Workers’ Compensation – Six Back Injuries – Two Carriers – Apportionment Impossible

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Shaw v. Halifax County. (Lawyers Weekly No. 10-08-1084, 12 pp.) (Laura Kranifeld Mavretic, Commissioner) Appealed from Opinion & Award of Deputy Commissioner Kim Ledford. I.C. Nos. 194799, 531625, 783037, 783038, 795384 & 889462.

Holding: While working as a paramedic, plaintiff sustained six back injuries between April 15, 2005, and Oct. 31, 2008. One carrier was on the risk for the first three injuries, and another carrier was on the risk for the last three injuries. Aside from saying the later injuries aggravated the earlier injuries, plaintiff’s doctor could not apportion plaintiff’s disability or need for surgery among the six injuries.

The carriers are jointly liable for plaintiff’s back surgery.

Sedgwick Claims Management Services, Inc. (Sedgwick) was the carrier on the risk at the time of the first three accidents in April 2005 and September and November 2006. Sedgwick filed a Form 60 admitting liability after the first accident, and Sedgwick paid medical compensation and indemnity benefits for all of the time plaintiff was out of work.

After the September and November 2006 accidents, Sedgwick did not file any form either accepting or denying compensability; nevertheless, it paid indemnity benefits at the same compensation rate as the April 2005 accident for all time plaintiff missed from work following the accidents and paid for all medical treatment necessitated by the accidents.

By Sept. 16, 2007, Key Risk Management Services, Inc. was the carrier on the risk. On that date, the fourth accident occurred, and plaintiff filed a Form 18. Despite the fact that Key Risk was the carrier on the risk and plaintiff’s Form 18 identified Key Risk as the carrier, Sedgwick paid for all medical treatment plaintiff received following and resulting from the accident. Sedgwick also paid plaintiff indemnity compensation for all time that plaintiff was out of work following the accident.

Since her original accident in 2005, plaintiff has continued to experience low back pain. The pain later began radiating down her right leg. Plaintiff has undergone extensive conservative treatment, prior to surgery performed by Dr. Kurt Voos.

Dr. Voos testified that, from the original accident of 2005 to the time plaintiff had a CT myelogram (April 2008) and discogram (March 2009), there was nothing new radiographically, but there was an aggravation of the underlying condition. In Dr. Voos’ opinion, the most recent accidents of March 5, 2008 and Oct. 31, 2008, aggravated plaintiff’s underlying condition.

There is no real way to apportion injury among plaintiff’s six accidents. Dr. Voos was unable to pinpoint which incident caused the need for surgery or whether surgery would have been needed for the first four injuries alone.

Plaintiff’s back condition after March 5, 2008 and her surgery on April 24, 2009 were due to a combination of the six accidents that she sustained in her employment.

Plaintiff’s total disability after March 5, 2008 is a proximate result of the work-related back injury by accident she sustained on April 15, 2005, as aggravated by the subsequent accidents.

Plaintiff’s medical treatment after March 5, 2008, (including surgery) was reasonably necessary and is a proximate result of the six work-related incidents she suffered on April 15, 2005, Sept. 19, 2006, Nov. 10, 2006, Sept. 16, 2007, March 5, 2008, and Oct. 31, 2008.

The medical evidence does not show the relative contributions to plaintiff’s injuries and disability resulting from the multiple on-the-job incidents. Therefore, apportionment is not possible.

Equity dictates that both carriers are equally liable for payment of plaintiff’s ongoing temporary total disability benefits. However, Sedgwick would be prejudiced by paying half of plaintiff’s compensation at the higher rate attributable to plaintiff’s employment in 2008.

For the periods of disability between March 5, 2008, and Sept. 23, 2008, plaintiff is entitled to payment of disability compensation by Sedgwick at a weekly rate of $212 (half of $425) and payment by Key Risk at the remaining weekly rate of $312, so that plaintiff receives the full compensation rate of $524 applicable as of her Oct. 31, 2008, injury by accident.

Defendants are jointly and severally responsible for all medical treatment, including surgery by Dr. Voos, incurred by plaintiff since March 5, 2008, or to be incurred by plaintiff in the future as a result of her compensable back injuries.