Hindsight is said to be 20/20, but sometimes the changes that come with the passage of time bring complications instead of clarity. Supreme courts in three states recently weighed in on cases where after-the-fact events affected a worker’s claim. Vermont’s highest court addressed how to handle a change in law that happened after a worker filed his claim. The Pennsylvania Supreme Court clarified the statute of limitations for a firefighter stricken by cancer after his retirement, while Oregon’s top court explained an employer’s obligation to reopen a claim after its denial has been set aside. 

Vermont

In June, the Vermont Supreme Court decided the retroactive application of a change in the statutory definition of permanent total disability in West v. North Branch Fire District No. 1, which documents firefighter John West’s fall in 2013. After a doctor opined the accident had resulted in a “severe traumatic brain injury causing permanent and severe cognitive, physical or psychiatric disabilities,” Mr. West filed a claim seeking permanent total disability benefits. 

His employer challenged the claim, arguing that Mr. West’s condition did not satisfy Vermont’s legal definition of PTD that was in effect at the time of his injury. That version of the law provided PTD benefits for “an injury to the skull resulting in incurable imbecility or insanity.”

In 2014, the Vermont Legislature amended the law to provide PTD for “an injury to the skull resulting in severe traumatic brain injury causing permanent and severe cognitive, physical or psychiatric disabilities.”

The court ruled that the 2014 amendment had not changed the standard for PTD benefits but simply made the language more respectful toward persons with disabilities. The court also said the amendment was entirely consistent with the functional definitions of imbecility and insanity that have been used in the workers compensation context, which focus on how injuries to the brain affect cognitive, physical and psychiatric functioning. 

Wesley Lawrence, a Montpelier, Vermont-based defense attorney with Theriault & Joslin P.C. who reviewed the decision, said it established the 2014 amendments were a legislative action to “eradicate verbiage that at the time might not have been offensive, but through the lens of time now is.” 

The argument was whether changing the words of the statute changed what the statute meant, and the court ruled there was no change in the substance of the law, Mr. Lawrence said.

Mr. West’s attorney, Robert Mabey, of Kalter, Kalter & Mabey PLC in Rutland, Vermont, said the decision “gives meaning to a statutory provision that was not being utilized because it was ambiguous and, more importantly, offensive,” and it will provide guidance for other workers pursuing PTD claims for head injuries.

Pennsylvania

The Pennsylvania Supreme Court also addressed a claim involving a firefighter with its July decision in City of Johnstown v. WCAB (Sevanick) on the filing period for a cancer claim.

Michael Sevanick retired from his position with the city of Johnstown in 2006. He was diagnosed with kidney cancer in 2015, which he blamed on his exposure to carcinogens as a firefighter.

Pennsylvania law recognizes cancer in firefighters as an occupational disease and requires that a disability claim for an occupational disease be filed within 300 weeks of the claimant’s last date of employment. 

The case went into the nitty-gritty of the statute, with the city arguing that Mr. Sevanick’s cancer claim was time-barred by the law’s Section 301(c)(2). But another section — Section 301(f), which specifically applies to firefighters and provides a presumption of occupational causation for certain cancers — says that “notwithstanding the 300-week requirement in Section 301(c)(2),” firefighter cancer claims made pursuant to Section 108(r) may be made within 600 weeks after the last date of employment.

The court said the General Assembly’s use of “notwithstanding” in Section 301(f) was an unambiguous indication of its intent to separate Section 108(r) claims from Section 301(c)(2)’s operation. Thus, the court said, firefighter cancer claims under Section 108(r) may be filed up to 600 weeks after the last date of employment.

Mr. Sevanick’s attorney, Michael Dryden, of Willig, Williams & Davidson in Philadelphia, said the court’s decision was “very significant” for firefighters, in that it “protected what the legislature provided in Sections 108(r) and 301(f),” and “the extra 300 weeks available to firefighters to make claims.” 

Had the court agreed with the city’s argument, Mr. Dryden said, “they would have put an additional statute of repose on firefighters, and that would have thrown many of them out of the coverage of the cancer presumption.”

Mr. Dryden said the impact of the decision is likely limited to firefighters, but it is a “good example of a court honoring the language used by the legislature” in conducting a plain-meaning statutory analysis. 

Kristopher Kachline of the Law Office of Nathaniel M. Holmes in Royersford, Pennsylvania, represented Johnstown. He opined that the court’s application of Section 301(f) to Mr. Sevanick was “inconsistent” with the court’s 2013 decision in Tooey v. AK Steel Corp.

In Tooey, he said, the high court held that the Workers’ Compensation Act does not apply to claims by workers who developed occupational diseases more than 300 weeks after leaving employment. Since Mr. Sevanick’s cancer was not diagnosed until over 300 weeks after his retirement, Mr. Kachline contended that the rule from Tooey should have brought Mr. Sevanick outside the scope of coverage from the act, and the court’s application of the Section 108(r) to Mr. Sevanick therefore caused him to question whether a firefighter could ever assert the kind of tort claim recognized by the court in Tooey. 

Oregon

Legislative intent was also the focus of the Oregon Supreme Court’s July decision in In the Matter of the Compensation of Simi v. LTI Inc.

Randy Simi injured his right shoulder in 2010, and his employer accepted liability for a rotator cuff tear. Mr. Simi underwent surgery to repair a tear in the supraspinatus tendon, and his workers compensation claim was closed in 2011. 

Years later, a doctor found a recurrent tear of the supraspinatus tendon as well as tears in the infraspinatus tendon. Mr. Simi’s doctor opined that the tears were work-related, and Mr. Simi requested that his employer accept liability for them.

The employer refused, but it later acknowledged that the supraspinatus and infraspinatus tears did not need to be accepted as new or omitted conditions because they were “encompassed within” the already-accepted rotator cuff tear. 

An administrative law judge set aside the employer’s denial of compensability, finding the employer’s concession that the conditions were encompassed within the acceptance of the rotator cuff injury was inconsistent with the denial of compensability. This decision was upheld on appeal.

Meanwhile, Mr. Simi requested that his claim be reopened, contending that Oregon laws required his employer to reopen his claim, with the law providing that if a condition is “found compensable after claim closure,” the claim shall be reopened for processing.

The Workers’ Compensation Board and the Court of Appeals found that the law did not apply because the tendon tears were not found compensable after claim closure, but the Supreme Court said it did. The Supreme Court ruled the date of the ALJ’s post-closure order was the relevant date on which the tears were “found compensable” and so Mr. Simi’s claim had to be reopened. 

Brad Garber, a defense attorney with Tolleson, Conratt, Nielsen, Maher & Replogle LLP in Lake Oswego, Oregon, who publishes periodic caselaw updates and reviewed the Simi case, said the lesson from the case seemed to be “don’t deny and concede liability in the same claim.”