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.
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.
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.
VERMONT WORKERS' COMPENSATION UPDATE
JANUARY TO MARCH 2013
by Keith J. Kasper Esq.
DEPARTMENT OF LABOR HEARING DECISIONS
LeClaire v. Ford of Brattleboro Inc., Opinion No. 1-13WC (Jan. 3, 2013).
Defendant's attempt to terminate TTD benefits due to concurrently disabling heart condition denied. "As it was in Wood, the critical fact here is that during the time when Claimant's non- work-related condition precluded treatment, his work-related injury continued to be totally disabling. Given the express language of the statute, which mandates that temporary total disability benefits be paid for so long as the work injury 'causes total disability for work,' 21 V.S.A. §642, sufficient grounds for discontinuing them in this case do not yet exist."
Roy v. The Howard Center, Opinion no. 2-13WC (Jan. 10, 2013).
Claimant's mental-mental claim found compensable as finding dead co-worker satisfies unusual stress standard. Treating psychiatrists' opinion found more credible than that of IME doctor's opinions as more objectively based.
Kibbie v Killington/Pico Ski Resort, Opinion No. 3-13WC (Feb. 5, 2013).
Request for Summary judgment denied as prior settlement agreement which left open treatment for TBI did not necessarily foreclose proposed physical therapy recommendation.
Pawley v Booska Movers, Opinion No. 4-13WC (Feb. 5, 2013)
Attorney fees awarded to Claimant for one carrier initially denying claim compensable but then retracting that defense after depo of Defendant's expert witness. "Were this the first time Claimant had sought to establish the compensability of either incident, I likely would conclude that Dr. Pulde's report provided a reasonable basis for his employer to deny his claim for benefits. The fact is that Claimant's employer previously had accepted compensability, however. True, this occurred while another carrier was on the risk. But the statute equates employer with insurer, so both are thereby bound. 21 V.S.A. §601(3); Workers' Compensation Rule 2.1190. Given this particular circumstance, I conclude that Vanliner had no reasonable basis for denying the compensability of Claimant's August 2011 DVT on the grounds that it was not related to his employment."
Puzic v Huber + Suhner, Opinion No. 5-13WC (Feb. 5, 2013).
Defendant's IME opinion found credible even though Hearing Officer did "not accept as credible his conclusion that Claimant's ongoing symptoms were most likely due to rheumatoid arthritis or to her 2009 fall while shopping. However, I do accept as credible his conclusion that there is no medical basis whatsoever for relating Claimant's symptoms back to her 2002 work injury. That injury, which was diagnosed at the time as a myofascial strain caused by repetitive shoulder activities, resulted in no permanent impairment, no documentable structural defects, no objectively verifiable range of motion limitation and only minor functional restrictions. I conclude that there is no medical process by which Claimant's ongoing symptoms, which in the nine years since have both worsened and become more diffuse, reasonably can be attributed to her initial work-related insult."
Maluk v Plastic Technologies of Vermont, Opinion No. 6-13WC (Feb. 5, 2013).
Pro se Claimant fails to qualify for TTD benefits. "Here, the uncontradicted medical evidence establishes that claimant was capable of working, albeit with modified duty restrictions, at all times subsequent to his November 30, 2011 injury. The credible evidence further establishes that Defendant was providing suitable modified duty work. By first calling in sick and then abandoning his job, Claimant removed himself from the work force without a medical basis for doing so. Whatever wages he lost thereafter were a function of that decision, not his work injury."
Simmons v Landmark College, Opinion No. 7-13WC (Feb. 28, 2013)
Defendant's IME doctor's opinion as to reasonableness of fourth neck surgery found more credible than that of treating surgeon. Symptoms found compensable as related to issues covered by Form 22, but not surgery to correct said symptoms.
DeChantal v Sears, Opinion No. 8-13WC (Feb 28, 2013)
Claimant's low back injury found compensable based upon Claimant's IME opinion that work activities caused a "'classic presentation'...[as] Claimant's symptoms progressed from feeling a 'twinge' or pop while engaged in a vehicle repair job at work on July 19th to being unable to get out of bed on July 21st."
Randall v Health Services Group, Opinion No. 9-13WC (Mar. 12, 2013).
Treating physician's opinion as to proposed cervical surgery found not as persuasive as treating surgeon's opinion as to causation of cervical condition and reasonableness of proposed cervical surgery. IME doctor "has not explained adequately h ow it is that the benefit Claimant derived (or not) form her shoulder surgeries is likely to be an accurate predictor of whether she will (or will not)benefit from cervical surgery."
Haskins v Green Mountain Coffee Roasters Opinion No. 10-13WC (Mar. 18, 2013)
IME expert's opinion rejected over that Claimant's treating physician. "Had there been evidence from which he could determine, to the required degree of medical certainty, that the carpal tunnel symptoms Claimant was exhibit form September through November 2011 were due to a burgeoning systemic inflammatory response or autoimmune disorder, I might have found his opinion persuasive." However, DOL accepts IME doctor's opinion that chiropractic treatment of CTS was not reasonable.
MISSOURI WORKERS’ COMPENSATION
CASE LAW UPDATE
JANUARY 2013 – MARCH 2013
Percentage of Disability Alleged in Claim Not Deemed Admitted if Employer Does Not File
Answer Timely
Ray Taylor v. Labor Pros, LLC, Case No. WD75174 (Mo. App. 2013).
FACTS: The claimant was striking a wooden block with a sledge hammer when a piece of wood broke off and struck him in his left eye. The claimant was seen by Dr. Becker at the request of the employer, who opined he had 30% PPD to his left eye. The claimant offered no medical testimony regarding the percentage of disability he sustained to his eye. He filed a Claim for Compensation and in the box titled "parts of body injured," he put 75% disability to the left eye. At the hearing, the claimant objected to the admission of any evidence regarding the percentage of disability to his eye based on the fact that the employer failed to file a timely Answer, and therefore, all factual issues alleged in the Claim were deemed admitted, specifically, that he sustained 75% disability to his left eye. The Commission rejected this argument and a warded the claimant 30% PPD to his left eye consistent with medical evidence. The claimant appealed.
HOLDING: The Court noted that the issue in this matter was whether a percentage of disability added to a Claim should be considered a "statement of fact" subject to being deemed admitted when an employer fails to timely file an Answer. The Court noted the failure to timely answer results in the factual statements in the claim being admitted, but does not result in the admission of a legal conclusion such as whether the injury arose out of or in the course of the employment. The Court further noted that it was well established that "the determination of a specific amount or percentage of disability awarded to a claimant is a finding of fact within a special province of the Commission." Furthermore, the Commission may consider all evidence including the testimony of a claimant and draw reasonable inferences in arriving at a percentage of disability, and in fact, Appellate Courts have affirmed disability ratings made by the Commission which exceeded the highest of the percentages expressed in medical opinions. Therefore, the Court noted that a disability determination alleged within the Claim is not to be deemed admitted, nor is the Commission bound by it. The Court, therefore, affirmed the Award of 30% disability.
Commission Has Authority to Review Temporary Award of ALJ and Issue Final Award if
Employer Initially Denied ALL Liability
David Johnson v. Land Air Express, Inc., and Franklin Trucking Company, Case No. WD74821 (Mo. App. 2012).
FACTS: The claimant sustained an injury to his lower back on December 1, 2008, while working for Land Air Express. On January 1, 2009, Land Air Express sold its operation to Franklin Trucking Company, and the two companies had common ownership and were both covered by the same workers' compensation insurer. The claimant continued to perform his job duties, however, eventually was diagnosed with a disc herniation and underwent a discectomy at L5-S1.
The claimant filed two Claims for Compensation. The first was for a specific injury on December 1, 2008 and the second was for an occupational disease occurring on December 1, 2008, and every day he worked before and after that time. Both employers deniedall liability. The claimant requested a hardship hearing and the ALJ found that he sustained a work injury on December 1, 2008, but did not suffer from an occupational disease. The ALJ issued a Final Award finding that Land Air Express was liable for the claimant's medical treatment and TTD benefits. Land Air Express provided medical treatment and TTD benefits, but appealed the ALJ's Decision to the Commission. The Commission overturned the ALJ's Decision, and issued a Final Award denying all compensation and medical treatment to the claimant. The claimant appealed the Commission's reversal.
The issues before the Court were whether the Commission had authority to render a Final Award on an appeal from the ALJ's Temporary Award and if the Commission did have that authority, was the Commission's Award actually a Final Award since there was still the question of who was responsible for the claimant's medical expenses that Land Air Express was ordered to pay pursuant to the ALJ's Temporary Award.
HOLDING: The Court found that the Commission had authority to enter a Final Award. The Court noted that nothing in the Statute indicates that the Commission does not have the authority to issue a Final Award after an appeal from a Temporary Award by an ALJ, or that another hearing after the hardship hearing is required to enter a Final Award. The Court did note that the Commission will not review an ALJ's Temporary Award unless the employer has deniedall liability, and has asked for a review as to whether there is liability under the Statute. There was no dispute that Land Air Express denied all liability, and therefore, the Commission had authority to review the award even though the ALJ issued a Temporary Award.
Furthermore, the Commission had the statutory authority to issue a Final Award. The claimant argued that the Commission's Award was not final because the Commission did not determine whether the claimant or the employer/insurer was responsible for payment of medical services provided pursuant to the ALJ's Temporary Award. The claimant argued that the issue of who is responsible for paying the already-incurred medical expenses prevents the Commission from issuing a final award. The Court disagreed.
The Court noted that the Statute and Regulations allow a final award to be issued by the Commission even if medical providers might still be owed money for the services provided to the claimant. Medical providers have a separate avenue to collect, which is through Medical Fee Disputes.
The Court further found that it is not relevant that the employer/insurer authorized treatment between the ALJ's Temporary Award and the Commission's Final Award. The Court found that Land Air Express simply complied with the Temporary Award. The Court noted that if Land Air Express would have failed to provide the treatment and the Commission would have issued an awarding affirming the ALJ's Temporary Award, its liability would have doubled for the unpaid portions of the awarded compensation. The claimant equates the making of payments as establishing that Land Air Express authorized the treatment. However, the Court did not agree. After the ALJ entered his award they continued to deny liability for the ordered medical treatment by seeking the Commission's review of the award.
The Court also noted that it understood that the Regulations allow for medical providers to pursue either the employer/insurer or employee for fees for "medical treatment that is found by award or settlement not to be compensable." The Court did understand the difficult position that the claimant was in, which was that medical providers that remained uncompensated could come after him for payment of medical services. However, the Commission found no clear legal basis to say the Commission's Award was not final. Therefore, the Court affirmed the Final Award of the Commission.
SIF Cannot Be Compelled to Pay a Claimant Benefits Because the SIF is Insolvent
Skirvin v. Treasurer of the State of Missouri et. al., Case No. WD75541 (Mo. App. 2013).
FACTS: On May 11, 2011, the Commission awarded PTD benefits to the claimant against the SIF. On July 8, 2011, the SIF wrote the claimant acknowledging his Award, but advised that it was unable to make a payment due to its current balance and projections for the remainder of the fiscal year. It further advised that he would be notified in the event the SIF is able to make a payment in the future. On September 27, 2011, the claimant filed a Petition in the Circuit Court, seeking to compel payment of the Award. A hearing was held before the Court who ruled that the SIF must pay the claimant his benefits. The SIF filed a Motion to Reconsider for a New Trial arguing that the judgement would wreak havoc on the SIF by promoting a "run on the bank," making it impossible to attempt to orderly pay claimants out of the SIF's limited funds. The Motion was denied. The SIF filed an appeal.
HOLDING: The Court noted that the question in this case is can the SIF be compelled to pay PTD Awards on a first come first served basis when the SIF is admittedly unable to pay all present and future PTD awards. The Court found that because the SIF is legally insolvent, it cannot be compelled to make full payment to the claimant. The Court did transfer this case to the Missouri Supreme Court because of the general interests or importance of the question involved.
Injury in Parking Lot Compensable because Employer Owned, Maintained and Controlled
Lot
In Jackie Maize v. Preferred Family Healthcare, Inc., Injury No. 11-006324, the claimant was a residential care technician whose job duties included cleaning rooms, checking on residents and doing the laundry. He had completed his work shift and prepared to go home. He walked outside to his pick-up truck, which was parked in the employer's parking lot under an overhead light that was surrounded by a circular concrete curb and filled with river gravel. He stepped up onto the curb and his right foot slipped on the gravel that was on top of the curb, at which time he fell sustaining an injury to his right knee. The claimant testified that the employer owned the lot and controlled and maintained it, and employees were allowed and encouraged by the employer to park their vehicles in this area. There was no evidence to the contrary. The ALJ found that the claimant's injury did arise out of and in the course of his employment because it occurred on the parking lot which the employer owned, and the employer controlled and maintained the area. The Commission affirmed the Award of the ALJ.
Fall on Employer's Parking Lot Curb Not Compensable
In Hemenway v. North American Montessori Child Care,Injury No. 10-107564, the claimant, a teacher, slipped and fell on an icy curb in the employer's parking lot. The ALJ denied the claim finding that the claimant sustained an injury but concluded it did not arise out of and in the course of her employment. The Commission agreed and found that the claimant's injury occurred on the edge of the employer's parking lot while she was"off the clock" and returning from her smoke break. The claimant had to smoke in the parking lot next door because smoking was not allowed on school property. The Commission noted that the claimant was not in the icy parking lot as a direct function of her employment, and was there due to the fact that she was taking an unpaid smoke break. The Commission further noted that the claimant's injuries did not arise out of and in the course of her employment because the fall did not occur at a place where she was reasonably fulfilling the duties of her employment or engaging in something incidental to her employment.
Doctor Not Credible because Changed Opinion on Cross-examination
In John Shelton v. Missouri Department of Public Safety/Missouri Veterans Home, Injury No. 09-065061, the claimant was a CNA and sustained an injury to his lower back while lifting a patient. The claimant presented the medical testimony of Dr. Musich, who in both his report and on direct-examination failed to rate any permanency resulting from the work injury. On cross-examination, Dr. Musich changed his testimony and opined that the claimant had 35% disability referable to the injury, as well as two subsequent injuries. The employer presented expert testimony of Dr. Randolph, who did not rate any permanency resulting from the injury. The ALJ found Dr. Randolph to be credible and found that the claimant did not sustain any permanent disability as a result of the injury. The Commission agreed and noted that Dr. Musich's testimony was little help in this matter as he waited until he was prompted on cross-examination to correct an apparent error in his opinions which demonstrated that he paid little attention to detail. Therefore, his opinion was found to lack credibility.
Costs Awarded Against Employer Because Employer Denied Claim Without Any
Investigation
In Patricia Nouraie v. Missouri Baptist Medical Center,Injury No. 10-111746, the claimant reported to her employer that she was having back problems on February 4, 2010. She also advised that she believed that it was because of her work duties. The employer's occupational health nurse told the claimant to apply ice and take Ibuprofen.
The next day, February 5, 2010, the employer acknowledged that the claimant reported a work injury. That same day the manager of the employer's Workers' Compensation Administration sent the claimant a letter noting that she reviewed "the claimant's report of injury of 12/22/09 and multiple unknown dates of injury and the records of Occupational Health" and based on review of those records the claimant was denied workers' compensation benefits.
The Commission reviewed the records that the employer's Workers' Compensation Administration relied on to deny benefits and found no "report of injury" but simply an "Employee Report of Work-Related Injury, Illness or Exposure" from BJC Healthcare signed by the claimant on February 4, 2010, the day she reported her back pain to the employer. In this report, it is noted that the claimant had back pain for about a month which began after moving a heavy resident. However, the Commission noted that there was no date of 12/22/09 in the record or any other record. There was also a handwritten note from the claimant noting that she had back pain for about a month after helping move a large resident. Then she had two other incidents at work when she felt a strain in her back. In light of this information, the claim was denied by the employer's Workers' Compensation Administration.
The claimant was seen by her own doctor on February 19, 2010, and she was taken off work until March 8, 2010. The claimant called the employer on numerous occasions asking to be taken off the schedule. Eventually, the claimant obtained an attorney and demanded medical care. Two weeks later she was fired for not timely returning an Application for Personal Leave. The employer did not have the claimant examined until April 2011, more than a year after learning of her injury. The ALJ concluded that the employee sustained a work-related injury by occupational disease. The ALJ also found that the employer did not act unreasonably in denying the claim.
The Commission agreed that the claimant had an occupational disease. However, the Commission found that the employer acted unreasonably in denying the claim. The employer argued that its denial of benefits before sending the claimant for examination was appropriate conduct because the Statute imposes no obligation on an employer to provide medical treatment to a claimant until the claimant proves her claim is compensable. The Commission rejected the employer's suggestion that an injured worker must prove her injury is compensable before the employer has any obligation to provide medical examination or treatment. The Commission noted that the employer should provide medical treatment to cure and relieve the effects of the injury, and the Statute does not make the employer's obligation to provide such medical treatment contingent upon a medical opinion finding the injury compensable. The Commission noted that it is clear that employers have an obligation to investigate alleged work injuries before denying benefits.
Furthermore, where the claimant is available to discuss the injury, the Commission believes that any reasonable employer conducting an investigation regarding an injury would discuss the alleged injury with the worker, which was not done in this case. The Commission found that the employer's act of denying workers' compensation benefits to the claimant before even discussing the alleged injury constituted an egregious offense. Therefore, the employer denied this claim at the outset without reasonable ground and costs were awarded.
If Doctor Doesn't Address Future Medical Treatment Cannot Assume that Doctor Does Not
Believe Future Treatment is Needed
In Carol Herrington v. Cedar Ridge Manor, Injury No. 08-051320, the ALJ found that the employer was liable for future medical treatment. Dr. Volarich, the claimant's expert, opined that it was reasonable and probable that the claimant would need future medical care for her pain syndrome. Dr. Mirkin, the employer's expert, was silent on the issue of future medical treatment. The ALJ found that Dr. Volarich was credible, and therefore, the employer was liable for future treatment. On appeal, the employer/insurer argued that Dr. Mirkin's silence regarding future medical care should be treated as if the doctor did not recommend any future treatment. The Commission did not agree, and noted that the ALJ found Dr. Volarich's opinion credible and so did they. Furthermore, Dr. Mirkin's silence had no probative value in the face of a credible affirmative expert opinion on the issue of future medical care. The Commission agreed that the claimant was entitled to future medical treatment.
Claimant Found Not Credible Therefore Examining Doctors Not Credible
In Tammy Stroud v. Poplar Bluff Regional Medical Center,Injury No. 06-022475, the claimant alleged she was PTD due to a combination of her primary injury and her pre-existing conditions. All of the experts except Dr. Bassett, the psychiatrist for the employer, rendered the opinion that the claimant was PTD due to a combination of her pre-existing conditions and her work injury. The ALJ, however, found these opinions lacked credibility on the rationale that the claimant was not credible with respect to her own limitations and abilities. Therefore, the experts who relied on the claimant's subjective reports of her limitations and abilities did not have an accurate factual basis from which to form their opinions on the issue of PTD.
The Commission agreed and noted that the claimant changed her testimony about activities before and after her injuries. Specifically, she initially described doing jumping jacks, step aerobics, tight rope balancing and going from a squatting to a standing position quickly all while playing the Nintendo Wii Fit before her work injury. However, on cross-examination she did admit that this game did not come out prior to her injury, and therefore, she must have played it after her work injury. The Commission noted that the claimant's testimony was not reliable about her present abilities and limitations, and although the evaluating doctors found the claimant's subjective complaints to be inconsistent with their objective findings, none of the experts diagnosed any conscious or deliberate symptom magnification on the claimant's part. The Commission found that the claimant's inconsistent testimony regarding her physical abilities was due to her psychiatric difficulties rather than a deliberate attempt to misrepresent the nature or extent of her disability. In any event, the Commission found that the claimant's testimony as to her post-injury abilities and limitations was demonstratively unreliable, and therefore, the Commission questioned the true nature and extent of her disability and agreed with the ALJ that she was not PTD despite the doctors' opinions.
Employer Not Entitled to Reduction for Safety Violation Because Did Not Make Effort to
Insure Rule was Followed
In Dennis Carver v. Delta Innovative Services, Inc., Injury No. 07-134522, the claimant was a roofer who sustained an injury carrying an item up a ladder. The ALJ awarded the claimant compensation, however, reduced his award by 50% because he willfully violated a safety rule. The ALJ noted that the claimant was the foreman, was aware of the rule and was responsible for making sure that the rules were followed. However, he went to work and specifically violated a rule which resulted in his injury. Therefore, in this instance the employer was entitled to a 50% reduction in benefits, which is the maximum allowed by Statute. The Commission affirmed the decision of the ALJ. The claimant appealed and the Court found that the Commission's findings were insufficient for the Court of Appeals to determine whether there was sufficient evidence that the employer was entitled to a reduction in benefits. Therefore, the Court of Appeals remanded the case to the Commission to make that determination.
Before remanding this matter back to the Commission the Court identified four elements that must be proven by the employer to take a reduction: 1) Employer adopted a reasonable rule for the safety of employees; 2) Employee's injury was caused by the failure of the employee to obey the safety rule; 3) Employee had actual knowledge of the rule; 4) Prior to the injury, the employer made a reasonable effort to cause employees to obey the rule.
The relevant facts follow: the employer required employees to watch safety videos and also required them to attend an initial safety orientation and ongoing periodic "toolbox talks." The employees who testified were aware of the "three point contact" rule, which precluded employees from carrying anything up the ladder. There was testimony that this rule was well known throughout the roofing industry, and although the record lacked evidence of the specific content of the safety video, orientation or toolbox talks, the Commission believed there was sufficient evidence to find that the employer made its employees aware of the existence of the "three point contact" rule. The record also revealed that the employees misunderstood and routinely violated the rule.
There was also evidence that the owner knew the employees broke the rules all the time. An employee did testify that employees violating the rule would be reprimanded by a foreman. However, this employee was found to be not credible, and therefore, the Commission found no credible evidence that the employer ever warned, sanctioned or took any disciplinary steps against employees who broke the rule. Therefore, the Commission found that although the employer took steps to make its employees aware of the three point contact rule, the employer did not take any steps or make any effort to insure that the rule was actually followed. Thus, the employer was not entitled to a reduction in benefits.
Claim Denied Because Claimant Found Not Credible
In Kristine Gibbons v. St. Louis University Hospital, Injury No. 07-130590, the claimant alleged that she sustained an injury to her low back on May 15, 2007, when she was helping restrain a combative patient. She testified that she twisted and turned to the left, and she heard a pop. She also admitted that she did not report the alleged injury that same day. The claimant also testified that at one point she told her supervisor that her back was hurting. However, she admitted she did not say it was work-related. The claimant did have prior back problems. The claimant also testified that she left work early the day of her injury. However, the records showed she left for a "family emergency."
The ALJ found that the claimant failed to meet her burden of proving she had an accident. The ALJ noted that he did not believe the claimant was credible. He noted that her testimony at the hearing with respect to how she was injured differed from the descriptions she provided to evaluating physicians. The ALJ further noted that the symptoms she reported to various physicians also differed. Also, the experts for both the employer and the claimant noted that her physical complaints were magnified. The ALJ further found that she attempted to minimize her pre-existing issues and problems, and that she testified inconsistently with the medical records which pre-existed her injury.
Therefore, the Judge found that he could not rely on the claimant's testimony or statements, and also could not rely on the physicians' opinions, due to the fact that they relied heavily on the claimant's statements, descriptions and complaints in reaching their conclusions. Therefore, their opinions and conclusions were also flawed. The ALJ concluded that the claimant failed to meet her burden of proof that she sustained an accident arising out of and in the course of her employment, and that any disability was medically causally connected to that alleged accident. The Commission affirmed the decision of the ALJ.
Claimant Found to Be Employee Not Independent Contractor Because Employer Had Right
to Control Work
In John Cutsinger v. Area 151 Nightclub, Injury No. 10-082553, the claimant worked for the employer, a nightclub, on five occasions in 2010 customizing lighting for MMA fights. The last time he worked he sustained an injury to his ankle. The issue in this case was whether he was an employee or independent contractor. The ALJ noted that the Court has considered the following factors to determine whether a claimant is an employee or independent contractor: 1) is the work part of the regular business of the employer; 2) is the job a distinct occupation requiring special skills; 3) could the alleged employee hire assistants or must the work be performed by the individual personally; 4) is there supervision; 5) whose tools were used; 6) the existence of a contract for a specific piece of work at a fixed price; 7) the length of time the person is employed; 8) the method of payment, whether by time or by the job; and 9) who controls the details of the work.
The ALJ found that the claimant was an employee. She noted that although the MMA fights only occurred a few times a year, the evidence indicated that the employer regularly conducted special events. The Judge did note that while the claimant was called to work because he possessed knowledge necessary to customize lighting, she found that this was not an occupation that required special skills. The Judge also found there was no evidence that the employer would have allowed the claimant to hire assistants or substitutes. Furthermore, the employer had the right to hire, discharge and determine the claimant's pay. The employer also owned all of the equipment including the lights, microphones and computers. The Judge also noted that the claimant was paid by the hour, which was indicative of an employment relationship. The ALJ also found that there was a continued relationship since the employer regularly called the claimant to perform these services, despite the fact that he only worked five separate occasions. The Judge did note that the details of the work were controlled by the claimant suggesting independent contractor status. The Judge also noted that the claimant was paid by a 1099 which would also suggest independent contractor status. However, after reviewing all of the evidence in the record, the Judge noted that the weight of the evidence supported that the claimant was an employee. The Commission affirmed.
No Evidence for ALJ's Award of TTD and ALJ May Order a Change in Provider But Cannot Direct
Employer to Use Specific Provider
In Lisa Bush v. West Chester House, Injury No. 10-109482, the ALJ issued a Temporary or Partial Award in which he opined that the claimant was entitled to 6 weeks of TTD benefits as a result of a carpal tunnel release which was performed on November 12, 2010. The ALJ based his Award on Dr. Crandall's testimony that a surgery such as the one performed on the claimant generally requires 6 weeks of recovery. The Commission noted that there was no testimony in the record regarding the claimant's ability to compete in the open labor market or the total amount of time she missed from work due to her surgery. Therefore, the claimant failed to meet her burden of proving her entitlement to 6 weeks of TTD benefits awarded by the ALJ.
The Commission also addressed the ALJ's decision to award treatment with a specific physician. The ALJ ordered a change in provider to Dr. Glogovac. The Commission first noted that the claimant did not prove that the employer waived its right to direct her medical treatment, and the ALJ did not even make that finding in his Award. Second, the claimant failed to prove that her health and recovery had been endangered by the medical treatment provided by the employer. Furthermore, the Commission noted that even if the claimant met this burden, the only relief provided under the statute was that the Division or Commission may order a changein physician, surgeon, hospital or other requirement. The statute does not authorize the Division or Commission to appoint a specific doctor to provide the claimant's medical treatment. Therefore, the Commission found that the ALJ erred in ordering the claimant's medical treatment to be provided specifically by Dr. Glogovac.
The Legislature is Back in Town - Take Heed!
The Legislature is considering a number of bills involving changes to comp – some minor, somenot so minor. The bills which would have the greatest impact on system participants if passed include:
• HB 3022 - Creates a deadline for disputing extent of injury, requiring the carrier to dispute the treating doctor’s determination of the extent of the compensable injury by requesting a DD exam or BRC within 90 days of receiving the treating doctor’s report.
• HB 2630 - Provides that the right to dispute extent of injury is waived if not contested within 60 days of the date that the carrier receives written noticeof a "new manifestation of the original injury, an additional injury, or an additional diagnosis." The bill does not clarify what constitutes written notice for the purposes of this section. If passed, this will have a huge impact on carriers, as every medical bill and report received will need to be carefully reviewed immediately upon receipt for any mention of a new diagnosis or condition.
• HB 2627 - Provides that a party need only "contest" the first valid certification of MMI and IR within 90 days to prevent it from becoming final, clarifying thatcontesting the certification only requires the party to file a written notice with the Division, which shall not serve as a request for a BRC, and expressly stating that a BRC should be requested when the party is fully prepared to enter into the dispute resolution process.
• HB 2660 - Provides that a party may not call an expert to testify on an issue during a CCH or in court unless the party exchanged a report of the expert witness in accordance with the exchange rules.
• HB 2629 - Provides that the Division shall use the range of motion model from the 4th edition of the AMA Guides to determine impairment for all lumbar injuries, instead of the injury or diagnosis-related estimates model.
• HB 1468 - Provides that communications between the carrier and the employer are confidential and privileged if the communication is: (1) in furtherance of the employer’s rights under chapter 408, 409, or 410; (2) in anticipation of an administrative or judicial proceeding; or (3) for the purpose of facilitating the provision of professional services by the carrier to the employer.
• HB 1155 - Removes the word "temporary," so that the statute would allow a carrier to suspend payment of any kind of income benefits if an employee fails to submit to a designated doctor exam.
• HB 2249 - Provides that a claimant is also entitled to LIBs for a whole person IR of 85% or higherbased on the 6th edition or a subsequent edition of the AMA Guides that is the result of compensable injuries suffered in a single incident.
• HB 3280 - Provides that a health care provider cannot seek reimbursement for health care from the injured worker unless the injury has been finally adjudicated not compensable,or the employee fails to request a BRC to dispute the carrier’s denial of compensability within 45 days after receipt of the denial.
Participants Weigh In On Proposed Change To Rule 130.1
WorkCompCentral.com reports that based on the comments received by the Division, carriers and defense attorneys are largely supportive of proposed changes to Rule 130.1, which would clarify that certifications of impairment ratings based on dates other than the date of MMI are barred from evidence. The Division proposed the changes in response to a ruling by the Court of Appeals for the 6th Appellate District inSORM v. Joiner that a hearing officer could consider a doctor’s report that based the claimant’s IR on his condition as of July 5, 2006, even though the claimant did not reach MMI until five days later. The OIEC is opposing the proposal.
A Reminder Never Hurts - Medical Fee Dispute Process
For medical fee disputes filed on or after June 1, 2012, a party may appeal the decision by requesting a BRC within 20 days of receipt in accordance with 133.307(g). In the absence of a timely request for a BRC, the decision becomes final. If the dispute is not resolved at the BRC, a party may elect to resolve the dispute through binding arbitration, or the party can request a SOAH hearing by filing a written request with the Division’s Chief Clerk of Proceedings no later than 20 days after the BRC. However, the losing party is required to reimburse the Division for the costs of SOAH’s services and any applicable interest. Information on SOAH costs can be found athttp://www.tdi.texas.gov/wc/mfdr/documents/soahmfdcchcosts.pdf.
2013 Disciplinary Actions
Disciplinary orders were entered against doctors John Gray Andrew, Howard Thomas Douglas III, George Howell Johnson, Sr., Charles W. Kennedy, Jr., and Asra Oberoi for failure to comply with requirements for designated doctor examination and reporting. Dr. Darey Allen Philbrick was removed from the workers’ compensation system and no longer has a medical license.
Another system participant, Dr. Ernest Roman, permanently surrendered his license to practice medicine per the terms of an agreed order in lieu of further disciplinary proceedings against him before the Texas Medical Board for alleged improper operation of a pain management clinic.
Governmental Immunity May...Or May Not Cover Third-Party Administrators
The Amarillo Court of Appeals recently affirmed the trial court’s summary judgment disposing of claims for damages alleged by the injured worker to be the result of tortious conduct by MHMR, the Risk Management Fund, and the Division. The Court of Appeals agreed that the trial court lacked subject matter jurisdiction because the defendants are immune from suit, finding no clear or unambiguous waiver of that immunity in the Labor Code or Texas Tort Claims Act that would permit suit against them for intentional torts. However, the Court reversed the judgment with respect to defendant JI Specialty Services, holding that the record did not establish that governmental immunity precluded the trial court’s jurisdiction over the claims against MHMR’s third party administrator. The Court found the cases relied on by Specialty Services inapplicable, as they were decided on other grounds rather than any finding that the third-party administrator shared the government entity’s immunity. The Court noted that an Austin Court of Appeals opinion not cited by either party holding that the third party administrator for a state agency was entitled to assert sovereign immunity was based on the relationship between the administrator and the agency as defined by the terms of their contract, while there was no contract in evidence in this case, but cautioned the parties not to read into the discussion any suggestion of the Court’s opinion regarding whether a more developed record might support Specialty Services’ claim of immunity.Taylor v. Lubbock Regional MHMR, JI Specialty Services, Inc., Texas Council Risk Management Fund and TDI-DWC, issued January 8, 2013.
When an employee moves for legitimate reasons, but labor market research cannot be performed in the new hub community, the community at the time of injury should be used. Here, because the appointed counselor could not perform labor market research in the town in Mexico where claimant moved, the trial court erred in finding the hub for determining loss of earning capacity (LOEC) was Mexico. The Court also held that in a modification action to terminate a running TTD award, the employer’s burden of proving a decrease in incapacity was satisfied by showing the claimant reached MMI. The burden of proving entitlement to permanency remained with claimant.