State News

In Fegley, as Ex'x of the Est. of Paul Sheetz, v. Firestone Tire & Rubber (WCAB), _ A.3d _ (Pa. Cmwlth. 2023) and Edward Appel v. GWC Warranty Corp. (WCAB), _ A.3d _ (Pa. Cmwlth. 2023), the Commonwealth Court held that workers’ compensation insurers must reimburse injured workers for medical marijuana where it has been determined that such treatment is related to the work injury and is reasonable and necessary.  The Court reversed the denial of the claimant’s penalty petition in spite of the employer’s objections that the Pennsylvania Medical Marijuana Act prohibited an insurer from covering the expenses for medical marijuana treatment and that marijuana is still an illegal, controlled substance under federal law.

As for the actual language of Section 2102 of the Medical Marijuana Act (MMA), the Court ruled that coverage is different and distinct from reimbursement and while the plain language of Section 2102 of the MMA states that insurers cannot be required to provide coverage for medical marijuana, there is no statutory language which prohibits insurers from reimbursing claimants who lawfully use medical marijuana to treat an accepted work injury when such treatment is medically reasonable and necessary.  So, carriers may not have to cover medical marijuana, but there is no language prohibiting them from reimbursing for medical marijuana.

As to the issue of the potential violation of federal law, the Court noted that Section 2013 of the MMA says that nothing in the MMA shall require an employer to commit any act that would put the employer or any person acting on its behalf (workers’ compensation carriers) in violation of federal law.  Under the Federal Drug Act, it is unlawful to “manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance.”  Despite this plain language of the statute, the Commonwealth Court reasoned that reimbursing an injured worker his out-of-pocket expenses for medical marijuana does not require a workers’ compensation carrier to do any of these prohibited activities. Apparently, the long-stated legal maxim of “One cannot do indirectly what one cannot do directly” did not bother the court.

While the Court has split hairs relative to the issue of “coverage” versus “reimbursement” so as to provide a potential pathway for the payment of medical marijuana, these decisions did not address a multitude of other issues that do not appear to have been raised in the litigation and which still need to be addressed.  Many employers and carriers, especially those public entities and health carriers that obtain federal funding may be cautious to even reimburse medical marijuana given it may lead to them facing issues with receiving federal funding.  When Ohio enacted its medical marijuana statute, it required university studies to be conducted but faced reluctance in Universities wanting to get involved with studying medical marijuana for fear it may lead to issues with their receiving federal funding. 

As for the other issues not addressed by the decisions, the payment for or reimbursement of medical marijuana is problematic in that such reimbursement would totally circumvent the Medical Cost Containment Regulations.  First, there obviously is no re-pricing mechanism for the payment of marijuana.  Thus, this may fall under the 80% provision for reimbursement.  However, the bigger issue is whether this is actually medical treatment.  There must be a medical provider who certifies that the Claimant meets the requirement of the Medical Marijuana Act to be certified to obtain a Medical Marijuana card to obtain the treatment.  However, there is no actual medical provider who actually prescribes any medical marijuana product, such as form, strain and amount.  When a medical provider prescribes narcotics for a patient, they provide the specific medication, dosage, frequency, and amount.  With medical marijuana, once the claimant is certified, they can go to a dispensary and essentially work with a salesperson to determine what form (leaf, vape, etc.), strain, amount, etc. to obtain.  There also is no re-pricing mechanism given medical marijuana is not payable under Medicare.  Thus, the reimbursement is most likely under the provision that provides for payment at 80% of the usual and customary charge for treatment provided for in 34 Pa. Code § 127.102.  However, there most likely are not sufficient reporting data available for carriers to determine what is the “usual and customary” charge such that the payment would be at 80% of the actual charge.  If the dispensary inflates the amount they are charging for the produce they are distributing, that may me carriers are paying more than they should for this “treatment.” 

Further, there is no medical provider upon which a Utilization Review can be filed.  If filed upon the certifying physician, the issue would be whether it was reasonable and necessary treatment for the Claimant to be certified for medical marijuana.  There is no peer that can conduct a review when the “medical provider” is a salesperson or a medical marijuana “pharmacist.”  Thus, the Employer/Carrier is denied the ability to conduct a Utilization Review.  These are issues that are going to eventually need to be addressed in litigation.  Until they are, there are going to be arguments against whether medical marijuana is to be reimbursed other than simply that the MMA does not require insurance “coverage” for payment of the same.

Bradley R. Andreen, Esq.

Rulis & Bochicchio, LLC

On November 6, 2024, the Arkansas Court of Appeals ruled that the Arkansas Workers’ Compensation Commission does not have authority under Ark. Code Ann. §11-9-511(a) to compel a claimant to undergo a Functional Capacity Evaluation (“FCE”) at the sole request of respondents when work restrictions and impairment ratings had already been provided by the claimant’s treating physician at the time the claimant was released at maximum medical improvement (“MMI”). Leaf Home Solutions v. Kunkel, 2024 Ark. App. 547. 

In Leaf Home Solutions, the respondents filed a Motion to Compel with the presiding Administrative Law Judge (“ALJ”) requesting that he use his authority under A.C.A. §11-9-511(a) to compel the claimant to submit to a post-operative FCE which respondents argued was reasonable and necessary to objectively assess and validate physical restrictions and impairment ratings provided by Claimant’s treating physician. The ALJ reviewed the limited medical records and ultimately determined he would need to gather more information regarding the Claimant’s physical restrictions and impairment because he felt that Claimant’s treating physician failed to sufficiently explain the basis for the assigned impairment ratings, and that such ratings were therefore conclusory. In his Order compelling the claimant to submit to the FCE, the ALJ stated it was well settled that the Commission could require a claimant “to submit to such examinations as may be necessary to assist the trier of fact in determining the extent of a claimant's permanent impairment as well as his entitlement to wage-loss disability benefits.” Id. at 4.

Claimant appealed the ALJ’s Order, which the Commission reversed and vacated upon finding that A.C.A. §11-9-511(a) does not grant the Commission authority to compel a claimant to undergo an FCE at the sole request of respondents. In its Opinion affirming the Commission’s decision, the Arkansas Court of Appeals applied a strict construction analysis and found: (1) that the ALJ exceeded his authority under A.C.A. §11-9-511(a) when he ordered the claimant to submit to an FCE that had neither been recommended nor requested by the Claimant’s treating physician, the ALJ or the Commission; and, (2) that an FCE performed by a functional testing center does not constitute the type of physician-performed medical examination or medical treatment contemplated in §511. Further, after reviewing the two cases, North Hills Surgery Center v. Otis, 2021 Ark. App. 468, 638 S.W.3d 323, and Eldridge v. Pace Industries, LLC, 2021 Ark. App. 245, 625 S.W.3d 734, which the ALJ had cited in arguing that FCE’s are commonly used to assess permanent impairment and physical restrictions where medical evidence is conclusory, the Court of Appeals rejected the ALJ’s interpretation and stated that both cases were distinguishable because the parties were not disputing the necessity of an FCE in either case.

DWC Releases Biennial Report to the 89th Legislature

On November 22, 2024, Commissioner Jeff Nelson released DWC’s biennial report to the 89th Legislature providing an update on the Texas workers’ compensation system. The biennial report includes two legislative recommendations.

One of the Commissioner’s recommendations is, essentially, a housekeeping matter removing outdated statutory language from the Labor Code which refers to the old Approved Doctors List (ADL). 

Prior to House Bill (HB) 7, passed by the 79th Legislature in 2005 and signed by the Governor on June 1 of that year, doctors treating injured employees in the workers’ compensation system were required to meet specific requirements and were registered on the Division-maintained ADL. HB 7 amended the Labor Code to eliminate the ADL effective September 1, 2007; however, some sections of the Labor Code still refer to the ADL. According to feedback received through health care provider outreach, these outdated statutory references to the ADL have resulted in confusion for some system participants who assume the old ADL registration and training are still required. Removal of the outdated statutory language is calculated to decrease such confusion for health care professionals who provide health care in the workers’ compensation system. 

The other recommendation, which is of greater interest to us, is the Commissioner’s suggestion that Labor Code §410.005 be amended to allow contested case hearings to be conducted by videoconference, if all parties agree. According to the Division’s report, this change will enhance flexibility and efficiency of CCHs by streamlining the administrative process, reducing travel-related burdens, and promoting access to justice while maintaining the integrity of the hearing process. The Division additionally anticipates the amendment will result in improvement of access to legal representation for injured employees living in remote areas or out of state, shortening of timelines to resolve disputes, and improvement in injured employees’ access to medical treatment, allowing them to return to work more quickly. 

Readers may recall that CCHs were held by videoconference or telephone during the COVID-19 breakout from March 2020, through July 2021. Based upon our experience with videoconference and telephonic CCHs during that period, we think CCHs conducted in that manner are less than ideal. It is not unusual that parties or witnesses may not have access to the Zoom application or a computer. When these parties or witnesses appear by telephone the judge is not able to adequately observe the witnesses’ demeanor and judge the credibility of their testimony. There may also be technical problems caused by poor cell phone reception or speaker phones which cut in and out resulting in participants talking over each other and being unable to hear everything that is said. 

The Biennial Report goes on to outline key trends in the current workers’ compensation system to help DWC and stakeholders identify improvements to maintain a fair and balanced workers’ compensation process. Some important key trends identified are an 81% decrease in workers’ compensation insurance rates since 2003; a reduction in health care costs of $338 million since 2012; and an 86%  reduction in the total number of opioid prescriptions from 2009 to 2022.

You may access and review the entire report concerning the current state of the Texas workers’ compensation system here.

Copyright 2024, Stone Loughlin & Swanson, LLP

DWC Adopts Designated Doctor and LIBs Rule Changes to Implement HB 2468, 88th Legislature (2023)

The Division on November 14, 2024, announced it had adopted amendments to 28 Texas Administrative Code (TAC) Chapter 127, Designated Doctor Procedures and Requirements and 28 TAC Chapter 131, Benefits - Lifetime Income Benefits. The amendments implement HB 2468, 88th Legislature, Regular Session (2023) which amended Texas Labor Code §408.0041 concerning Designated Doctor examinations, and enacted Labor Code §408.1615 concerning Lifetime Income Benefits for Certain First Responders.

You may access information concerning the amended 28 TAC §127.1 and new TAC §127.25 here and 28 TAC §§131.1 - 131.4 and 28 TAC §§131.10 – 131.14 here.

The Division also updated the following related DWC forms:

Revised: DWC Form-032, Request for Designated Doctor Examination. 
New: DWC Form-038, Application for Lifetime Income Benefits. 
New: DWC Form-039, First Responder’s Annual Certification for Lifetime Income Benefits. 
Revised: DWC PLN-04, Notice of Eligibility for Lifetime Income Benefits. 
Revised: DWC PLN-07, Notice of Change of Indemnity Benefit Type.  

You may access the revised and new DWC Forms here.
 

Copyright 2024, Stone Loughlin & Swanson, LLP

Texas Work-Related Injuries and Illnesses at Lowest Rate in 10 Years

Each year the Division compiles data on work-related injuries and illnesses in Texas for the U.S. Department of Labor, Bureau of Labor Statistics. The report released last month for 2023 reveals that Texas had a 1.8 injury and illness rate per 100 equivalent full-time workers. This is the lowest rate for Texas in the past 10 years and is well below the national incident rate of 2.4.

You may access the full report here.

Copyright 2024, Stone Loughlin & Swanson, LLP

DWC Compliance Webinar slated for December 11, 2024

The Division has announced scheduling of its next CompCourses webinar on December 11, 2024 at 1:00 p.m. The subject is compliance in the Texas workers’ compensation system. Participants will learn the differences between a dispute and complaint, the administrative violation process, and the lifecycle of a fraud case. The course is free, is approved for 1 hour of TDI general education credit, and just might keep some of us from getting into trouble!

Interested parties may register to take advantage of this valuable resource here.

Copyright 2024, Stone Loughlin & Swanson, LLP

Virtual Quarterly Meeting scheduled for December 12, 2024

DWC will host a quarterly stakeholder meeting for insurance carriers and health care providers via Zoom on Thursday, December 12, 2024 from 1:30 to 3:00 p.m. The meeting will provide an update on routine information and data topics and will highlight current issues relevant to each industry. 

You may access the meeting agenda and Zoom information here.

Copyright 2024, Stone Loughlin & Swanson, LLP

TDI-DWC Office Closures for December/January

All Division Offices will be closed for the Christmas Holidays on December 25, 2024, and December 26, 2024.
 

The Division will be closed for the New Year Holiday in the afternoon on December 31, 2024, and all day on January 1, 2025, New Year’s Day.
 

Copyright 2024, Stone Loughlin & Swanson, LLP

The Department of Labor has issued a Final Order (effective: 8/11/24) for the publication of the revised Healthcare Practice Guidelines (which govern treatment of workers’ compensation patients in Delaware for certain common classes of work injuries).

This Order repeals all prior Practice Guidelines and replaces them with the revised Practice Guidelines, as approved by the Workers Compensation Oversight Panel.

The revised Guidelines are available on the Department of Labor’s website, specifically: Health Care Practice Guidelines - Delaware Department of Labor.

The most significant changes are to the Chronic Pain Guidelines, including language limiting the use of narcotic medication.

It is important to note that neither ortho-biologics for spinal disorders, nor medical marijuana, were added to the Healthcare Practice Guidelines in connection with these revisions. It is expected that these issues may be addressed in the future.

Should you have any questions, please contact any partner in our Workers’ Compensation Department. 

Shenanigans Aren’t Limited to Politics

Claimant attorneys’ attempts to negate a carrier’s subrogation interest are to be expected but their methods of bilking carriers out of the amounts they are due can get as convoluted and Machiavellian as this year’s election. The Tyler Court of Appeals recently reaffirmed the importance of ensuring that carriers receive “first money reimbursement” in Old Republic Ins. Co. v. Debra Morris, et al. The plaintiffs in that case had attempted an end-run around the first money rule by settling with most of the third-party defendants pre-trial, and subsequently obtaining a verdict apportioning most of the responsibility to the employer. The plaintiffs argued that the “employer responsibility offset” (ERO)* should apply to all the funds received, including the pre-trial settlements, which in this case wiped out the carrier’s lien of more than $3 million. In a tremendous win for Old Republic, the appellate court held that the reduction of the carrier’s subrogation interest is limited to the amount that the employer’s fault actually costs the claimant after applying sections 33.012(b) and 33.013(a) of the Texas Civil Practice and Remedies Code.** In this particular case, that meant that the carrier’s subrogation lien was reduced by only $33,967.20.

*Texas Labor Code section 417.001 provides that a carrier’s subrogation interest is reduced by the amount by which the court reduces the judgment based on the percentage of responsibility for the injury that the jury/judge attributes to the employer. This is known as the “Employer Responsibility Offset” (ERO).
**Section 33.012(b) of the Texas Civil Practices and Remedies Code requires the court to reduce the amount of the claimant’s damages by a percentage equal to the claimant’s percentage of responsibility for the claimant’s injuries. Section 33.013(a) limits the claimant’s damages recovery from a particular defendant to the “percentage of the damages found by the trier of fact equal to that defendant’s percentage of responsibility” for the claimant’s injuries.

Copyright 2024, Stone Loughlin & Swanson, LLP