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.
Contact information for NWCDN members is also located on the state specific links in the event you have additional questions or your company is seeking a workers’ compensation lawyer in your state.
One of our favorite adjusters, who works at a large workers’ compensation carrier, related this conversation she had this month with a claimant:
Adjuster: Why didn’t you return to work?
Claimant: I had a problem inside myself at the Courthouse.
Adjuster: A problem inside yourself at the Courthouse?
Were you in jail?
Claimant: Yes, ma’am. I was in jail . . . but it wasn’t my fault.
The adjuster adds that, while taking the claimant’s statement, she heard a loud noise and asked the claimant what it was. He said “it was the toilet . . . I had to pee.”
Do you have a funny industry story to tell? Send it to us for our July newsletter. If we publish it we’ll reward you with a gift card to KFC or another healthy-lifestyle restaurant of your choice.
The TDI-DWC has announced that the 2017 Texas Workers’ Compensation Educational Conference will be held in Georgetown on September 11 – 12 and in Dallas on October 12 – 13. The agenda and registration link are on the TDI-DWCwebsite.
We’ll be at the Georgetown conference and hope to see you there.
When a workers’ compensation carrier issues a policy that waives its right to subrogation the carrier also waives its right to reimbursement from any recovery by a claimant. That is the conclusion of the El Paso court of appeals in its recent decision inWausau Underwriters Insurance Co. v. Wedel.
In that case, James Wedel drove a truck for Cactus Transport, Inc. which regularly picked up asphalt from a terminal owned by Western Refining Company. Western required Cactus to subscribe to a policy of workers’ compensation insurance with a waiver of subrogation rights favorable to Western. Wausau issued the policy to Cactus with a waiver of subrogation endorsement.
Wedel fell and suffered brain and spinal cord injuries while attempting to load asphalt at Western’s facility in El Paso. Wausau paid approximately $1,548,822 in compensation benefits to Wedel, and Wedel then sued Western alleging third-party negligence. Wausau intervened and asserted its comp lien against any recovery by Wedel.
Wausau argued that its waiver of subrogation endorsement waived subrogation only as to the tort-feasor (Western) and did not waive the right to reimbursement from Wedel. In other words, Wausau asserted that its statutory rights of subrogation and reimbursement are distinct and independent rights and it could waive one without waiving the other.
The court of appeals disagreed. It held that by waiving its right of subrogation Wausau waived its right of reimbursement as well.--David L. Swanson, Stone Loughlin & Swanson, LLP
The Texas Legislature last month provided a new source of funding for a prosecutorial unit dedicated to rooting out workers’ compensation insurance fraud, and that new funding will radically change the unit’s operation. The prosecutorial unit is part of the Travis County district attorney’s office in Austin.
In the past, the prosecutorial unit had been funded through a controversial arrangement between the DA and Texas Mutual Insurance Company. Under that agreement, Texas Mutual made the fraud referrals, provided the investigators, and paid bills incurred by the DA for the prosecution of Texas Mutual’s cases. That arrangement came under sharp criticism last year and, in response, the Legislature appropriated money to fund the unit.
The money will come from a maintenance tax collected from workers’ compensation insurers. As a result of the new funding source, the DA will prosecute cases from any insurer. And Texas Mutual will no longer make fraud referrals or furnish investigators. Instead, the TDI-DWC will conduct the initial investigation and, if it believes a case warrants prosecution, it will refer the case to the DA.--David L. Swanson, Stone Loughlin & Swanson, LLP
Hot on the heels of the disturbing findings of the Workers’ Compensation Research and Evaluation Group, the TDI-DWC may be doing something about them. The DWC announced this month that it is accepting comments on an informal draft of amendments to Rule 134.500 (concerning definitions) and Rules 134.530 and 134.540 (concerning requirements for use of the pharmacy closed formulary).
The proposed amendments would change the definition of "closed formulary" to exclude any prescription drug created through compounding and require preauthorization for all prescription drugs created through compounding for claims subject to, and not subject to, certified networks.
The comment period closes July 7.--David L. Swanson, Stone Loughlin & Swanson, LLP
In 2016, the average cost of a compounded drug prescription in workers’ compensation claims in Texas rose to a whopping $829. That’s the conclusion of the Texas Department of Insurance, Workers’ Compensation Research and Evaluation Group. The group announced this finding and others last month in its publication Baseline Evaluation of the Utilization and Cost Patterns of Compounded Drugs.
Among the group’s many other findings are the following:
The group’s publication is available on the TDI-DWC website.--David L. Swanson, Stone Loughlin & Swanson, LLP
Do you have a ping-pong table at your office? If not, maybe you should lobby for one. That’s the implication from an article in the June 24th edition ofThe Wall Street Journal which describes the extraordinary steps that insurance companies are taking to recruit, and retain, employees these days.
For example, according to theJournal, Acuity Insurance has furnished its offices with ping-pong tables, a 45-foot climbing wall, and a 27,000 square-foot fitness center, and it organizes twice-monthly happy hours to boot. And at school-recruiting events last autumn, Acuity reportedly served mounds of freshly cooked bacon, whose aroma drifted around the grounds. Also according to theJournal, some insurers are taking a page from Silicon Valley’s hip offices. For example, Allstate Corp. has a “happiness guru” in a building where it locates many data scientists.
The reason for these over-the-top enticements? It turns out that Americans under 30 (millennials) generally aren’t excited about the idea of working for an insurance company (gasp!). And that’s a problem because insurers reportedly must hire 500,000 newcomers over the next several years as a wave of retirement hits.--David L. Swanson, Stone Loughlin & Swanson, LLP
On June 29, 2017 the North Carolina General Assembly passed House Bill 26 which amends G.S. § 97-82(b) of the Workers’ Compensation Act. As previously discussed,Wilkes v. City of Greenville held that when a claim was accepted as compensable pursuant to a Form 60 or section 1 of a Form 63 that a rebuttable presumption was created that any additional medical treatment was related to the compensable condition. The rebuttable presumption was not limited to the specific body part or medical condition accepted in the Form 60 or 63. The overall impact of the legislature’s change is to limit the scope of any medical presumption. The legislation has been passed by the General Assembly and is now awaiting approval by Governor Cooper before it can become law.
Amendment to G.S. § 97-82(b)
The reformed G.S. § 97-82(b) expressly states that filing a Form 60 or 63 shall not create a presumption that medical treatment for an injury or condition not identified in the Form 60 or Form 63 is causally related to the compensable injury. The amendment applies to all accrued or pending claims. A claimant can request a full evidentiary hearing to prove that any additional injury or condition is causally related to the compensable injury.
Recommendations for Claim Acceptances and Denials
Filing a Form 60 or 63
Teague Campbell’s recommendation is that employers and carriers handling workers’ compensation claims be as specific as possible when describing exactly which injuries or conditions are being accepted as compensable on a Form 60 or 63. There will be a medical presumption created for any listed injuries or conditions, but no presumption created for injuries or conditions that are not specifically listed. In addition, employers and carriers can still use a Form 63, section 2, to pay for medical treatment, in medical only cases, without prejudice. We do not recommend adding language to the Form 60 or 63 in an attempt to modify or limit the IC forms because those modifications will likely not be accepted by the Commission and would have no practical effect.
Filing a Form 61
We do not recommend filing a generic Form 61 attempting to provide a universal denial of all claims not specifically listed on the Form 60 or 63. This is not necessary and could pose some unintended consequences for defendants. Although filing a Form 61 with a Form 60 or 63 is not necessary because no presumption is created for conditions not specifically accepted, there may be certain circumstances where filing a Form 61 for a denied condition might be appropriate. Please contact Teague Campbell with questions regarding filing a Form 61 in these situations.
Consideration of Other Issues Raised by Wilkes
As part of the negotiations amend G.S. § 97-82(b), representatives for both employees and industry have agreed to continue to discuss issues raised byWilkes concerning how employees prove a disability during the remainder of the 2017-2018 legislative session. In addition, both sides have agreed to discuss the potential implications ofWilkes in medical only cases, including cases where medical benefits are paid without prejudice under Section 2 of a Form 63, and whether an expedited hearing process should be available to claimants seeking to prove that an additional condition or body part not listed on the Form 60 or 63 is related to the compensable injury.
Beginning July 1, 2017, there will be a new statutory maximum and minimum workers’ compensation rate along with other rate and reimbursement changes. If you want to receive our Rate Sheets and Summary of Workers’ Compensation Law in SD, please contact Cheri Fodness at cafodness@boycelaw.com.
Summer is upon us and the 4th of July is just around the corner. Almost as exciting as fireworks is the third prong of the five-part rehabilitation test for South Dakota workers’ compensation claims. As Laura mentioned in last week’s blog post, I have the honor of discussing the third prong and what it means to you in evaluating your work comp claim. The third prong of the five-part test provides: The program of rehabilitation must be a reasonable means of restoring the employee to employment.
When determining whether a rehabilitation program is reasonable, the South Dakota Supreme Court has declared that the Claimant bears the burden of establishing the reasonableness of the program. Chiolis v. Lage Development Co., 512 N.W.2d 158, 161 (SD 1994). In considering an appropriate rehabilitation program, the Department “must not lose sight of the fact the employer has a stake in the case” and “the employer is required to ‘underwrite’ the expenses of rehabilitation.” Id. An injured worker cannot insist upon a college education if other suitable employment opportunities exist that do not require college training. Id. at 160, (quoting Barkdull v. Homestake Mining Co., 411 N.W.2d 408, 410 (S.D. 1987).
When reviewing requests for rehabilitation, the parties must look at the claimant’s underlying career and wages to determine the reasonableness of the requested/suggested rehabilitation program. For instance, it is probably unreasonable for a forty-five year old, over-the-road truck driver (who has been driving truck since he was 18), with a high school education, to get a four-year accounting degree when a two-year vocational program for bookkeeping would provide sufficient income to restore him to employment. As with the other prongs of the rehabilitation test, use of a vocational expert to address the third prong is a valuable tool to help determine whether the rehabilitation program is a reasonable means of restoring the employee to employment. The vocational expert will be able to analyze the job market, identify the average income for a variety of positions, and provide invaluable insight to evaluate the claim properly.
Stay tuned for further discussion of a rehabilitation claim in South Dakota in next week’s blog post, and the riveting discussion by Mike about the fourth prong of the five-part test. As always, feel free to contact us if you have any questions.