State News

After decades, the DWC has finally allowed an increase in claimant’s attorney fees from $150/hour to $200/hour for attorneys, and from $50/hour to $65/hour for legal assistants.  For any service provided before January 30, 2017, the old rates apply.  For services after January 30, 2017, the new rates apply.  When applying for fees, separate applications must be submitted for services rendered before and after that date. In addition, billable time allowed for communications per month increased from two hours to three hours per month. For direct dispute resolution negotiation with the other party, allowable time increased from three to three and one-half hours, and for preparation and submission of an agreement or settlement, allowable time increased from one to two hours.

It will be interesting to see whether this increase attracts any additional qualified attorneys to represent claimants before the DWC.  Carrier attorney fees are not actually “capped” by the DWC’s rules – the requirement is only that the fees must be “reasonable.”  Other states’ attorneys are in the midst of challenging their regulatory agencies’ constitutional authority to regulate attorney fees at all!  More on that in later newsletters, but there has not been a constitutional challenge to Texas’ workers’ compensation statute since 1989 when the Texas Supreme Court held in Garcia v. Texas Workers’ Compensation Commission that the newly enacted workers’ compensation act did not violate provisions of the federal and state constitutions.

Those of us who attend hearings are often surprised by new procedures that are being implemented across the field offices, or old procedures that have been abandoned.  One new procedure we learned of is that the hearing officers are requiring in every hearing a stipulation as to the date of STAT MMI.  But, the Division of Hearings seems to have dropped the requirement that the parties put into evidence DWC Orders for DD and RME exams, or a print out of the certifying doctors’ credentials for performing MMI/IR examinations and certifying an IR.  

It could be that the opening of the new legislative session has our friends at the Division of Hearings all aflutter.  This is the time where DWC wants to present favorable statistics to the legislature, such as the length of time between the inception of a dispute and its resolution  – short time good, long time bad.  From a practitioner’s standpoint, it is frustrating when there is no consistent application of a policy on continuances in contested case proceedings, and little consideration given to the time it takes to prepare for what can be complex proceedings with multiple parties.  And we expect that the hearing officers might appreciate the DWC allowing them to be the judge of when a continuance will  be in the interests of a fair hearing for both parties, and when it will not. 

A hearing officer found that when the certifying doctor did not rate the entire compensable injury, the exception found in Labor Code Section 408.123(f)(1)(A) of the statute applied and the certification of MMI/IR did not become final.  That is the section that says compelling medical evidence of a significant error by the certifying doctor in applying the AMA Guides constitutes an exception to finality.  Presumably, the hearing officer conflated an extent issue with an improper application of the Guides.  However, it was not until after the 90 day finality period had expired that the hearing officer found in the claimant’s favor on the extent of the injury.  The Appeals Panel found that there is nothing in either Section 408.123 or Rule 130.12 that would allow an exception to finality under this circumstance.  Once the 90 day rule results in finality, a later determination on extent of injury cannot revive it.  But then the Appeals Panel remanded the case to the hearing officer to determine whether or not Section 408.123(f)(1)(C)’s exception to finality would apply— the provision that allows an exception where there is improper or inadequate treatment before the date of MMI/IR.  Finding that the parties had actually raised and litigated that exception, the Appeals Panel reversed the hearing officer’s decision that the certification had not become final under Section 408.123(f)(1)A), and remanded the case for the hearing officer to determine if there had been improper or inadequate treatment such that Section 408.123(f)(1) (c) might apply. DWC Appeals Panel Decision No. 135294-s

Dan Price was invited into the firm as a partner, effective January 1, 2017.  Those of you who have worked with Dan in his capacity as senior associate will not be surprised, and we invite you to congratulate him.  He is a terrific lawyer and can be counted on to serve our clients well. He now shares the burdens and joys of partnership with Jane Stone, James Loughlin, David Swanson and Erin Shanley.

Sometimes activities that would otherwise be non-compensable are covered under the Mutual Benefit Doctrine.  That doctrine covers certain activities when there is “a clear and substantial benefit” to the employer by reason of the permitted activity.  Daus v. Marble, 270 N.J. Super. 241 (App. Div. 1994).  An example might be an injury to an employee when one employee spills hot coffee on another employee during an impromptu on-premises coffee break.  Employees who gather around the coffee machine during work hours to exchange personal news or to joke around are not technically working, but this sort of coffee break provides a mutual benefit to both the employer and the employee.  Therefore an incident involving a coffee burn to an employee would be covered.

An older case Saintsing v. Steinbach Company, 1 N.J. Super. 259 (App. Div. 1949) illustrates the point.  In that case the personnel director proposed to the store manager a vaccination service for employees to guard against a smallpox epidemic which had begun in New York City.  A notice was delivered to all employees stating, “On April 22, 1947, we will provide free inoculation to all those who choose to be immunized against smallpox.  We are sure that everyone is aware of the current spread of smallpox and we strongly urge that you take advantage of this service, which we are glad to provide in the interest of your health.” 

Most employees were vaccinated but petitioner, Mary Saintsing, developed a bad reaction which caused temporary and permanent disability.  She brought a workers’ compensation claim.  The carrier denied the claim and argued that this program was voluntary.  Not everyone agreed to be inoculated.  The personnel director testified on behalf of the injured employee that the company wanted to avoid absenteeism because that would disrupt its business. The court reviewed conflicting decisions in other states and held, “The employees, although not compelled, were strongly urged to submit to the vaccination and, in natural response, most of them did. . . . We have concluded that the activity was mutually beneficial, that the risk was reasonably incident to the employment and that the petitioner’s injury resulted from an untoward event or accident arising out of and in the course of her employment. . . “ 

New Jersey later amended its statute in 1979 to make clear that recreational and health activities whose intended purpose is to promote health and morale (and not something more than health and morale) are not compensable.  But that provision of the statute in N.J.S.A. 34:15-7 did not invalidate the Mutual Benefit Doctrine.  If the employer derives some benefit beyond mere health and morale, the social or recreational activity is compensable.

So for example in High v. Rose, 2011 N.J. Super. Unpub. LEXIS 2026 (App. Div. July 26, 2011), the Court affirmed a decision of a Judge of Compensation finding that an accident in a parking lot long after school ended was compensable based on a mutual benefit.  The plaintiff, High, was employed at Montclair Kimberley Academy as a nurse.  She remained late at school to assist another teacher for an hour and a half.  The defendant, Rose, remained late at school after teaching her class and then completing her instructional work. Then at 4:15 she picked up her son who attended the school’s pre-kindergarten after-school care program.  Both employees of the Academy backed their cars out at the same time and their cars struck each other, causing injuries to plaintiff High.

The plaintiff argued that Rose was not in the course of her employment because she stayed after school primarily to pick up her child from the pre-kindergarten program.  The plaintiff clearly wanted to proceed in a civil suit against Rose, but the carrier for Rose argued that the plaintiff’s only remedy was workers’ compensation.  The Judge of Compensation held that just because Rose stayed late to pick up her child from the pre-kindergarten program did not remove her from employment.  Having the child in the program at the school provided a mutual benefit to the school and the employee.  Since High and Rose were still on school premises when the accident happened, the Judge of Compensation found the accident to be compensable.  The Appellate Division agreed and barred High’s civil suit against Rose.  The Court noted, “The child was attending the after-school program so that defendant could complete her teaching duties.”

The Mutual Benefit Doctrine, like its close cousin, the Comfort Doctrine, is not written into the New Jersey statute.  These doctrines exist in case law handed down over the years.  Without these doctrines many claims would be found non-compensable.  For example, employees need to use the restrooms during the day.  If a slip and fall occurs in a restroom, it might not be covered without the Personal Comfort Doctrine because technically the employee is not working.  These doctrines make sense because they avoid a hyper-technical look at every activity which employees engage in during the course of a day. The Personal Comfort Doctrine embraces activities that are basic human needs, and the Mutual Benefit Doctrine embraces activities that benefit the employer and employee equally. However, the Mutual Benefit Doctrine has its statutory boundaries as noted above under Section 7 such that an activity whose purpose is just to improve health and morale is not compensable.

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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. 

The South Dakota Department of Labor recently held that when a Petition for Hearing is not filed within two (2) years from the date of the denial letter, the claim cannot be reopened for a change in condition pursuant to SDCL 62-7-33. In Palmquist v. Luverne Truck Equipment, Inc. and Travelers Insurance, the Claimant’s medical benefits were denied via letter and no Petition for Hearing was submitted until after two years had passed from the denial. Claimant argued that a letter she filed with the Department prior to the denial letter should be considered a Petition for Hearing (the medical benefits were denied after benefits had been issued for a matter of years). The Department first analyzed the letter that Claimant sent to the Department in prior years to determine whether it included the necessary information to be considered a Petition for Hearing. In determining that the letter was not a Petition for Hearing, the Department relied on Administrative Rule 47:03:01:02 to hold that the letter did not contain the specific information required by the Rule. Since there was no prior Petition for Hearing on file, the Department then analyzed whether SDCL 62-7-33 applied to a claim where the two year statute of limitation applied.

It was undisputed that Claimant’s Petition for Hearing was filed after the two year statute of limitations had run. Claimant argued that her claim should be reopened under the change in condition statute found at SDCL 62-7-33 because she experienced a change in her physical condition after the two year statute of limitations had run. Claimant relied on language from Owens v. F.E.M. Electric Assn., Inc., 2005 SD 35, 694 N.W.2d 274, 280, when arguing that a change in condition after the expiration of the two year statute of limitations allows Claimant to continued workers’ compensation benefits. The Department denied Claimant’s request to reopen her claim and held that Claimant’s assertion flied in the face of the clear language of SDCL 62-7-35, which says all claims which have been denied in writing and for which no petition for hearing has been filed are “forever barred.” The Department also held that allowing a claim to be reopened under SDCL 62-7-33 would be contrary to the Legislature’s intent. Claimant also made equitable arguments to overcome summary judgment and the Department rejected them in their entirety.

This matter has been appealed and is currently set for oral arguments in Spring of 2017.

On September 23, 2016, the Alabama Court of Civil Appeals released its opinion inAugmentation, Inc. v. Harris. Debra Harris alleged injuries to her neck, back, and left shoulder while working for Augmentation on April 3, 2011. Harris’ authorized treating physician, Dr. James Bailey, diagnosed Harris with "recurrent cervical and lumbar strains", and prescribed conservative treatment that consisted primarily of injections and pain medications. Augmentation disputed that the "recurrent strains" were related to Harris’ alleged accident, and Harris filed a Complaint for workers’ compensation benefits in the Circuit Court of Tuscaloosa County. At the outset of the case, Augmentation filed a motion seeking an independent medical examination, and that motion was denied. After the depositions of Harris and Dr. Bailey, the parties agreed to a settlement of Harris’ indemnity and vocational benefits. The settlement agreement presented to the trial court clearly stated that compensability of Harris’ alleged injuries was disputed, and that the issue of "future medical benefits shall remain open, subject to all medical necessity, causation, and pre-authorization requirements as provided by The Alabama Workers’ Compensation Act." The trial court approved the settlement in April 2014.

Subsequent to the settlement, in 2015, Dr. Bailey prescribed a lumbar epidural steroid injection and prescription pain medications to treat Harris’ lumbar strain. The workers’ compensation adjuster wrote to Dr. Bailey, asking him to address whether the need for said treatment was related to the April 2011 injury or some other cause, and if so, what the basis for his opinion was. According to Augmentation, Dr. Bailey did not respond to the letter. The adjuster then contacted two other orthopedic specialists, and asked for their respective opinions on the matter. Both of those physicians penned reports in which they stated that the cervical and lumbar strains Harris sustained in the April 2011 accident most certainly would have resolved after nearly four years, and the need for further treatment would not be related to the accident. Based on this information and the fact that Dr. Bailey had not provided any information to the contrary, the treatment prescribed by Dr. Bailey was not approved. Harris then filed a petition asking the Court to hold Augmentation in contempt of the April 2014 Order approving the settlement. Augmentation responded to Harris’ petition, asserting that the April 2014 Order did not require it to provide the treatment prescribed by Dr. Bailey unless Harris could prove that the treatment was related to the 2011 accident. Citing § 25-5-88 of The Alabama Workers’ Compensation Act, Augmentation pointed out that Harris was entitled to have a trial on the issue to resolve the dispute, and that Harris would have the burden of proof. Augmentation also argued that even if it should have approved the treatment recommended by Dr. Bailey, it’s failure to do so was not willful and contumacious based on the language of the settlement agreement. The court set the matter for hearing, and Augmentation sought leave of court to obtain the deposition testimony of the two orthopedic specialists who provided written opinions prior to the hearing on Harris’ contempt petition, which the trial court denied.

The trial court held a hearing, and found Augmentation in contempt "for its willful, continuing failure or refusal to comply with the Court’s Settlement Order dated April 3, 2014, wherein the Court ordered that future medical benefits shall remain open." The trial court further stated that Augmentation failed to present evidence that the treatment prescribed by Dr. Bailey was not reasonably necessary, and that it failed to present good and valid reasons for its refusal to authorize that treatment. The court ordered Augmentation to pay Harris’ attorney’s fees, and ordered Augmentation to approve all treatment prescribed by Dr. Bailey. Augmentation appealed, arguing that it was not in contempt because the settlement order put limitations on its liability for future medical treatment; that any violation of the settlement order was not willful and contumacious; and that the trial court erred by failing to allow meaningful discovery or conduct a trial on the merits of the case.

The Court of Appeals found that while the settlement order only required Augmentation’s to provide future medical care subject to medical necessity, causation, and pre-authorization requirements, the trial court had concluded that the treatment prescribed by Dr. Bailey satisfied those requirements. The Court of Appeals further held that it was Augmentation’s duty to contest its liability (prior to Harris filing her contempt petition), citingTotal Fire Prot., Inc. v. Jean, 160 So.3d 795, 799 (Ala.Civ.App. 2014). The Court noted that Augmentation did not seek a judicial determination in accordance with § 25-5-88 prior to Harris filing her petition, and it did not resort to the utilization review process outlined in § 25-5-293(g). As a result, the Court of Appeals held that the trial court did not abuse its discretion in finding that Augmentation’s failure to approve the treatment "without just cause" was willful and contumacious.

The Court of Appeals affirmed the trial court’s ruling, and Augmentation petitioned the Supreme Court of Alabama for a Writ of Certiorari. On December 9, 2016, the Supreme Court denied the Petition for Writ, without a written opinion.

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About the Author

This article was written by Charley M. Drummond, Esq. of Fish Nelson & Holden, LLC. Fish Nelson & Holden is a law firm located in Birmingham, Alabama dedicated to representing employers, self-insured employers, and insurance carriers in workers’ compensation cases and related liability matters. Drummond and his firm are members of The National Workers’ Compensation Defense Network (NWCDN). The NWCDN is a national and Canadian network of reputable law firms organized to provide employers and insurers access to the highest quality representation in workers’ compensation and related employer liability fields. If you have questions about this article or Alabama workers’ compensation issues in general, please feel free to contact the author at cdrummond@fishnelson.com or (205) 332-3414.

HOLDING: The employer first argued that the claimant’s claim was barred by the statute of limitations arguing that her injury became reasonably discoverable and apparent as early as 2005 and 2007. However, the Commission did not agree since the EMG/NCS was normal and she was not diagnosed with the condition.

The employer also argued that the Commission erred in finding that the employer was responsible for the claimant’s past medical treatment. The employer argued that even the claimant testified that her insurance through the employer paid for all of her medical expenses and to her knowledge those bills were completely satisfied. She also testified that she was unaware of whether she would be asked for reimbursement of those charges in the event that the case was deemed compensable. In light of this the Commission found that since she was not aware as to whether the insurance company could ask for reimbursement, the employer was responsible for the bills. The employer also argued that because of being self insured for workers’ compensation purposes any payment by the claimant’s health insurance through the employer must be deemed a payment directly from the employer. The Court did not agree and the Commission’s Decision was upheld.

Firefighter Who Had Knee Replacement Found PTD as Result of Last Injury Alone Despite Prior Arthroscopy on Opposite Knee

Palmer vs. South Metro Fire District and Treasurer of Missouri as Custodian of the Second Injury Fund, Injury No. 11-077076

The claimant, a 59 year old long term firefighter/EMT, was walking out of a fire and his foot caught on debris causing him to fall on his left knee. He underwent an arthroscopy and ultimately underwent a total knee replacement on November 8, 2011. When he was placed at MMI by the authorized treating physician he was given multiple restrictions which caused him not to be able to return to work as a firefighter. At a Hearing the claimant also testified that as a result of his injury he was having problems with his right knee and back due to gait issues. The claimant did have a prior right knee injury in 2007 for which he underwent an arthroscopy and received a settlement for 15% disability to the knee. After this injury he was released to return to work with no restrictions.

The claimant’s expert, Dr. Koprivica, believed that if the claimant was PTD it was due to his injury and his pre-existing condition. Dr. Stuckmeyer, presumably the Fund’s expert, believed that the claimant was PTD as a result of the last injury alone.

The ALJ found that the claimant was PTD based on the last injury alone opining that the claimant’s prior injury did not result in any restrictions. Also as a result of the last injury he developed additional pain in his right knee along with law back pain. The Commission affirmed the Award of the ALJ.

Claimant Entitled to TTD After Being Placed At MMI Because Continued to Be Engaged in “Rehabilitative Process”

Jefferson City Country Club vs. Pace and Treasurer of the State of Missouri Custodian of the Second Injury Fund, Case No. WD79405 (Mo. App. 2016)

FACTS: On October 4, 2002, the claimant was breaking down tables when 5-6 table toppers fell on her and she sustained an injury to her neck and right shoulder.  In August 2004, Dr. Graven performed surgery on her neck.  Thereafter, Dr. Rummel performed surgery on her right shoulder.  She was placed at MMI on November 17, 2005.  Thereafter, she continued to have complaints and was diagnosed with depression. She sought treatment on her own and went to a Temporary Hearing and thereafter she underwent a second surgery on her neck which was performed by Dr. Chabot. 

A Final Hearing was held at which time the parties stipulated that the claimant reached MMI on August 25, 2011.  A Final Award was issued by the ALJ and it was appealed to the Commission who determined that the claimant sustained a work related injury; she is PTD as a result of her neck and right shoulder injuries coupled with her depressive symptoms; she failed to prove Fund liability as there was no evidence of disability before her work injury; she is entitled to past temporary disability benefits from November 7, 2005 - August 24, 2011 and she is entitled to future medical treatment.  The employer appealed.

HOLDING: The employer argued that the Commission used the wrong legal standard for the causation requirement as it assumed that proof of depressive symptoms alone constituted proof of causation.  The Court noted that the employer’s argument had no merit as the Commission explicitly accepted the claimant’s expert medical testimony as credible and persuasive.

The employer also argued that the Commission erred in finding that the claimant was engaged in the “rehabilitative process” between November 17, 2005 - January 2, 2011 because the finding was contrary to the overwhelming weight of the evidence.  The Court noted that pursuant to the statute partial disability benefits are to be paid “throughout the rehabilitative process.”  Whether a treatment is a part of the rehabilitative process is a question of fact for the Commission.  The Commission found that the claimant persuasively testified that she continually sought help for her condition after she was released by Dr. Rummel on November 17, 2005. 

The Court looked to Greer and noted that in that case the Supreme Court found that the fact that the treatment the claimant underwent after she was placed at MMI was intended to restore Greer to a condition of health or normal activity by a process of medical rehabilitation.  The Court further noted that whether the treatment is successful is immaterial to the determination of whether treatment is part of the rehabilitative process.  The Court noted that like Greer, the claimant continued to seek treatment for pain related to her work related injury despite the fact that multiple doctors had found that she had reached MMI.  Therefore, the Court found that the claimant was entitled to TTD during this time.  Therefore, the Commission’s decision was upheld.

On December 1, 2016, Cousineau McGuire closed its doors.  The entire workers compensation practice moved to Mendota Heights and became Cousineau, Waldhauser & Kieselbach, P.A. We are proud of our heritage and lineage which dates back 68 years. The only changes are our name, address and phone number. Our lawyers and staff remain the same. 

We look forward to continuing our working relationship with you. 

Mark Richardson worked for the Chicago Transit Authority as a Bus Operator from 1999 to 2012.  He took an extended medical leave from work and attempted to return to his job in September 2010.  The Authority sent plaintiff for a fitness exam, and the doctor cleared Richardson to return to work. He was next required to submit to a safety assessment, which he contended turned out to be different than the normal safety assessment required of bus operators.

The Authority eventually rejected Plaintiff’s request to return to work.  Plaintiff then filed a charge with the EEOC, stating that the Authority discriminated against him based his disability, namely severe obesity.  After the parties were not able to resolve the charge, plaintiff sued in federal court.

Defendant Transit Authority moved to dismiss the case right away before doing any discovery by arguing that the plaintiff’s complaint was fatally flawed.  The Authority argued that obesity is not a disability unless it is due to a physiological disorder and further contended that since plaintiff never alleged that there was a physiological basis for his obesity, his complaint must be dismissed.

The Court noted that the Americans with Disabilities Act Amendments Act of 2008 expanded coverage under the ADA.  The Court reflected on 42 U.S.C. 12102(3)(A), which states:

An individual is ‘regarded as having such an impairment’ if the individual is subjected to a prohibited action because of an actual or perceived physical or mental impairment, whether or not that impairment substantially limits, or is perceived to substantially limit, a major life activity.

The Court also reviewed conflicting decisions nationally on the question of whether a plaintiff must prove a physiological basis for obesity to establish a disability.  It observed that there is a split among Circuit Courts on what is required for obesity to be considered a covered disability.  Some Circuit Courts have required proof of a physiological basis for obesity while others have not.

In this case the Court did not decide which approach was right, but it said that “[e]ven if Plaintiff is ultimately required to prove that his obesity was caused by a physiological disorder, he was not required to allege the same.”  In other words, plaintiff’s complaint was sufficient to allow him to move forward with discovery and to attempt to prove his case.

The case can be found at Richardson v. Chicago Transit Authority, 2016 U.S. Dist. LEXIS 143485 (N.D. Ill. 2016).  It is an interesting case because obesity claims are likely to become a major area of litigation given both the near epidemic levels of obesity in the United States and the expansion of coverage of disability under the ADAAA.

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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.