generally, injury means “only violence to the physical structure of the body and such disease or infection as naturally results therefrom…”  Neb.Rev.Stat. § 48-151.  In one case tried prior to the first responder carve out, the Court found a compensable injury under the Act must involve “some physical stimulus constituting violence to the physical structure of the body.”  Zach v. Neb. State Patrol, 273 Neb. 1, 10-11, 727 N.W.2d 206, 213 (2007).  The Court held that because the injury to Zach was alleged to have resulted entirely from a mental stimulus, no claim was stated under the Workers’ Compensation statutory scheme.  For most workers it remains necessary for some physical injury to occur before psychological injury or treatment is compensable.

For instance, in a recent case an employee twice injured her upper extremity on the job.  Jurgens v. Irwin Industrial, 20 Neb. App. 488, 825 N.W.2d 820 (2013).  The workers’ compensation court awarded permanent partial disability benefits, past and future medical expenses, and vocational rehabilitation.  Jurgens attended classes as part of her vocational rehabilitation, but reported that she was in constant pain and felt overwhelmed.  As a result, she dropped out.

After dropping out of the vocational rehabilitation program, Jurgens sought a modification of her award, claiming an increase in incapacity due solely to work-related injuries.  Irwin Industrial and the State of Nebraska, Workers’ Compensation Trust Fund, opposed the modification.  The Court of Appeals found that the upper extremity injuries had aggravated her preexisting depression due to the pain, and such led to an avoidance of physical activity.  The Court of Appeals affirmed the lower court’s finding that due to her depressive symptoms, Jurgens suffered an increase in her incapacity due solely to the work-related injuries, and had suffered periods of both temporary total disability and temporary partial disability.  Id.  The Jurgens Court further affirmed the finding that the employee had not yet reached maximum medical improvement (MMI) for her depression and awarded benefits accordingly.  Id.

In another case, the Court of Appeals refused to declare the claimant at MMI when he continued to suffer the symptoms of secondary depression arising out of his work-related shoulder injury.  Adamson v. Horizon W., Inc., No. A-13-1011, 2015 Neb. App. LEXIS 73 (Apr. 28, 2015).  The treating physician in Adamson noted that “[t]he components of Adamson’s chronic pain syndrome [chronic left shoulder pain, left ulnar neuropathy, inability to function in usual social roles, depression, anxiety, insomnia, inability to adapt to stress] mutually aggravate each other in sets of complex, interlocking vicious cycles, which must be addressed simultaneously in treatment planning in order to achieve reduction of pain.”  Id.

When the Comorbidity Becomes the Injury

The Nebraska Supreme Court appeared to push the bounds under which depression would be considered compensable in Hynes v. Good Samaritan Hosp., 291 Neb. 757, 869 N.W.2d 78 (2015).  In previous cases, it was the physical injury driving the finding of compensability for the depression comorbidity, generally with findings that the depression was a result of chronic pain syndrome.  The Hynes case is particularly significant because the finding of permanent and total disability was based on psychological disabilities only and the physical injuries were very minor.  The Nebraska Supreme Court affirmed the workers’ compensation court’s finding that that the claimant, Hynes, was permanently and totally disabled and “sustained a 100-percent loss of earning power due to psychological injuries resulting from three assaults that occurred in the course of her employment at a hospital.”

With regard to the assaults, Hynes alleged that she suffered from posttraumatic stress disorder and depression as a result of three incidents which occurred during the course of her employment as a nurse in the mental health unit of Good Samaritan Hospital.  Hynes alleged that because of these incidents she was no longer able to work.  The physical impact of the assaults was very minimal.  Hynes only sought medical treatment for a physical injury once, when a patient “whipped” Hynes with a large vacuum cleaner cord and allegedly punched her in the jaw.  Hynes stated she suffered bruising and substantial pain as a result of the assault.

Hynes also described a second incident, where she was kicked and was bitten on the arm by a patient.  She did not seek medical treatment for the alleged physical injuries.  Hynes reported a third incident in which a male adolescent grabbed Hynes and made “extremely aggressive” sexual comments to her.  Hynes did not receive treatment for physical injuries associated with this assault.  Id.

Paula Malin, M.D. was offered as the claimant’s expert psychiatric witness.  In her report, Dr. Malin opined that Hynes suffered psychological and physical injuries in the first assault and that the second and third assaults caused cumulative trauma.  Good Samaritan unsuccessfully sought to have Dr. Malin’s opinion excluded and argued that Dr. Malin’s opinion did not adequately take into consideration the claimant’s previous trauma.  Another expert report was authored by Howard Entin, M.D., a court-appointed psychiatrist from Colorado.  Dr. Entin opined that “while Hynes had a major depressive disorder, she did not meet the criteria for PTSD and ‘did not experience an event that was a significant threat to her life at work.’”  Dr. Entin opined that Hynes might have PTSD related to significant preexisting stressors.  Id. at 264.  His opinion was rejected by the lower court because the court felt he applied a Colorado burden on the claimant that was not present in Nebraska.  Id.

One of the main points of contention on appeal was the consideration of the second and third incidents in the determination of Hynes’ disability.  Good Samaritan argued that there was no proof Hynes suffered a physical injury in either the second or third incident, therefore, neither was independently compensable under the current Workers’ Compensation Act.  Good Samaritan also argued that because the second and third incident would not be compensable, that they should not be considered in any expert opinion with regard to causation.

The workers’ compensation court had rejected Good Samaritan’s argument with regard to the second and third incident and had found “‘[t]he first (with physical injury) and the second and third incidents can combine in one continuous chain through which the force of the cause operated to produce the totality of mental illness [Hynes] is suffering from.’”  The workers’ compensation court further found that even though the third incident possibly was not an accident within the meaning of the Act, it did not matter for purposes of the analysis of the case because Hynes was alleging that her injury was the result of continued abuse.  The workers’ compensation court stated:

The Court does not view [Hynes’] claim to be for three separate accidents but rather . . . as an initial accident with two subsequent incidents which aggravated or cumulatively added to the damage and injury to [her] mental health which began with the first accident.  In this regard there is clear evidence that the first assault with physical injury caused immediate mental difficulties for which [Hynes] sought treatment.  There is evidence that the first and second assaults involved physical injury with psychological injury. . . .  There is evidence in the record to support a finding that the third assault aggravated the preceding compensable injuries all of which injuries are compensable under the Nebraska Workers’ Compensation Act.

Id.  The Nebraska Supreme Court stated that “[a] separate compensable injury for each and every work aggravation is not required if the initial cause of the injuries is a direct and natural result of the compensable injury.”  Id.  The Supreme Court found that the workers’ compensation court “was not clearly wrong in finding that Hynes’ injuries were the result of the initial “accident” [ ], with two subsequent incidents that aggravated or cumulatively added to the injury.”  Id.  The Court cited to a previous case in its affirmance, Worline v. ABB/Alstom Power Int. CE Servs., 272 Neb. 797, 725 N.W.2d 148 (2006).  Worline held that where the evidence is sufficient to permit the trier of fact to find that a psychological injury is directly related to the accident and the employee is unable to work, the employee is entitled to be compensated.

All of these cases, and particularly the Hynes case, demonstrate that it is necessary to think seriously about a claimant’s psychological history early in the case.  Clearly a claimant’s psychological comorbidities can have an extreme impact on the potential value of the claim and the course of treatment.  Given the relative recentness of the decision in Hynes, it is difficult to say whether there will be an increase in awards where relatively minor physical injuries will give rise to total and permanent disability based on psychological trauma, but it is nevertheless a case which should always be considered when valuing a matter.

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Morrow Willnauer Church, LLC is pleased to announce that four new associates have become affiliated with the firm.

Aaron R. Schuman is a 2014 graduate of the University of Missouri — Kansas City, School of Law. Following his graduation, Mr. Schuman worked for the Missouri Public Defender’s Office. Mr. Schuman will concentrate his practice in civil litigation and continue his practice in criminal defense.

Joanna B. Orscheln is a 2014 graduate of the University of Missouri — Kansas City, School of Law. Following her graduation, Mrs. Orscheln worked for the Jackson County Prosecuting Attorney’s Office. Mrs. Orscheln will concentrate her practice in civil litigation.

Blake H. Butner is a 2016 graduate of the University of Missouri — Kansas City, School of Law. Following her graduation, Ms. Butner was in private practice at a northwest Missouri firm where she focused on probate and appellate litigation. Ms. Butner will concentrate her practice in civil litigation.

Chriska M. Francois is a 2017 graduate of the University of Missouri — Kansas City, School of Law. Prior to graduation, Ms. Francois clerked for the firm. Ms. Francois will now concentrate her practice in civil litigation

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The Missouri Legislature has approved Senate Bill 66, with an effective date of 08/28/2017, which makes some interesting modifications to the Missouri Workers’ Compensation Act. The bill summary is below with our commentary in bold italics. A full copy of the bill is available here. Please feel free to contact us should you have any questions or comments.

S CORPORATIONS

This act authorizes, beginning January 1, 2018, a shareholder of an S corporation with at least 40% or more interest in the S corporation to individually elect to reject coverage under the workers’ compensation laws by providing a written notice of the rejection to the S corporation and its insurer. Failure to provide notice to the S corporation shall not be grounds for any shareholder to claim that the rejection is not legally effective. The shareholder may rescind the rejection in writing to the S corporation and its insurer. The rescission shall entitle the shareholder only to the benefits which accrue on or after the date of the notice of rescission is received by the insurance company.

MAXIMUM MEDICAL IMPROVEMENT

Under this act, for the purposes of workers’ compensation laws, the term “maximum medical improvement” is defined as the point at which the injured employee’s medical condition has stabilized and can no longer reasonably improve with additional medical care, within a reasonable degree of medical certainty.

Furthermore, in the case of temporary total and temporary partial disability benefits, such benefits shall only continue until the employee reaches maximum medical improvement unless such benefits are terminated by the employee’s return to work or are otherwise terminated under law. In the case of permanent total disability, compensation shall be paid during the continuance of such disability from the date of maximum medical improvement for the lifetime of the employee at the appropriate weekly rate.

The act modifies provisions relating to compromise settlements under workers’ compensation laws. For all compromise settlements offered after a claimant has reached maximum medical improvement, such claimants have 12 months after receiving an initial permanent disability rating from the employer’s physician to acquire a rating from a second physician of his or her own choosing. Absent extenuating circumstances, if after 12 months the claimant has not acquired a second rating then any compromise settlement entered into shall be based upon the initial rating. Employers may waive these provisions with or without stating a reason. This provision offers employer/insurers additional incentive to request a rating as soon as MMI has been established and, additionally, to extend an offer of settlement based on that rating. Even if rejected at the time of initial offer, if the claimant fails to secure an alternate rating within 12 months, any future settlement is to be based on the initial rating. In combination with the prior offer, this should also have a chilling effect on the claimant’s ability to retain an attorney since the attorney will have no incentive or ability to increase the settlement value where the only issue is the percentage of disability and in excess of 12 months have elapsed since claimant was provided employer’s rating report.

REDUCTION OF WORKERS’ COMPENSATION AWARD BASED ON USE OF DRUGS

Under current law, if an employee fails to obey any rule or policy of an employer relating to the use of alcohol or nonprescribed controlled drugs in the workplace, the compensation or death benefit available under workers’ compensation laws shall be reduced by 50% if the injury was sustained in conjunction with the use of alcohol or nonprescribed controlled drugs.

This act provides that any positive test for a nonprescribed controlled drug or the metabolites of such drug from an employee shall give rise to a rebuttable presumption that the tested nonprescribed controlled drug was in the employee’s system at the time of an accident or injury and that the injury was sustained in conjunction with such drug if:

  • The initial testing was administered within 24 hours of the accident or injury;
  • Notice was given to the employee of the test results within 14 calendar days of the insurer receiving actual notice of the results;
  • The employee was given an opportunity to perform a second test; and
  • The initial or any subsequent testing which forms the basis of the presumption was confirmed by mass spectrometry using generally accepted medical or forensic testing procedures.

Under the prior versions of the Missouri Workers Compensation Law, it was often necessary to prove that the injury occurred “in conjunction with” the use of drugs or alcohol.  The phrase  “In conjunction with” has presented very real evidentiary and proof problems. This provision helps expand the window of time in which the nonprescribed controlled drug or alcohol could have been used and still be construed as being at the time of accident or injury. It creates a presumption of use at the time of accident or injury that will be an evidentiary hurdle for the claimant to overcome, not the employer.

TERMINATION OF DISABILITY PAYMENTS — VOLUNTARY SEPARATION

If an employee voluntarily separates from employment at a time when the employer made work available for the employee which was in compliance with any medical restriction imposed upon the employee as a result of an injury that is the subject of a claim for benefits under workers’ compensation, neither temporary total disability nor temporary partial disability benefits shall be payable to the employee. This provision is self-explanatory but will certainly help reduce exposure for TTD/TPD where the claimant voluntarily separates from employment and accommodated work was, otherwise, available.

HEARINGS FOLLOWING TERMINATION OF WORKERS’ COMPENSATION BENEFITS

Under current law, the Division of Workers’ Compensation is required to set a hearing for any dispute over the termination of workers’ compensation benefits within 60 days of an employee making a request for a hearing. This act requires a hearing to be set within 30 days. This will make it more difficult, from an evidentiary standpoint, to be ready for a hardship hearing since it will shorten the available time for scheduling and taking medical expert depositions.  Thus, if it appears that the employee intends to proceed to hardship hearing, employers and their attorneys must be ready to act quickly to develop their evidence for submission to the Judge for consideration.

DEATH BENEFITS AND BURIAL EXPENSES

This act modifies the definition of “dependent” for purposes death benefits and burial expenses available under workers’ compensation laws. The term “dependent” is modified to mean only the claimant’s spouse or the claimant’s natural, posthumous, or adopted child or children, including any stepchild claimable by the deceased on his or her federal tax return at the time of injury, who are under the age of 18 years or over that age but physically or mentally incapacitated from wage earning. The act additionally eliminates partial dependents from the definition of “dependent.” This provision will eliminate all other relatives by blood or marriage from consideration as dependents including, but not limited to, parents of the claimant.

LINE OF DUTY COMPENSATION

Under current law, the estate of a deceased law enforcement officer, emergency medical technician, air ambulance pilot, air ambulance registered professional nurse, or firefighter who is killed in the line of duty is eligible to receive $25,000 in compensation. Under this act, such compensation shall be awarded as follows:

  • If there are no children, the surviving spouse shall be awarded the compensation;
  • If there is at least one eligible child and a surviving spouse, the child shall receive 50% and the surviving spouse shall receive 50%, provided that if there are multiple children, the children shall receive equal shares of 50% of the compensation;
  • If there is no surviving spouse, any eligible surviving children shall receive equal shares of the compensation;
  • If there is no surviving spouse or qualified surviving child, compensation shall be awarded to the individual who has been designated by the deceased in the most recent designation of beneficiary that is on file with the public safety organization; provided that if there is no such designation, compensation shall be awarded to the individual designated as beneficiary under the most recently executed life insurance policy of the deceased;
  • If there is no beneficiary of a life insurance policy of the deceased, compensation shall be awarded to the surviving parent or parents, in equal shares;
  • If there are no surviving parents of the deceased, compensation shall be awarded to the children of the deceased who are over 18 years of age, in equal shares.

TRUST SELF-INSURERS

The act requires new applicants to specified self-insured trusts to submit proof of payment of 25% of the estimated annual premium to the Division of Workers’ Compensation. Self-insured trusts are further permitted to invest surplus moneys from a prior trust year not needed for current obligations.

DISCHARGE AND DISCRIMINATION

Under current law, no employer or agent shall discharge or in any way discriminate against any employee for exercising any of his or her rights under workers’ compensation statutes. This act modifies that provision so that no employer or agent shall discharge or discriminate against any employee when the exercising of such rights is the motivating factor in the discharge or discrimination. The key language here is a change from “A motivating factor” to “THE motivating factor.” Under this provision, the employee would have to prove that the employer was motivated to terminate SOLELY based on employee’s exercise of rights under workers’ compensation.

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Morrow Willnauer Church is proud to congratulate Daniel Church on his appointment as the 2017 Chair of the Legal Committee for the Professional Liability Defense Federation (“PLDF”). The Legal Committee is the largest committee of PLDF.

“The Professional Liability Defense Federation™ is a not-for-profit organization designed to bring together attorneys, claims professionals and risk management specialists to share expertise and information helpful to the successful defense of professional liability claims.”

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Morrow Willnauer Church, LLC is pleased to announce the addition of Kristan M. Dames to the firm. Ms. Dames is located at our Saint Louis Office.
Ms. Dames is a 1996 graduate of Saint Louis University School of Law. Ms. Dames focuses her practice in the area of worker’s compensation defense of employers and insurers in Missouri.

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Congratulations to Morrow Willnauer Church LLC for being recognized by A.M. Best with the BestMark icon. This industry-recognized icon that senior insurance and claims executives look for when choosing service providers reflects the firms passion to provide the highest level of expertise to our clients.

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Congratulations to Randy Schroer, Member, for being recognized by the American Institute of Legal Counsel as one of the “10 Best” Workers’ Compensation Attorneys for Client Satisfaction in Missouri.

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Congratulations to Mr. Dan Church, Member, for being recognized again this year in the 23rd Edition of The Best Lawyers in America for your high caliber of work in the practice areas of Product Liability Litigation-Defendants and Railroad Law. We commend you on being recognized by your peers since 2005.