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.
SLS is proud to announce the unveiling of our new website! While the website is brand new, it can still be found atwww.slsaustin.com. We have been updating our look, and you may have noticed a new format to the newsletter and our new signature blocks. Our new website completes the transition to this new brand for SLS.
Senator Arthur Orr (R, Decatur) recently introduced SB-89, which would limit employers’ liability for permanent total disability benefits. Currently, an employer must pay permanent total disability benefits for as long as the employee remains permanently and totally disabled. SB-89 would amend § 25-5-57 (a)(4) a. of The Alabama Workers’ Compensation Act to provide that permanent total disability benefits would terminate upon the later of the employee’s 65th birthday, or 500 weeks after the date of injury. Additionally, SB-89 would amend § 25-5- 77(j) of The Alabama Workers’ Compensation Act to create a rebuttable presumption that medical treatment is not related to the work injury when the employee does not receive medical treatment related to the claimed injury for a period of two years. In addition, the employer’s obligation to provide treatment would conclusively end if the employee does not receive medical treatment related to the claimed injury for a period of four or more years. SB-89 was first read in the Senate Fiscal Responsibility & Economic Development Committee on February 7, 2017.
Senator Orr also introduced SB-196, which would amend Alabama Code § 13A-11-124 to (1) expand the type of activity related to workers’ compensation fraud that is subject to criminal penalties; (2) authorize an award of civil damages to employers and insurers damaged by fraudulent claims; (3) allow the Department of Labor to immediately terminate compensation payments upon a determination of fraud; and (4) provide for the repayment of fraudulently obtained workers’ compensation benefits (with interest). Under SB-196, it would be a class C felony to (1) knowingly make a false or misleading statement, representation, or submission concerning any fact that is material to a workers’ compensation claim; (2) coerce, solicit, encourage, or employ another to make a false or misleading statement concerning a fact material to a workers’ compensation claim or the payment of compensation or premiums; (3) present multiple claims for the same injury; (4) fabricate, alter, conceal, or destroy a document; or (5) attempt to obtain treatment or compensation for body parts that were not injured in the course and scope of the employment. SB-196 was first read in the Senate Fiscal Responsibility & Economic Development Committee on February16, 2017.
Continue to follow our blog for updates as these bills are debated in the legislature.
My Two Cents
The limitation on permanent total disability benefits makes a lot of sense, since employees are generally eligible for Social Security benefits in the mid-late sixties. If SB-89 becomes law, the costs of workers’ compensation insurance should decline, which could make Alabama more attractive to businesses looking to expand or relocate. Unfortunately, it will not likely pass because of the portion of SB-89 that seeks to cut off medical benefits after extended periods without treatment.
SB-196 would give Alabama one of the most aggressive anti-fraud laws in the country. If it becomes law, it could lower insurance costs by deterring fraud. However, like any criminal statute, how well it deters crime will depend primarily on how aggressively it is enforced.
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About the Author
This article was written by Charley M. Drummond, Esq. of Fish Nelson & Holden, LLC. Fish Nelson & Holden is a law firm located in Birmingham, Alabama dedicated to representing employers, self-insured employers, and insurance carriers in workers’ compensation cases and related liability matters. Drummond and his firm are members of The National Workers’ Compensation Defense Network (NWCDN). The NWCDN is a national and Canadian network of reputable law firms organized to provide employers and insurers access to the highest quality representation in workers’ compensation and related employer liability fields. If you have questions about this article or Alabama workers’ compensation issues in general, please feel free to contact the author at cdrummond@fishnelson.com or (205) 332-3414.
On January 23, 2017, the WCAB issued an en banc decision in the case ofMaxham v. California Department of Corrections and Rehabilitation, SCIF that provides insight as to whether a party may provide an advocacy letter to a med-legal physician over an opponent’s objection. The short answer to this question is one that lawyers and clients hear too often: it depends.
The Board provided the parties with two holdings as follows (verbatim):
So, what does this mean? First, for the purposes of this case, it’s best to understand “information” as evidence—whether medical or non-medical. Second, it’s best to understand “communication” as an advocacy letter for the purposes of this case as well as for the purposes of what we do on a daily basis.
To boil the holding down, the Board essentially defined “information” as either medical or non-medical evidence, and it explained that an advocacy letter can transform into evidence if it “contains, references, or encloses” any medical or non-medical evidence. Thus, for all intents and purposes, the Maxham case supports the notion that any advocacy letter worth its salt will always “transform” into evidence because, after all, if there is any reference to medical or non-medical evidence (including any information found in pleadings, such as an applicant’s occupation, age, mechanism of injury, etc.), then such a letter becomes evidence by way of merely mentioning other evidence. In fact, under this decision, the only way that an advocacy letter could not transform into evidence is if it simply identified the name of the alleged injured worker, authorized the doctor to see the applicant on a med-legal basis, and asked the doctor to address med-legal issues; such a letter could hardly be deemed an “advocacy” letter, though, because there is no advocating for any position whatsoever is such correspondence.
Please note that, technically, the Maxham case only dealt with letters that are sent to AMEs, but the case law can easily apply to cases where PQMEs are used.
In order to not be disheartened by the holdings in the Maxham case, it is important to read the case in its entirety. The Board engages in a dance of sorts. It explains that, even if a letter becomes evidence, there is a follow-up inquiry that must be made: “Is a party prevented from sending such a letter to a med-legal physician?” The answer depends upon whether the evidence mentioned in or attached to the letter has been agreed upon (in the case of an AME) or, as an extension of the case, whether the evidence has been properly and timely objected to (in the case of a PQME). TheMaxham case explains that, so long as the evidence in an advocacy letter has been agreed upon when there is an AME, then a party can send a letter to the AME that mentions or encloses such evidence, regardless of whether an opposing party objects to the letter.
The Labor Code and regulations provide that, when an AME is used, any medical and/or non-medical evidence must be agreed upon by both parties before it can be sent to the AME. Contrastingly, when a PQME is used, the standard is different; the opposing party only has the right to object to non-medical evidence within 10 days after service. If the opposing party fails to object timely, then, by default, the party may send all proposed evidence to the PQME.
It would follow then that, from the Maxham case, we can extrapolate rules that would apply in cases where a PQME is used. Hence, letters to a PQME can be sent to the med-legal physician, regardless of any objection by opposing counsel, so long as the letter only contains evidence to which the opposition has not properly and timely objected.
If opposing counsel fails to agree to evidence (in the case of an AME) or timely objects to non-medical evidence (in the case of a PQME), then the party wishing to present such evidence to the med-legal physician should file a DOR on the issue in order for a judge to determine whether such evidence may be sent to the physician.
The good news is that the Maxham case allows for advocacy letters to be sent to med-legal physicians regardless of any objection by opposing counsel, so long as the letter contains evidence that is not in dispute. Indeed, the Board explained inMaxham that the parties are within their rights to make legal arguments about undisputed evidence, and that is a good thing for all parties involved. After all, the legal system is set up to be an adversarial one for the benefit of the parties.
If you have any questions regarding the Maxham case, please contact Jessie Zaylia atjzaylia@hannabrophy.com.
The Fraternal Order of Police and certain police officers challenged the City of Camden Police Department for allegedly retaliating against certain officers who complained about city policies. One of the allegations involved the Family and Medical Leave Act. The city initiated a policy called “directed patrols” in 2008. That policy required officers to engage with city residents who were not suspected of any wrongdoing with the goal of obtaining information about the community and becoming more visible in the community. Contact with individuals on directed patrols was tracked and recorded.
Several officers complained about the policy and alleged that they were then placed on a low-performer list for failure to comply with the policy. Some were allegedly reassigned to regular patrol duty with a resultant pay decrease. The City responded that it expected a minimum of 27 directed patrols per shift for officers on supplemental patrol and 18 for officers on regular patrol. The City argued that it did not require an impermissible quota of arrests or citations, just a permissible quota for interactions with the public.
One officer whose performance lagged in the directed patrol policy claimed that he was approved for FMLA leave to care for his seriously ill mother in May 2009 but reprimanded for using too much time on May 27th . Then on June 17th he received a letter from a Lieutenant stating that he was being placed in the “Chronic Sick Category.” The officer also complained that Camden staff visited him at home while on leave. He argued that the City was interfering with his rights to use FMLA leave.
The City conceded that there was an internal miscommunication between one branch of the department, which knew the officer had approved FMLA leave, and another branch which did not. The City contended that it was not trying to deter the officer from using his FMLA rights.
The Third Circuit Court of Appeals held, “Camden officials only visited Officer Holland once while he was on leave, and we agree that this was minimally intrusive.” The Court added, “Although we are sympathetic to Officer Holland’s family situation, there is no right in the FMLA to be ‘left alone.’” It added, “Camden’s actions may have been insensitive, but they were not beyond the limitations the FMLA places on employers attempting to manage their workplaces.”
The Court went on to state that it found no particular harm done to Officer Holland. It cited the case of Shtab v. Greate Bay Hotel, 173 F. Supp. 2d 255 (D.N.J. 2001). “Shtab does not support Officer Holland’s claim that reprimands such as those he alleges can, on their own, support relief under the FMLA. Rather, they must occur in tandem with actual harm. Officer Holland does not allege he was actually denied FMLA leave. In fact, he concedes that he was able to take time off to care for his mother.” The Court therefore affirmed the dismissal of the FMLA claim.
This case can be found at FOP v. City of Camden, 842 F.3d 231 (3d Cir. November 17, 2016). The holding is consistent with other federal cases that have held that while someone is on FMLA, the employer has a right to require that employees call in and follow employer policies. The Court here found that one visit to the employee probably to make sure the employee was not abusing FMLA leave was certainly not intrusive.
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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.
It's almost time to register for the 36th Annual AWCO Spring Conference to be held May 4-5, 2017 at the Hyatt Wynfrey Hotel! Online registration will open March 1, 2017 on the AWCO web site atwww.awcotoday.com. You can register and pay online, register as a member with no fee or print the paper registration to be mailed in. Online registration will remain open through April 30, 2017. On site registration will be available, but pre-registration is strongly encouraged to avoid long lines.
The conference is FREE to all paid members. The cost of an annual membership is $75 whereas regular conference registration is $100. This amounts to a no brainer. Membership does not automatically register you for conference attendance. Please note, members MUST register to attend the conference. Registration can be completed online with no associated cost. Membership is open on the web site through 2/28/17 for those who have not yet completed the application. Memberships received after 2/28/17 are not eligible for free conference registration.
Thursday evening features a Casino night including a silent auction for the Cystic Fibrosis Foundation. We hope to see you there!
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This blog submission was prepared by Mike Fish, an attorney with Fish Nelson & Holden, LLC, a law firm dedicated to representing self-insured employers, insurance carriers, and third party administrators in all matters related to workers’ compensation. Fish Nelson & Holden is a member of the National Workers’ Compensation Defense Network. If you have any questions about this submission or Alabama workers’ compensation in general, please contact Fish by e-mailing him at mfish@fishnelson.com or by calling him directly at 205-332-1448.
Recently, the Minnesota Supreme Court reversed a decision by the WCCA and held that a psychological examiner had adequate foundation to provide an expert opinion regarding a concussion and post-concussion syndrome. In the case, an employee injured her head in the scope of employment, and filed a medical request seeking coverage for various treatments. Following the hearing, the compensation judge denied the employee’s medical request and found that she had not sustained a concussion or post-concussive syndrome. The compensation judge relied heavily on the opinion of a psychological examiner in ruling in favor of the employer and insurer.
The employee filed an appeal to the WCCA, which reversed the compensation judge’s decision. The WCCA found that the psychological examiner lacked foundation and was not competent as an expert. The issue of competence was never raised on appeal. The WCCA brought it up sua sponte (“on their own”), and ruled in favor of the employee after second-guessing the decision of the compensation judge.
The case was then appealed to the Minnesota Supreme Court, which reversed the WCCA’s decision. The Court found that the WCCA erred when it ruled on the issue of the psychological examiner’s competence. Pursuant to Minn. Stat. 176.421, Subd. 6, the WCCA is “limited to issues raised by the parties in the notice of appeal” and therefore should never have raised the competence issuesua sponte. Furthermore, the Court indicated that it was frankly perplexed at the WCCA’s opinion that the psychological examiner did not have adequate foundation. The Court made it clear that the WCCA should not have second-guessed the compensation judge, and ultimately ruled in favor of the employer and insurer.
The case is Gianotti v. I.S.D. 152, A16-0629 and can be found here: http://mn.gov/law-library-stat/archive/supct/2017/OPA160629-020817.pdf
This article was prepared by Parker T. Olson and edited by Michael R. Johnson.
Please find the link below to Thomas Coleman's law review article entitled, "The Fundamentals of Workers' Compensation in Minnesota." It is a comprehensive overview of Minnesota Workers' Compensation Law and provides an in-depth look into developing case law and rules. Feel free to reach out to Thomas Coleman, shareholder at Cousineau, Waldhauser, & Kieselbach, P.A. with any questions.
http://open.mitchellhamline.edu/cgi/viewcontent.cgi?article=2901&context=wmlr
In this case, the employee was a registered nurse. At the time of the injury, the employee was sharing information regarding patients with the oncoming shift nurses.
There was a code called, causing the employee to rush to it. It turned out to be a “mock code,” which required the employee’s response as if in an emergency situation.
After the code was over, the employee chose to take the stairs to her work station, rather than the elevator. She “rushed up” the stairs to return to the nursing station as soon as possible to complete her report. On her way, she fell and injured her shoulder.
There is no evidence that there was debris or moisture on the steps. The lighting was adequate. Primary liability was denied based upon a lack of increased risk per Dykhoff.
At the Hearing, the compensation judge found the employee was not a credible witness when she stated she felt pressured to rush up the stairs because of hospital policy regarding overtime. The judge found that that there was no arising out of and denied the claim.
The W.C.C.A. reversed the findings of the compensation judge and found the injury compensable.
The W.C.C.A. noted that there was no contention of defective stairs. The issue was whether the employee’s employment increased her risk of injury. There was a finding that the employee was “rushing up the stairs” because she felt pressure to do so because of hospital policy discouraging overtime. The W.C.C.A. professed to defer to the compensation judge’s credibility determination. However, they noted the employee claimed that she was fatigued due to her work schedule and had heavy legs and secondly that she felt she was rushed to complete her job and was injured as a result.
The court noted that when fatigue arises from the employee’s work activities resulting in injury, fatigue meets the criteria of increased risk to satisfy the arising out of standard. Likewise, hurrying or rushing on the job is found to be “arising out of” if it results in injury to the employee. The evidence was uncontroverted that the employee was suffering from fatigue and hurrying.
This case has been appealed to the Minnesota Supreme Court.
The employee worked as a painter for the University of Minnesota. On the date of injury, she parked at the Oak Street Ramp, a facility owned and operated by the University of Minnesota. The ramp was available to University employees and the public. The ramp was located less than three blocks from the building where the employee was working. At the end of work, the employee punched out and was walking to the parking lot at the Oak Street Ramp. Her entire route was on U of M campus premises.
The weather was bad and had been snowing and sleeting that day. The employee slipped and fell at an intersection with an incline suffering work injuries. Primary liability was denied for the injury per Dykhoff.
The Workers’ Compensation Court of Appeals reversed the compensation judge’s finding that the injury did not arise out of her employment with the employer. The court distinguished the Dykhoff case in that there was no incline, the floor was not wet, and there was no debris on the floor in Dykhoff.
The W.C.C.A. noted that arising out of means that there must be some causal connection between the injury and the employment. The employment must:
1. Expose the employee to a hazard which originates on the premises as a part of the working environment; or
2. Particularly expose the employee to an external hazard whereby the employee is subjected to a greater risk than had he been pursuing ordinary personal affairs (special hazard).
The W.C.C.A. held that the special risk or special hazard doctrine applies only in those cases in which the employee is injured off the employer’s premises.
If the employee suffers a work injury on the work premises, the employee need only establish an increased risk of injury from the employment. In other words, there is an increased risk of injury on the employee’s premises because the employee is an employee and the injury follows from that risk. The court held it is irrelevant if members of the general public might encounter the same risk because they were not brought to that risk by the job.
The court cited Foley v. Honeywell which held that an injury on the employee’s premises arises out of the employment if it occurs as a result of an increased risk of injury while the employee is going from one part of the premises of the employer to another, even if it occurs on a public street.
This case has been appealed to the Minnesota Supreme Court.
This case involves an interpretation of Minn. Stat. §176.021 which contains an exclusion from workers’ compensation coverage for employee’s who participate in a “voluntary recreational program."
In this case, the employee attended an annual employee recognition event, which was deemed to be voluntary by the employer. However, if the employee elected not to attend this event, he/she would not receive any pay and he would have to use vacation time.
The employee was injured at the event while participating in laser tag event.
The court found that the employee had sustained a compensable work injury. The court held that the employee sponsored event was not voluntary as the employee’s options were limited to:
1. Attending the program and getting paid; or
2. Not attending the program and forfeiting pay or benefits.
A recreational program sponsored by the employer is not “voluntary” when the employee risks forfeiting pay or benefits if he/she elects not to attend the program.
The court further held that even though the employee “voluntarily” participated in the laser tag, the injury was still compensable. The court distinguished a term “program” which is a collection of activities versus an individual activity within the program.