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STONE LOUGHLIN & SWANSON, LLP

TEXAS LAW ADVISORY

jstone@slsaustin.com jloughlin@slsaustin.com dswanson@slsaustin.com eshanley@slsaustin.com

eholmes@slsaustin.com dprice@slsaustin.com sgatlin@slsaustin.com

512-343-1300

April 2013 Workers’ Compensation Law Update

More Bills Related to Workers’ Compensation

Last month, we provided you with a summary of the more important bills the Legislature is considering which make substantive changes to comp. And keep your eye on the following additional bills—

• SB 1550/HB 2787 - Allows claimants to recover attorneys’ fees if they prevail on judicialreview of a medical necessity dispute, irrespective of whether the appeal was filed by the claimant or the carrier.

• HB 1762 - Provides that a certificate of insurance showing a temporary employment service maintains comp insurance constitutes proof of workers’ compensation coveragefor both the service and all employees of the service assigned to a client company.

• HB 287 - Requires an IRO or URA, on written request by a party to a reviewed medical dispute, toprovide the name and qualifications of the healthcare providerwho performed the review.

In Addition, Bill Would Make Use of Name or Symbols Related to "Texas" and "Workers’ Compensation" Illegal Only When Used in Deceptive Manner

Currently, the Texas Labor Code makes it illegal to use the terms "Texas" and "Workers’ Compensation" in a business name or document when related to a product or service concerning workers’ compensation coverage or benefits. SB 381 would amend Texas Labor Code §§419.001 and 419.002 and only make the use of the terms illegal if they are used in a "deceptive manner." The amendment explains that "deceptive manner" means a person knows the use of the terms would or could convey the "false impression" that someone, something, or some speech is endorsed or authorized by the DWC.

OIEC Budget on the Chopping Block?

In a recent floor amendment, freshman State Rep. Craig Goldman sought to eliminate $8.2 million of yearly funding to the Office of Injured Employee Counsel. While the signs indicate the amendment will not pass, it is interesting to see that OIEC is again the target of budget cuts.

Tip on Filling Out Form DWC 32: Multiple Certifications

A recent article by Erika Copeland at DWC reminded system participants that multiple certifications taking into account different outcomes for an extent of injury determination will only be provided by a designated doctor when the doctor is ordered to address MMI, IR, and extent of injury. If only MMI and IR is requested, multiple certifications will not be provided. This means adjusters should request the DD address extent of injury, in addition to MMI and IR, if multiple certifications are desired. It is not clear whether the opinion on extent and the opinion on MMI/IR have to be by the same doctor, or can be different doctors, or if the reviews have to be at the same time.

Workers’ Compensation? Worker’s Compensation? Or Workers Compensation?

There is an ongoing debate among pedantic system participants like us about the proper use of an apostrophe in the term, "worker[’]s[’] compensation." We invite you to join the debate. Stone Loughlin & Swanson will provide a $25 Starbucks gift card to the first person to e-mail Jane Stone at

jstone@slsaustin.com with the correct punctuation. Twitter-speak not allowed.

Bobby Anglin, a South Carolina resident, suffered a compensable automobile accident while working for his North Carolina employer, Dunbar Armored, Inc. Anglin received benefits pursuant to the North Carolina Workers’ Compensation Act from Defendants and later settled his third-party claim against the other driver in the South Carolina accident for $92,712.55. After this settlement, Defendants agreed to resolve their workers’ compensation lien against the liability settlement for one third of the lien value or $10,613.16. Anglin also reached a settlement with his under insured motorist (UIM) carrier; however, Defendants were not aware of the UIM settlement when the workers’ compensation lien was settled.

Subsequently, Anglin filed suit in Superior Court seeking a declaration eliminating Defendants’ workers’ compensation lien pursuant to N.C.G.S. § 97-10.2. He contended that South Carolina law applied to the determination of Defendants’ subrogation interests in the UIM settlement because it was paid pursuant to a South Carolina policy. He also contended that since South Carolina law does not allow subrogation of UIM funds, Defendants’ lien should be eliminated. Finally, Anglin argued that Defendants lien was already satisfied by their previous agreement to accept one third of the lien value. The trial court disagreed, applied North Carolina law, held there was no accord and satisfaction of the lien with the previous settlement as Defendants were not aware of Anglin’s UIM settlement at the time of the previous lien settlement, and awarded Defendants the remaining $21,206.31 of their workers’ compensation lien. Anglin appealed.

On April 2, 2013, in Anglin v. Dunbar Armored, Inc., the North Carolina Court of Appeals affirmed the decision of the trial court, upholding the award to Defendants in satisfaction of their workers’ compensation lien. The court noted that where a party seeks a determination of a workers’ compensation lien pursuant to N.C.G.S. § 97-10.2 it is seeking "remedial" or "procedural" relief and, as such, the law of North Carolina, as the forum state, applies. Since North Carolina law does not prohibit subrogation of UIM funds, the trial court did not improperly award Defendants a portion of Anglin’s UIM settlement in satisfaction of the remainder of their workers’ compensation lien.

Risk Handling Hint: Where Defendants have a particular interest in recovering from an injured workers’ third-party settlement to satisfy their subrogation lien, special consideration should be given to bringing an action in North Carolina’s courts, pursuant to N.C.G.S. § 97-10.2, to avoid the potential application of unfavorable subrogation laws in other states.

Rayford H. Taylor
Of Counsel
Casey Gilson P.C.
Six Concourse Parkway, Suite 2200
Atlanta, Georgia 30328
770-512-0300 -Ext. 529
770-512-0070 -Fax
rtaylor@caseygilson.com
www.caseygilson.com

SunTrust Bank v. Travelers Prop. Cas. Co. of Am., (03/28/2013)

An insurer cannot have its timely workers' compensation lien extinguished merely by the employee and the tort defendant agreeing the employee was not fully compensated

The worker was injured in the course of his employment following a motor vehicle collision.  He received workers' compensation benefits before filing suit against two third-party tortfeasors.  Although the insurer timely intervened in the suit to protect its workers' compensation subrogation lien, the worker and the tortfeasors settled the case for a confidential lump sum without the insurer's knowledge, participation or consent.  Among other terms, the settlement agreement included a conclusory statement that the proceeds of the settlement did not fully and completely compensate the worker for his injuries.  The insurer filed its motion to enforce its subrogation lien, which the trial court granted. 

On appeal, the estate administrator contended the trial court erred in finding the terms of the settlement agreement did not extinguish the insurer's right to enforce its subrogation lien.  The court disagreed and held the insurer had the right to intervene and the trial court was required to conduct a hearing on whether the worker was fully compensated, so that the insurer could attempt to enforce its subrogation lien.

720428-1

Rayford H. Taylor
Of Counsel
Casey Gilson P.C.
Six Concourse Parkway, Suite 2200
Atlanta, Georgia 30328
770-512-0300 -Ext. 529
770-512-0070 -Fax
rtaylor@caseygilson.com
www.caseygilson.com

Zheng v. New Grand Buffet, Inc., (03/20/2013)

The appellate court ruled the employee could not unilaterally change her treating physician before asking the State Board for such authority when there is a valid physician panel in place for that employer

Zheng sustained a compensable injury on May 27, 2010, and began receiving medical care and income benefits.  Her employer suspended Zheng's income benefits on October 1, 2010, asserting that Zheng  underwent a change in condition for the better based on a regular duty work release from her authorized treating physician ("ATP").  Zheng disputed that she had undergone a change in condition for the better and sought reinstatement of her income benefits, payment of certain medical expenses, permission to change her ATP, a late penalty, and an assessment of attorney fees.

The administrative law judge ("ALJ") found the employer's suspension of benefits "was not improper" in view of an August 24, 2010, statement from the ATP that he anticipated she would be able to return to work on August 31, 2010.  The work release was prospective, however, depending on test results and an evaluation, and Zheng did not return to the doctor on August 31, 2010, as scheduled.  Instead, Zheng elected to see another physician of her own choosing.  After reviewing evidence from the physicians who saw Zheng before and after, the ALJ reinstated Zheng's income benefits as of October 1, 2010, concluding that the employer did not establish by a preponderance of the evidence that she had a change in condition for the better that allowed her to return to work without restrictions.

The ALJ also found the employer had a panel of physicians and that the employer's manager had explained the panel's function to Zheng when she had been rehired two months before she was injured.  Zheng had received treatment from the three physicians on the panel:  Dr. Chang, Dr. Wu, and Dr. Armstrong.  However, instead of returning to Dr. Armstrong, she changed physicians on her own without Board approval.  Because the employer had been providing appropriate medical treatment, it did not lose control of her treatment and was not responsible for paying the new physicians' expenses.  The ALJ denied Zheng's request that one of her new physicians be designated as her ATP, finding that the employer should first have the opportunity to offer treatment by another physician of the employer's choice.  Finally, finding that the case was closely contested on reasonable grounds, the ALJ denied the employee's request for attorney fees and penalties.

Both sides appealed the ALJ's decision to the Appellate Division of the State Board of Workers Compensation, which adopted the ALJ's findings of fact and conclusions of law.  Both parties appealed this decision to the superior court, which conducted a hearing.  The superior court did not issue an opinion within 20 days of the hearing, and thus the Board decision was affirmed by operation of law.

On appeal, the appellate court affirmed the ALJ's rulings because there was evidence of a valid panel, the panel had been explained to the employee, and she went to an unauthorized physician without permission of the employer/carrier.  The employee's remedy was to petition the State Board for a change, rather than seeking treatment on her own.

720425-1

Rayford H. Taylor
Of Counsel
Casey Gilson P.C.
Six Concourse Parkway, Suite 2200
Atlanta, Georgia 30328
770-512-0300 -Ext. 529
770-512-0070 -Fax
rtaylor@caseygilson.com
www.caseygilson.com

Garcia v. Shaw Indus., Inc., (03/29/2013)

Employer found not liable for intentional infliction of emotional distress and defamation for reporting employee's possible fraud to State Board of Workers' Compensation

A former employee filed an action against a former employer for intentional infliction of emotional distress (IIED) and defamation.

The employee was not a citizen of the United States, but entered the country legally with a border-crossing card.  The employee was not authorized to work in the United States, but obtained employment using the name, Social Security number, and personal information of another person, whose identity the employee paid to use. 

The employee fell and injured her back at work.  After treatment, she returned to light duty work and filed a claim for benefits.  During that period, the employer became aware of the employee's situation and immigration status.  The employer terminated the employee, but continued to provide medical treatment and TPD benefits.

The employer filed a complaint with the State Board's fraud and compliance unit.  The employee was later arrested on warrants for forgery and possession of fraudulent documents after her deposition in the workers' compensation case was completed.  The employer cooperated with the State Board, and arranged for the State Board to arrest her after the deposition.  The employee filed her IIED suit, which was dismissed.

On appeal, the employee contended the trial court erred in granting summary judgment to the employer on her IIED claim, because there was evidence the employer set her up for arrest causing her severe emotional distress.  The appellate court concluded the employer's conduct did not rise to the level of extreme and outrageous conduct necessary for an IIED claim.  Even if the employer knew the employee was operating under an alias, it was not malice for the employer to want to bring the illegal behavior to an end.  In addition, when the employer filed an administrative fraud complaint with the Georgia State Board of Workers' Compensation, it truthfully and accurately related the facts.

720424-1

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.