BRAND E. CAEKAERT Petitioner
STATE COMPENSATION INSURANCE FUND Respondent/Insurer for FRANK WILSON PLUMBING AND HEATING Employer.
Submitted: December 20, 1995
ORDER DENYING RESPONDENT'S MOTION FOR
Respondent requests reconsideration of WCC order granting
claimant attorney fees and costs following reversal of WCC
decision by Supreme Court.
WCC clarifies its earlier decision and rejects request for
October 12, 1995, the Court granted claimant's request
for attorney fees and costs. Respondent has moved for
first notes that costs had already been paid prior to the
Order. It would have been wonderful if the parties had
previously apprised the Court of that fact. In any event, if
costs have been paid, the matter is moot.
argues that this Court misapprehended the Supreme Court
decision as directing it to award attorney fees. The argument
misapprehends the Order. I held only that the Supreme Court
decision negated any contention that my original decision,
which was reversed on appeal, rendered the insurer's
denial of liability per se reasonable. Nowhere in the Order
did I indicate any belief that the Supreme Court was
directing me to award attorney fees, and I went on to analyze
and weigh the evidence before finally deciding to make the
contends that in fact I did not consider all of the evidence.
Contrary to that contention, all of the evidence was
considered. I merely gave greater weight to information which
was available to the insurer up to 11 days prior to trial. I
found that information significant as it failed to factually
support respondent's reasons for denying further
benefits. The medical evidence which I found persuasive in
reaching my original decision was evidence from Dr.
Hansen's deposition taken 11 days prior to trial.
argues that the Court's Order contradicts its earlier
findings and conclusions. I disagree. The original decision
relied heavily on Dr. Hansen's deposition taken 11 days
prior to trial. I noted Dr. Hansen's equivocation
concerning whether claimant's butchering chickens
temporarily or permanently exacerbated his carpal tunnel
syndrome (CTS). I resolved that issue in favor of a permanent
exacerbation in light of Dr. Hansen's concession made
during the deposition that the butchering caused some
incremental worsening of claimant's condition,
"probably just like throwing grains of sands in a
bucket." Finding of Fact 34. While I felt the concession
was sufficient to make the matter certain, the Supreme Court
did not consider such minimal worsening sufficient to
constitute a permanent aggravation within the meaning of the
law. The Supreme Court stated that subsequent injury or
exposure must "materially or substantially"
contribute to claimant's condition for it to constitute a
permanent aggravation. Slip Opinion at 9. In any event, what
was important to me in awarding the attorney fees was the
fact that the insurer did not have Dr. Hansen's key
testimony until 11 days prior to trial.
argues that Shane Beckers v. State Compensation Ins.
Fund, WCC No. 9407-7098 (February 8, 1995), is
distinguishable because the Workers' Compensation Court
decided the case adversely to the insurer in the first place.
While that may be true, the fact that the Court in this case
initially ruled in favor of the insurer does not per se
render the insurer's conduct reasonable.
argues that the Order shifts the burden of proof to the
insurer. That is not what the Order states. The Order merely
points out that it should have been obvious to the insurer
that the claimant would be able to satisfy his initial burden
of proof, thereby shifting the ultimate burden to the
argues that the ambiguity found by the Court in Dr.
Hansen's records cut both ways. But, as I noted in the
original Order, and again in the previous paragraph, it
should have been clear that the claimant would carry his
initial burden of proof since Dr. Hansen's records
plainly established a relationship between the CTS and the
first injury, thereby shifting the burden back to the
insurer. Thus, the ambiguity was a matter of greater
consequence to the insurer, left unresolved, the insurer
could not carry its burden.
respondent argues that the Court was free to reject Dr.
Hansen's opinions in whole or in part. But on what basis
could the Court have done so since Dr. Hansen was the sole
respondent points out that the Court attributed a medical
note of January 7, 1988, to Dr. Frankel whereas the note was
one by Dr. Llewallen. I acknowledge the misattribution but
the essential point remains ...