NWCDN Members regularly post articles and summary judgements in workers’ compensations law in your state.
Select a state from the dropdown menu below to scroll through the state specific archives for updates and opinions on various workers’ compensation laws in your state.
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PENNSYLVANIA EDITS IMPAIRMENT RATING EVALUATIONS
By Kevin L. Connors, Esquire
“We cannot solve our problems with the same thinking we used when we created them”, citing Albert Einstein.
On September 18, 2015, the Pennsylvania Commonwealth Court invalidated an Impairment Rating Evaluation that had been conducted under Section 306(a.2) of the Pennsylvania Workers’ Compensation Act, concluding that the Impairment Rating Evaluation at issue was invalid, as the IRE had been conducted under the Sixth Edition of the AMA Guides to the Evaluation of Permanent Impairment, when the IRE was not conducted in reliance upon the “most recent edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment’’, when the “most recent edition” of the AMA Guides, when Section 306(a.2) of the Act was enacted, in 1996, was the Fourth Edition, not the Sixth Edition, which is the most current, or, if using English literally, is the “most recent” edition of the AMA Guides.
WTH?
The case decided by the Commonwealth Court was Protz v. WCAB, decided on September 18, 2015.
The Opinion was written by the President Judge, Pellegrini.
The undisputed facts were that the Claimant was injured in 2007, that her injury involved an injury to her right knee, that she initially received temporary compensation benefits, followed by a suspension of compensation benefits when she returned to work, and a subsequent reinstatement of her workers’ compensation benefits, due to a recurrence of her work injury.
Consistent with Section 306(a.2), the Employer requested that an IRE physician be designated, with the designated IRE physician then finding that the Claimant’s Impairment Rating was 10%, in reliance upon the Sixth Edition of the AMA’s Guides to the Evaluation of Permanent Impairment.
A prior IRE of the Claimant, performed in 2009, resulted in the determination that the Claimant had not reached maximum medical improvement, with the Employer filing a Notice of Change after the Claimant’s second IRE in 2011.
In response to the Notice of Change, the Claimant filed a Petition to Review, claiming that her injury had been incorrectly described, as well as challenging the unilateral conversion of her temporary total disability benefits.
The Claimant’s Review Petition was ultimately granted, with the Workers’ Compensation Judge finding that the Employer was not entitled to automatically convert the Claimant’s total disability benefits to partial disability benefits, resulting in the Notice of Change being set aside.
The Employer then filed a Modification Petition, seeking to convert the Claimant’s temporary total disability benefits to temporary partial disability benefits.
The Employer’s Petition was ultimately granted by the Workers’ Compensation Judge, finding the Claimant’s Impairment Rating was less than 50%, resulting in the Claimant’s compensation benefits being converted from temporary total to temporary partial disability benefits.
The Claimant appealed that Decision to the Appeal Board, with the Appeal Board affirming the Judge’s Decision, finding that constitutionality challenges to Section 306(a.2) had been addressed by the Commonwealth Court inJohnston v. WCAB, 982 A.2d 1253 (Pa. Cmwlth. 2009), in which it had been determined that the Claimant’s constitutional rights to due process were not violated by IRE procedures.
The Claimant next appealed to the Commonwealth Court, challenging the constitutionality of Section 306(a.2) of the Act, arguing that it was an unconstitutional delegation of legislative authority.
In support of Claimant’s constitutional challenge, the Claimant argued that the “most recent” edition of the AMA Guides was the Fourth Edition when the Act was amended to allow IREs, and that the AMA Guides had undergone two revisions since the Fourth Edition, with each subsequent edition providing substantially different standards than those set forth in the Fourth Edition, potentially resulting in Claimants, who would have been considered more than 50% impaired under the Fourth Edition, to be less than 50% impaired under the Sixth Edition.
Arguing in support of the validity of the IRE, the Employer argued that the constitutional challenge argument had already been previously addressed by prior Court Decisions, which had decided that Section 306(a.2) did not constitute an unlawful delegation of legislative authority under Stanish v. WCAB, 11 A.3d 569 (Pa. Cmwlth. 2010), as well as underWingrove v. WCAB, 83 A.3d 270 (Pa. Cmwlth.), appeal denied, 94 A.3d 1011 (Pa. 2014).
Determining that the Legislature had failed to prescribe any intelligible standards to guide the AMA’s determination regarding the methodology being used in grading impairment under Section 306(a.2), with the Commonwealth Court finding that Section 306(a.2) was “wholly devoid of any articulations of public policy governing the AMA in this regard and of adequate standards to guide and restrain the AMA’s exercise of this delegated determination by which physicians and WCJs are bound”, the Commonwealth Court held that Section 306(a.2) only requires IREs to be conducted under the “most recent version of the AMA Guides”, in the course of determining a Claimant’s Impairment Rating, and the Court found, in reliance upon that basis alone, that Section 306(a.2) of the Act was unconstitutional, resulting in the IRE in Protz being invalidated.
Determining that Section 306(a.2) lacked a mechanism requiring governmental review of the Guides with the promulgation of supporting regulations, the Commonwealth Court determined that the delegation of Legislative/regulatory authority, in terms of which Impairment Rating Standards should be utilized, was being referred to a private party, the AMA, and not to a governmental agency, in violation of constitutional requirements.
So holding, the Commonwealth Court has issued the following ORDER:
“AND NOW, this 18th day of September, 2015, upon finding Section 306(a.2) of the Workers’ Compensation Act, Act of June 2, 1915, P.L. 736,as amended, 77 P.S. §511.2, added by the Act of June 24, 1996, P.L 350, an unconstitutional delegation of legislative authority insofar as it purports to adopt a new version of the American Medical Association’sGuides to the Evaluation of Permanent Impairment (Guides), the order of the Workers’ Compensation Appeal Board dated May 22, 2014, in the above-captioned case is vacated. This matter is remanded to the Workers’ Compensation Appeal Board with instruction to remand further to the Workers’ Compensation Judge to apply the Fourth Edition of theGuides in effect when the provision was enacted in adjudicating Derry Area School District’s petition to modify benefits.
Jurisdiction relinquished.”
Yes, there was a Dissent, authored by Judge Simpson. The Dissent argues that the General Assembly delegated initial Impairment Ratings to independent, Pennsylvania-licensed, board-certified, and clinically-active physicians, with the ultimate resolution of the impairment rating issues being determined by impartial Workers’ Compensation Judges after a full adjudicative process.
That is not the complete picture, but certainly one that we would be happy to continue living under.
Judge Simpson’s Dissent begins with the premise that “legislative enactments enjoy a strong presumption that they do not violate the Constitution”, underWingrove.
In reliance thereupon, Judge Simpson argues that the General Assembly delegated the initial determination of Impairment Ratings to impartial, Pennsylvania-licensed, board-certified, clinically-active physicians, and that the AMA itself does not participate in conducting Impairment Ratings under the Act.
Moreover, the General Assembly had provided numerous standards to guide Impairment Rating decisions made by physicians, of which one standard was the most recent edition of the AMA Guides.
For that reason, Judge Simpson did not believe that the legislative deference to the AMA’s professional expertise in periodically updating complex medical standards in the AMA’s Guides amounted to an unconstitutional delegation of legislative power, such that the updated editions should have been legally sufficient to support determinations made by impartial physicians conducting Impairment Rating Evaluations.
No less true, when the Employer must litigate a Modification Petition to support converting the Claimant’s disability benefit status from temporary total to temporary partial disability benefits, the Impairment Rating is simply evidence, in a proceeding ultimately determined by an impartial Workers’ Compensation Judge, concerning impairment issues.
As such, the issue of impairment is a disputed issue, subject to controverting evidence.
A second Dissenting Opinion is authored by Justice Covey, who also did not believe that the Majority had correctly invalidated the IRE inProtz, as Covey argued that the Majority’s Decision directly contradicted and effectively overruled anen banc Decision by the Pennsylvania Commonwealth Court in Pennsylvania Builders Association v. Department of Labor and Industry, 4 A.3d 215 (Pa. Cmwlth. 2010), wherein it was held that the General Assembly would not be expected to enact laws that would keep abreast of every advance in science and invention, as that is an unreasonable burden to impose upon the General Assembly.
So, what do you do now?
Well, in all likelihood, any IREs that are in the pipeline, are ones that were conducted under the Sixth Edition of the AMA’s Guides, because that is what everyone has been doing, as more recent Editions of the AMA’s Guides have come out, the “more recent” Guides have been the ones that have been used by the IRE-designated physicians to conduct IREs.
Who knew?
Well, with kudos to Claimant’s Counsel for a clever procedural argument in Protz, the presumption is that the Protz Decision will be appealed to the Pennsylvania Supreme Court, with it being expected that the Commonwealth Court will be overturned, with the Supreme Court holding that the “most recent edition” is actually what it sounds like, the last in time.
If that is the case, then invalidated IREs under Protz become validated IREs.
In the interim, the Protz Decision would at least support the argument that any IREs to be conducted prior to the Pennsylvania Supreme Court overturningProtz should be done in reliance upon the Fourth Edition, not the Sixth Edition, of the AMA’s Guides, but who actually knows?
At least for the immediate future, until this issue is resolved by the Pennsylvania Supreme Court, theProtz Decision clearly seems to mandate that the validity of an IRE is dependent upon it being conducted in reliance upon the Fourth Edition, and not the Sixth Edition, of the AMA’s Guides.
Who knows if the Fourth Edition is still even available to IRE physicians?
“Those are my principals, if you don’t like them… well, I have others”, citing Groucho Marx.
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.
Employers always struggle with this dilemma: if a claimant receives an award for knee surgery related to a repair of a torn meniscus, does that mean that future knee treatment for arthritis in the knee must be the responsibility of the employer? This issue arises often when the subject at issue is a possible total knee replacement. The case ofWake v. Township of Toms River, A-5876-13T2 (App. Div. September 16, 2015) provides guidance.
The petitioner, Jan Wake, received an award for the knee following a surgery to remove the posterior horn and the entire middle portion of the lateral meniscus. Petitioner had preexisting arthritis in the knee. The award that was entered in court referred to the work accident causing an “acute exacerbation of bi-compartmental degenerative joint disease.” Several years later the petitioner reopened the case seeking further treatment related to arthritic problems in the knee.
Petitioner argued that the language of the prior order in referring to an “acute exacerbation of bi-compartmental degenerative joint disease” required the Township to accept future knee treatment because the language meant that the underlying condition of arthritis had been worsened. Petitioner’s expert said that the removal of the posterior and lateral meniscus removed all of the shock absorbers between the two arthritic bones. That materially exacerbated petitioner’s preexisting arthritis.
Respondent’s expert disagreed. He said that the petitioner’s need for knee treatment is causally related to the prior degenerative arthritic condition and not the work related injury. The expert further said that petitioner “would be suffering from the same symptomology had the work-related injury not occurred.”
The Judge of Compensation, the Honorable Ronald Allen, held that petitioner’s knee condition was degenerative in nature and agreed with respondent’s expert that the deterioration in the knee was due solely to advancing arthritis unaffected by the meniscal repair surgery. The Judge dismissed the claim petition and petitioner appealed.
The Appellate Division affirmed the dismissal of the case:
It is well settled that a worker seeking benefits based upon increased incapacity bears the ‘burden of proving by a preponderance of the evidence not only the fact of increase but also that it is causally related to the original accident and resulting injury.’
The Appellate Division found that there was sufficient credible evidence to support Judge Allen’s reasoning.
This case is important for employers and defense practitioners because it is widely assumed that if someone with an arthritic knee has work-related surgery to repair a meniscal tear, this automatically means the employer must pay should the knee condition decline and require a total knee replacement. But total knee replacement is generally due to severe arthritic conditions, not meniscal tears. Petitioner has the burden of proving that the surgery to repair the meniscus in some way contributed to the worsening of the arthritic condition. In this case, the language of the prior award did not help the employer because it referred to an acute exacerbation of bi-compartmental degenerative joint disease. Nonetheless, the employer won no doubt in part to solid testimony from its expert.
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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 the past month three clients have asked what they should do when there is a third party award larger than the comp award and the adjuster needs to pay a permanency award. For example: the claimant recovers $750,000 in a third party law suit. The total medical and temporary disability benefits are $150,000, and the permanency award is 50% of partial total at 2013 rates or 300 weeks at $551 per week for a total of $165,300. The claimant has already repaid $100,000 minus $750 for costs of suit to resolve the lien on the medical and temporary disability benefits. Now only the permanency award needs to be paid. Does the adjuster pay the permanency award over 300 weeks or does the adjuster pay one lump sum to the claimant?
This situation happens quite frequently, and the answer to the question can be found in the case ofOwens v. C&R Waste Material, 76 N.J. 584 (1977). That case involved an award in workers’ compensation for total and permanent disability benefits; however, the third party recovery was higher than the total workers’ compensation payments. The employer argued that the payments for permanency should be made over 450 weeks. The employee argued that the adjuster should pay one third of the permanency amount due in one check.
First, the New Jersey Supreme Court made clear that in a situation where the third party award is larger than the total workers’ compensation benefits,the employer is relieved of all liability to the claimant, other than to pay the employer’s share of the attorney’s fee in the third party case. That percentage is usually one third. That point must be emphasized because it means that the employer is not really paying workers’ compensation benefits in this situation: the employer is just reimbursing petitioner for counsel fees.
Next, the court dealt with the argument that it is unfair to require the employer to accelerate the permanency payments in one lump sum because the employee might die during the period of the payments of total and permanent disability. The employer further argued that if the employee should die during the period of permanency payments and not be survived by dependents, then all the employer would have to pay is a contribution to funeral expenses.
The Supreme Court rejected the employer’s argument:
We disagree and conclude that the legislative intent as expressed in N.J.S.A. 34:15-40 is that the computation of the employer’s pro rata share of the attorney’s fee in the third party recovery should be based on the potential compensation liability from which it has been released and does not depend on the happenstance of whether such liability were to terminate prematurely.
The Court added, “Since the obtaining by the employer of this tangible benefit coincides with the third-party recovery, it follows that the obligation to share legal expenses attributable to that recovery should be satisfied at the same time those expenses are borne by the employee.”
So, let’s go back to the initial example above. Does the employer pay $551 per week over 300 weeks reduced by two thirds or does it just issue one lump check in the amount of $55,100, which is one third of $165,300? Under the rationale ofOwens, the answer is the employer pays one lump sum check for $55,100. It does not make the payments over a period of 300 weeks.
While it is true that Owens was a claim for total and permanent disability, the rationale should be the same whether the award is for partial or total permanent disability. The point is that the employer is not paying the employee workers’ compensation benefits. It is reimbursing the employee for its share of counsel fees, and the Supreme Court felt that this should be done
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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.
Key City Transport, Inc. and Great West Casualty Co. v. James Delire, Court of Appeals of Iowa, No. 14-1755
Claimant, James Delire, was hired by Key City Transport as an over-the-road driver and commenced work on May 23, 2008. During his third week, Claimant was injured while unloading large windows.
Dr. Setter diagnosed Claimant with a severe right shoulder sprain and cervical and thoracic sprains. Dr. Mendel then diagnosed Claimant with a possible slap lesion with a labral injury or impingement. Dr. Mendel proposed arthroscopic surgery. Surgery was performed in February 2009. Following additional treatment and therapy, Dr. Mendel recommended a second shoulder surgery, which he performed in February 2010. Dr. Mendel also performed a right carpal tunnel release, a right cubital tunnel release, a right arthroscopic glenohumeral joint and labral debridement and synovectomy, a right shoulder bio-tenodesis, and another subacromial decompression. Claimant met with Dr. Mendel in August 2010. Dr. Mendel opined Claimant had reached MMI and released him without any work restrictions.
Claimant began to experience pain in his left shoulder from overcompensation. In June of 2011, Claimant was told by Key City to make a ten-hour trip to Michigan. Claimant became upset and emotional. Bitter told Claimant to obtain a letter from a mental health professional opining he was able to drive. Claimant attempted to obtain mental health treatment, but the workers’ compensation carrier did not approve the sought-after treatment. Claimant never performed any work for Key City after this time.
On June 26, 2011, Claimant filed his arbitration petition for the injury occurring in 2008. On February 12, 2012, Claimant filed a petition for alternate care and requested another appointment with Dr. Mendel. Dr. Mendel recommended another MRI, which revealed a small full-thickness tear of the rotator cuff. Great West denied the claim as not being work related. Claimant followed up with Dr. Mendel, who did not recommend surgery at that time. Dr. Mendel noted Claimant seemed depressed, and Dr. Mendel recommended a psychiatric evaluation. Key City scheduled a psychiatric IME with Dr. Jennisch. Dr. Jennisch concluded Claimant had an adjustment reaction with a combination of depressive and anxious features. Claimant requested Great West authorize mental health treatment, but it was not authorized.
The deputy commissioner issued an arbitration decision in September 2013. The deputy found Claimant’s left shoulder injury was “a sequela from compensating for the right shoulder injury.” The deputy concluded it was not possible to evaluate Claimant’s industrial disability because it was “highly doubtful claimant has actually reached maximum medical improvement.” The deputy awarded running healing period benefits “until such time as the requirements for termination of healing period benefits are met.”
Key City appealed. The appeal decision adopted the arbitration decision except the commissioner recalculated Claimant’s weekly compensation rate. The commissioner explained the record did not contain evidence of any weeks of work representative of Claimant’s earnings, but Claimant had been told that similarly-situated drivers earned $70,000 to $75,000. Thus, the commissioner concluded that claimant’s weekly compensation rate should be based on an annual income of $70,000.
Key City petitioned for judicial review, challenging the weekly benefit rate, medical causation, and the award of healing period benefits. Claimant filed a crosspetition, challenging the commissioner’s determination of the weekly benefit rate. The district court affirmed the agency’s findings regarding medical causation and the award of healing period benefits. The district court reversed the agency’s calculation of the weekly benefit rate, explaining the process used could not be upheld “as either rational, logical, or justifiable.” The court remanded to the agency “to undertake the proper analysis of the facts contained within the record already made in coming to a proper rate calculation.” Claimant timely appealed, and Key City cross-appealed.
Key City contends the district court erred in affirming the deputy commissioner’s findings of fact and conclusions of law regarding medical causation and in affirming the deputy’s award of running healing period benefits. The Court of Appeals emphasizes that the relevant question is not whether the evidence would support a different finding, the relevant question is whether substantial evidence supports the finding actually made. The Court concludes that it does. It notes that Dr. Robin Epp, who conducted an IME, found that Claimant’s cervical and thoracic spine injuries were causally related to his work injury and also that Claimant’s shoulder injuries were linked to the work injury. Also, the agency relied on Dr. Jennisch’s determination that Claimant’s work injury was a substantial factor in causing Claimant’s mental health condition.
As to the healing period benefits, the Court of Appeals notes that the agency awarded Claimant healing period benefits for several periods, including running healing period benefits from and after June 15, 2011. The agency made the award based on several considerations. First, Claimant did not successfully return to work. His routes were limited in distance. He did not perform loading and unloading. His employer precluded him from driving without a release from a mental health professional. Second, the agency found that Claimant had not in fact reached MMI. The agency found Claimant had physical and mental health conditions untreated and relevant to an industrial disability determination. As such, the Court concludes the agency’s findings on the issue of healing period benefits are supported by substantial evidence and its application of the facts to the law was not irrational, illogical, or wholly unjustifiable.
Claimant contends the district court erred when it overturned the commissioner’s weekly rate calculation. The Court of Appeals agrees with the district court in finding that the commissioner’s use of hypothetical annual earnings to obtain weekly earnings cannot be upheld as rational, logical, or justifiable when the acceptable methods of determining Claimant’s weekly earnings are set forth by statute. The record does not contain any evidence of the earnings of “other employees in a similar occupation.” Nor does it contain evidence of any representative week “had the employee worked the customary hours for the full pay period in which the employee was injured, as regularly required by the employee’s employer for the work or employment for which the employee was employed.”
The Court of Appeals therefore affirms the judgment of the district court.
Call Mark Bosscher or Lee Hook with any questions @ 515-243-2100. We’d be happy to help, whether it be a quick or a complex issue!
Ex parte Ward International
Released September 4, 2015
The Employer, Ward International, filed a Petition for Writ of Mandamus after the Circuit Court of Mobile County entered and ordered, upon motion by the Employee, Wesley Shows, requiring the Employer to pay for erectile dysfunction (ED) medication order by the authorized treating physician.
The Employee and Employer had entered into a settlement related to a compensable lower back injury. The settlement left the issue of future medical benefits open. In March of 2015 the authorized treating physician, Dr. Wayne Cockrell, prescribed time release medication to be ingested every day to treat the Employee’s ED. The Employer deny the request and the Employee filed a motion with the trial court requesting that they enter an order requiring the Employer to pay for the ED medication. The motion included an opinion from Dr. Cockrell that the Employee suffered from chronic pain that required narcotic analgesics, and that ED can certainly be associate with chronic pain and the use of narcotic analgescis.
In its petition the Employer did not argue that it was entitled to an evidentiary hearing pursuant toEx parte Publix Supermarkets, Inc, 963 So. 2d 654 (Ala. Civ. App. 2007), nor did the Employer argue that the medication was reasonable necessary to treat the ED which resulted from the compensable accident/injury. The Employer relied solely on Rule 480-5-5-.15(15) of the Alabama Administrative Code, which is a regulation put into effect by the Alabama Department of Labor.
According to Rule 480-5-5-.15(15), which states it was promulgated pursuant to Ala. Code §25-5-293, the employer is responsible for ED medication when the employee suffers fromorganic ED that resulted from a compensable on the job injury. The rule further states that psychological or psychiatric ED are notorganic ED. The Department of Labor included 6 conditions that may cause organic ED: 1) Spinal cord injuries; 2) Injuries to genital and lower Urinary Tract; 3) Severe fracture fo the pelvis resulting in injury to the bladder or urethral pelvic nerve; 4) surgery of the genital or lower urinary tract; 5) removal of rectum causing injury to the nerves or vessels; or 6) any surgery that might interfere with the pelvic nerves or circulations. The Regulation goes on to state that the Employer is only responsible for 5 tablets per 30 days if treatment is for an accepted claim, one of the 6 conditions above are met, a urologist has evaluated the employee and determined he suffers fromorganic ED and a letter is received stating the medication for the ED is medically necessary.
The Alabama Court of Civil Appeals noted that, in this case, it was undisputed that the Employee did not suffer from one of the 6 conditions and a urologist had not evaluated him and determined he hadorganic ED. It was also undisputed that more than 5 tablets per 30 days was prescribed by Dr. Cockrell.
The Court of Civil Appeals first pointed out that while not clear, Rule 480-5-5-.15(15) appears to be a policy determination issued by the Department of Labor as to when ED will be compensable. The Court further noted that Rule 480-5-5-.15(15) was promulgated pursuant to §25-5-293, Ala. Code 1975, which states that insurance carriers and self-insured employers can adopt utilization review and engage in medical necessity determination, if conducted pursuant to policies, guidelines and regulations approved by the Department of Labor and Workers’ Compensation Medical Services Board.. In Overnite Transp. Co. v. McDuffie, 933 So. 2d 1092, 1098 (Ala. Civ. App. 2005), the Alabama Court of Civil Appeals ruled that a regulation promulgated pursuant to §25-5-293 which required an employer’s approval of all proposed referrals by the authorized treating physician did not override §25-5-77(a), which states employer’s are responsible for reasonably necessary medical treatment for injuries resulting from an accident that arose out of and occurred in the course of the employment.
Based on the holding in Overnite Transport, the Alabama Court of Civil Appeals ruled that Rule 480-5-5-.15(15) related to ED did not override §25-5-77(a). Therefore, since the evidence showed, and the Employer did not argue otherwise, that the ED was related to the work injury and the medication was reasonably necessary, the Court held that the Employer’s Petition was due to be denied.
Of note, The Alabama Court of Civil Appeals stated in a footnote to this opinion that the Alabama Workers’ Compensation Act provides for coverage of psychological or psychiatric conditions related to a physical injury. Therefore, it seems that the Court would find, if the issued presented itself, that §25-5-1(9) would provide coverage for psychological or psychiatric ED despite Rule 480-5-5-.15(15) stating otherwise.
My Two Cents:
Whenever there is a prescription for ED medication, it is advisable to focus on whether it is related and if the medication is reasonably necessary. You might consider having a urologist determine if the employee actually suffers from ED and provide an opinion as to the cause. You can also have the doctor weigh in on the reason for time release medication versus a tablet that could be taken as need with it being limited to 5 per 30 days. If the doctor opines that there is no medical reason for the time release medication, then it may be possible to argue that it is not reasonably necessary. Once you take §25-5-77(a) out of the equation, the Rule 480-5-5-.15(15) would apply which limits the employee to 5 tablets per 30 days for ED.
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ABOUT THE AUTHOR
The 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 workers’ 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 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.
New Jersey has a statute of limitations for occupational disease claims. In Rajpaul v. McDonald’s Corporation, A-4681-13T4 (App. Div. August 28, 2015), the proper application of the statute became the issue on appeal.
In this case, the petitioner worked as a maintenance person from August 1995 until November 2005 at McDonald’s. He began to have pain in his shoulders, wrists, and elbows in 1999. He sought medical treatment at Somerset Family Practice and was referred to Somerset Orthpedic Associates where he was diagnosed with bilateral bicipital tendonitis in 2001.
For the next four years petitioner continued to work at McDonald’s. In June 2005, he returned to Somerset Family Practice for treatment of his left shoulder. In November he left McDonald’s to work elsewhere. In June 2006, petitioner was diagnosed with a left shoulder rotator cuff tear and underwent surgery to repair the tear.
On December 14, 2006 petitioner filed a claim petition against McDonald’s alleging that occupational duties over 10 years caused his rotator cuff tear. McDonald’s moved to dismiss and argued that petitioner had failed to file within two years from when he knew the nature of his condition and thought that it was due to work. The Judge of Compensation granted the motion, and petitioner appealed.
On appeal, petitioner argued that the two-year statute of limitations should not have run in his case because he did not know he had a rotator cuff tear until 2006. While he did know he had shoulder problems as far back as 2001, he was never told he had a rotator cuff tear. Respondent argued that his condition was simply a progressive one due to tendonitis.
The Appellate Division sided with petitioner. “We agree with the compensation judge that petitioner knew of his prior diagnosis of tendonitis as early as 2001. Even so, we disagree with the compensation judge’s determination that petitioner had sufficient knowledge of a torn rotator cuff, based on previous treatment for tendonitis, to trigger the statute of limitations under N.J.S.A. 34:15-34.”
The Court in this case felt that the statute cannot run on a rotator cuff tear condition via a prior diagnosis of tendonitis because these are two completely different medical conditions. The case is helpful for practitioners in deciding when there is a valid statute of limitations defense. At a minimum, the medical condition at issue must have been diagnosed sometime in the past, and it must be the same medical condition that is presently at issue for the employer to win a statute of limitations defense.
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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.
Our new Commissioner made some personnel changes at DWC. Barbara Salyers is the new Chief
Deputy. Her stated job duties are management and oversight of DWC operations and liaison with
TDI-Hobby administration and operations. Amy Lee and the Research and Evaluation Group now
report directly to Ms. Salyers. Patricia Gilbert, former Executive Deputy Commissioner for
Operations retired and Joe McElrath is now the Deputy Commissioner for Business Process, a
position similar to that previously held by Ms. Gilbert. Kathy McMaster will serve in a new position
called Deputy Commission of Claims and Customer Services (previously Field Operations). Kristen
Harmon is the new Director of External Relations. It remains to be seen what the impact of all of
these changes will be, but we will continue to keep an eye on things over at the Division.
We think it bears repeating that effective October 1, 2015, the Division is making the transition from
ICD-9 to ICD-10. The Division has a video to help participants with this transition at:
www.tdi.texas.gov/wc/hcprovider/icd10.html. As we mentioned in July, the Division has not
provided guidance on how carriers should process bills submitted with ICD-9 codes for dates of
service after 10-1-15 and has not provided any guidance to stakeholders regarding many issues that
are expected to arise. Hopefully we can update you in September. It could be quite a mess.
The Division education conferences will be held in Austin and Dallas this again this fall. The Austin
conference will be September 18 at the Renaissance Austin Hotel and the Dallas conference will be
October 9 at the Renaissance Dallas-Richardson Hotel. The Division offers continuing education
credit for adjusters. For more see: www.tdi.texas.gov/wc/events/edconference.html.
The short answer? It depends....The California Labor Commission ruled that an Uber driver who
filed a claim against the company was an employee. That ruling was limited to the facts of the
specific case in question, but could have ramifications for Uber drivers nationwide. On the opposite
coast, a New Jersey workers’ compensation judge ruled that a limousine driver in a business not
unlike Uber was an independent contractor. As the nature of the workforce continues to change in
the “gig” economy, many question whether worker protections fashioned for traditional full-time
workers provide adequate protection for the less traditional employment relationships. In Texas,
the real question is whether the company has the right to control the work performed by the
individual in question. There are currently no pending Uber-related cases in Texas. Stay
tuned..........