Larson’s Workers’ Compensation Law Case Spotlights (Spring 2024)

By Thomas A. Robinson, co-author, Larson’s Workers’ Compensation Law

Editorial Note: All section references below are to Larson’s Workers’ Compensation Law, unless otherwise indicated.

Employee Fraud. While the vast majority of workers’ compensation claimants follow the rules, speak truthfully, do not exaggerate symptoms, or otherwise unethically attempt to maneuver within “the system,” there are occasions in which a claimant may knowingly make a false statement or representation of a material fact for the purpose of obtaining workers’ compensation benefits. Chapter 39, which covers this important issue, has been undated and revised within this release. As noted in a recent decision from New York, Matter of Kennedy v. 3rd Track Constructors, 213 A.D.3d 1005, 182 N.Y.S.3d 803 (3d Dept. 2023) [see § 39.03, n. 23.3], the imposition of disqualification penalties must be proportionate to the unethical conduct. Boards and Commissions may allow for a claimant’s flawed, but explainable, memory [see Matter of Updike v. Synthes, 217 A.D.3d 1045, 190 N.Y.S.3d 512 (3d Dept. 2023), § 39.03 n. 23.4]. Since an appellate court will not ordinarily second-guess a Board’s resolution of factual and credibility issues, the fact finder’s decision on most misconduct allegations will not be disturbed on appeal [see Matter of Hartman v. Arric Corp., 2024 N.Y. App. Div. LEXIS 450 (3d Dept. Feb. 1, 2024), § 39.03, n. 24].

Injury from Usual Exertion or Exposure (Including COVID-19): The Four Approaches. As noted in Chapter 43, which has also been updated, the “by accident” requirement is now deemed satisfied in most jurisdictions either if the cause was of an accidental character or if the effect was the unexpected result of routine performance of the claimant’s duties. The issue becomes muddled, however, in those cases in which the effects of routine exposure take the form of pneumonia, common colds leading to complications, bronchitis, colitis, and other conditions. Distinctions drawn by courts have taken on added importance in COVID-19 claims arising out of the 2020 (and following) pandemic. For example, in an Alabama decision, Meeks v. Opp Health & Rehab., LLC, 2024 Ala. Civ. App. LEXIS 17 (Jan. 31, 2024) [see §43.05, n. 6], claimants were allowed to move forward with their claims where they could show that they faced greater risk of exposure to the virus than did the general public. Other states have similar, recent decisions [see Western Millwork v. Indus. Comm'n of Ariz., 536 P.3d 305 (Ariz. Ct. App. 2023), see § 43.05, n. 5, Larson’s Treatise quoted] and Pierre v. ABF Freight, 211 A.D.3d 1284, 1286, 180 N.Y.S.3d 337, 340 (N.Y. App. Div. 2022), § 43.05, n. 4].

“Accidental Infectious Diseases.” The Chapter 51 treatment of “accidental” infectious diseases is closely related to the § 43.05 discussion of COVID-19. Courts have long held that the contraction of disease is deemed an injury by accident if due to some unexpected or unusual event or exposure. Thus, infectious disease may be held accidental if the germs gain entrance through a scratch or through unexpected or abnormal exposure to infection. This discussion, found in Chapter 51, has been revised and updated. In Appeal of Southworth, 2024 N.H. LEXIS 9 (Jan. 30, 2024) [see § 51.02 n. 10.1], the Supreme Court of New Hampshire reversed and remanded a decision by the state’s Compensation Appeals Board (CAB) that denied benefits to a teacher who sustained a serious MRSA epidural abscess following a work-related camping trip, finding the CAB had improperly concentrated on whether the teacher had proved that his MRSA exposure occurred at work. The Court said that since it was clear that the teacher had experienced either an insect bite or a cut on his leg during the camping trip, the CAB should have made a finding on whether the MRSA was the direct and natural result of that bite or cut.

COVID-19 Claims. In Matter of Leroy v. Brookdale Hosp. Med. Ctr., 2023 N.Y. App. Div. LEXIS 6482 (3d Dept. Dec. 14, 2023) [see § 51.06[2] n. 30], another COVID-19 decision, in which a hospital nurse tested positive for COVID-19 and was diagnosed with COVID-19 pneumonia, the appellate division noted the Board found that the nurse’s husband provided credible testimony regarding the prevalence of COVID-19 in the nurse’s work environment, and that the workers’ compensation carrier failed to rebut the N.Y. Workers' Comp. Law § 21 presumption of compensability. That presumption quite general and is not the type passed by some state legislatures following the outbreak of the COVID-19 virus. Arizona’s Western Milbrook decision, discussed in the Chapter 43 discussion above, is also discussed in Chapter 51 [see § 51.06[2] n. 30]. A Delaware court was less forgiving to a COVID-19 claim [Hudson v. Beebe Med. Ctr., 2024 Del. Super. LEXIS 4 (Jan. 3, 2024) [see § 51.06[2] n. 29].

Informality of Compensation Procedure. A hallmark of workers’ compensation law is its general insistence that its procedure be as summary and informal as possible. This applies to pleadings, process, hearings, awards, and appeals, although time periods for appeal are strictly enforced in many jurisdictions. The important discussion of these issues found in Chapter 124 has been updated as well. The standardization of forms can cut both ways, of course. New York’s use of its famed Form “RB089” continues to work against some parties seeking full Board review. For example, In Matter of Ryba v. Russell, 215 A.D.3d 1213, 188 N.Y.S.3d 759 (3d Dept. 2023) [see § 124. 08[1] n. 1.4], an incomplete response to the form’s “Question 13” resulted in denial of the employer’s application for Board Review.

Quasi-Judicial Powers. Boards and commissions continue to be allowed to exhibit strong, quasi-judicial powers, in spite of their administrative agency character. Thus, in Matter of Levi v. New York State Workers' Compensation Bd., 212 A.D.3d 126, 179 N.Y.S.3d 455 (3d Dept. 2022) [see § 124.02 n. 33], the Board’s decision to remove a medical practitioner from a list of authorized medical providers was found not to be arbitrary.

California’s 60-Day “For Further Study Rule. In an important decision from California, Zurich American Ins. Co. v. Workers' Compensation Appeals Bd., 97 Cal. App. 5th 1213, 89 Cal. Comp. Cases 1 (2d App. Dist. 2023) [see § 124.08[2] n. 12.1, a state appellate court found a common practice of the state’s Appeals Board that circumvented a 60-day deadline for petitions for reconsideration by granting reconsideration “for further study” was a flagrant violation of Cal. Labor Code § 5909. Such “further study” decisions by the Board could not operate so as to toll the 60 days allowed for review. Discussion of several other important Chapter 124 cases on the informality of procedure is included below.

Positional Risk Doctrine. Arkansas has perhaps the most restrictive doctrine on the classic “arising out of and in the course of the employment” issue. It excludes from the definition of “compensable injury” any injury where employment services “were not being performed.” That rule often requires courts to draw fine lines. In Saratoga Sch. Dist. v. Bell, 2023 Ark. App. LEXIS 473 (Oct. 18, 2023) [see § 3.01 n. 7.2], an appellate court affirmed a decision of the Full Commission that disallowed benefits to a school employee who was injured as he exited a school cafeteria at the conclusion of his paid lunch break. The court acknowledged that the Commission could have made an opposite finding, but found substantial evidence supported its determination that the teacher had failed to show the required connection to his duties.

Teacher Shooting. In another case, a Virginia trial judge ruled that a Newport News (Virginia) elementary school teacher, who was shot by a six-year-old student who had brought his mother’s gun to school, could proceed in tort against the school district. The defendants unsuccessfully argued that the teacher’s $40 million tort action was barred by the exclusive remedy provisions of the Virginia Workers’ Compensation Act. The trial judge noted that the parties did not dispute that the teacher’s injury occurred in the course of her employment. The issue, however, was whether the teacher’s injuries arose out of her employment. The court said the causative danger need not have been expected or foreseen, but after the event it must appear to have had its origin in a risk connected with the employment, and to have flowed from that source as a rational consequence [see Zwerner v. Newport News School Bd, et al., 2023 Va. Cir. LEXIS 219 (Cir. Ct. Newport News, Nov. 3, 2023),  § 3.04 n. 2].

Worker Involved in “Budgetary” Work Following September 11 Attack Did Not Qualify for Recovery Under Article 8-A. Acknowledging that N.Y. Workers’ Comp. Law art. 8-A was enacted to remove statutory obstacles to timely claims filing and notice for latent conditions resulting from hazardous exposure for those who worked in rescue, recovery or cleanup operations following the World Trade Center September 11th, 2001 attack, a state appellate court stressed that an injured claimant must have directly participated in or otherwise had some tangible connection to the rescue, recovery, or cleanup operations in order to fall within the coverage of art. 8-A. While coverage was to be liberally construed, some workers involved in tangential activities, such as budgetary work, did not qualify for benefits [see Matter of Daly v. New York City Off. of Mgt. & Budget, 214 A.D.3d 1273, 187 N.Y.S.3d 347 (3d Dept. 2023), § 7.02[3] n. 30.2].

MRSA Infection Found to be a “Sequela” of Original Work Injury. In Streit v. Streit Construction, Inc., 953 N.W.2d 714 (Iowa Ct. App. 2020) (unpublished opinion) [see § 10.01 n. 4], the employee alleged that he suffered cuts and scrapes while doing construction work, which resulted in contracting a MRSA infection. His claim for workers’ compensation benefits was denied by a commissioner because there was no evidence that he came in contact with MRSA at work. The appellate court reversed, explaining that it had no conclusive answer from the commissioner about whether the employee proved that the cuts and scrapes occurred at the work site as a work injury and whether the MRSA was a sequela of that work injury. Accordingly, the case was reversed and remanded for a determination as to whether the employee proved that he suffered cuts or scrapes at work and whether the MRSA infection was a sequela of cuts or scrapes he suffered at work.

Stress Levels Faced by Claimant Were Not Unusual Compared to Peers. Some states—for example, New York—do not allow benefits for a psychological injury related to stress unless the stress borne by the claimant was greater than that associated with his or her peers. Thus, a state appellate court recently affirmed a decision by the state’s Workers’ Compensation Board that denied compensation benefits to a train conductor who claimed he had sustained a stress injury in the form anxiety and an exacerbation of his preexisting psychiatric conditions due to his worry that he might contract COVID-19 due to his contact with the public [see Matter of Matthews v. New York City Tr. Auth., 218 A.D.3d 983, 192 N.Y.S.3d 776 (3d Dept. 2023), see 44.05[4][d] n, 44.3]. In another decision, Matter of Sakanovic v. Utica Mut. Ins. Co., 219 A.D.3d 998, 193 N.Y.S.3d 742 (3d Dept. 2023) [see § 44.05 n. 44.1], a state appellate court held that a New York worker could not recover since the stress associated with her job was no greater than that borne by her peers.

Diseases of Ordinary Life. A number of statutes contain detailed definitions of the term “occupational disease,” and these statutory definitions give the clue to the distinction which is controlling for present purposes. The common element running through all is that of the distinctive relation of the particular disease to the nature of the employment, as contrasted with diseases which might just as readily be contracted in other occupations or in everyday life apart from employment. This rule is illustrated in a recent decision from West Virginia, Powell v. Hancock Cnty. Bd. of Educ., 2024 W. Va. App. LEXIS 7 (Feb. 8, 2024 [see § 52.03 n. 7.1], in which the court noted that in West Virginia, diseases such COVID-19 are generally not compensable, as they are diseases of ordinary life, unless the six factors contained in W. Va. Code § 23-4-1(f) are met. Those six factors are: (1) That there is a direct causal connection between the conditions under which work is performed and the occupational disease; (2) that it can be seen to have followed as a natural incident of the work as a result of the exposure occasioned by the nature of the employment; (3) that it can be fairly traced to the employment as the proximate cause; (4) that it does not come from a hazard to which workmen would have been equally exposed outside of the employment; (5) that it is incidental to the character of the business and not independent of the relation of employer and employee; and (6) that it appears to have had its origin in a risk connected with the employment and to have flowed from that source as a natural consequence, though it need not have been foreseen or expected before its contraction.

Employer Has Burden of Proof to Establish That Employee Failed to Correct Predisposing Conditions Pursuant to Nev. Rev. Stat. 617.457, under certain defined circumstances, “diseases of the heart” suffered by qualifying firefighters, arson investigators or police officers are conclusively presumed to have arisen out of and in the course of the employment. In the instant case, Las Vegas Metro. Police Dept. v. Holland, 527 P.3d 958 (Nev. 2023) [see § 52.07 n. 6], the Supreme Court of Nevada addressed the burden of proof for an NRS 617.457 occupational heart disease claim. Pursuant to NRS 617.457(11), an employer may offer an affirmative defense when the employee failed to correct predisposing conditions. Here the retired police officer was denied occupational heart disease benefits after suffering from two heart attacks. On a petition for judicial review, the district court reversed the claim denial. At issue was (1) whether the district court erred by improperly reweighing the evidence and retrying the case, and (2) whether the district court improperly added new requirements to the exclusion set forth in NRS 617.457(11). The Supreme Court clarified that the employee bears the initial burden to establish entitlement to the statutory presumption pursuant to NRS 617.457(1) that his or her heart disease arose out of and in the course of employment. Thereafter, if the employer asserts an NRS 617.457(11) defense, the employer bears the burden to demonstrate that the employee had predisposing conditions that lead to heart disease, had the ability to correct those conditions, and failed to do so when ordered in writing by an examining physician. Finally, the employee has an opportunity to rebut the employer’s evidence to establish their entitlement to the presumption. Upon analyzing respondent’s claim under this framework, the Supreme Court affirmed the district court's order.

Presumption of Compensability Related to Certain Firefighter Medical Conditions. In Seminole County v. Braden, 2023 Fla. App. LEXIS 8415 (1st DCA Dec. 13, 2023) [see § 52.07[2][a] n. 14.1, a state appellate court, citing two earlier Florida decisions, held that a county had failed to rebut the presumption with regard to a firefighter who passed a pre-employment medical exam in 1993, developed various heart ailments in the early 2000s—for which the county paid benefits—and who then suffered a heart attack one month after he tested positive for COVID-19. The court noted that the county had stipulated that the § 112.18, Fla. Stat. presumption applied. While it presented evidence that tended to show that the firefighter’s COVID-19 condition could have been the result of exposure within the general public, the presence of the presumption required that it actually prove the COVID-19 exposure had not been work related. That, of course, was virtually impossible.

Exclusive Remedy Provisions Relating to Certain Latent Diseases. Where a Pennsylvania plaintiff sued the defendant, his former employer, asserting common law claims relating to his workplace exposure to asbestos and the development of mesothelioma, the plaintiff was not required to file his claims with the state Workers’ Compensation Board, rather than the trial court, because an occupational disease that manifested more than four years after an employee’s last exposure to hazards causing that disease was not subject to the exclusive remedy mandate of the Pennsylvania Occupational Disease Act, 77 Pa. Stat. Ann. § 1403 [Herold v. University of Pa., 291 A.3d 489 (Pa. Commw. Ct. 2023) [see § 53.04 n. 66].

Independent Contractors: Newspaper Delivery Persons. Citing existing precedent, a New York trial court denied a motion for summary judgment filed by a newspaper company in a civil action filed by a woman who sustained serious injuries when she was struck, in a crosswalk, by a vehicle driven by a newspaper delivery person whose contract with the newspaper company designated the delivery person as an independent contractor and notwithstanding also the provisions of N.Y. Labor Law § 511[23], which provides that generally a newspaper delivery person is not an employee of the newspaper company entitled to unemployment insurance coverage or workers’ compensation benefits. The trial court stressed that in enacting § 511, the legislature had not indicated that it was changing the common law regarding vicarious liability. N.Y. Labor Law § 511[23] spoke to benefit eligibility, not liability in tort to unrelated third parties [see Smith v. Ryder, 2024 N.Y. Misc. LEXIS 169 (Jan. 17, 2024), § 60.04[2] n. 13].

California’s ABC Test Re: Employee Status. In Olson v. State of California, 62 F.4th 1206, 88 Cal. Comp. Cases 429 (2023) [see § 61.03 n. 1.2], the Ninth Circuit Court of Appeals concluded that the federal district court had erred when it dismissed plaintiffs’ equal protection claims that sought to enjoin the State of California from enforcing AB 5 (codifying the “ABC test” adopted in Dynamex) and its amendments. The Ninth Circuit found that the plaintiffs had plausibly alleged that the primary impetus for the enactment of AB 5 was the disfavor with which the architect of the legislation viewed Uber, Postmates, and similar gig-based business models, that the exclusion of thousands of workers from AB 5’s mandates was starkly inconsistent with the legislation’s publicly stated purpose of affording workers “basic rights and protections they deserve,” and that their exclusion from wide-ranging exemptions, including for comparable app-based gig companies, could be attributed to animus rather than reason. The Ninth Circuit also indicated that it was persuaded that plaintiffs’ allegations plausibly stated a claim that “singling out” of plaintiffs effectuated by AB 5, as amended, failed to meet the relatively lenient standard of rational basis review. The Ninth Circuit did, however, hold that the district court's dismissal of plaintiffs’ due process, contract clause, and bill of attainder claims was correct.

Employment Status of Inmates in Residential Rehab Programs. A divided panel of the California Court of Appeal affirmed a decision of the state’s Workers’ Compensation Appeals Board (WCAB) to the extent that it determined that the petitioner—who had pleaded guilty to a felony count of forgery, and entered a residential rehabilitation program sponsored by the Salvation Army (SA), a nonprofit organization, as a condition of probation—was not an employee of SA and accordingly could not recover workers’ compensation benefits from it following an injury that occurred while he worked in one of SA’s warehouses. The majority concluded, however, that the record had not been sufficiently developed as to whether the petitioner was an employee of the County of Santa Barbara (where the petitioner’s conviction occurred). The Court remanded the matter to the WCAB for further proceedings [see Velasquez v. Workers’ Compensation Appeals Bd., 2023 Cal. App. LEXIS 940 (Dec. 5, 2023), § 64.03[4] n. 4.3].

Employee Status: Subcontractors’ Employees & “Up the Ladder” Immunity. A Kentucky court recently held that trimming trees along a power company’s rights of way was a regular part of its business despite the fact that it had never employed its own workers to perform the work, and had always relied upon subcontractors. Citing General Electrical Company v. Cain, 236 S.W.3d 579 (Ky. 2007), in which the Kentucky Supreme Court had defined regular as meaning a “customary, usual or normal part” of the business “including work assumed by contract or required by law” and recurrent as meaning “repeated though not with the preciseness of a clock,” the appellate court held that a public utility company that hired a tree trimming firm to trim trees along the power company’s rights of way enjoyed immunity from tort liability where an employee of the tree trimming company was tragically electrocuted and killed while performing tree trimming. The worker’s widow unsuccessfully contended that tree trimming could hardly be a regular or recurrent part of the power company’s business since it had never employed its own workers to perform that type of activity [see Miller v. Kentucky Power Co., 2023 Ky. App. LEXIS 94 (Nov. 3, 2023), § 70.06[3] n. 34.3].

Evidence Presented in Odd-Lot Cases. A Wyoming court recently held that a physician’s certification was not required to receive permanent total disability (PTD) benefits through the odd lot doctrine. The Court acknowledged a specific statutory framework defining disability, but held that 1994 legislative revisions to the state’s workers’ compensation laws had not abrogated the common law doctrine of odd lot status. A “disability” determination was not, in all cases, solely a medical question capable of certification [see Gray v. State ex rel. Dept. of Workforce Servs., Workers' Comp. Div., 2023 WY 123 (Dec. 19, 2023), § 83.01 n. 7.1].

Dependency and Common Law Marriage Rules. Applying Texas common law marriage rules, a state appellate court recently held that a city municipality, which had employed a police officer at the time that the officer was killed in the line of duty—failed to prove by a preponderance of the evidence that a woman who had lived with the officer for a number of years, was not an eligible “spouse” for purposes of her claim for workers’ compensation death benefits. The appellate court stressed that here, the burden was on the municipality to disprove the existence of an informal marriage. A jury had made factual determinations in favor of the purported surviving spouse. There were no errors in the jury instructions. Thus, the evidence was legally and factually sufficient to support the jury’s verdict regarding the “agreement to be married” and “represented to others” elements of an informal marriage between the officer and the woman. The judgment was accordingly affirmed [see City of Euless v. Danylyk, 2023 Tex. App. LEXIS 9278 (Dec. 12, 2023), § 96.02[2] n. 2].

 Violation of Specific Safety Rules. The Ohio Supreme Court held the state’s Commission abused its discretion in granting an additional award because the claimant had not sustained injuries in a "workshop" (see Ohio Adm.Code Chapter 4123:1-5). The Commission had found to the contrary. The Supreme Court noted that the worker sustained injuries in an outdoor yard where vehicles were stored or staged for transport. The area was not a workshop [see State ex rel. Cassens Corp. v. Indus. Comm'n of Ohio, 2024-Ohio-526, 2024 Ohio LEXIS 329 (Feb. 14, 2024), § 105.06[1] n. 4.6]

Dual Capacity/Dual Persona: Injuries Allegedly Cause by Post-Injury Medical Treatment. An employee of a grocery store was hit by a pickup truck in a crosswalk at a major intersection near the employer’s store. After the accident, the decedent, who had been on a 15-minute work break, walked back to the employer’s store. There, store employees gave him an ice pack, a form to fill out relating to his injury, and a ride home. He died several hours later. The Court of Appeal held that the first aid administered by decedent’s coworkers shortly after his accident was incidental to employment relationship; it did not trigger the application of the dual capacity exception. The Court distinguished the case from earlier cases in which injured employees were, based on dual capacity, allowed to pursue medical malpractice claims against their employers who were medical professionals. The Court stressed that the dual capacity exception could not be expanded to include the negligent undertaking of medical treatment by the decedent’s coworkers, who were mere store employees and not medical professionals [see Jimenez v. Gooch's Natural Food Mkts., 95 Cal. App. 5th 645 (2023), § 113.08[1] n. 6.2].

Failure to File in Timely Manner Caused by Post Office. Acknowledging that in Missouri, applications for Commission review, when sent by USPS, are “deemed to be filed as of the date they are endorsed by the United States post office on the envelope or container in which such paper is received” [§ 287.480 R.S.Mo.], the Supreme Court of Missouri held that the Commission appropriately found that a workers’ compensation claimant timely filed her applications for review when a law office paralegal affixed more than a sufficient number of “Forever” stamps on the envelope and deposited it with the USPS. That the envelope was initially refused by the Commission because the USPS had erroneously indicated that $1.09 in postage was due did not make the filing untimely [see Gray v. Hawthorn Children's Psychiatric Hosp., 2023 Mo. LEXIS 371 (Nov. 21, 2023), § 124.08[1] n. 1.2].

Failure to File Appeal is Jurisdictional. Failure to file an appeal within the requisite time period is jurisdictional, held the Pennsylvania Commonwealth Court. The Court stressed that Claimant had not raised to the Board or the Commonwealth Court any non-negligent circumstances or fraud or its equivalent that may have allowed his appeal to proceed nunc pro tunc. Accordingly, neither equity nor the fact that Employer did not challenge Claimant’s Petition was dispositive [see Wheatley v. Pyramid Hotel Grp. Workers' Comp. Appeal Bd., 2024 Pa. Commw. LEXIS 16 (Jan. 11, 2024). § 124.08[1] n. 1.9].

Failure to Prosecute Claim. Acknowledging that in workers’ compensation matters, procedural rules were sometimes eased in the interests of justice, a Missouri appellate court also noted, however, that where, as in the instant case, an ALJ dismissed a claim with prejudice because it had languished for seven years, the state’s Labor and Industrial Relations Commission was well within its powers to deny review where the claimant’s Application for Review merely attached a copy of a notice of appearance earlier filed by an attorney representing the claimant [see Chuhan v. Ergosafe Prods. LLC, 2023 Mo. App. LEXIS 877 (Nov. 21, 2023), § 124.08[1] n. 1.10]. The appellate court found—contrary to 8 C.S.R. 20-3.030(3)(A)—that the claimant’s Application for Review (and attachment) failed to state, specifically or otherwise, any reason the ALJ’s dismissal of the claim was not properly supported. The court stressed that the Commission could not be required to speculate as to the reasons the claimant had sought review.

Appeal Denied Where Purported Employer Failed to Explain Why “New” Evidence Could Not Have Been Presented Before the WCLJ. Where an employer’s affidavit provided, as the only explanation given for the employer’s delay in coming forward with evidence, that it had been “unable to obtain the additional evidence in advance of the hearing,” an explanation which was rejected by the Board, the appellate court could see no abuse by the Board in failing to consider the administrative appeal [see Matter of Rios v. Rockaway Contr. Corp., 213 A.D.3d 1061, 184 N.Y.S.3d 185 (3d Dept. 2023), § 124.08[3] n. 15].

Timeliness of Claim Belied by Claimant’s Actions. Where it was undisputed that the claimant, a Maryland pediatrician, began implementing ergonomic changes to her workstation in 2017, including using a laptop cart and a touch-screen tablet, and hiring a scribe in 2018 to assist her with medical charting, she clearly was “less capable of performing her work” and at least partially incapacitated from performing her work. Accordingly, her claimed filed on September 10, 2020, more than two years later, was untimely [see In re Scott-McKinney, 2024 Md. App. LEXIS 28 (Jan. 11, 2024), § 126.05[5] n. 28.1].

Aggravation of Earlier Conditions: Speculation on the Sequelae Issue. Thomas sustained an admitted work-related injury to his right eye in January 2017. He underwent four surgeries to repair the damage but continued to have trouble with depth perception. A doctor assessed Thomas with a 79.5 percent impairment rating to his right eye. In June 2018, Thomas sustained several injuries while stepping off a pontoon boat. He contended his fall was caused by a lack of depth perception resulting from the earlier compensable injury. A workers’ compensation commissioner issued an appeal decision finding that Thomas failed to prove the June 2018 injuries were sequelae of the 2017 work injury. The district court affirmed, and Thomas appealed. The appellate court stressed that Thomas suspected that the impairment to his right eye caused his fall, but he could not recall what happened. There were no witnesses to provide context. The court said the only other evidence on which to rely for causation were the conflicting opinions of two medical experts. The court stressed that although both opinions allowed for the possibility that the fall was caused by the claimant’s eye impairment, neither expert stated it was the likely cause. This sort of speculation was not enough to establish medical causation [see Thomas v. Archer Daniels Midland Co., 2023 Iowa App. LEXIS 854 (Nov. 8, 2023), § 130.06[1] n. 8.3].

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