Beginning July 1, 2018, the maximum workers’ compensation payable will be raised to $865.00 per week and the minimum will be raised to $238.00 per week. https://labor.alabama.gov/docs/guides/wc_weeklywage.pdf

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This blog submission was prepared by Joshua G. Holden, an attorney with Fish Nelson & Holden, LLC, a law firm dedicated to representing self-insured employers, insurance carriers, and third party administrators in all matters related to workers’ compensation. Fish Nelson & Holden is a member of the National Workers’ Compensation Defense Network. If you have any questions about this submission or Alabama workers’ compensation in general, please contact Holden by e-mailing him at jholden@fishnelson.com or by calling him directly at 205-332-1428.

For many years, the Minnesota Workers' Compensation Law has remained stable with few changes. In May 2018, there were major legislative revisions. The laws pertaining to TTD, TPD, PTD, and the medical fee schedule were amended (eff. for injuries on or after 10/1/2018). Additionally, there will now be a presumption in cases of PTSD involving individuals in certain high risk jobs (eff. for injuries on or after 1/1/2019).

For a summary and analysis of the legislative changes, please see below. If you have any questions, please contact us at Cousineau, Waldhauser, & Kieselbach, P.A. 

http://cwk-law.com/wp-content/uploads/2018/06/2018-Legislative-Changes-to-the-Minnesota-Workers.pdf

One of the most serendipitous work injuries in history befell a teenager in a Birmingham, England sheet metal factory circa 1965.  The youth, a welder by trade, was asked to fill in for an absent co-worker whose job was to cut pieces of flattened metal under a guillotine-like blade.  It was the boy’s last day of work, and during his lunch break he contemplated not bothering to finish out his final shift, but his mother convinced him to honor his commitment to his employer, so he returned. 

That afternoon, disaster struck. Lacking the proper training to operate the machine, the 17 year old sustained a grisly work injury, as the industrial blade sliced through the tips of his middle and ring fingers on his right hand.  Emergency medical attention was unsuccessful in reattaching the appendages, and the youth grew despondent—not merely due to the permanent disfigurement to his hand, but because of what it meant for his great passion in life: playing the guitar. 

The boy, it turns out, was left-handed, and therefore used his right hand to press down on the strings along the fretboard.  His work injury had presumably deprived him of the ability to play the guitar ever again. 

However, when the youngster’s foreman visited him in the hospital, he brought with him a record by renowned Belgian jazz guitarist Django Reinhardt, who, following a severe burn injury, had also lost the use of two fingers on his fretting hand.  Inspired by Reinhardt’s rise to international fame after teaching himself to fret his guitar with just two fingers, the boy grew determined that his work injury would not rob him of his nascent musical talent, either.

Necessity, they say, is the mother of invention.  Finding it too painful to press down on the strings with the bony ends of his fingers, and demonstrating an ingenuity far beyond his years, the young Brit engineered fake fingertips for himself by melting down a plastic soap bottle and covering them with bits of a leather jacket.  The homemade prosthetics relieved the pain, but compressing the tight guitar strings still proved too difficult due to loss of sensation. 

In a flash of genius, he decided to try down-tuning the strings, lessening the tension to make them easier to press and bend.  It worked.  Suddenly the boy could play his beloved guitar again.  However, down-tuning had an unavoidable consequence: it lowered the pitch of each string, giving the guitar a deeper, darker timbre, especially when amplified.  The newly-discovered tones intrigued the guitarist, but it was all wrong for his band, a folk-rock outfit named Earth. 

Fortunately his bandmates shared their guitarist’s fondness for his aggressive new sound.  Rather than eject him from the group, they forged an entirely new musical identity around the more foreboding tones emanating from the young man’s self-forged fingertips.   Shrewdly, they agreed that ‘Earth’ no longer suited the Wagner-esque rock music they were now writing.  Serendipity struck again when a Boris Karloff film playing in a movie theater across the street from their rehearsal space delivered the band a fitting new name.  The film was calledBlack Sabbath. 

Now 70 years old, Tony Iommi, the boy who thought he would never play guitar again, has sold over 70 million records worldwide since 1968, was inducted into the Rock & Roll Hall of Fame in 2006, and is widely credited for (pardon the pun) single-handedly inventing the subgenre of rock music known as heavy metal. 

Just think what he might have accomplished with a lumbar sprain.

Copyright 2018,Robert Greenlaw, Stone Loughlin & Swanson, LLP

In an effort to educate injured employees on the complexities of Texas workers’ compensation, the Division has produced seven brief instructional videos, viewable athttp://www.tdi.texas.gov/wc/employee/guide.html. The surprisingly not-terrible videos guide potential claimants through the labyrinthine Texas Work Comp system, providing instructions for how to file a claim, explaining differences in types of income benefits, and mapping out the stages of the dispute resolution process. 

In announcing the creation of the videos, then-Commissioner Brannan hoped that the videos would assist injured workers in better understanding the workers’ comp system, acknowledging that, “People are busy these days and are much more likely to watch a video to learn about something new.”  But there is value in the videos for even the most seasoned Texas Work Comp veteran: eagle-eyed system participants may spot San Antonio Benefit Review Officer Samuel Peralez as “Injured Worker at BRC.”  Spoiler alert: he’s only pretending to be injured.

Copyright 2018, Stone Loughlin & Swanson, LLP

Last month we reported on the Appeals Panel’s puzzling decision to distinguish “headaches” from “ongoing headaches” as separate conditions.  This month, a pair of Appeals Panel Decisions suggests an emerging trend that may itself become an ongoing headache for Carriers.

Appeals Panel Decision No. 180603, decided April 19, 2018, reversed the Administrative Law Judge by determining that headaches were indeed a part of the claimant’s injury, which already included a traumatic brain injury.  The case was remanded for an amended MMI/IR certification by the designated doctor with the newly compensable condition, even though a rating for headaches is (presumably) subsumed in a rating for a traumatic brain injury. 

Similarly, Appeals Panel Decision No. 180602, decided April 30, 2018, remanded the case for a new certification from the DD to incorporate the AP’s finding of headaches as part of the compensable injury.  Their reasoning: the claimant complained of head pain in “numerous medical records,” which is perhaps unsurprising given that the accepted injury was a scalp laceration that required repair with staples. 

And only on May 16, 2018, did the Appeals Panel issue Decision No. 180702.  Once again, the Administrative Law Judge excluded headaches from the compensable injury, only to suffer a reversal at the hands of the AP.  This time, “periodic headaches” resulted from a concussion.  As before, the judge was instructed to obtain a new certification from the designated doctor that includes a rating for “periodic headaches.”

With four of their most recent decisions focused on the addition of headaches to compensable injuries, each requiring case management and a new certification from the designated doctor, it would seem the Appeals Panel has a bit of a bee in its bonnet about this topic lately. (The Appeals Panel is respectfully cautioned that bonneted bees are also a known cause of headaches.)

Copyright 2018, Stone Loughlin & Swanson, LLP

Jammers Groundscapes, a landscaping company operating out of Pflugerville, Texas, just north of Austin, entered a plea of guilty in defrauding its workers’ compensation carrier by omitting the payroll from a non-covered ancillary business.  The omission was Jammers’ attempt to secure lower workers’ compensation premiums, which are calculated, in part, on an employer’s payroll.  The scam succeeded for six years until the carrier’s internal investigation uncovered it.  A Travis County District Court ordered Jammers to reimburse its carrier to the tune of $400,000.00. 

Copyright 2018, Stone Loughlin & Swanson, LLP

A healthcare provider who performed Functional Capacity Evaluations (F.C.E.’s), examinations designed to gauge employees’ abilities to perform their pre-injury job functions, has been sentenced to three years’ deferred adjudication and ordered to pay $10,000.00 in restitution by a Travis County District Court.  Marcus Ricoy of Rancho Viejo was found guilty of falsifying medical claims to an insurer for more time than the examinations required.  The Division of Workers’ Compensation’s unit in the Travis County District Attorney’s Office prosecuted the case. 

Copyright 2018, Stone Loughlin & Swanson, LLP

On 5/18/18, the Texas Department of Insurance, Division of Workers’ Compensation, informed system participants of its intent to amend the designated doctor rules.  The DWC identified three problem areas:  the DD assignment process, qualification standards, and certification requirements. 

The Division acknowledges the dramatic decrease in the number of designated doctors in the system overall and, even more alarmingly, the steep decline in the number of M.D.’s and D.O.’s assigned to perform such examinations.  Much of the blame for this phenomenon lies in in the automated system that assigns a designated doctor to a case, which relegates the most qualified doctors into rarely-needed specialization categories and excludes them from the far more common musculoskeletal examinations.  The unintended result is that the best doctors receive the fewest appointments.

The DWC intends to rectify that problem by implementing two separate DD lists in each county. One list will consist of all available doctors and chiropractors qualified to perform the most common musculoskeletal examinations; the other will be limited to medical doctors qualified to perform the more complex examinations, including those requested to address conditions requiring board-certification. 

The twin list system is intended to remedy the inequity of board-certified M.D.’s or D.O.’s being selected for one specialized examination, then dropping to the bottom of the list and missing out on four or five of the far more common musculoskeletal examinations thereafter.  The new process is intended to raise the number of exams available to M.D.’s and D.O.’s each year, thereby incentivizing the most qualified physicians to become—and remain—designated doctors.

The DWC also seeks to elevate training, testing, and qualification standards by narrowing the timeframe between training and applying for certification/recertification in order to ensure that designated doctors are always apprised of the most current information.  Limiting the number of times a prospective DD can take the qualification examination in a given time period has also been suggested to address problems with test security.   

Finally, the DWC is contemplating adding obligatory reviews of a designated doctor’s work product to the recertification process.  Factors that may be considered include complaint history, excessive requests for deferral from the DD list, a pattern of overturned or substandard reports, a demonstrated inability to apply the AMA Guides, the timeliness of submitted reports, maintaining patient record confidentiality, or participant’s willingness to identify potential disqualifying associations.

Visit http://www.tdi.texas.gov/wc/rules/proposedrules/documents/pr127dd0518.pdf to view the proposed rule changes. 

 Copyright 2018, Stone Loughlin & Swanson, LLP

On April 18, 2018, the Disciplinary Panel of the Texas Medical Board suspended the medical license of John Tai Dang, M.D., of Cleburne, Texas.  The suspension will remain in effect until superseded by an Order of the Board. 

Among the myriad violations of the Medical Practice Act, Dr. Dang was found to have prescribed dangerous drugs (Diazapam, Alprazolam, Opana, and Xartemis) after becoming aware of a patient’s history of substance abuse and her admission into a treatment facility.  While treating that same patient, Dr. Dang borrowed money from her totaling $20,000.00 and used a Care Credit account in her name and without her knowledge to bill another $5,000.00 in fraudulent services.  Worst of all, the doctor was found to have assaulted two patients during examinations. 

The Disciplinary Panel determined that Dr. Dang failed to maintain adequate medical records, failed to adhere to guidelines for treatment of pain, became financially involved with a patient, and engaged in sexual contact with a patient, among other infractions.  In suspending his licencse, the Board deemed Dr. Dang’s medical practice a “continuing threat to the public welfare.”

Copyright 2018, Stone Loughlin & Swanson, LLP