State News

David Gray was working as a truck driver for UPS when he suffered a fatal heart attack. The claim was denied and, after a hearing, the Deputy Commissioner found the death compensable. The Full Commission affirmed. InGray v. UPS, 713 S.E.2d 126 (2011), the Court of Appeals affirmed in part and remanded the case to the Full Commission to enter findings on whether Defendants had successfully rebutted thePickrell presumption. Decedent’s widow filed a Petition for Discretionary Review and Petition for Writ of Certiorari to the North Carolina Supreme Court, both of which were denied. The Full Commission then entered an Opinion and Award denying the Mrs. Gray’s claim for death benefits and she appealed.

On March 19, 2013, in Gray v. United Parcel Service, Inc.,the Court first considered whether the Full Commission erred in concluding that decedent’s death was not compensable. In rejecting this argument, the Court found that the decedent’s autopsy listed the cause of death as coronary atherosclerosis, and Defendants’ expert witness opined that decedent’s fall from his work truck did not cause or contribute to his heart attack. The Court also noted that no evidence was presented that a fall was an accepted cause of a heart attack and as such, the evidence supported the Commission’s finding and conclusion that Mrs. Gray failed to carry her burden of proof to show that her husband’s death was the result of an accident arising out of the course and scope of his employment.

The Court also addressed the issue of whether the Full Commission applied the correct medical causation standard in concluding that Mrs. Gray’s medical expert’s testimony was speculative. The Court recounted that Mrs. Gray’s medical expert admitted that he did not have a medical explanation for Decedent’s fall and the Commission, therefore, reasonably concluded that her expert testimony was speculative and properly relied on medical evidence presented by Defendants.

Risk Handling Hint:

While the Court initially remanded the Gray case back to the Full Commission to consider whether Defendants had successfully rebutted thePickrell presumption, their subsequent holding inGray is yet another reminder that the Full Commission can weigh evidence and make credibility determinations that will not be disturbed on appeal so long as there is some evidence to support the Commission’s findings and conclusions.

The 28th Annual Workers’ Compensation Institute was held on April 19 & 20 at the Minnesota CLE Conference Center. This content rich event featured sessions on significant cases, legislative changes, updates from OAH and DOLI, workplace violence, aging workforce, and more subjects covered in multiple break-outs.

Cousineau McGuire’s Mark Kleinschmidt presented Landmines in Drafting Stipulations for Settlement.

Thomas Kieselbach is speaking on a panel at this year's Minnesota Workers' Compensation Symposium. He will be joined by others from SECURA Insurance and US Bank discussingRun Away Litigation Cost.

Cousineau McGuire will also be exhibiting at the event which draws hundreds of claims adjusters annually. This Symposium will take place Wednesday, May 8 at the Minneapolis Marriott Southwest. For more information on this conference, please visit the website for the  Minnesota Workers' Compensation Symposium.

Risk Handling Hint - Written Notice; Reasonable Excuse; Actual Knowledge

In the course of bringing coffee and doughnuts to a morning meeting in 2006, James Yingling’s car was hit by another driver who ran a red light. Yingling called his supervisor and the branch manager, who both came to the scene of the accident, and later reported the accident to his manager in Charlotte. However, Yingling never gave Bank of America any written notice of the accident. Later that day, Yingling began feeling back pain and sought treatment, but continued to work for Bank of America. Two years later, Yingling suffered another work-related injury when he slipped and fell on a recently waxed floor. He did not return to work after that accident. Shortly thereafter, Yingling filed a written notice of a claim for both the 2008 slip-and-fall accident and the 2006 car crash. Defendants denied both claims, on the basis that Yingling failed to give written notice without reasonable excuse and that Defendants were prejudiced by the two year delay.

The case was heard by Deputy Commissioner James C. Gillen, who entered an Opinion and Award in favor of Yingling. Defendants appealed to the Full Commission, which affirmed the Deputy Commissioner’s decision. Defendants appealed.

On March 5, 2013, in Yingling v. Bank of Am., the Court of Appeals considered the case and upheld the Full Commission’s Opinion and Award. The Court first considered whether the Full Commission erred in rejecting Defendants’ lack of notice argument. Recounting the details of the case, the Court found Yingling provided actual notice to his supervisor, branch manager and manager in Charlotte, on the day of the accident. The Court further noted that although Yingling did not immediately seek medical treatment, he did soon thereafter and he notified Bank of America of his need to be absent from work to attend medical appointments. N.C.G.S. § 97-22 states the employer must have "knowledge of the accident"; but the Court found that it does not require knowledge of a "work-related injury" as argued by Defendants.

The Court then addressed the second prong of N.C.G.S. §97-22; prejudice to Defendants. In rejecting this argument, the Court held that Defendant had received sufficient notice of the accident, and so any prejudice it suffered was its own fault, so to speak. If Defendants had properly investigated the accident at the time it received actual notice and accepted the claim as compensable, it could have directed Yingling’s treatment and filed a third-party claim against the driver of the other vehicle.

The last argument addressed by the Court was whether the Full Commission erred in approving Yingling’s treating physician in light of the 2011 changes to N.C.G.S. § 97-25. The 2011 amendments only changed the word "physician" to "health care provider." The Court admonished that the change did not indicate that the Legislature intended to alter the long-standing rule that the Industrial Commission can approve a health care provider chosen by the employee. Moreover, the right to direct medical treatment is triggered only when the employer has accepted the claim as compensable. Nothing in the revised statute suggested to the Court that the Legislature intended to allow the employer to enjoy the benefits of choosing a treating physician without bearing the associated obligations, i.e., paying for medical treatment.

Risk Handling Hint:

Where the employer has some notice of a work-related injury,Yingling suggests that it is not enough to rely on an employee to report any ongoing medical issues. Risk managers must take affirmative steps to determine whether subsequent absences or medical treatment are due to the work-related incident.

On January 10, 2013, President Obama signed the SMART Act into law. The SMART Act revises the Medicare Secondary Payer Act and penalties associated with Section 111 Reporting. It creates a framework to simplify the process of resolving conditional payment liens. The Act sets a three-year statute of limitations for conditional payment recovery lawsuits. It also revises the mandatory $1,000.00 a day penalty for late reporting and orders the Secretary of HHS to publish new rules on penalties for late reporting. The Act further requires an exception to penalties when the responsible reporting entity has made “good faith efforts to identify a beneficiary. . . for reporting information.”

Please contact Whitney Teel for further information.

Medical Expert Opinion

Scott Polzin v. Canterbury Park and SFM, slip op.
WCCA, filed February 20, 2013 ~ reviewed by Tom Atchison

The W.C.C.A. affirmed the compensation judge’s Findings and Order denying the employee’s claim for wage loss benefits and request for authorization for surgery.  In doing so, the W.C.C.A. held that it was reasonable for the compensation judge to accept Dr. Friedland’s opinion who performed an IME on behalf of the employer and insurer. The treating doctor, Dr. Falconer’s opinion, the W.C.C.A. noted, lacked a sufficient basis to conclude that a diagnostic midcarpal arthroscopy would identify or resolve the Employee’s symptoms.
 
In July 2007 the Employee sustained a left hand injury while working as poker dealer at Canterbury Park.  Ultimately, the Employer and Insurer accepted liability for the Employee’s left hand injury.  Over the following months and years, the Employee underwent multiple treatments to diagnose the cause of his left hand symptoms.  Multiple doctors were unable to identify the etiology of the Employee’s symptoms, including a Mayo Clinic doctor who offered an opinion that he employee could engage in any activities without jeopardy to the left hand.  In light of the unknown etiology, Dr. Falconer recommended a diagnostic midcarpal arthroscopy.  Dr. Falconer did acknowledge that previous MRIs and scans should have revealed joint irritation or arthritic damage and, further, that the surgery might not provide lasting therapeutic benefits if it did not identify the cause of the Employee’s symptoms.  The Employee filed a Claim Petition claiming entitlement to wage loss benefits, a vocational rehabilitation consultation, and approval of the surgery recommended by Dr. Falconer.

The Employee underwent an independent medical examination with Dr. Mark Friedland.  Dr. Friedland concluded that the Employee’s symptoms were without objective anatomic etiology.  Further, he opined that the Employee was not in need of any additional medical care and that he had no work restrictions.  Dr. Friedland also concluded that Dr. Falconer’s  surgical recommendation was not reasonable or necessary.  The compensation judge adopted Dr. Friedland’s opinion that the Employee had no work restrictions effective June 1, 2010, that the Employee was not entitled to wage-loss benefits as alleged, and that Dr. Falconer’s surgical recommendation was not reasonable or necessary.  The WCCA affirmed, reiterating the long held view that the compensation judge’s choice of competing medical opinions will be upheld unless there is a foundational defect.


Subdivision 7 Fees

Lann v. Stan Koch & Sons Trucking, Inc.
WCCA, filed March 6,  2013 ~ reviewed by T. Zachary Chalgren

In case of first impression, the WCCA, over the dissent of Judge Wilson, reversed the compensation judge’s calculation of an award under MS 176.081, subd. 7. The employee’s attorney requested payment of attorney fees, including subd. 7 fees, after successfully representing the employee with respect to a medical issue.  There had been an award of attorney fees and subd. 7 fees after an earlier dispute, where the subd.7 fees were calculated at 30% of the attorney fees awarded in excess of $250. In the present case, the employee calculated the subd. 7 fee at 30% of the fee awarded. The employer and insurer calculated the subd. 7 fee at 30% of the fees awarded in excess of $250. The difference was $75.00. The compensation judge agreed with the employer and insurers calculation. The majority of the 3 Judge panel disagreed and reversed, awarding subd. 7 fees as calculated by the employee. The basis for the reversal was that MS 176.081 states that attorney’s fees for the same dates of injury are cumulative; therefore the statute contemplates deduction of the $250 only once.

Judge Wilson dissented, holding that other provisions of Minn. Stat. § 176.081 contemplate evaluation of fees on a claim-by-claim basis. Wilson argued that the majority’s analysis would apply not only to Subdivision 7, but to calculation of contingent fees under Minn. Stat. § 176.081, subd. 1(a).


Electronic Filing at Minnesota Department
of Labor and Industry

The Minnesota Department of Labor and Industry (DLI) has launched a new online process enabling employees, insurers, attorneys, rehabilitation providers and medical providers to complete and submit Medical Request, Medical Response, Rehabilitation Request and Rehabilitation Response forms electronically to the department. The process is intended to reduce delays caused by manually processing paper requests and responses. Use of this online filing process is optional; parties can continue to file these forms with the department in the conventional paper format.

The process is available to use beginning April 19, 2013. All applicable statutes and rules regarding the filing of Medical Request and Rehabilitation Request forms apply to the forms available electronically from DLI’s website. Data submitted electronically will be accepted as received only during regular DLI business hours, 8 am to 4:30 p.m. (Central Time), Monday through Friday (excluding holidays). Data received after 4:30 p.m. or on a Saturday, Sunday or state holiday will be electronically date-stamped for the next business day DLI is open for business.

The form can be accessed at https://secure.doli.state.mn.us/adrforms/main.aspx. General instructions and directions for completion and submission of Medical Request and Rehabilitation Request forms can be accessed at www.dli.mn.gov/WC/PDF/mq03.pdf or www.dli.mn.gov/WC/PDF/rq03.pdf. If you have questions regarding the submission of these forms, call the Alternative Dispute Resolution unit at (651) 284-5032 or 1-800-342-5354.

Prior to joining the Workers' Compensation Practice Group, T. Zachary Chalgren, was a law clerk at two local law firms and a private business. He performed legal research and wrote analysis of state and federal issues, memoranda, pleadings, discovery and assisted with court filings. He obtained his J.D. from William Mitchell and his undergrad from University of St. Thomas.

Denise E. Heinemeyer, a seasoned veteran of the insurance industry where she held multiple positions for over 14 years, has also joined the Workers' Compensation Practice. She later became an attorney and worked for various local law firms handling legal research, writing, document review, depositions, mediations, motion hearings and no-fault arbitrations. In addition, she worked in the healthcare insurance industry as a legal and regulatory compliance professional. She obtained her J.D. from William Mitchell and her undergrad from Moorhead State University.

April 2013

Tennessee Legislature Passes Major Workers' Compensation Reform Bill

After several years of gathering steam, the Tennessee workers' compensation reform movement has culminated in arguably the most significant change in the law since the statute was enacted in 1919.  The driving force behind this reform movement was the sentiment among many that rising workers' compensation costs in Tennessee was driving away business.  The reform bill (SB 0200/HB 0194) easily passed both the state senate and house, and it has been transmitted to the governor for signature.  Once signed by the governor, the new law will go into effect July 1, 2014.

The reform bill drastically changes several aspects of Tennessee workers' compensation law.  Perhaps the most visible change is that an administrative system will be adopted.  Under current law, Tennessee claims are handled by a hybrid system where the first part of the claim (e.g. temporary disability benefits, medical benefits, mediation) is administered by the Tennessee Department of Labor.  The second part of the claim (e.g. the adjudication of permanent disability and future medical expenses) is handled by the trial courts.  Under the new system, the trial courts will no longer have a role.  All issues of temporary and permanent workers' compensation benefits will be decided by the new Court of Workers' Compensation Claims, whose judges will be appointed by the Administrator of the Division of Workers' Compensation.  The Tennessee Supreme Court will remain as the ultimate level of appeal.

Another significant change in the law involves statutory construction.  The current law provides that the Tennessee workers' compensation statute is remedial in nature and is to be construed equitably.  In effect, this means that close issues are typically decided in favor of the injured worker.  However, under the reform bill the remedial construction has been eliminated.  The new workers' compensation statute states that it shall not be remedially or liberally construed, but shall instead be applied impartially favoring neither the employee nor employer.

The calculation of permanent indemnity benefits is also significantly changing under the new law.  Currently, permanent partial disability (PPD) benefits are based on either scheduled injuries (whose maximum value is determined by statute) or whole person injuries (whose maximum value is 400 weeks).  The amount of those benefits is generally determined by a multiplier system.  If the employee makes a meaningful return to work for the pre-injury employer, then PPD benefits are capped at 1.5 times the impairment rating.  If there is no meaningful return to work, then PPD benefits are capped at up to 6 times the impairment rating.  Under the new law, the determination of PPD benefits will be completely different.  For instance, all injuries will be examined as whole person injuries, and the maximum value will be increased to 450 weeks.  PPD will be calculated based solely on the impairment rating regardless of whether the employee has returned to work.  However, the employee might be eligible for additional benefits if certain conditions are subsequently present.  For instance, the PPD award may be increased by a factor of 1.35 times if the employee is not returned to work with any employer or is earning less than the pre-injury wages.  The award may be further increased by multiplying the award by the product of the following factors: (a) 1.45 times if the employee lacks a high school diploma or GED; (b) 1.2 times if the employee is more than 40 years of age; and (c) 1.3 times if the employee lives in a Tennessee county with at least 2% higher unemployment rate than the state average.  Finally, additional benefits might also be available to the employee if at the time of the award or settlement, the employee can prove by clear and convincing evidence at least three of the following four factors: (1) the employee lacks a high school diploma or GED, or cannot read and write at the 8th grade level; (2) the employee is 55 years of age or older; (3) the employee has no reasonably transferrable job skills; and (4) the employee has no reasonable employment opportunities available locally considering the employee's permanent medical condition.

Since this new system is brand new and untested, it is difficult to determine with any certainty how it will ultimately affect exposure for PPD.  Undoubtedly, some of these various factors have an element of redundancy.  In addition, it remains to be seen how these different factors might work together on a single claim.  However, according to the sponsors of the bill the end result of these changes is intended to be lower average indemnity awards for workers' compensation claims.  That is probably accurate, though an interesting open question is how this will affect the return-to-work analysis.  Under the current multiplier system, employers have a tremendous financial incentive to return injured workers back to work.  However, it would seem that there would be significantly less incentive to do so under the new system.

The causation analysis will also be affected by the new law, which changes the definition of injury to include an injury by accident, a mental injury, occupational disease, or cumulative trauma condition arising primarily out of and in the course and scope of employment.  Two years ago, the "primarily" standard was introduced for repetitive trauma conditions and the new law will now apply it to all injuries.  "Primarily" is defined to mean that the employment contributed more than 50% percent in causing the injury, considering all causes, as established by a preponderance of the evidence.  The opinion of the treating physician shall be presumed correct on the issue of causation, but this presumption may be rebutted by a preponderance of the evidence.

Another change in the law concerns panels of physicians.  Under the current law, the employer is required to provide a panel of three physicians or surgeons, not associated in practice, located in the employee's community, from which the employee may select the treating physician.  For back injuries, the panel must be expanded to four, including one chiropractor.  If the treating physician refers the employee for specialist care, the employer must then provide a new panel of three specialists, not associated in practice, located in the employee's community.  Under the new law, employers will still be required to provide an initial panel of three physicians, surgeons, chiropractors, or specialty practice groups, if available in the employee's community, from which the employee will select the treating physician.  If three or more providers are not available in the employee's community, then the panel may include providers from a 100 mile radius of the employee's community.  If the treating physician makes a referral to a specialist, the employer shall be deemed to have accepted the referral unless, within three business days, a new panel is provided to the employee.  It is important to note that both under the current law and the new law, "community" remains undefined.

The issue of medical expenses is a huge issue in Tennessee workers' compensation.   According to recent testimony in the Tennessee Workers' Compensation Advisory Council, medical costs account for approximately 67% of all costs associated with Tennessee workers' compensation claims.  This issue is also addressed in the reform act through the creation of a Medical Advisory Committee.  This committee shall consult with the Administrator, who must adopt guidelines by January 1, 2016, for the diagnosis and treatment of commonly occurring workers' compensation injuries.  Any treatment that follows the guidelines will be presumed reasonable and necessary, and this presumption may only be rebutted by clear and convincing evidence.

In summary, big changes are on the horizon in Tennessee.  Proponents of the bill claim that these reforms will result in fairer, faster, and more efficient resolution of Tennessee workers' compensation claims.  Opponents of the bill have questioned the ability of the Tennessee Department of Labor to effectively administer such a system, the perceived drastic reduction of workers' compensation benefits, and possible chilling effect on the filing of new claims in the future.  Note that since the new law will not go into effect until July 1, 2014, the Tennessee legislature will have another legislative session to further tinker with the bill if they choose.  So, stay tuned for more developments.

Fredrick R. Baker, Member
Wimberly Lawson Wright Daves & Jones, PLLC
1420 Neal Street, Suite 201
P.O. Box 655
Cookeville, TN 38503-0655
Phone: 931-372-9123
Fax:  931-372-9181
fbaker@wimberlylawson.com
www.wimberlylawson.com

David Helfrich suffered four work-related injuries while working for Coca-Cola Bottling. Helfrich’s third accident occurred on March 12, 2008, when he injured his right foot on a truck lift gate. The compensation rate for this injury was $672.98. Helfrich’s final injury occurred on May 20, 2009, when he hurt his right knee and ankle while stepping off a forklift. The compensation rate at that time was $634.28. Following a for-cause termination on March 15, 2010, Helfrich filed a Form 33 alleging entitlement to indemnity benefits of $672.98 per week from and after March 16, 2010.

The case was heard by Deputy Commissioner Victoria M. Homick who entered an Order finding that Helfrich was entitled to receive temporary total disability payments at the rate of $634.28 per week from and after March 15, 2010. Helfrich appealed. The Full Commission affirmed, concluding that as a result of Helfrich’s third and fourth injuries, he was disabled from March 15, 2010 and continuing and entitled to temporary total disability compensation of $634.28 per week. Helfrich appealed that determination as well.

On March 5, 2013, in Helfrich v. Coca-Cola Bottling Co.,Consolidated, the Court of Appeals addressed the issue of the applicable compensation rate after March 15, 2010 and concluded that the Full Commission erred in basing the rate on the fourth injury exclusively. According to the Court, the Commission never determined whether Helfrich had received an injury for which compensation was payable while still receiving or being entitled to compensation for a previous injury in the same employment and, if so, which of the applicable compensation rates would cover the longest period and provide the largest amount payable as required by N.C.G.S. §97-34. Instead, the Commission simply found that Helfrich was disabled as a result of his March 12, 2008 and May 20, 2009 injuries, collectively, and was entitled to temporary total disability compensation at the lower May 20, 2009 rate. The Court remanded the case to the Commission for the entry of a new order which addressed the application of N.C.G.S. § 97-34, and analyzed which injury covered the longest period and provided the largest amount payable to Helfrich.

Risk Handling Hint: In situations of multiple, over-lapping, compensable injuries, risk managers are reminded to consider the application of N.C.G.S. § 97-34 in addition to the medical evidence of work limitations.

On April 19, 2013, the Alabama Court of Civil Appeals released its opinion in McAbee Construction, Inc. v. Elvin Allday. At trial, the employee presented evidence that he had worked as a boilermaker since 1986. During that time, he had sustained multiple work related injuries to his back and shoulders. However, the evidence revealed that the employee had fully recovered from those injuries and was working without restriction. During a temporary shutdown of the mill operated by his regular employer, the employee took a job with McAbee Construction and claimed a work accident resulting in injury after only 5 days with his new employer. Initially, the employee claimed only arm and shoulder problems but, a few days later, also claimed back pain. Eventually, the employee underwent a two-level lumbar fusion and a decompressive laminectomy. At trial, the judge considered medical testimony stating that the employee could have experienced the same problems even without a new accident based on his medical history. There was also evidence that the FCE was rendered invalid by symptom magnification. Ultimately, the judge determined that the back injury was compensable and awarded permanent and total benefits for the lifetime of the employee.

On appeal, the Court of Civil Appeals determined that there existed substantial evidence to support the permanent and total verdict and, therefore, affirmed that aspect of the judgment. In doing so, it addressed a few issues of interest.

Notice

On appeal, the employer asserted that the employee did not provide proper notice of his back injury. The Court of Civil Appeals noted that only notice of the accident is required and that notice of the exact nature of the injury that flows from the accident is not required.

Depression

the employer also asserted that the judge improperly related the employee’s claims of depression to the accident because the employee had failed to allege depression in his complaint. The Court of Civil Appeals noted that, while the judge’s order made reference to the testimony of a psychologist, it was for the purpose of explaining the symptom magnification referenced in the FCE. Specifically, it was the opinion of the psychologist that depression can cause or contribute to symptom magnification.

AWW

At trial, the employee testified that he chose to work only 40 weeks a year in order to spend more time with his family. As a result, the judge elected not to use one of the three predesignated methods set forth in the Alabama Workers’ Compensation Act for computing AWW. Rather, the judge took the amount earned by the employee in the one week he worked for his employer, multiplied it times 40 weeks, and then divided it by 52 weeks. The Court of Civil Appeals agreed that judge’s method was equitable to both parties and was an acceptable deviation from the standard three methods.

Lifetime Benefits

The employer asserted and the employee conceded that it was improper for the order to state that benefits were owed for the employee’s lifetime. Therefore, the case was remanded to the judge to revise the order to state that benefits were only owed for the duration of the employee’s permanent disability.

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About the Author

This article was written by Michael I. Fish, Esq. of Fish Nelson LLC, a law firm dedicated to representing employers, self-insured employers and insurance carriers in workers’ compensation matters. Fish Nelson is a member of The National Workers’ Compensation Network (NWCDN). If you have any questions about this article or Alabama workers’ compensation issues in general, please feel free to contact the author atmfish@fishnelson.com or any firm member at 205-332-3430.