COVID as a Comorbidity

In June 2022, the Kentucky Worker’s Compensation Board rendered an intriguing reminder, vacating and remanding an order by the administrative law judge. In Sourcehov v. Bustle, Claim 201997527, the judge awarded various benefits to the injured worker.
The issue on appeal was an allegation by the employer that the “ALJ decision is arbitrary, capricious, and clearly erroneous.“ The foundation of this allegation is that the ALJ order was inconsistent and failed to consider an unrelated health condition.
The foundations of the claim are essentially consistent with so many that work their way through various workers' compensation litigation processes across America. The worker suffered a fall, visited an emergency room, had an MRI, underwent therapy, had surgery, then completed more therapy. She eventually returned to work, though with activity restrictions and ongoing symptomatology. There were also complaints of an emotional nature, and one visit with a psychiatrist regarding anxiety and depression that the decision intimates may be related to the work accident.
This path from injury, through care, to return to work is not uncommon. The worker here, however, returned to work in July 2019. You remember those halcyon days before you heard of SARS-CoV-2, COVID-19, masking, distancing, plexiglass pods, deep-cleaning, and so much more. And that timing is a significant part of this decision.
The worker remained at work for the employer thereafter. When the pandemic led to workplace struggles, in "March or April 2020," she began working from home. That transition is known to many. She remained working in that capacity until December 2020 when she was unfortunate to contract COVID-19, was hospitalized and then continued to use oxygen and medication "for ongoing problems associated with that disease."
Thus, we see COVID in workers' compensation. Not in the setting of allegations of work-related infection, but with this pandemic interfering with lives and implicating other facts and circumstances. The matter went to trial on the workers' claims for temporary total and permanent total disability benefits. In the normal course, there were medical evaluations, expert testimony, and a trial.
The Board noted the ALJ findings of witness credibility. The judge "found Dr. Roman's opinions most credible." However, "in the next paragraph found the exact opposite." It is likely that is not what the ALJ found, but is what the order said. This is likely not an issue of uncertainty or contradiction in fact, but inconsistency in the drafting and proofing of the order. That said, what the order recites is important. That is an important reminder for all judges particularly. In fact, we might agree it is important for the lawyers that write arguments, doctors that write office notes/reports, in fact for us all.
The ALJ awarded benefits. This included the compensability of psychological injury and indemnity benefits. The employer reacted appropriately. That is not an endorsement of the arguments it raised, but the procedure. The employer sought "reconsideration." It is appropriate to raise issues with the trial judge. Resort to the appellate process should not be step one for a party that perceives error. That is a waste of appellate resources. Always give the trial judge a chance to address any perceptions of error. But, do so rapidly as time is usually limited.
Despite that opportunity, the trial judge did not see merit in the arguments and concluded it did not demonstrate "patent error." The matter thus proceeded to the Board for appellate review.
The Board reversed. As to the temporary disability benefits, the Board noted that the worker returned to work without restrictions in July 2019 and continued thereafter through the onset of COVID-19. An award of TTD (and PTD) during a time the worker was actually working was error. Disability connotes an inability to work. The award of benefits may be based upon expert opinions of ability and perceptions and conclusions. But, the facts of any case may override such opinions. The Board suggested that permanent partial benefits might instead be due during the period of actual employment.
And, the Board suggested that further analysis and explanation were appropriate as regards the cause of the worker's permanent total status following the time she ceased working. The Board restated precedent reciting Kentucky's test for such entitlement, which includes: "whether the total disability is the result of the work injury." The Board noted that there was evidence that the worker was employed and working until contracting COVID-19. It cited evidence that her inability to work might be "in part due to that condition." The Board did not conclude the disability was disease-related.
Instead, the Board instructed the trial judge, on remand, to "perform an accurate analysis." The question is "whether she is totally disabled due to that condition" (COVID) or the work injury. It noted that such distinctions are "particularly important" in circumstances that involve "both work-related and nonwork-related" symptoms, restrictions, and challenges.
The Board's opinion provides five important reminders for the workers' compensation professional. First, medical opinions can be crucial in benefit disputes, but facts matter. Second, effective writing and proofreading are critical in avoiding contradictions - in assuring clarity. Third, that rehearing or reconsideration is the right path. It may not be successful, but it is the right path. Fourth, judges can get it wrong. We are no more perfect than anyone. That is not a fault or an indictment, it is a reality. That is what appellate judges are for. And finally, the causation questions can be complex. COVID is a vivid example of unrelated issues (comorbidity) complicating benefit entitlement questions. There are many such potential complications. The parties and the judge must remain attuned to them, address them, and explain their (ir)relevancy.
The troubling aspect of our day-to-day may be that such decisions and their poignant reminders may too often elude our attention. There is much to learn and be reminded of, in such appellate decisions. Those who would avoid error would do well to find a moment each day to quickly review such appellate decisions and to ponder their implications.
By Judge David Langham
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    About The Author

    • Judge David Langham

      David Langham is the Deputy Chief Judge of Compensation Claims for the Florida Office of Judges of Compensation Claims at the Division of Administrative Hearings. He has been involved in workers’ compensation for over 25 years as an attorney, an adjudicator, and administrator. He has delivered hundreds of professional lectures, published numerous articles on workers’ compensation in a variety of publications, and is a frequent blogger on Florida Workers’ Compensation Adjudication. David is a founding director of the National Association of Workers’ Compensation Judiciary and the Professional Mediation Institute, and is involved in the Southern Association of Workers’ Compensation Administrators (SAWCA) and the International Association of Industrial Accident Boards and Commissions (IAIABC). He is a vocal advocate of leveraging technology and modernizing the dispute resolution processes of workers’ compensation.

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