In this case, the employee commenced a cause of action against the employer. Two intervenors filed Petitions to Intervene in the proceeding, but failed to attend the hearing before the compensation judge.

The Minnesota Supreme Court held that Minn. Stat. §176.361 subd. 4, unequivocally requires intervenors' attendance at court proceedings unless a Stipulation has been signed and filed or the intervenor’s right to reimbursement has otherwise been established. Further, failure to appear at court preceding’s shall result in a denial of the intervenors' claim(s).

The court noted that for purposes of statute, attend and appear are synonymous.

New Jersey employers know that they have a right to subrogate against the party who caused injury to their employee to recover workers’ compensation benefits paid, but they must wait one year before taking any action.  After one year, if the injured worker has not pursued a third party action, the employer must make a written demand on the injured employee giving the employee 10 days to pursue such action, or else the employer will file it in his or her name.  But what if the employer neglects to send the 10 day letter and then tries to bring suit?

That was the precise issue in Hartford Underwriters Insurance Company v. Jacquelin Salimente, A-3687-14T2 (App. Div. February 6, 2017).  A Hartford insured employee, Mishkoff, had been injured in a work-related accident by Salimente, who had lost control of her vehicle, causing injuries to Mishkoff.  But Mishkoff never filed suit against Salimente.  On the last day that the statute would have run, Hartford filed suit (failing to sue in Mishkoff’s name) against Salimente to protect its lien of $16,332.79 for workers’ compensation payments it had made to Mishkoff.  However, Hartford failed to provide proof that it had issued a 10-day notice.  Salimente’s carrier moved to dismiss the case for failure to comply with the statute under N.J.S.A. 34:15-40.  The trial judge dismissed Hartford’s suit, and Hartford appealed.

The Appellate Division reviewed old case law indicating that the 10-day notice can be waived, particularly where the carrier notified the injured worker of his right to sue.   Hartford produced two letters, one to Mishkoff two months after the accident and then other to Mishkoff’s counsel 18 months afterward.  In the first letter, Hartford informed Mishkoff of its subrogation rights and asked him whether he intended to pursue a third-party action.  In the second letter, Hartford asserted its subrogation rights, and it requested that Mishkoff advise whether he was pursuing a third party action.  Unfortunately, these letters were not produced by Hartford at the time of the initial hearing in Superior Court.  Had they been timely produced, perhaps the trial judge would not have dismissed Hartford’s case.

The Appellate Division considered Hartford’s motion to reopen the record and agreed that the case should not have been dismissed because the purpose of the 10-day letter is to inform the injured worker of his or her rights to pursue a third party action.  The letters that Hartford wrote to Mishkoff satisfied this purpose.  Therefore the Appellate Division allowed Hartford to pursue the third party claim on behalf of Mishkoff.

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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. 

Over the years, an Alabama pain management doctor built a reputation for prescribing large quantities of opioid medications out of his Huntsville office, and his patients included many workers’ compensation claimants.  In 2012, he prescribed over 12.3 million pills, many of which authorities say should have never been prescribed.  Additionally, it was determined that he defrauded Medicare and private insurers out of at least $9.5 million. 

In October 2016, the doctor pleaded guilty to illegally writing prescriptions, and to health care fraud. Prior to his arrest, he was once considered the nation’s most prolific Medicare prescriber of opioid painkillers.  Now, he will spend the next 15 years in federal prison and has to pay $6.7 million in restitution to Medicare and Blue Cross Blue Shield of Alabama.

It’s no secret that “pill mills” have long been a problem in Alabama.  A 2013 study by the Centers for Disease Control and Prevention found that Alabama was among the top 20 states nationally in the number of prescription drug overdoses.  In response to that report, the Alabama Legislature passed The Alabama Pain Management Act and made changes to the laws that pertain to the Alabama Department of Public Health’s Prescription Drug Monitoring Program.

My Two Cents

The Prescription Drug Monitoring Program includes a database where doctors can determine what prescription drugs a patient has had filled by other doctors.  It can be a very useful tool for doctors to identify patients that are “doctor shopping” to obtain prescription painkillers.  Only doctors can access the database, and they cannot share the information that they obtain.  However, it is a good idea for claims professionals to insist that the physicians they select to treat claimants review the database, at least on suspect claims.

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 atcdrummond@fishnelson.com or (205) 332-3414.

Please clink the link below to see a comprehensive overview of Workers' Compensation in the state of Minnesota, courtesy of Cousineau, Waldhauser, & Kieselbach. P.A. It contains information on the following topics: Types of Injuries Triggering Liabilities, Common Defenses, Employee Deadlines, Payment Deadlines, Significant Dates of Benefit Changes, Compensation Rates, Adjustment of Benefits under M.S. 176.645, PPD Schedule, Supplementary Benefits, Interest Calculations, Settlements, Stipulation for Settlements, Third Party Action, and the Special Compensation Fund.

The Reference Sheet was prepared by Associate Parker Olson. Please contact him with any questions you may have. Parker.Olson@cwk-law.com   (952) 525-6930

http://cwk-law.com/wp-content/uploads/2017/02/Minnesota-Workers-Compensation-Law-Reference-Sheet-3.pdf

Most aspects of the New Jersey Workers’ Compensation Act are considered favorably by employers since the law gives employers the right to control medical care and allows termination of temporary disability benefits and medical benefits at maximal medical improvement. One aspect, however, of New Jersey law invariably frustrates employers:  reopener claim petitions. These kinds of claims are not common in other states, and many employers are understandably perplexed at the sheer volume of reopeners in New Jersey.  The fact is that a high percentage of awards containing a substantial percentage of disability will be reopened for additional benefits.

Technically, the correct term for a reopener is a modification of an award but most practitioners refer to these petitions as reopeners.  Here are some basic questions and answers that clients often ask this practitioner.

Question #1:  Is it true that only petitioners can file reopeners?

Actually either party can seek modification of a prior award.  N.J.S.A. 34:15-27 states that an award may be reviewed on the ground that the disability has diminished.  This practitioner has filed on several occasions a petition to modify an award for total disability where the claimant was found working while receiving total disability benefits.  Generally, though, reopeners are filed by claimants seeking more medical, temporary or permanent disability benefits.

Question #2:  How long does a claimant have to file a reopener?

The claimant has two years from the last payment of indemnity benefits or the last date of authorized treatment, whichever is later, to reopen the award.   A period of insanity tolls the statute.

Question #3:  What is the legal standard to prove entitlement to further permanency payments?

The claimant must show objective proof that his or her condition has materially worsened since the last award.  That kind of proof is the same as proof required in any claim for partial permanent disability such as MRI or x-ray evidence of an impairment, but in a reopener the proofs involve a comparison between those offered at the initial hearing and those at the time of the settlement of the reopener petition. Respondents take the view that mere complaints of increased pain do not satisfy the legal standard for a higher award because pain is subjective.  It is important for employers to obtain the transcript created at the time of the initial settlement and then compare those complaints with current complaints.  If they have not changed, there may be no basis for additional compensation.

Question #4:  When can the respondent resolve a reopener on a Section 20 basis?

Most employers prefer that a reopener claim resolves on a Section 20 because that ends the case and prevents any additional reopener petitions.  There is technically no limit to how many times a claimant can reopen a case.  A Section 20 in a reopener requires the same standards as any other case for a Section 20: namely, proof of a genuine issue regarding causation, liability, jurisdiction or dependency.   Respondent’s counsel will take the position that if its doctor finds no objective change from the prior award, then there is a legitimate issue of liability for a Section 20.  Another possible ground for a Section 20 is a subsequent accident since the time of the last award because the current complaints may be from the new accident, not the original accident.  Judges of Compensation will generally permit a Section 20 on a reopener if one of the statutory bases has been met and if the claimant lacks evidence of objective changes since the time of the prior award.

Question #5:  What should an employer do when the claimant’s attorney files a reopener petition and requests additional treatment?

This is a complicated issue about which there is some difference of opinion.  Claimants’ counsel know that without any additional treatment since the prior award, it may be hard to persuade a Judge of Compensation that there is objective worsening.  Most reopener petitions contain a request for treatment in spite of the fact that the claimant often has not treated at all since the filing of the petition.  Certainly, if the claimant has received substantial authorized treatment following the award but prior to the reopener being filed, the petitioner should almost always be sent back to the treating physician to determine if there is a need for additional causally related treatment.

On the other hand, respondents often consider whether the request for treatment is in connection with what appears to be a “calendar” reopener, one which gets filed just before the two year statute of limitations runs.   In that situation, if there has never been any request for treatment for almost two years, and then suddenly a reopener petition is filed with a request for treatment, many respondents will simply decline any request for treatment and set up a permanency exam with the same IME doctor who evaluated for permanency at the time of the original injury.  This approach suffices in cases like this because the permanency evaluator can comment on both issues:  whether there is a need for additional treatment as well as whether there is additional permanency.

Question #6:  Is there any requirement that the respondent send the petitioner back to the treating doctor as opposed to the IME doctor who assessed permanency?

There is no statutory requirement to return the claimant to the treating doctor but it often makes more sense when the medical condition is serious and there has been intermittent post-award treatment.  The opinion of a treating doctor is given more weight than that of a one-time IME doctor in respect to many issues, particularly the need for additional treatment.  On rare occasions, the IME doctor may also have been the treating doctor.  The reason this does not happen very often is that few treating doctors are familiar with New Jersey permanency estimates, and few IME doctors who perform permanency exams have active treating practices.

Question #7:  When does it make more sense to return the claimant to the original IME doctor instead of the treating doctor?

Most defense IME doctors in New Jersey workers’ compensation excel at taking a detailed past medical history as well as a history of second jobs, recreational activities, motor vehicle accidents, and other potential causes of injury.  The point in time between the entry of the initial award and the reopener petition is a crucial interval period.  IME doctors understand what reopeners are about and tend to focus their attention on personal activities, new injuries, or stressors that may be relevant during this interval period of time.  So if there are issues of causation regarding other possible injuries during the interval period, an IME doctor may be the better choice than the treating doctor.  But if there really is no issue of causation, and genuine issues of treatment do exist, the treating doctor is most often the better choice.   Once the treatment issue is resolved, then the employer should send the petitioner to the previous IME doctor to assess whether there is any additional partial permanent disability.

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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. 

Deputy Chief Judge David Langham of Compensation Claims for the Florida Office of Judges of Compensation Claims and Division of Administrative Hearings posed  interesting questions in his recent blog,http://flojcc.blogspot.com.  If you think Texas is bad, just consider the length of his title!  His questions are,  “Would we be better off without workers’ compensation in any form?  Would we be better off with a federal bureaucracy to replace state programs, boards and bureaucracies?  Would we be better serviced with courts that stuck to the law and avoided equity?  Would we be better off if regulators refrained from new rules for every perceived abuse or shortfall?”  Judge Langham also posed the possibility that the human failings of anger, envy, gluttony, greed, lust, pride and sloth might play a part.  What do you think?

There is a new blog post called “The WorkComp Millennial.”  The post addresses a concern about the need in the workers’ compensation industry for young talent.  We have to admit that the old talent is . . . well, old!  The blog respectfully addresses workers’ compensation “elders” as “very talented and accomplished statesmen.”  There are some us in the firm who are flattered by the compliment.  Others of us are annoyed.  But we support the purpose of the blog insofar as it is intended to help the industry develop interest in those men and women beginning their professional careers who might not otherwise consider workers’ compensation as a career. For the Millennial, it could make what  many of us in the industry know, especially workers’ compensation insurance adjusters and attorneys, that workers’ compensation is a rewarding field if you are willing to work hard.

Technology affects jobs.  Currently, county and district clerks, as well as many Texas counties, are opposing a Texas Supreme Court program to create a publically accessible electronic system to make judicial records accessible to the public.  Several counties charge membership fees– which can be considerable– to obtain records.  This limits an attorney’s ability to access records, and costs clients money for the records to be retrieved.  Statewide electronic access to court records would be efficient for practitioners and the public, but would remove a court clerk’s job function–and  an income stream–from many county courts.  Blake Hawthorne, the Clerk of the Supreme Court of Texas, recently posted that “[i]f you want a statewide access system for Texas court records, I would encourage you to tell your representatives and local trial court clerks that you support the statewide system. . . . I think the real issue is money, control, and concerns about the impact of technology on their jobs.” (NOTE: Mr. Hawthorne’s opinions were posted in his individual capacity and do not represent the opinions of his office or of the Texas Supreme Court).

After decades, the DWC has finally allowed an increase in claimant’s attorney fees from $150/hour to $200/hour for attorneys, and from $50/hour to $65/hour for legal assistants.  For any service provided before January 30, 2017, the old rates apply.  For services after January 30, 2017, the new rates apply.  When applying for fees, separate applications must be submitted for services rendered before and after that date. In addition, billable time allowed for communications per month increased from two hours to three hours per month. For direct dispute resolution negotiation with the other party, allowable time increased from three to three and one-half hours, and for preparation and submission of an agreement or settlement, allowable time increased from one to two hours.

It will be interesting to see whether this increase attracts any additional qualified attorneys to represent claimants before the DWC.  Carrier attorney fees are not actually “capped” by the DWC’s rules – the requirement is only that the fees must be “reasonable.”  Other states’ attorneys are in the midst of challenging their regulatory agencies’ constitutional authority to regulate attorney fees at all!  More on that in later newsletters, but there has not been a constitutional challenge to Texas’ workers’ compensation statute since 1989 when the Texas Supreme Court held in Garcia v. Texas Workers’ Compensation Commission that the newly enacted workers’ compensation act did not violate provisions of the federal and state constitutions.