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By order of the Commissioner, beginning July 1, 2018, the Iowa Division of Workers’ Compensation will impose a monetary late settlement sanction on parties in cases where settlements are reported to the Division less than 24 hours before the scheduled start time of the hearing. Settlements must be reported to both the Division and the Deputy Commissioner assigned to hear the case 24 hours or more before the hearing is scheduled to start to avoid imposition of the sanction. This sanction is modeled on the late settlement sanction which is imposed by the Iowa District Courts. The Division has recently experienced an increase in late settlements which places further strains on diminishing resources. This action is necessary to allow the Division to better serve the people of the State of Iowa. The late settlement sanction order is effective for all cases with hearing dates of July 1, 2018, or later.

Claims that have been assessed a late settlement sanction will not have the settlement approved until the sanction has been paid. The late settlement sanctions shall be paid to the Division of Workers’ Compensation and all funds received will be paid over to the Iowa General Fund.

The late settlement sanction will apply in cases filed using the Form 100. It will also apply in full and partial commutation cases filed before July 1, 2017. It is not applicable to alternate medical care, vocational benefits or compliance proceedings.

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Peddicord Wharton Legislative Updates are intended to provide information on current developments in legislation impacting our clients. Readers should not rely solely upon this information as legal advice. Peddicord Wharton attorneys would be pleased to answer any questions you may have about this update. ©2018 Peddicord Wharton. All Rights Reserved.

The failure to report a claim in a timely manner generally leads to powerful defenses that help employers prevail in workers’ compensation court.  But lack of timely notice is seldom one of those defenses in New Jersey.  That sounds like a conundrum.  Shouldn’t lack of timely notice be the first defense that jumps to one’s mind when a claim is not reported within 30 or 60 days?  It should, but unfortunately the way the New Jersey notice statute is written, employers almost never win on that limited defense.  Employers do often win cases that are not timely reported for completely different reasons discussed below.

Think of lack of timely notice under N.J.S.A. 34:15-17 as an ironclad rule.   A worker could legitimately have a work injury on January 1, 2018, but if that employee for whatever reason fails to report the work injury within a certain period of time the employer automatically wins.  Here’s the rub:  the New Jersey statute allows so many extensions on reporting that the notice defense is generally toothless.

The statute begins by stating that an employee must report a work injury within 14 days, and no compensation is due until the employer becomes aware of the injury.  That sounds good until you read the rest of the provision.  If the employee reports the claim after 14 days but before 30 days, the employer only wins on notice if it can show it suffered prejudice due to the late reporting.  But wait – the statute next proceeds to water down the previous language even further.  If the employer becomes aware of the injury within 90 days and there is no prejudice to the employer caused by the late notice, the employer cannot win on the notice defense.

In effect this notice provision has two meaningless stages:  14 days and 30 days.  Proving prejudice to the employer is not easy, so employers are effectively left with a 90-day notice rule.  Further, the statute does not define what the word “prejudice” means, and there are really no cases on it.  Frankly, it is unfair to employers that the statute allows up to 90 days to report a claim.  How can an employer investigate any claim that is reported one month or even several months late?  Memories fade, and potential witnesses forget.  This practitioner recalls only one trial in decades where the employee actually testified to not reporting the injury to her employer or anyone in supervision for more than 90 days and therefore lost her case.

Yet failure to report a claim in a timely manner should raise red flags and almost always leads to powerful defenses.  The two main defenses that should leap to an employer’s mind when a claim is not reported timely are first, that there is no evidence that an accident happened, and second that even if an accident did take place, it was not significant enough to account for the present pathology.  Most employers train their employees over and over to report work injuries within 24 hours.  So when an employee reports a work injury 35 or 40 days after it happened, it seldom makes any sense.  An employer will deny such a claim on the basis that there was no accident.  If it did happen, why would the employee who has been trained to report claims within 24 hours wait so long to notify the supervisor or HR representative? Often that same employee has promptly reported other work injuries that have occurred over the years, so the employee clearly knows the reporting procedures.

Suppose an employee says that he bumped his knee at work on July 1, 2017 and felt pain in his knee right away but it quickly diminished. He never treats in July or August. He does not lose any time at all from work.  In mid-September, he reports for the first time to his employer that he bumped his knee at work 75 days ago and needs to see a doctor.  The employer asks why the employee waited so long. The employee says he thought it was nothing at all, so he never mentioned it to anyone.  The pain went away and was barely noticeable for months.  But in the past week the knee has become very painful.   An MRI shows a medial meniscal tear that needs surgery.  The employer probably will not win on the technical notice defense because the notification came within 90 days and the employee will argue that there was no prejudice to his employer by the delay.  Yet this claim should be denied, and the employer may very well prevail.  Here is the issue:  how could the bumping incident on July 1^st that caused no lost time and led to no treatment for months be responsible for a meniscal tear that manifests in mid September?

Causation is often the dominant issue in delayed reporting cases. The employer will want to look into past medical treatment to see if the employee has a history of knee problems.  Perhaps this is a recurring issue with the employee.  The employer will look into activities between July 1^st and September which the employee engaged in as possible causes for the tear.  What sports or activities did the employee engage in during that bridging period?  Does the employee jog or work out at a gym?  A medical expert will be asked to give an opinion whether bumping the knee in July which led to no treatment for months was the likely cause of a meniscal tear that shows up in mid-September.  Was the mechanism of injury (bumping the knee) consistent with a torn medial meniscus?  Is it likely that a tear occurred on July 1^st with no need for initial treatment and caused minimal pain for months only to become very painful in mid-September?  These are valid questions for the expert.

This sort of fact pattern happens quite frequently.  Employers should not be dismayed when they learn that New Jersey allows notice sometimes up to 90 days. That does not mean delayed reporting cases are compensable.  It just means that the employer will not win on the defense of notice.  The stronger defense is not lack of timely notice but whether there is any causal relationship between the alleged injury and the present knee pathology.  Good discovery and investigation may also lead the judge to conclude that there is insufficient evidence of any work accident at all.

In short, employers should continue to stress the need to report injuries within 24 hours.  It doesn’t matter that the New Jersey notice statute is exceptionally weak.   A timely reporting policy is very important and helpful to both employers and defense counsel.  Such a policy helps win cases because when an employee waits 15, 30, or even 60 days to provide notice in the face of a prompt reporting policy, it often suggests that the incident may never have happened or that the incident was simply inconsequential.

Thanks to our friend, Scott Tennant, of Arthur J. Gallagher for bringing this topic to our attention.

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John H. Geaney, Esq., is an Executive Committee Member and a Shareholder in Capehart Scatchard's Workers’ Compensation Group.  Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at jgeaney@capehart.com. 

In a rather unique unreported case, the Appellate Division recently held that a drive to the normal work site can be considered compensable on the facts in Minter v. Mattson,A-1916-15T4 (App. Div. May 10, 2018).  The case involved a kitchen worker, Antoine Minter, who called out of work due to a heavy snow storm that started the night before.  Minter advised his supervisor, Dan Beggs, the executive chef, that he had to miss his morning shift since the morning bus to work was not running on account of the snow storm.

The food service in the dining hall was essential, so the dining director, John Lear, came up with an alternative plan to get Minter to work.  Lear contacted Beggs, who advised the dining supervisor, William Mattson, to pick up Minter on the way to work since both Minter and Mattson lived in the same town.  According to Minter’s testimony, Mattson told him that Beggs made clear that Minter had to come in during the snowstorm.   Minter testified that he thought he would be fired if he refused.  The two men had ridden together to work before.  Mattson picked up Minter while the storm was still heavy and roads were ice-packed.  Mattson lost control of the car he was driving, entering the path of an oncoming pick-up truck.  In the collision, Minter suffered two broken legs, fractured ribs, and a deep laceration to his left arm.

The case was heard in Superior Court because Minter tried to bring a civil suit against Mattson and his employers.  The outcome of the civil suit depended largely on whether the two men were in the course of their employment. The employers argued that Minter’s only remedy was workers’ compensation and moved to dismiss the civil law suit.  Later the workers’ compensation carrier for the employer, Manufacturers Alliance Insurance Company, was joined in the suit, and the compensation carrier argued that Minter was not in the course of his employment because he was just on his way to work.  The compensation carrier argued that travel to and from work is excluded under N.J.S.A. 34:15-36.  The special mission exception only applies to trips away from the employer’s place of business.

Minter argued that he was compelled to perform an activity that he would not have otherwise engaged in, since he had called out that morning.  He relied on the case of Lozano v. Frank Deluca Constr., 178 N.J. 513 (2004), which held that an otherwise excluded activity may be deemed compensable if the employer compels the activity and if the employee has a reasonable basis to believe that participation in the activity is compelled.

The compensation carrier argued that the principle of compulsion could not be applied to drives to and from work because attendance at work is compelled for all employees.  All employees are subject to termination if they fail to report to work. But the Appellate Division disagreed:  “In one sense, travel to and from work is always compelled.  Employers set work schedules and employees are generally expected to comply.  Those who do not comply usually risk losing their jobs.  But, the compulsion in Minter’s case was specific and exceptional.  Minter had already called out for the day. Thus, if he could establish that his employer compelled his non-work-related activity – the journey to work in a co-worker’s vehicle on a day he had already announced he would not work – the accident would be covered.”

The Appellate Division also noted that Minter could have argued that he was involved in a ride-sharing arrangement under N.J.S.A. 34:15-36.  That would have rendered his commute compensable.  However, his attorney never made that argument.  The Court emphasized that Minter’s belief that he might have been fired had he refused to come to work was objectively reasonable.  “In sum, Minter was injured in the course of his employment, despite the fact that he was not yet at his employer’s premises, because his employer had compelled his travel to work with a co-worker on a day he had already informed his employer he was not going to come in.”

This is the first Appellate Division level decision since the 1979 Amendments to the workers’ compensation law which has embraced the concept of compensability of a drive to a normal work site based on compulsion.  There is no reported case standing for this proposition.  The normal rule is that one is not at work until one arrives at premises owned or controlled by the employer.   Even though it is an unreported decision, this case is important because it charts new territory on compensability. The factual situation addressed in this case is one that does occur for employers with some frequency given severe weather conditions in the winter months.  It remains to be seen whether this logic is eventually embraced in a reported decision.

Our thanks to Ron Siegel, Esq. for bringing this case to our attention.

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John H. Geaney, Esq., is an Executive Committee Member and a Shareholder in Capehart Scatchard's Workers’ Compensation Group.  Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at jgeaney@capehart.com. 

SEDGWICK CMS, INC. v. BUREAU OF WORKERS’ COMPENSATION,

FEE REVIEW HEARING OFFICE (PISZEL AND BUCKS COUNTY PAIN CENTER)

1033 C.D. 2017 – Filed April 11, 2018

By Jeffrey D. Snyder, Esquire

The Commonwealth Court, referring to the matter as an issue of first impression, framed the issue here as “… what constitutes ‘a significant and separately identifiable service performed in addition to the other procedure’ under Workers’ Compensation Medical Costs Containment Regulation 34 Pa. Code §127.105(e), for which a chiropractor is entitled to payment for an office visit in addition to his charges for the treatment provided at the same visit”.  The Commonwealth Court remanded the case to the Bureau of Fee Review Hearing Office on this mixed question of fact and law to determine whether the office visit charges in question were for routine examinations involving a known medical condition, change in medical condition, or other circumstances that required an examination and assessment above and beyond the usual examination and evaluation for the treatment performed on that date.

The Claimant sustained a work injury on February 28, 2005 and thereafter entered into a Compromise and Release Agreement that left medical expense open with the Employer thus obligated to pay reasonable and necessary medical expenses for the work injury, described as right shoulder partial thickness tear and superior labrum tear with post-operative scarring, rotator cuff inflammation and left shoulder overuse rotator cuff inflammation.

The Claimant received chiropractic treatment for shoulder and neck pain approximately three times a week.  The chiropractic billed Sedgwick $78.00 per visit for office visits on dates in which the Claimant was the recipient of chiropractic treatment that was billed.  Sedgwick denied payment for the offices visit charges, but paid Provider for other treatments that were provided on the subject dates.  The Provider filed a Fee Review.

The Bureau administratively determined that the Provider’s claim for the office visit charges were to be denied.  The Provider filed a Request for Hearing before a Hearing Officer.  The chiropractor argued that: “Each time I treat Claimant, I perform a physical exam, I take a history of his subjective complaints, identified the objective findings on my exam, assess his conditions and treatment recommendations, and give a plan”.  The chiropractor further asserted that these examinations were not included in the value of another procedure.

On July 5, 2017, the Hearing Officer issued a Decision ordering Sedgwick to pay all of the presented office visit charges.  The Hearing Officer recognized that payment for office visits on the same day that another procedure is performed is permitted only when the office visit represents a significant and separately identifiable service performed in addition to the other procedures.  The Commonwealth Court noted, however, that the Hearing Officer made no factual findings as to the nature of any of the examinations and evaluations for which an office visit charge was billed, and made no findings as to whether any of them were non-routine or involved new medical conditions, or evaluations for new or different treatments.  Sedgwick argued that §127.105 of the Medical Cost Containment Regulations prohibit payment of office visit charges for routine physical examinations and evaluations on the same day as other treatment is performed where there is no new medical condition and that all of Provider’s office visit charges were for routine examinations for the same medical conditions.  The Commonwealth Court cited to the Workers’ Compensation Act, as well as to Medicare procedure codes.  The Court noted that the burden was on Sedgwick to prove by a preponderance of the evidence that it fully paid Provider the amounts to which Provider was entitled, citing the 34 Pa. Code §127.259(f).  The Commonwealth Court observed that the meaning of the phrase “significant and separately identifiable service” performed in addition to the other procedures in §127.105(e) is a question of law, not an issue of fact, citing Commonwealth v. Kerstetter, 62 A.3d 1065, 1068, note 4 (Pa. Cmwlth. Ct., 2013),affirmed, 94 A.3d 991 (Pa. 2014).  The Court noted that the Medical Cost Containment Regulations do not define any of the terms at issue and that no Court in the Commonwealth has interpreted §127.105(e) as to the phrase “significant and separately identifiable service”. 

Interpreting the regulations, the Court noted that the rules of statutory construction apply to administrative regulations and that no words of a regulation are to be treated as mere surplusage.  Federal decisions and regulatory interpretations addressing the same issue may be considered as well.  Federal Medicare case law suggests that an examination or evaluation on the same date as another procedure does not constitute a “significant and separately identifiable service” unless it is above and beyond the usual evaluation performed in conjunction with that procedure, or is unrelated to the procedure that was performed on the same day, citing toUnited States v. Chen (USD Nevada No. 2:04 C.V. 00859, PMPPAL, filed May 30, 2006).

The Center for Medicare and Medicaid Services has stated with respect to chiropractors that chiropractors should not bill for an examination every time they treat a patient. MLN Matters No. SE0514, a CMS Publication.  The Commonwealth Court observed that Federal law shows a clear intent to make payment for same day examination the exception, not the rule. 

The take away here is that physical examinations billed separately for dates of treatment where other treatment/procedures are billed for the same day should be carefully reviewed in context to analyze whether payment for those examinations should be made or refused.

ConnorsO’Dell LLP

                                                                    Trust us, we just get it!  It is trust well spent! 

We defend Employers, Self-Insureds, Insurance Carriers, and Third Party Administrators in Workers’ Compensation matters throughout  Pennsylvania.  We have over 100 years of cumulative experience defending our clients against compensation-related liabilities, with no attorney in our firm having less than ten (10) years of specialized experience, empowering our Workers’ Compensation practice group attorneys to be more than mere claim denials, enabling us to create the factual and legal leverage to expeditiously resolve claims, in the course of limiting/reducing/extinguishing our clients’ liabilities under the Pennsylvania Workers’ Compensation Act.

Every member of our Workers’ Compensation practice group is AV rated.  Our partnership with the NWCDN magnifies the lens for which our professional expertise imperiously demands that we always be dynamic and exacting advocates for our clients, navigating the frustrating and form-intensive minefield pervasive throughout Pennsylvania Workers’ Compensation practice and procedure.

The Alabama Court of Civil Appeals recently released its decision in the case ofIn re: Jeffrey Donaldson v. Sears Roebuck and Co. on May 11, 2018. It’s decision confirmed that when compensability is disputed, an employer cannot be compelled to provide medical treatment until after an evidentiary hearing on the issue is held, and compensability has been established. In rendering this decision, the Court upheld the principles outlined in it’s earlier decision,Ex parte Publix Super Markets, Inc., 963 So. 2d 654 (Ala. Civ. App. 2007).

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This blog submission was prepared by Karen Cleveland, 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 Cleveland by e-mailing her at kcleveland@fishnelson.com or by calling her directly at 205-332-1599.

Jeremy Christensen worked as a patrol officer for the Warner Robins Police Department in the State of Georgia.  He completed a required 12-week certification training program.  However, he experienced shooting pains and leg cramps while driving on September 2, 2013. Nonetheless, he finished the program and began a one-year probationary period required for all new city employees.

Christensen experienced more shooting pains on October 8, 2013, and his hands shook uncontrollably.  Another officer had to drive him home from work.  He was advised to get a medical release from his physician, which he obtained from Dr. Al-Shroof.  However, the doctor did not clear petitioner to drive, so Christensen was assigned to a light-duty desk position in the Criminal Investigations Division. Eventually, Dr. Al-Shroof cleared petitioner to work with no restrictions except for a continued restriction against driving.

The City documented four specific disputes with Christensen during the one-year probationary period, the most serious of which was that Christensen only entered 10 of 270 supplemental reports to the CID’s electronic case management program in 2014.  As a result of these four disputes, the City terminated the employment of Christensen for unsatisfactory performance.

Christensen sued alleging disability discrimination.  The City in turn argued that Christensen was not a qualified individual under the ADA because he could not drive, and driving was admittedly an essential job function for a patrol officer.  Christensen disagreed and argued that he was able to work light duty for 10 months, and that he was qualified to perform the light duty position.  He seemed to argue that he was entitled to indefinite light duty.  The Court disagreed.  “The City accommodated Christensen’s disability by giving him light duty work that did not require him to drive. . . . That accommodation did not enable him to perform the essential function of a patrol officer; he still could not drive.”

Christensen further argued that the City could have continued him on light duty, and its past efforts to accommodate his driving restriction showed that the City could make long-term accommodations.  The Court again disagreed.  “Further, the City’s past accommodations, which exceeded the requirements of the ADA, do not bind the City to anything outside the requirements of the ADA.” The Court also agreed that the City offered valid, non-discriminatory reasons for terminating Christensen’s employment.

For these reasons, the Court granted the City’s motion for summary judgment.  The case shows that the elimination of an essential job functions is never required.  Christensen had to prove he could perform all the essential job functions.  The Court said that the mere fact that the City tried to accommodate Christensen for a lengthy period of time could not be held against the City.  This case can be found at Christensen v. City of Warner Robins, GA., 2018 WL 1177250 (D. GA 2018).

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John H. Geaney, Esq., is an Executive Committee Member and a Shareholder in Capehart Scatchard's Workers’ Compensation Group.  Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at jgeaney@capehart.com. 

Written by: Matt Marriott

Every employer has been there before.  You hire a new employee and everything is going smoothly, until one day you receive a letter from the North Carolina Department of Revenue compelling you to withhold an amount from your new employee’s paychecks to satisfy an outstanding tax obligation the employee owes.  In the boilerplate of that garnishment letter is language stating the employer will be held responsible for the employee’s tax obligation in the event the employer fails to withhold and pay the garnishment amount.  Knowing that you never want to ignore a letter from the state or federal department of revenue, you comply with the letter and begin withholding the tax lien amount.  But what happens in cases where the employee with the tax obligation was injured at work and is receiving ongoing temporary total disability benefits instead of a normal salary check?  Must the defendants withhold a weekly amount from each TTD/TPD check or from a settlement to satisfy the outstanding tax lien?

Though the North Carolina Industrial Commission and Appellate Courts have not directly ruled on this issue, some plaintiffs’ counsel have argued that, based on state and federal statutes, the Department of Revenue cannot recover a tax lien from weekly TTD/TPD checks or from a lump sum settlement.

N.C. Gen. Stat. § 97-21 provides in relevant part “[n]o claim for compensation under this Article shall be assignable, and all compensation and claims therefor shall be exempt from all claims of creditors and from taxes.”

The Federal Tax Code also includes a provision that seems to exempt workers’ compensation benefits from tax liens.  § 6331(a) of the U.S. Tax Code provides the government authority to garnish the wages of employees who have failed to pay their taxes; however, it carves out a few exemptions from that general rule.  § 6331(a) states as follows:

“If any person liable to pay any tax neglects or refuses to pay the same within 10 days after notice and demand, it shall be lawful for the Secretary to collect such tax (and such further sum as shall be sufficient to cover the expenses of the levy) by levy upon all property and rights to property (except such property as is exempt under section 6334) belonging to such person or on which there is a lien provided in this chapter for the payment of such tax.”

Section 6334(a)(7), which sets out specific exemptions from the wage garnishment rule cited above, specifically states that workers’ compensation benefits cannot be garnished to satisfy outstanding tax obligations.  Therefore, the U.S. Tax Code seems to suggest that the government is prohibited from asserting tax liens against workers’ compensation benefits.

While the statutes above seem to support that neither the N.C. nor U.S. Department of Revenue can assert a tax lien against workers’ compensation benefits, there are a few Appellate cases in North Carolina that have allowed parties that would seem to qualify as “creditors” under § 97-21 to, nevertheless, assert liens against workers’ compensation benefits.  In State of North Carolina v. Miller, the Court of Appeals held that N.C. Child Support enforcement was not barred by N.C. Gen. Stat. § 97-21 from recovering child support payments out of a plaintiff’s weekly workers’ compensation benefits. SeeState v. Miller, 77 N.C. App. 436, 438 (1985) (holding Child Support Enforcement was not barred by § 97-21 because “the obligation to support one’s children is not a ‘debt’ in the legal sense of the word.”)  Similarly, in Sara Lee Corp. v. Carter, the North Carolina Supreme Court allowed a Trial Court Order to stand which declared that the plaintiff’s weekly workers’ compensation benefits were to be held in constructive trust for the benefit of Sara Lee Corporation, since the Trial Court found the plaintiff had defrauded Sara Lee and breached the fiduciary duties he owed Sarah Lee, entitling Sarah Lee to damages from plaintiff worth $322,729.20. See Sara Lee Corp. v. Carter, 351 N.C. 27 (1999).

Because the aforementioned cases allowed parties to recover what seemed like “debts” from workers’ compensation benefits, it is unclear how North Carolina or federal courts would treat a case addressing whether the N.C. or U.S. Department of Revenue could assert a tax lien against a plaintiff’s workers’ compensation benefits.

Practice Tip: In situations where the Department of Revenue sends defendants a letter asking defendants to garnish a plaintiff’s wages, the best approach is to see if the plaintiff will consent to the wage garnishment.  Because the plaintiff will accrue interest on any outstanding tax obligation the longer he/she fails to pay it, there is a significant benefit to the plaintiff in having the tax debt paid off.  However, if the plaintiff will not consent to wage garnishment to satisfy the tax lien, defendants may need to seek guidance from the Commission on how to proceed.   Where disputed tax lien or garnishment issues arise, employers and insurance carriers should consult with defense counsel to determine defendants’ obligations.

As the state of North Carolina continues its efforts to combat the opioid crisis, the Rules Review Commission, part of the North Carolina Industrial Commission, approved nine rules regarding opioids, prescriptions, and pain management in workers’ compensation claims that go into effect today, May 1, 2018. The rules are specifically meant to address problems arising from the intersection of the opioid epidemic and workers’ compensation claims. They are also meant to ensure that injured workers are provided the services and care intended by the Workers’ Compensation Act and medical costs are adequately contained.

No letters of objection were received during the preliminary period. The Rules Review Commission made some minor technical changes; however, they did not change the substance. The final version of the rules can be found here. The Industrial Commission also adopted a Companion Guide that will assist in implementing and understanding these Rules. The Guide can be found here on the Opioid Rules Resource Page.

Please reach out to a member of our workers’ compensation team with any questions or to discuss this issue in more detail. Our team also released a brief overview of the content and potential implications of the Rules, which you can read here.

Supreme Court Appears to “Flip” on Coming and Going Rule in Vicarious Liability Case
On April 13, 2018, the Supreme Court reversed the judgment of the Court of Appeals inPainter v. Amerimex Drilling - a negligence case involving an MVA that occurred while a drilling company employee was driving his coworkers from a drill site to housing provided by the employer at the end of their shift.  The Supreme Court held that the employer was not entitled to summary judgment on the injured employee’s vicarious-liability claim.  The injured crew members and the families of the crew members killed in the accident filed suit against Amerimex, alleging vicarious liability for the driver’s negligence. The trial court granted summary judgment for Amerimex, and the Court of Appeals affirmed. The Supreme Court reversed, holding that Amerimex was not entitled to summary judgment on either no-evidence or traditional grounds on the crew members’ vicarious-liability claim.
 
In a dissenting opinion, Justices Green and Brown disagreed with the ruling, noting that, two years earlier, the Supreme Court found in favor of Sandridge Energy (the company that hired Amerimex to drill the well from which the crew members were being transported) in a suit arising out of the same accident.  The dissenting opinion opined that the Supreme Court in the Sandridge Energy case found that the driver was not Sandridge’s employee, as a matter of law, “at least with respect to transporting the crew” and Sandridge was therefore entitled to summary judgment in the vicarious liability claim against Sandridge.  The dissenting justices believed that the same legal rationale should hold true for the drilling company, Amerimex, because the driver was not (as a matter of law) the employee of the drilling company either. 
 
The majority in the Amerimex litigation disagreed and found that there were fact questions to be resolved regarding the driver’s employment status at the time of the MVA.
 
Adding Assault to Injury
The claimant, a special education diagnostician, was assaulted by a parent of one of her students and sustained injury.  During the time she was unable to work, she received assault leave pay from her employer in an amount equal to that of her pre-injury wage.  The Appeals Panel, in Decision No. 180294 (decided March 29, 2018) determined that, because the claimant had performed no personal services for the employer in exchange for the assault leave pay she received, the pay was not properly considered wages under the Texas Workers' Compensation Act.  Therefore, the Appeals Panel reversed the decision by the Administrative Law Judge that the claimant had no disability while receiving assault leave pay.
 
There’s a Reason It Wasn’t the Season
In APD No. 180270, decided March 28, 2018, the Appeals Panel concluded that the claimant, a professional football player, did not qualify as a seasonal employee, even though his salary was only paid in 17 installments during the actual football season.  For the remainder of the year, the claimant was required by contract to further the business affairs of the employer by way of mandatory participation in charitable events, maintenance of his physical condition, production of memorabilia for auctions, cooperation with news media, and protecting the reputation of his team.  The Appeals Panel determined that the claimant's employment does not demonstrate "a pattern of seasonal, cyclical employment," and therefore no adjustment to the claimant's average weekly wage applied.
  
Splitting Headaches
Appeals Panel decisions have been known to cause headaches, but this is ridiculous.  The Administrative Law Judge decided that the claimed headaches were not part of a compensable injury based on a designated doctor's assessment that "the claimant's minor head contusion would not result in ongoing headaches, and this diagnosis should not be considered compensable."   In APD No. 180458, decided March 29, 2018, the Appeals Panel drew a distinction, stating that "headaches" and "ongoing headaches" are two separate injurious conditions.  Because the condition appears sans adjective in the issue, the Appeals Panel concluded that the designated doctor had not considered the proper diagnosis and reversed the ALJ's extent of injury determination.

—Stone Loughlin & Swanson, LLP

According to the US Department of Labor’s Inspector General, Dallas attorney Tshombe Anderson and his family stole patient information from over 200 federal workers and then used the information to fraudulently bill the federal workers’ compensation system over $30 million.  Anderson enlisted his entire family in the scheme, including his 84-year-old mother.  Several of those family members have entered guilty pleas and are awaiting sentencing.  Anderson received a 10-year maximum sentence in federal court on April 19, 2018, and his law license has been suspended by the State Bar of Texas.

—Stone Loughlin & Swanson, LLP