State News

In September 2018, the National Workers’ Compensation Defense Network (NWCDN) held it’s annual national conference and seminar in Minneapolis. It was a great success. Industry leaders and attorneys from 45 states attended. The seminar was headlined by Bob Lund, CEO of SFM, Dr. Uzma Samadani, Dr. Richard Migliori, Dr. Teresa Bartlett and Steve Perroots, Vice President of Marriott International. CWK was the host law firm. Tom Kieselbach moderated the seminar. Mark Kleinschmidt and Natalie Lund participated in the substantive program.

Annually, US News and World Report/Best Law Firms honors the top law firms in the United States.  The selection process is rigorous.Cousineau, Waldhauser & Kieselbach, P.A. has been selected as a Tier 1 law firm for Workers Compensation-Employers, 2019. We are proud of the honor and thank our peers for selecting us.  We have been selected every year as a Tier 1 law firm/practice group since the inception of the award.

A woman who visited a chiropractor for neck manipulation intended to treat her headaches wound up with damage to her right eye. Immediately after the visit she began seeing spots which were symptoms of ruptures in the eye’s blood vessels known as preretinal hemorrhages.

The technique used by the chiropractor, known as high-velocity, low-amplitude spinal manipulation, involves the application of short, quick thrusts to the back of the patient’s neck. Those manipulations caused the woman’s retinal hemorrhages According to findings published in the September issue of theAmerican Journal of Ophthalmology Case Reports.

-  Copyright 2018,David L. Swanson, Stone Loughlin & Swanson, LLP

The Texas Supreme Court announced this month that it has set a workers’ compensation death benefits case for oral argument.  InChicas v. Texas Mutual Insurance Company, the issue is whether a court lacks jurisdiction to review the DWC’s decision in a death benefits case if the claimant files the appeal in a probate court and does not file it in a district court until after expiration of the 45-day deadline in Labor Code section 410.252(a).

Santiago Chicas was cleaning rain gutters at the home of his employer’s president when he fell from a ladder and died. His widow, Bertilla, filed a claim for death benefits and, when Texas Mutual denied the claim, she initiated a proceeding at the DWC to resolve the issue. She also filed a wrongful death action in Harris County Probate Court Number 2.

An Administrative Law Judge at DWC found that Santiago was not in the course and scope of his employment and denied Bertilla’s claim for benefits and the DWC Appeals Panel allowed the decision to become final. Within the 45-day time limit for filing a petition for judicial review, Bertilla amended her petition in the probate court to include her claim for judicial review of the DWC’s decision. Five months later, Texas Mutual filed a plea to the jurisdiction which the probate court granted. Bertilla then filed a petition for judicial review in the Harris County District Court. Texas Mutual filed a plea to the jurisdiction which the district court granted. The Houston Court of Appeals (1^st. Dist.) reversed the trial court judgment and Texas Mutual appealed to the Texas Supreme Court.

The outcome of the case turns on whether the 45-day deadline in section 410.252(a) is jurisdictional or merely mandatory. The courts of appeal are divided on this issue – at least one court has said that it is jurisdictional while others have said that it is not. Hopefully the Texas Supreme Court will resolve the conflict.

Oral argument is set for January 22, 2019.

-  Copyright 2018,David L. Swanson, Stone Loughlin & Swanson, LLP.

Two office administrators at medical clinics in Ft. Worth, Waco and Temple that treated workers’ compensation patients were arrested this month and charged with federal healthcare fraud. Melissa Sumerour and Latosha Morgan are alleged to have submitted more than $5.9 million in claims from 2011 to 2017 for services, including physical therapy, that were never performed.

For example, Sumerour is alleged to have billed for physical therapy sessions that were not provided – always billing five units of therapeutic activities, five units of therapeutic exercises, and four units of manual therapy.  This became known as the “5-5-4” rule of billing.

By maximizing billing amounts, Sumerour and Morgan allegedly received more money for themselves in monthly bonuses from the physician that operated the clinics. The complaint does not identify the physician, but media outlets identify him as Leslie Benson, M.D. Dr. Benson, who played football for the Dallas Cowboys in the 1970s, was indicted for healthcare fraud in 2017 and has relinquished his license to practice medicine in Texas.

-  Copyright 2018,David L. Swanson, Stone Loughlin & Swanson, LLP

Neal Wade Barker, M.D., a prominent bariatric surgeon in Dallas, is the seventh defendant to admit his role in an alleged $200 million scheme of health insurance fraud involving the former Forest Park Medical Center. Barker was one of 21 defendants indicted in late 2016 for what prosecutors described as a massive bribery and kickback scheme to steer business to Forest Park’s luxury hospitals at insurers’ expense. He is the seventh defendant to enter a plea of guilty. The remaining fourteen defendants await trial, currently scheduled for early 2019.

According to the indictment, Forest Park executives paid surgeons, primary care doctors, lawyers and others to refer patients to their high-end hospitals. The hospitals were designed as out-of-network facilities, enabling Forest Park to set its own prices instead of agreeing to payment rates negotiated with insurers.

While patients who treat in out-of-network facilities typically pay a higher portion of a procedure’s cost, Forest Park did not attempt to collect money from patients for those higher costs. Instead, it allegedly wrote off those payments as bad debt and made up for them by collecting exorbitant reimbursement rates from insurers. “Thousands of patients chose to have the exact same procedure performed by the exact same doctor at a facility where, absent the scheme, the costs likely would have been financially prohibitive,” the indictment said.

Federal officials have said that Barker faces five to seven years in prison. A sentencing date has not been set.

Until his indictment, Barker apparently was doing very well. Property tax records show that his home in Highland Park has an appraised value of $12,487,540.

-  Copyright 2018, David L. Swanson, Stone Loughlin & Swanson, LLP.

All work hardening and work conditioning services now require preauthorization.

The DWC has amended Rule 134.600, the preauthorization rule, to require preauthorization for all work hardening and work conditioning services, regardless of the facility where they are performed. The amendment was adopted on October 11 and became effective that date.

Prior to the amendment the preauthorization rule exempted work hardening and work conditioning services from the preauthorization requirement if they were performed at facilities accredited by the Commission on Accreditation for Rehabilitation Facilities (CARF) for which the DWC had granted an exemption. The amendment to the rule eliminates exemptions for such facilities.  The change was prompted by the results of a study by the Workers’ Compensation Research and Evaluation Group (REG) which concluded that there is no statistically significant difference between accredited and non-accredited programs in disability duration outcomes. 

-  Copyright 2018, David L. Swanson, Stone Loughlin & Swanson, LLP.

Speaking of hats, our hat is off to the DWC for revamping its much-maligned Designated Doctor program. This month it amended rules in chapter 127 and promulgated a newRequest for Designated Doctor Examination (Form DWC-32) and a new Designated Doctor Examination Data Report (Form DWC-68). The changes become effective December 6, 2018.

One goal of the changes is to increase participation of medical doctors and doctors of osteopathy. To that end, the DWC has changed the manner in which it assigns examinations. It will maintain two independent lists for each county from which the next designated doctor will be selected. One list will consist of doctors qualified to perform examinations under Rule 127.130(b)(1) –(4). These examinations involve musculoskeletal injuries for which medical doctors, doctors of osteopathy, and chiropractors are qualified to perform an exam. The other list will consist of doctors qualified to perform examinations under Rule 127.130(b)(5) – (9). These examinations involve specialized injuries for which medical doctors, doctors of osteopathy, doctor of optometry, and doctors of dental surgery  are qualified to perform an exam.  Those injuries include, but are not limited to, mental and behavioral disorders and injuries of the feet, teeth, eyes and internal systems. A qualified doctor can be on both lists. The DWC hopes that this change will result in more opportunities for medical doctors and doctors of osteopathy to receive assignments for multiple examinations in the same location on the same day, thereby making the examinations more profitable for the doctors.

These changes are sorely needed. Data released by the DWC this month shows that of the 509 available DDs, 345 are chiropractors and only 163 are medical doctors or doctors of osteopathy.

The rule amendments also will give the DWC more tools to weed out DDs that are just plain bad. Specifically, the Division now will be able to deny certification as a DD for a number of newly-specified reasons including, but not limited to, (1) the quality of the doctor’s past DD reports, (2) demonstrated lack of ability to properly apply the  Guides to the Evaluation of Permanent Impairment, and (3) a pattern of reports overturned by the DWC.

-  Copyright 2018,David L. Swanson, Stone Loughlin & Swanson, LLP.

                                              BADDA-BING:  RE-BOOK YOUR IREs IN PENNSYLVANIA

By Kevin L. Connors, Esquire

Okay, the tag line is from Choice Hotels’ Badda-Bing television ad campaign.

A total distraction!

Check it out, Pennsylvania is in the process of reinstating Impairment Rating Evaluations, eviscerated in 2017 by the Pennsylvania Supreme Court’s landmark Decision inProtz v. WCAB (Derry Area School District), decided on June 20, 2017.

The evisceration of IREs under Act 57 by the Pennsylvania Supreme Court cast a dark shadow over Pennsylvania Workers’ Compensation claims, as IREs had been utilized by Employers, Insurers, and Third-Party Administrators, as a backstop against temporary total disability claims being “lifetime” claims in Pennsylvania, the paradigm being that once a workers’ compensation claim is accepted as compensable and work-related, and a Claimant begins receiving workers’ compensation benefits, whether through litigating a Petition for compensation benefits, and/or after the acceptance of a claim as compensable and work-related, resulting in claims conceptually being regarded as “lifetime” claims, absent one of the following occurring:  

• The Claimant dies, and compensation benefits terminate by operation of both death and loss;

• The Claimant voluntarily returns to work in their pre-injury capacities, and there is no continuing wage loss post-return to work, such that the Claimant’s compensation benefits are suspended;

• The Claimant returns to work in a modified-duty capacity, with some reduction in return-to-work wages, such that the Claimant’s compensation benefits are modified, and temporary partial disability benefits are paid, subject to the 500 week limitation;

• The Claimant executes a Supplemental Agreement, perfecting either a termination, suspension, or modification of the Claimant’s workers’ compensation benefits;

• The Claimant signs a Final Receipt (almost never used), under which the Claimant agrees that all compensation benefits have been paid;

• The Claimant is deported by virtue of not being able to prove legal immigration status;

• The claim is settled under a Compromise and Release Agreement, perfecting some type of compromise of the indemnity and medical compensation benefits liability associated with the claim; and,

• The Claimant’s compensation benefits are terminated, modified, or suspended by order of a Workers’ Compensation Judge, with the Employer/Insurer carrying the burden of proving the entitlement to a change in the Claimant’s benefit entitlement status.

In 1996, the Pennsylvania General Assembly had enacted a landmark reform to the Pennsylvania Workers’ Compensation Act, incorporating a provision that would allow Employers, Insurers, Third-Party Administrators to utilize an Impairment Rating Evaluation as a means to determine if a Claimant receiving temporary total disability benefits, had an Impairment Rating of less than 50%, in which case the Claimant’s temporarytotal disability benefits, could be converted/modified to temporary partial disability benefits, which, by their very definition under Section 306(b) of the WCA, meant that the Claimant could only receive 500 weeks of the temporary partial disability benefits, as opposed to temporary total disability benefits never ending, absent death, full recovery, a return-to-work, a settlement of the workers’ compensation claim under a Compromise and Release Agreement, or a Claimant waiving the right to continue receiving “lifetime” benefits, the same having never occurred since 1996.

In 2017, the Pennsylvania Supreme Court ruled in Protz that the Act 57 provisions regarding Impairment Rating Evaluations was “unconstitutional,” as it transferred constitutional authority over Impairment Ratings from the legislature, to the AMA’s Guides for Evaluation of Impairment Ratings, with the Guides, of course, being revised, with Act 57 having used the 4th Edition, and the more recent Edition being the 6th Edition, with the Pennsylvania Supreme Court, in its infinite judicial wisdom, determining that that transference of jurisdictional authority was unconstitutional, resulting in IREs becoming unusable as a mechanism for managing the exposures created by workers’ compensation claims in Pennsylvania, with the pre-Act 57 models and mechanisms for managing exposures associated with workers’ compensation claims, reverting back to traditional practices, being Independent Medical Examinations establishing full recovery, often times given judicial indifference by Workers’ Compensation Judges deciding Employer-filed Termination Petitions in reliance upon Independent Medical Examinations with board-certified physicians testifying to full recovery opinions, against which Claimants will testify that they not only do not feel that they are fully recovered from their work injuries, but do not feel as though they can return to any level of work, and the other option being some type of alternative employment, either light-duty with the injury Employer, or alternative job availability, subject to a magical matrix of medical restrictions and pigeon-holed job descriptions, again being subject to microscopic inspection by Workers’ Compensation Judges, with the general consensus being that job availability was more useful for settlement valuations, than for actual return-to-works.

Post-Protz, confusion descended upon the workers’ compensation marketplace in Pennsylvania, with an IRE model that had been in place and working for 21 years being shredded by one Decision, with no alternative options being provided by the Supreme Court as to how Employers could manage open-ended liabilities under the Pennsylvania Workers’ Compensation Act, when Employees have either accepted injuries or judicially-approved injuries, although still seemingly having some capacity for working, but having no actual incentive for doing so, as our Act is not structured to facilitate and encourage return-to-work scenarios, instead being unintentionally structured to perpetuate the shelf life of workers’ compensation claims as opposed to actually being interested in rehabilitation, being it medical and/or vocational.

Badda-Bing!

Several days ago, on October 24, 2018, Governor Wolf, seeking re-election on November 6, 2018, signed into law Act 111 of 2018, re-establishing the Impairment Rating Evaluation process in Pennsylvania, although this IRE process will be significantly different than the pre-Protz IRE provisions and procedures, as IREs will now need to be performed under the 6th Edition of the AMA’s Guides to Evaluation of Permanent Impairment, and the new IRE provisions under Act 111 will set athreshold for the presumption of total disability at 35%, as opposed to the pre-Protz presumption of total disability at or above 50%.

Since Act 111 is being immediately implemented into Pennsylvania’s Workers’ Compensation scheme, the Department of Labor and Industry, through the Bureau of Workers’ Compensation (Bureau) is re-activating the IRE functionality in its EDI platform, WCAIS, and it will resume authorization and designation of IRE physicians, to allow the performance of IREs pursuant to the regulations set forth in Act 111.

Seeking administrative consistency, it is anticipated that the process will track the pre-existing procedure on the regulatory framework in existence prior toProtz, to the extent and manner consistent with the newly-enacted provisions of Act 111.

Before exchanging high-fives, it should be noted that this functionality is still under review by the Bureau, as it updates its WCAIS screens and forms, with the Bureau ultimately needing to amend its regulations, to accurately reflect the new IRE provisions and requirements under Act 111.

Until those changes have been implemented, some screens and forms generated by the Bureau, regarding the IRE process, might still contain erroneous language, referencing the repealed language and requirements of the eviscerated Section 306(a.2), such as the reference in that statutory provision to “the most recent Edition” of the AMA Guides, and/or to any reference to a 50% threshold as being the controlling template for total disability consideration.

Notwithstanding any language to the contrary that might temporarily be found on either WCAIS screens, or Bureau forms, as well as any regulations previously utilized by the Bureau for IREs, it is anticipated that all IREs must be conducted and determined consistent with and pursuant to the new statutory requirements set forth in Act 111, during this transition, bridging the gap fromProtz eviscerating IREs to IREs being resurrected by Governor Wolf in a modified paradigm.

Deep breath!

Obviously, Act 111 is a compromise achieved by the diligence and energy of the insurance industry, to facilitate Employers having a mechanism for converting temporary total disability claims, not subject to any statutory cap, to temporary partial disability benefit claims, triggering the 500 week statutory gap under Section 306(b) of the Act.

It was a statutory framework resisted by the Claimant’s Bar, which relished the entombment of IREs underProtz, as the perception was that workers’ compensation claims had a greater value for settlement purposes, without IREs, as opposed to with IREs.

Yes, the vast majority of workers’ compensation claims will likely never involve IREs, as the injuries will not warrant that type of consideration, but for those claims that become more manageable with an IRE backstop, the IRE process has been, and will continue to be so, an invaluable instrument for Employers, Insurers and Third-Party Administrators seeking closure of open workers’ compensation claims in Pennsylvania.

While the total disability threshold has dropped from 50% to 35%, and only the 6th Edition of the AMA Guides are relevant for IRE purposes, let us not forget that the IRE is only accessible after a Claimant has received 104 weeks of temporary total disability benefits, and after the Claimant has reached maximum medical improvement, which still might require that an Independent Medical Examination be coordinated prior to an IRE, to secure a medical opinion of maximum medical improvement, prior to the IRE being implemented for conversion of total to partial disability.

Obviously, we encourage you to contact us with any questions you might have regarding the resurrection of IREs in Pennsylvania.

ConnorsO’Dell LLC

                                                                    Trust us, we just get it!  It is trust well spent!

We defend Employers, Self-Insureds, Insurance Carriers, and Third Party Administrators in Workers’ Compensation matters throughout Pennsylvania.  We have over 100 years of cumulative experience defending our clients against compensation-related liabilities, with no attorney in our firm having less than ten (10) years of specialized experience, empowering our Workers’ Compensation practice group attorneys to be more than mere claim denials, enabling us to create the factual and legal leverage to expeditiously resolve claims, in the course of limiting/reducing/extinguishing our clients’ liabilities under the Pennsylvania Workers’ Compensation Act.

Every member of our Workers’ Compensation practice group is AV rated.  Our partnership with the NWCDN magnifies the lens for which our professional expertise imperiously demands that we always be dynamic and exacting advocates for our clients, navigating the frustrating and form-intensive minefield pervasive throughout Pennsylvania Workers’ Compensation practice and procedure.     

Julio Pendola fractured his ankle in 2014 picking up a customer and filed a petition in the Division of Workers’ Compensation.  He asserted that he worked exclusively as a driver for Classic, which had over 100 cars.  He purchased his own car after consulting with Classic.  The company required Pendola to paint the car silver and affix the Classic logo to the sides and front of the car with the company’s phone number.  Classic also required Pendola to purchase a two-way radio for installation in the car.  Eventually they changed to computer tablets to dispatch drivers.  All of these expenses were paid for by Pendola along with the medallion, gas, maintenance on his car and liability insurance.

Classic dispatched all the passengers which Pendola picked up.  He could not pick up passengers off the street like a taxi driver.  Pendola paid Classic $150 per week and then kept his fares, grossing between $500 to $700 per week.  Pendola could work when he wanted to work. He had to keep the car clean and dress appropriately.  Otherwise he would be suspended.

Testimony at trial revealed that Classic considered itself to be merely a dispatching service and that drivers were considered independent contractors.  The color of the cars was an article of compliance with the City of Newark Taxi Division.  The company would check on the cleanness of cars that were being used.  The company also furnished drivers with business cards, receipts, vouchers for credit cards, and sometimes key chains and pens.  The company did not issue a 1099 or W-2 because the company considered drivers not to be employees.  The drivers simply would keep their fares.

The Judge of Compensation ruled in favor of Classic and found that Pendola was an independent contractor.  The judge noted that Pendola was free to accept or reject fares and was not supervised by anyone.  In regard to whether Pendola’s work was an integral part of Classic’s business, the Judge of Compensation found that Classic was not dependent on Pendola.  No one driver was essential to the business.

On appeal the Appellate Division observed that drivers were not free to pick up any nearby passenger.  They had to request the ride from the dispatcher, who would then decide which driver would get the assignment.  The Court thought it significant that the company would evaluate the condition of cars.  The Court disagreed on the analysis of the functional relationship between Pendola and Classic.  “It cannot be seriously disputed that Pendola was one of the ‘cogs’ in Classic’s operation.  His work as a driver willing to provide the rides Classic arranged was essential to the success of its business.”

The Appellate Division viewed Classic as more than a dispatching company but instead viewed it as a transportation company.  The Court noted that it had found Classic to be an employer in a prior case along the same lines in 1999.  It saw no reason to vary from that prior decision and reversed in favor of Pendola.

The case can be found at Pendola v. Milenio Express, Inc., d/b/a/ Classic, A-0225-17T2 (App. Div. October 26, 2018).  It shows how New Jersey courts will likely consider drivers for companies like Lyft and Uber when such cases find their way to the Appellate level.

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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.