State News

AN IMPERFECT IMPAIRMENT IN PENNSYLVANIA

By Kevin L. Connors, Esquire

No, this is not a political diatribe on the politically insensitive defect who promises to make “America great” while asking us to believe that only he has the power to do so.

Instead, we are talking about the Pennsylvania Supreme Court’s most recent pronouncement on impairment ratings that became the subject of its ruling inIA Construction Corporation/Liberty Mutual v. WCA Appeal Board (Rhodes), decided on May 25, 2016.

If interested in a copy of the Decision, kindly file the appropriate request, utilizing the appropriate Bureau form.

In IA Construction Corporation, The Pennsylvania Supreme Court dealt with the validity of a workers’ compensation Judge’s decision to reject the opinion testimony of the physician performing an impairment rating examination for the employer/insurer, where no contrary evidence was ever produced, or, for that matter, adduced, by the Claimant.

The background of this case arose in the context of Section 306(a.2) of the Pennsylvania Workers’ Compensation Act, promulgated in 1996 by the Pennsylvania General Assembly to address the rising costs associated with the workers’ compensation liability scheme. Gardner v. WCAB (Genesis Health Ventures), 888 A.2d 758 (Pa. 2005).

Under Section 306(a.2) of the WCA, an employer or insurer can request an impairment rating evaluation (IRE) when a Claimant has received 104 weeks of temporary total disability benefits; the IRE is a medical examination directed toward assessing the degree of the Claimant’s impairment attributable to a compensable injury.

In that same context, “impairment” connotes an anatomical or functional abnormality or loss resulting from a compensable injury that is reasonably presumed to be permanent, clearly distinguished from the compensation concept of “disability,” which more broadly concerns the loss of earnings capacity.  See Dillon v. WCAB (Greenwich Collieries),640 A.2d 386 (Pa. 1994).

As those of us practicing in Pennsylvania know all too well, the concept of “disability” under the WCA encompasses the incapacity to work resulting in compensable wage loss, clearly distinct from the concept of permanent impairment.

In IA Construction Corporation, the Claimant was injured in a motor vehicle accident in 2005, with the Claimant’s entitlement to workers’ compensation benefits litigated under a Claim Petition.

The Claimant’s Claim Petition was then granted by the workers’ compensation Judge in 2007, with the Claimant awarded temporary total disability benefits, finding that the Claimant had sustained work-related injuries, described by the WCJ as a traumatic brain injury with organic affective changes, persistent cognitive problems, memory impairment, posttraumatic headaches, posttraumatic vertigo or impaired balance, and musculoskeletal or myofascial neck and back injuries.

A few years later, the employer/insurer filed the appropriate notice, utilizing an appropriate Bureau form, requesting that the Bureau designate a physician to conduct an impairment rating evaluation of the Claimant.

In its infinite wisdom, the Bureau designated Dr. Bud Lateef, a physician maintaining board certifications in physiatry, rehabilitation, and pain management, to conduct an IRE of the Claimant.  

Given that the IRE was requested outside the period associated with the IRE being accorded automatic conversion of the Claimant’s temporary total disability benefits to temporary partial disability benefits, a very narrow window triggered by the 104 weeks receipt of temporary total disability benefits (“TTD”). The employer  filed a Petition seeking to modify the Claimant’s worker’s compensation benefits, in reliance upon the IRE, seeking to convert the Claimant’s compensation benefits from TTD to temporary partial disability (“TPD”).

Following assignment of the petition to the workers’ compensation Judge, the employer/insurer deposed Dr. Lateef, who assigned the Claimant an impairment rating of 34%.  Testifying that he examined the Claimant and reviewed the Claimant’s medical records, Dr. Lateef confirmed three primary diagnoses, described as the traumatic brain injury, a cervical condition in the nature of a herniated disc, and a spinal condition resulting in gait dysfunction. 

Testifying that he assigned discrete impairment ratings to each of those three conditions, Dr. Lateef testified that the three conditions constituted a 34% impairment rating under the Sixth Edition of the AMA Guides to the Evaluation of Permanent Impairment (the “AMA Guides”).

Parenthetically, the constitutional argument raised in Protz v. WCAB,124 A.3d 406(Pa. Cmwlth. 2015), challenging the impairment rating examination process in that case, as it used “the most recent edition” the AMA Guides, being the Sixth Edition, as opposed to utilizing the Fourth Edition, which was the controlling AMA Edition when the impairment regulations were promulgated in 1996, was not raised inIA Construction Corporation, and was not, therefore, considered by the Pennsylvania Supreme Court in this ruling.

In IA Construction Corporation, the employer then submitted the deposition testimony of Dr. Lateef, as well as his IRE report, in response to which the Claimant did not present any evidence whatsoever, nor did the Claimant testify on his own behalf.

Denying the employer’s Modification Petition, the WCJ rejected Dr. Lateef’s testimony regarding his impairment rating opinion, expressing concern that Dr. Lateef had “inappropriately lumped” an array of discrete injuries into three categories, with the WCJ referring to the injuries that had been described by the workers’ compensation Judge in the course of granting the Claimant’s original Claim Petition.

Moreover, the WCJ, in denying the employer’s Modification Petition, was critical of Dr. Lateef for failing to adequately account for all of the injuries described in the decision under which the Claimant’s Claim Petition had been originally granted.

Additionally, the WCJ criticized Dr. Lateef’s assessment of the Claim’s cognitive issues as being unduly limited, based on Dr. Lateef only performing a cursory examination, and otherwise limiting his opinion to his review of the Claimant’s medical records. Since Dr. Lateef’s medical expertise was limited to physical medicine and pain management, and not neurology, the WCJ rejected Dr. Lateef’s opinion concerning his impairment assessment of the Claimant’s cognitive deficits. 

The employer’s Appeal of the WCJ’s decision was then denied by the Workers’ Compensation Appeal Board in a divided opinion, with the majority substantially relying upon the principle that a WCJ, as the ultimate fact finder, is accorded discretion to determine the weight to be accorded to any evidence presented.  Rhodes v. IA Construction Corporation,No. A11-1630 (WCAB, 11/5/13).

The Appeal Board’s decision did so on grounds that the IRE, at least procedurally, was conducted in accordance with the requirements to the Act, further attributing  significance to the fact that employers do not participate in the process selecting IRE physicians, as that function is left to the administrative discretion of the Bureau.

Appealed to the Commonwealth Court, the Commonwealth Court reversed the Decisions of the WCJ and Appeal Board, holding that Dr. Lateef’s IRE conclusions satisfied the WCA’s qualifications for IRE physicians, and that Dr. Lateef had followed the statutorily-described methodology for conducting the IRE.  See IA Construction Corp. v. WCAB (Rose),110 A.3d 1096 (Pa. Cmwlth. 2015).

Taking the position that the WCJ lacked the authority to reject the testimony of a physician on the basis that cognitive impairment was outside the area of his specialization, the Commonwealth Court held that the “WCJ’s opinion as to the insufficiency of an IRE cannot stand without some record support”.  Id. at 1102.

Since the Claimant had failed to adduce any evidence on his own behalf, the Commonwealth Court held that the WCJ never referenced any provisions of the AMA Guides, or any other evidence that supported her conclusions that Dr. Lateef had mischaracterized or improperly grouped the Claimant’s injury, or that Dr. Lateef had erroneously miscalculated the impairment rating assigned to the Claimant.

Reflecting that impairment rating examinations and procedures were enacted as a cost-containment scheme focusing upon “impairment”, as opposed to “disability”, the latter being the traditional core of the workers’ compensation scheme, the Pennsylvania Supreme Court, in an opinion authored by Chief Justice Saylor, noted that the enactment of impairment rating regulations and procedures was essentially experimental legislation, subject to conceptual and other difficulties that have become increasingly evident over time, with there being certain conflicts that have appeared between the legislative statute and the AMA Guides, particularly with respect to the timing of a Claimant reaching maximum medical improvement. Combine v. WCAB (Nat’l Fuel Gas Distribution Corporation), 954 A.2d 776, (Pa. Cmwlth. 2008).

Citing to the incongruities that have arisen from the impairment rating statute, Justice Saylor suggested that this is an area of law that is ripe for legislative review, so that the statute can be clarified, and improved, to enhance fairness, incorporating the many compromises and trade-offs that are inherent in a workers’ compensation liability scheme, for purposes of implementing the manifest intentions of the policy-making branch (the Bureau), subject to constitutional limits.

Noting the conflict in the WCJ’s Decision between the “credibility” and “persuasiveness” of the opinions rendered by Dr. Lateef, the Supreme Court rejected the employer’s argument that to reject the opinion of Dr. Lateef in the absence of any contrary evidence was tantamount to an evisceration of the substantial-evidence review principle, with the Supreme Court held that the substantial-evidence facet of the appellate review of an administrative agency adjudication did not simply apply to scenarios in which the prevailing party presented no evidence whatsoever,  rather, these matters must turn upon the weight attributed by the fact-finder of the evidence presented by the party bearing the burden of proof.

Since the employer in IA Construction Corporation carried the burden to establish the factual and legal basis for the modification of compensation benefits that it sought, the Supreme Court held that the WCJ was free to accept or reject the employer’s evidence, even in the absence of any contrary evidence being presented by the Claimant.

Addressing employer’s argument that the WCJ’s analysis of Dr. Lateef’s opinion was superficial, particularly in reference to Dr. Lateef’s opinions concerning the Claimant’s brain injury, the Supreme Court noted that an examination for a neurological impairment “should be based on a detailed mental status examination, often in concert with neuropsychological assessment and testing”, with the Supreme Court finding that there was very little support in Dr. Lateef’s deposition testimony, or IRE report, suggesting that Dr. Lateef had undertaken a detailed mental status examination of the Claimant.

Moreover, the Supreme Court noted that Dr. Lateef’s testimony did not elaborate on the differences in impairment attaching to the different classes of neurological impairment, failing to address what additional impact the Claimant’s impairments would have on the activities of daily living, potentially affecting the impairment rating percentage that could potentially be assigned to the Claimant’s work-related injuries.

The Court also noted that other jurisdictions allowed WCJs to assign lesser weight to an underdeveloped and out-of-specialty impairment rating that was not contradicted by opposing medical evidence, relying uponAdams v. Massanari, 55 Fed. 2Fed. F Appx. 279 (6^th Circuit 2003) (explaining that, as a general rule at least, an administrative law judge “may discredit the opinion of a physician that is outside their area of expertise” (citingTurley v. Sullivan, 939 F.2d 524 (8^th Circuit 1991))).

Ruling summarily that the Supreme Court had previously determined that a physician’s impairment rating opinion was subject to “vetting through the traditional administrative process.”, theDiehl v. WCAB, 5 A.3d 245), the Supreme Court held that the Commonwealth Court had erred in its conclusion that a workers’ compensation judge lacked the authority to reject the uncontradicted testimony of an IRE physician, reversing the Commonwealth Court’s reversal of the Decisions by the WCJ and Appeal Board, with the Supreme Court remanding the case back to the WCJ, for reinstatement of the WCJ’s original adjudication.

Justices Baer, Todd, Donohue, Doughtery, and Wecht joined in Justice Saylor’s opinion.

TakeAways

Be careful what we wish for.

Obviously, the factors that influenced the Supreme Court in IA Construction Corporation clearly distinguish the logistical gap between the injuries originally found to be work-related and compensable under the initial granting of the Claimant’s Claim Petition, as opposed to the injuries evaluated by Dr. Lateef, in the course of conducting the IRE in question.

That appears to have been a fatal flaw in Dr. Lateef’s IRE findings and conclusions by the Supreme Court.

Unknown is whether Dr. Lateef had any knowledge as to the injuries found to be compensable and work-related when the Claimant’s Claim Petition was originally granted.

However, it is clear that the Supreme Court took issue with the fact that Dr. Lateef, a board-certified physiatrist, was assigning an impairment rating to a cognitive impairment, one presumably associated with an accepted and adjudicated work injury, when Dr. Lateef lacked either expertise or qualifications in the medical specialty of neurology, more traditionally associated with the evaluation of cognitive deficits and injuries.

A very different result might have been achieved if the Bureau had assigned the Claimant’s impairment rating examination to a board-certified neurologist, presumably qualified and competent to evaluate a cognitive injury, in the context of potential impairments.

So who is ultimately responsible for matching an accepted injury with the appropriate qualifications to evaluate injury-related impairments, with that responsibility being left, at this point, to the infinite wisdom of the Bureau, oftentimes making random impairment rating physician designations.

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.

An important ADA decision has come from the Court of Appeals in the Eighth Circuit inMorriss v. BNSF Railway Company, 817 F.3d 1104 (8th Cir. 2016).  The case stems from a post-offer medical examination.  Melvin Morriss applied for a machinist position and received a conditional offer of employment.  He was required to undergo a medical review because the position was safety sensitive.  He noted on the medical questionnaire that he weighed 270 pounds and stood 5’10” tall.  He was not currently a diabetic and did not have any health concerns.  He noted no limitations in daily activities.

BNSF doctors examined Morriss and noted that he weighed 281 pounds and had a body mass index of 40.9 in the first exam and 40.4 in the second exam.  Because his BMI exceeded the company’s qualification standards, the company’s medical department advised Morriss that he was not currently qualified due to significant health and safety risks related to Class 3 obesity, which entailed a BMI of 40 or greater.  BNSF then revoked the job offer, and Morriss sued alleging discrimination under the ADA.

Morriss lost in the district court, which noted that Morriss had denied suffering from any medical impairment on BNSF’s medical questionnaire.  His personal doctor said he did not suffer from any medical condition which caused his obesity.  He had no limitations at all.  The court therefore dismissed his case and Morriss appealed.

The Court of Appeals focused on whether Morriss had an impairment under the ADA.  Morriss argued that Congress stated in the ADAAA (Americans with Disabilities Act Amendments Act) that whether an impairment exists should not demand extensive analysis.  The Eighth Circuit rejected that argument and extensively analyzed the history of the definition of impairment going back to the original ADA guidance and statutory language. It considered the EEOC Interpretive Guidance on physical impairment:

It is important to distinguish between conditions that are impairments and physical, psychological, environmental, cultural, and economic characteristics that are not impairments.  The definition of the term ‘impairment’ does not include physical characteristics such as eye color, hair color, left-handedness, or height, weight, or muscle tone that are within ‘normal’ range and are not the result of a physiological disorder.  The definition, likewise, does not include characteristic predisposition to illness or disease.  Other conditions, such as pregnancy, that are not the result of a physiological disorder are also not impairments.

The Court held that plaintiff had to prove both that his weight falls outside the normal range AND that it is due to a physiological disorder.  Plaintiff challenged the Court’s interpretation by arguing that when Congress passed the ADAAA it specifically intended to construe the law in favor of broad coverage.  The Eighth Circuit answered by noting that Congress accomplished this broader coverage by adopting a far more generous definition of “substantial limitations of major life activities.”  It said,  “Notably, Congress did not express any disagreement with judicial interpretations of the term ‘physical impairment.‘”  In this way the Court overcame the argument that the ADAAA required a more expansive interpretation of obesity as an impairment.  “Thus, because the ADAAA did not alter that definition, pre-ADAAA case law holding that obesity qualifies as a physical impairment only if it results from an underlying physiological disorder or condition remains relevant and persuasive.”

The Court said “weight is merely a physical characteristic — not a physical impairment — unless it is both outside the normal range and the result of an underlying physiological disorder.” The Court said that even for morbid obesity, the same test must be met. For much the same reasons, the Court rejected plaintiff’s alternative argument that BNSF violated the ADA by regarding him as being disabled.  It said that the ADA only prohibits an employer from discriminating against an individual on the basis of a physical impairment. “But the ADA does not prohibit an employer from acting on some other basis, i.e., on its assessment that although no physical impairment currently exists, there is an unacceptable risk of a future physical impairment.”

In very clear language the Court emphasized, “The ADA does not prohibit discrimination based on a perception that a physical characteristic — as opposed to a physical impairment — may eventually lead to a physical impairment as defined under the Act.”

This case is very important to employers who do post-offer medical examinations and have similar standards for hiring in safety sensitive positions.  Employers must distinguish between physical characteristics as opposed to actual physical impairments.  Making decisions based on physical characteristics that are not now impairments is not discrimination under the ADA according to the Eighth Circuit Court of Appeals.  The key in this case was that Morriss himself said he had no physical impairment, as did his own physician.   Plaintiff was never able to show that he had a current impairment under the ADA, and the employer had a right to make decisions focused on physical characteristics that may eventually lead to physical impairments.

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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 New Jersey Division of Workers’ Compensation has thousands of medical reimbursement claims in various stages of negotiation and litigation.  Few cases actually get tried because most medical providers do not want to come to court to defend their charges. The vast majority of cases get settled through negotiations.  One recent case, however, involved testimony by a trauma surgeon to obtain reimbursement at the 95th percentile of his charges in the matter of University Physicians Associates v. Transport Drivers CP# 2013-18665.  The case was decided on March 17, 2016.

The case arose from a serious injury to the hip of Mr. Manuel Bonilla who received a workers’ compensation award.  Dr. David Livingston, the Chief of the Trauma Division of University Physicians Associates (UPA), came to court to testify that the insurance carrier, Patriot Risk Services, unreasonably reduced his charges.  He said he performed diagnostic tests and determined that Mr. Bonilla suffered a dislocated hip, crush injury and left acetabular fracture in a 2012 work accident.  He repaired the dislocated hip under conscious sedation without surgery on an emergency basis.  He documented his care as CPT code 27250 and the rate of $9,391. He was paid $3,188.75 and claimed that Patriot Risk owed him $6,202.25.   CPT Code 27250 reads, “closed treatment of hip dislocation, traumatic without anesthesia.” He said that during 2012 he performed three procedures under this code and got paid in full by two different PIP carriers for $9,391. Dr. Livingston also charged $952 for his consult under CPT Code 99245 with modifier code 25 (meaning considerable time was expended). He was paid $500.23 and sought the balance of $451.77.

Following the closed reduction, another surgeon at UPA performed an open reduction and internal fixation to repair the acetabular fracture.  This surgeon, Dr. Adams, did not testify in the case.  He documented his care under CPT Code 27228 at a rate of $71,374 and was paid $24,234.50.  He sought the balance of $47,139.50.

The trial consisted of testimony by Dr. Livingston, Simi Bakshi, the Chief Financial Officer of UPA, and Sandra Corradi (Certified Professional Coder) for respondent.  Dr. Livingston emphasized that he was the Chief of Trauma at a Level One Trauma Hospital, the only one in the northern part of the state.  He said that the New Jersey Department of Banking and Insurance approved a modifier entitled “TS” (trauma service) exclusively for use on PIP charges, but he offered no evidence to prove this point.  He also admitted that CPT Code 25250 is reimbursed at a rate of $150.48 by Medicare.  The remainder of usual and customary rates in New Jersey range from the 50th percentile with payment of $2,376 to the 95th percentile with payment at $9,391 (the amount he contended he should have been paid).

Ms. Bakshi testifed for UPA but admitted that she is not credentialed as a professional coder.  She had no information in court regarding allowed billings by PIP, Medicare or Medicaid.  She stressed that UPA always bills at the 95th percentile of allowed amounts.  The Honorable Nilda Hernandez, Judge of Compensation, did not find her testimony to be helpful on the issues in the case.  However, Judge Hernandez did credit the testimony of Sandra Corradi as a Certified Professional Coder since 1995. Corradi said that she utilizes her certification in her job as Vice-President of bill review, responsible for operating and overseeing about 85,000 workers’ compensation claims.  She said that her job with MCMC, a vendor company that reviews workers’ compensation medical claims, requires review of the applicable codes to determine the appropriate amount of payment.  MCMC uses Fair Health Solutions for value guidance in states that do not have fee schedules (New Jersey, for example).  Fair Health Solutions provides information by geographic region based on zip codes for charges billed and paid.

Judge Hernandez noted that the New Jersey statute requires that reasonable charges must be “based upon the usual fees and charges which prevail in the same community for similar physicians’, surgeons’ and hospital services.” N.J.S.A. 34:15-15. In this case, Ms. Corradi’s company forwarded their assessment to Patriot Risk, which paid the UPA doctors at the 75th percentile.   She also noted that any claim in excess of $25,000 requires review by a nurse, who compares the CPT codes billed against the correlating documentation.  Here the charges were compared with other similar services in the Newark, N.J. zip code.

On cross examination, Ms. Corradi was asked whether her company’s agreement with Patriot Risk contained any incentives for reducing payments.  Ms. Corradi indicated that there were no such incentives.  Her company was paid $8.50 per reviewed submitted bill.

Judge Hernandez rejected the argument of UPA that the decision should turn on only those payments by other commercial carriers with Medicare and Medicaid being disregarded.  She relied on Coalition for Quality Healthcare vs. New Jersey Department of Banking and Insurance, 358 N.J. Super. 123 (App. Div. 2003) for the proposition that paid fees are a more accurate measure of value than billed fees.  “So far as this is applicable to workers’ compensation, I accept that it is appropriate to use paid fees rather than billed fees to make a determination as to the usual and prevailing fees in billing.” Judge Hernandez was persuaded by the testimony of Ms. Corradi and her expertise.  The Judge noted that UPA failed to provide expert testimony to the contrary.  She also found that there is no use of modifiers for physicians’ credentials to warrant a higher amount of payment.  She dismissed the claim with prejudice.

This case is of great importance to practitioners, employers, medical professionals, and carriers because it provides a very useful template for how to handle trials on medical reimbursement claims.  One key element in this case was the use of expert testimony.  Patriot Risk wisely produced an expert in coding, while UPA did not.  Another key aspect of this case is that the Judge of Compensation did not buy the argument that a doctor’s credentials justified an enhanced percentile or modifier.  In this case, Dr. Livingston emphasized his credentials at trial, noting that in addition to being the Director of the Trauma Center, he was a Full Professor at Rutgers School of Medicine.  He contended that these credential justified his practice of always billing at the 95% percentile.  The Judge did not accept that there was any legal standard requiring a use of modifiers based on physician credentials.  The use of a modifier is based more on additional time expended.

What this case shows is that trials on medical reimbursement claims require thought and planning.  One does not just submit bills into evidence and make a request of the judge for payment.  Detailed testimony is required.  The party with the better expert will likely prevail.  For employers the take-away should be that when large amounts are at stake, parties should retain appropriate experts.  In this case, Patriot Risk paid not a cent more after trial than it originally paid.

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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. 

Hospice Family Care v. Joseph Allen, dependant spouse of Suzanne Sharp Allen, deceased
Released June 10, 2016

This case was on appeal from the Madison County, Alabama Circuit Court who ruled the employee’s dependant spouse was owed burial and death benefits in accordance with the Alabama Workers’ Compensation Act. The issues brought up on appeal by the employer were 1) Was the claim barred by the coming and going rule, 2) Was the claim barred due to the employee deviating from her employment, 3) Was the employer entitled to set-off for certain insurance benefits provided by the employer and 5) Was the trial court correct in awarding $6,500.00 in burial expenses.

The employee was a nurse on the day shift from 8:00 a.m. to 4:30 p.m. Her responsibilities included driving to patient’s homes, recording a voice message for the benefit of the night nurse who would take over for the patient, and then entering billing codes and charting on each patient within 24 hours of the visit. The billing codes, voice message and charting could be done anywhere, and employees were encouraged not to come back to the office to chart, with a laptop provided by the employer. As a part of the employment the employee received life and accidental death & dismemberment insurance paid for by the employer. The employee was also reimbursed milage for travel but not the mileage from the last patient’s home to the employee’s home. The employer required that all day shift nurses be available, should a patient call, until 4:30, unless they submitted a leave of absence form.

On February 3, 2014, the employee in this case had called her spouse and informed him she was leaving her last patient’s home and on her way to their home. The employee informed her spouse that she was stopping at the pharmacy to pick up a personal prescription and then would be home. After stopping at the pharmacy the employee was on her way home and involved in a motor vehicle accident that resulted in her death. The accident occurred before 4:30 p.m. At the time of the accident she had not recorded the voice message for the night nurse nor had she completed her billing entries, voice message or charting.

Testimony by the employee’s spouse at trial established that it was common for the employee to come home and work several more hours, which included phone calls to patients, a phone call to the employer and charting. The employer acknowledged that this was actually encouraged that they do this from home or some other location other than the office. The employer also acknowledged that if a nurse, a salaried employee, got home before the end of their shift they were still paid the same. The employer further acknowledged that employees were allowed to complete personal errands during their shift, such as picking up a prescription without requesting permission or leave, they just had to be available to meet a patient’s needs until the end of their shift.

The Alabama Court of Civil Appeals ruled that the while the coming and going rule may be applicable, the subject case fell within an exception to the rule, “when and employee, during his travel to and from work, is engaged in some duty for his employer that is in furtherance of the employer’s business.” See Tucker v/ Die-Matic Tool, Co., 652 So. 2d 263, 265 (Ala. Civ. App. 1994). The Court of Appeals ruled that at the time of the accident the employee was still acting in furtherance of the employers business affairs and the deviation to pick of the prescription was not substantial and had ended at the time of the accident, therefore, the accident arose out of and occurred in the course of her employment. The factors they pointed to are as follows: 1) The employee was required to be available until 4:40 p.m. and the accident happened before that; 2) The employer furnished the employee with a cell phone and laptop; 3) The employer encourage the employee to do charting from her home or another location and actual discourage returning to the office to do it; and 4) The employee had not requested to leave before 4:30 p.m. as required if she wanted to do so. Therefore, they found the employee’s journey home was in furtherance of the employer’s business and she was still fulfilling her duties.

In addressing the set-off issue the Alabama Court of Civil Appeals pointed out that the employer was arguing that workers’ compensation was not designed for double recovery and for the employee’s dependants to receive the employer provided death benefits, as well as workers’ compensation death benefits, would amount to double recovery. The Court said that was true as to third party liability cases. The employer’s argument on this issue focused on §25-5-57(c)(1), which says if the employer paid for the benefits or plan, the employer may reduce the amount of benefits paid under worker’s compensation pursuant to the amount of benefits paid under the disability, retirement or another plan providing for sick pay, and/or §25-5-57(c)(3), which says if an employer continues salary or similar benefit of an injured employee during the benefits period, the employer can set of both of which reference an employer being entitled to a set off in weeks against the compensation owed. As for §25-5-57(c)(1), the Court of Appeals stated it did not apply because the life insurance and accidental death benefits were not a disability plan, retirement plan or another plan providing for sick pay. As for §25-5-57(c)(3), the Court of Appeals stated the plain language of the statute applied to an “injured employee” during weeks salary or similar benefits were continued while the employee could not work, not a deceased employee.

As to the issue concerning the amount of burial expenses, the employee conceded the trial court was in error awarding $6,500.00 so the Court of Appeals did not address it and instructed the trial court to award the appropriate amount under the Act.

MY TWO CENTS

As far as the burial expenses, I would suspect that the amount was reduced to $3,000.00 because that was the applicable amount at the time of the accident, even though $6,500.00 was the applicable amount at the time of the trial.

ABOUT THE AUTHOR

This article was written by Joshua G. Holden, Esq. A member of Fish, Nelson & Holden, LLC, a law firm dedicated to representing employers, self-insured employers and insurance carriers in worker’s compensation and related liability matters. Mr. Holden is AV rated by Martindale-Hubbell, which is the highest rating an attorney can receive. Holden and his firm are members oft he National Worker’s Compensation Defense Network (NWCDN). The NWCDN is a national network of reputable law firms organized to provide employers and insurers access to the highest quality of representation in workers’ compensation and related employer liability fields. If you have any questions about this submission or Alabama workers’ compensation in general, please contact Holden by emailing him at jholden@fishnelson.com or calling him directly at 205-332-1428.

A national conversation on workers’ compensation took place this month. It was a two day event
where regulators, judges, insurance professionals, academics, union reps, lawyers, and medical
professionals met to correct flaws in the worker’s compensation system. It was so productive, that
a follow up meeting is planned for some time in June or July to take place via telephone. While
there were some complaints that the meeting was secretive, a list of attendees and notes from the
event will be published soon.

An investigation by the Bureau of Alcohol, Tobacco, Firearms and Explosives and the Texas State
Fire Marshal’s Office revealed that the April 2013 explosion at a fertilizer plant in West, Texas was
intentionally set. This tragic fire claimed 15 lives and injured hundreds more. The operator of the
plant did not carry workers’ compensation insurance; however, because the fire was the result of an
intentional act of a third party, the carrier would not have been liable even if the operator had
coverage.

After receiving comments from system participants, Commissioner Brannan approved a revised
Compound Medications Plan-Based Audit on April 28, 2016. The audit will look at prescribed
compounds that were filled from September 1, 2014 through August 31, 2015. The goal of the audit
is to: (1) promote the delivery of quality health care in a cost-effective manner; (2) ensure that
doctors adhere to the ODG and medically accepted standards of care when prescribing compound drugs; and (3) determine the appropriateness of medical decision making regarding prescription of
compound drugs.

Our little birds tell us that Hearing Officer Tom Hight has replaced Cheryl Dean as the North Texas
Team Lead. Congratulations, Judge Hight!
We’ve also heard a rumor that Brenna Arredondo, who rose to prominence as a Customer Service
Representative, is currently training to be the new permanent Benefit Review Officer in the Austin
Field Office. We’re saddened to lose Ms. Arredondo in the customer service role, but we look
forward to working with her as a Benefit Review Officer.

A claimant cannot bring a declaratory judgment action with an action for judicial review. The
claimant filed suit against the carrier seeking judicial review of the Division’s determination that
her injury was no longer compensable based on an injurious practices defense. She also sought a
declaration that the injurious practices defense is not a proper defense under the Workers’
Compensation Act. The claimant brought suit against the carrier, but the Division intervened in the
suit as a necessary party to the declaratory judgment action, which it considered “an impermissible attempt to control state action.” The Court dismissed the declaratory judgment action and held that
it was barred by the doctrine of sovereign immunity. The Court noted that the claimant did not
challenge the validity of a statute, but rather its interpretation.
Tex. Dept. of Ins. v. Green, 2016 WL 2745063 (Tex. App.—Houston [1st Dist.] 2016).
A different Court of Appeals has also held that a claimant cannot bring a declaratory judgment
action with an action for judicial review. The claimant sought judicial review of the Division’s
determination that he was not a covered employee at the time of injury and that his injury was not
compensable. He also sought declarations that he was a covered employee, regarding various
provisions of the client contract at issue, and that a worker becomes a covered employee when
certain criteria are met. The claimant brought suit against the carrier, the Division, and the
Commissioner for all claims asserted. The Court held that the judicial review claims were barred by sovereign immunity as against the
Division and the Commissioner, and that no exception applied. Concerning the declaratory
judgments, the Court held that sovereign immunity bars claims against the state that seek
interpretation of a statute, as opposed to challenging the validity of the statute, and the claimant only
sought interpretation of a statute. It held that the claims against the Commissioner did not allege an
ultra vires act, as they challenged a discretionary act only – the decision to deny the claim for
compensation, and were thus barred. It held that, even ignoring sovereign immunity, the remedies
sought by the declaratory judgments were redundant, and in fact identical, to the relief sought in the
judicial review action. Lastly, the Court held that a declaration sought regarding when any worker
becomes a covered employee is not ripe for adjudication, as it concerns the rights of other workers
not before the Court. All claims against the Division and the Commissioner were dismissed.
Texas Dept. of Ins. v. Brumfield, 2016 WL 293380 (Tex. App.—San Antonio 2016).

The Labor Code limits an injured worker’s eligibility for income benefits to 401 weeks from the date
of injury. The injured worker in this case did not receive a certification entitling him to IIBs until
423 days after the date of injury. The carrier argued that he was thus ineligible to receive any IIBs.
The injured worker argued that the statute should be interpreted to mean that an injured worker
cannot receive more than 401 weeks of income benefits total. The Court sided with the injured
employee and found that the maximum number of weeks of income benefits, including TIBs, IIBs,
and SIBs, that an injured worker can receive is 401, but that benefits can be paid after 401 weeks
from the date of injury.
Tex. Mut. Ins. Co. v. McGahey, 2016 WL 2753981 (Tex. App.—San Antonio 2016).