State News

By Kevin L. Connors, Esquire

So, in the midst of all this compensation claims chaos, you have to ask yourself:  do I feel lucky?

Of course, Dirty Harry, played by Clint Eastwood in the 1971 crime avenger epic, possessed sufficient firepower to answer that question with a big bang.

Opening up your claim portal, after two cups of Dunkin Donuts or Wawa coffee, you spot a new claim in your inbox, opening it with three potential choices available to you under Pennsylvania’s Workers’ Compensation Act, being:

·                     Denial, for one of six potential reasons, including:

ü    There is no indication/evidence that the Claimant sustained a work-related injury, to include any alleged aggravation of their pre-existing condition;

ü    The Claimant was not in the course and scope of employment when injured;

ü    The Claimant failed to give timely notice of the alleged work injury, requiring notification, first within 21 days, and then within 120 days in avoidance of total claim denial;

ü    The Claimant was not employed by the alleged Employer;

ü    The Claimant is not disabled by the alleged work injury, meaning that the injured Claimant is not losing any time from work, nor having any injury-related wage loss, such that it is a medical only claim; and,

ü    The claim remains under investigation, as does life throughout the universe.

·                     Acceptance of the claim, as being work-related and compensable, with the Employer/Insurer agreeing to pay workers’ compensation benefits, in whatever form required by the claim, to include temporary total disability benefits, temporary partial disability benefits, specific loss benefits, medical compensation benefits, or fatal claim benefits, thereby effectively entitling the injured Claimant to continue receiving workers’ compensation benefits absent one of the following occurring:

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

ü    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;

ü    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;

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

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

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

ü    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,

ü    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.

·                     The final option being to pay temporary compensation benefits, whether for indemnity or medical compensation benefits, for 90 days from the date of injury, or the first date of payment of temporary compensation benefits, the caveat to which is that temporary compensation benefits can only be “stopped” with the time-sensitive issuance of two State forms, one being a Notice Stopping Temporary Compensation, notifying the injured Claimant of the stoppage of the temporary compensation benefits, AND, not or, a Notice of Compensation Denial, notifying the injured Claimant that the workers’ compensation claim is being denied, requiring the Claimant to be notified of the grounds for denial.

So, which door are you going to pick?

Keep in mind that each door has risks and rewards.

Sometimes, it might depend upon what the meaning of the word “is” is!

Obviously, three other factors also bear witness to the resolve to lay up, or to go for the green, being claim intelligence, claim intuition, accompanied by the best claim investigation possible, recognizing that the claim clock is always going tick-tock.

Back to the risk versus rewards issue, an analysis often challenged by a cookie cutter claims thought process, that all claims fit in one claims hole, when claims, like you and I, are often strangely unique, as much as we might like to say that every reported claim is evidence of claim fraud, a toxic rejection of humanism, as well as being evidence of conspiratorial arrogance.

Back to TNCP’s and temporary compensation benefits, which have been a fixture in Pennsylvania’s Workers’ Compensation landscape since 1993, with Act 44 empowering temporary compensation benefit payments for 6 weeks, and Act 57, enacted in 1996, expanding the territorial range of temporary compensation benefits to 90 days, equaling close to 12 weeks of compensation benefits.

Depending upon where you were seated in the Workers’ Compensation Courtroom, be it Bench, Claimant’s counsel, or defense counsel, very different perspectives exist with respect to the utilization of TNCPs and temporary compensation benefits.

The perception fueled by both fractional frown and salacious smirks, is that the Workers’ Compensation Bench, with consideration to internal Bureau directives, clothed in clandestine confidentiality for all too apparent public policy considerations, is one of subtle and deliberately disdainful reluctance to embrace what is thought to be a “kick the can” reaction to shouldering responsibility for a decisive claim decision, be it the denial or acceptance.

And, yes, the Bench has grown accustomed to their use although the Bench does not respect their blanket use for all lost time workers’ compensation claims. 

Such a blanket utilization is regarded by the Bench, gently prodded by the Bureau, as being an abuse of claims practice, when the TNCP, in an otherwise compensable claim, is yanked, to force the Claimant to file a Claim Petition, to litigate compensability issues, while living on Welfare.

So, if the TNCP should not be used with every single claim, and that is the message, when should it be used, and when should it not be used?

Absolutely, use it, with our blessing, with minor injury claims, requiring limited medical treatment, and no lost time, although caution militates against allowing the TNCP, in these situations, to “convert” to a Notice of Compensation Payable, resulting in the Employer/Insurer shouldering liability for whatever the compensation claim might turn into, be it lost time, or be it extended medical treatment.

And no less true, it is a very useful stopgap in workers’ compensation claims that require a claims investigation longer than 21 days, and that might involve other very critical factors, such as an extensive prior claims history, an extensive prior medical history, necessitating a longer tail for investigation of the claim, with stoppage of temporary compensation benefits, typically resulting in the filing of a Claim Petition, in defense of which the Employer/Insurer becomes armed with subpoena power, the great equalizer of both memory and history.

While the TNCP is a useful mechanism for managing early intervention of more marginal workers’ compensation claims, it should not be considered to be the “be all and end all” form, used indiscriminately with every workers’ compensation claim that ends up in your inbox. 

Discretionary utilization is regarded as evidence of claims intelligence and benevolent intuition.

Situations in which the claim decision to use the TNCP as the claim management form would be regarded as questionable, would include:

·                     A death claim;

·                     A claim involving significant trauma, where compensability is not questioned;

·                     An injury requiring immediate surgical intervention, where compensability is not questioned;

·                     An injury that does not result in lost time, but does result in marginal wage loss, as the TNCP form itself does not provide a mechanism for calculating and recording the payment of temporary partial disability benefits, with the possibility of there being claim form confusion when wages are restored to pre-injury capacity exists; and,

·                     Claims that might involve alternating/fluctuating wage loss, as, again, the form was not designed to compensate for those situations.

What about specific loss claims?

Well, the difficulty with specific loss claims is that, where compensability is not questioned, typically a specific loss claim will involve specific loss benefits that will exceed the benefit allowance under the TNCP, negating the effectiveness of the TNCP with specific loss claims.

Do we like the form?

Absolutely, it is just that we would not wear it to work every day.

And, no, every claim should not be managed through the issuance of a TNCP, although claims should be judiciously evaluated for clear and concise decision-making concerning form utilization. 

This is true with every form evaluated at claim initiation, including the TNCP, the NCP, and the NCD.

What other dangers exist with respect to utilizing the TNCP?

Well, one danger is the failure to stop the TNCP, and accompanying benefits, allowing the TNCP to convert to an NCP, when questions regarding compensability still exist, as well as questions with regard to ongoing disability. 

If the TNCP is to be utilized, it requires that a second decision be made, for claims management purposes, prior to the TNCP converting, with the TNCP either being stopped, or the claim accepted, with issuance of an NCP.

Yes, allowing the TNCP to “convert” to an NCP results in claim acceptance, with a “conversion” being indeterminate as to whether the conversion was accidental or deliberate.

Why should you care?

Perhaps it is just the compulsive impulse to be deliberate and decisive in the management of the claim.

True, this analysis might be counter-intuitive, and, perhaps, unpopular in certain claim cubicles, intending no delusional disrespect, as its begrudging bias is based upon the impracticability of observation and evidence.

Forgive our naïve and formulaic bewilderment.

ConnorsO’Dell, LLP

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

Defending workers’ compensation claims throughout Pennsylvania for employers, self-insureds, insurance carriers, and third party administrators, our 100+ years of cumulative experience defending our clients against compensation-related liabilities, empowers our workers’ compensation practice group attorneys to be more than mere claim denials, entrusting 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’s Workers’ Compensation Act.

With every member of our workers’ compensation practice group being AV-rated, our partnership with the NWCDN magnifies the lens through which our professional expertise imperiously demands that we always be dynamic and exacting advocates for our clients, businesses, corporations, and insurance carriers, seeking our trial and compensation acumen, navigating the frustrating and form-intensive minefield pervasive throughout Pennsylvania workers’ compensation practice and procedure.

By Kevin L. Connors, Esquire

A recent Commonwealth Court ruling in Owens v. Lehigh Valley Hospital, 472 C.D.2014, held that there is a cause of action in Pennsylvania for wrongful discharge of an Employee who has filed a claim for workers’ compensation benefits, but has not filed a Claim Petition with the Pennsylvania Bureau of Workers’ Compensation.

Owens worked for Lehigh Valley Hospital.  She was terminated from the hospital, due to too many claims for work-related injuries.

She filed a Civil Lawsuit against the hospital, alleging that she had been illegally discharged for prior workers’ compensation claims.

Filing suit in the Lehigh Court of Common Pleas, the hospital responded by filing Preliminary Objections, arguing that since the Claimant had not filed a Claim Petition for workers’ compensation benefits, she was precluded from alleging a wrongful discharge for prior workers’ compensation claims.

Reviewing Pennsylvania Wrongful Discharge Law, the Commonwealth Court, in an Opinion authored by Judge Colins, initially addressed the fact that Pennsylvania does not recognize a claim for wrongful discharge, where there is no specific employment contract, as employment in Pennsylvania is considered to be “at will”, and an Employee may, therefore, be discharged with or without cause. Weaver v. Harpster, 975 A.2d 555 (Pa. 2009).

However, a public policy exception to that doctrine was recognized by the Pennsylvania Supreme Court in its 1998 ruling inShick v. Shirey, 716 A.2d 1231 (Pa. 1998).

In Shick, the Court held that an at-will Employee who alleges a claim of retaliatory discharge for filing a workers’ compensation claim can state a Common Law cause of action, for which relief can be granted.

Ruling on the hospital’s Preliminary Objections, the Lehigh County Court of Common Pleas entered an Order sustaining the Preliminary Objections, in the nature of a demurrer, resulting in Owens’ Complaint being dismissed. 

Ruling on the Preliminary Objections, the Trial Court held that Owens had a three-prong threshold to establish a prima facie case for wrongful discharge, to include:

·                     That the Employee engaged in a protected Employee activity;

·                     That the Employer took an adverse employment action contemporaneous with the Employee’s protected activity; and,

·                     A causal link exists between the Employee’s protected activity and the Employer’s adverse action.

The Trial Court ruling relied upon a Federal District Court ruling in Landmesser v. United Air Lines, Inc., 102 F. Supp. 2d 273 (E.D. Pa. 2000).  In Landmesser, the Federal District Court concluded that once the Pennsylvania Supreme Court had an opportunity to define the elements necessary to establish a prima facie case for wrongful discharge, it would adopt the test applied in Title VII retaliation claims, under the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2.

Although the Commonwealth Court noted that Owens should have appealed the Trial Court’s Order to the Superior Court, and not to the Commonwealth Court, the hospital never objected to jurisdiction before the Commonwealth Court, allowing the Court, noting judicial economy, to decline transfer of the Appeal to the Superior Court.

In ruling in favor of Owens, the Commonwealth Court noted that the Pennsylvania Supreme Court first recognized, inGeary v. U.S. Steel Corp., 319 A.2d 174 (Pa. 1974) that an at-will Employee could have cause of action against an Employer for wrongful discharge, when the discharge threatened a clear mandate of public policy.  

Shick was then the first time that the Pennsylvania Supreme Court recognized a claim for wrongful discharge in violation of the clear mandate of public policy, in the context of a retaliatory discharge for filing a workers’ compensation claim.

In allowing the wrongful discharge action to proceed in Shick, the Pennsylvania Supreme Court addressed the issue of “exclusivity” under the Pennsylvania Workers’ Compensation Act, concluding that the historical balance embodied in exclusivity would be superseded by an Employer’s ability to penalize an Employee for filing a workers’ compensation claim, such that the statutory right for compensation benefits would be completely undermined.

Opposing Owens’ Appeal, the hospital argued that Owens should have filed a Claim Petition, with the Commonwealth Court ruling that whether Owens filed a Claim Petition or not had no bearing on whether she could bring a Common Law claim, as had been made clear by the Pennsylvania Supreme Court in Shick, as well as in a related ruling,Rothrock v. Rothrock Motor Sales, Inc., 883 A.2d 511 (Pa. 2005), where a Supervisor was fired for failing to dissuade an Employee from seeking workers’ compensation benefits, with the Supreme Court allowing the fired Supervisor to file a wrongful discharge claim against the Employer.

Alternatively, the Employer argued that, under the Title VII analysis, Owens had failed to plead a causal connection between any alleged protected activity and her dismissal, with the Commonwealth Court holding that the factual allegations raised by the Claimant suggested a sufficient causal connection to allow the cause of action to survive preliminary dismissal.

The Owens Court also ruled that the Trial Court should not have analyzed the sufficiency of Owens’ claim under a Title VII test, as that same test had specifically been rejected by theRothrock Court.

Consequently, Owens stands for the proposition that there is a cause of action under Pennsylvania Law for wrongful discharge of an Employee who files a claim for workers’ compensation benefits, even if they have not filed a Claim Petition with the Bureau.

ConnorsO’Dell LLP

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

Defending workers’ compensation claims throughout Pennsylvania for employers, self-insureds, insurance carriers, and third party administrators, our 100+ years of cumulative experience defending our clients against compensation-related liabilities, empowers our workers’ compensation practice group attorneys to be more than mere claim denials, entrusting 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’s Workers’ Compensation Act.

With every member of our workers’ compensation practice group being AV-rated, our partnership with the NWCDN magnifies the lens through which our professional expertise imperiously demands that we always be dynamic and exacting advocates for our clients, businesses, corporations, and insurance carriers, seeking our trial and compensation acumen, navigating the frustrating and form-intensive minefield pervasive throughout Pennsylvania workers’ compensation practice and procedure.

By Kevin L. Connors, Esquire

Well, the wheel turns again.

Mental/mental injuries have always been, well, pretty mental under Pennsylvania Workers’ Compensation Law.

Duh, mental/mental claims are always difficult to prove and defend, in the absence of an objective physical injury.

This conundrum formed the spine for the Pennsylvania Supreme Court’s landmark Decision inMartin v. Katchum, Inc., 568 A.2d 159 (Pa. 1990).

In Martin, the Pennsylvania Supreme Court adopted the analysis below, for determining whether a mental injury was compensable, under the Pennsylvania Workers’ Compensation Act:

·                     The Claimant must produce objective evidence which is corroborative of his/her subjective description of the working conditions alleged to have caused the psychiatric injury; 

·                     Because psychiatric injuries are by nature subjective, we believe that if a Claimant has met his burden of proving the existence of a psychiatric injury, he cannot rely solely upon his own account of the working environment to sustain his burden of proving that the injury was not caused by a subjective reaction to normal working conditions; and,

·                     A Claimant’s burden of proof to recover benefits for a psychiatric injury is, therefore, twofold; “he must prove by objective evidence that he has suffered a psychiatric injury and he must prove that such an injury is other than a subjective reaction to normal working conditions.”

In PA Liquor Control Board v. WCAB (Kochanowicz), decided by the Commonwealth Court on December 30, 2014, the Court was ordered, by the Pennsylvania Supreme Court in a Decision rendered on February 12, 2014, to determine whether the Workers’ Compensation Judge’s Decision, granting the Claim Petition filed by the Claimant, Gregory Kochanowicz, wherein the Claimant was seeking workers’ compensation benefits for a work-related injury, alleged to have occurred as a result of the Claimant, a General Manager of a Pennsylvania Retail Liquor Store, subsequent to which the Claimant developed post-traumatic stress disorder, adjustment disorder with mixed anxiety, and depression, was entitled to workers’ compensation benefits, with the Workers’ Compensation Judge having found that the Claimant had proven a mental/mental injury under the Act.

The WCJ’s Decision was then appealed to the Appeal Board, which concluded that the Claimant had not sustained his burden of proving a work-related injury, resulting in the Commonwealth Court, in its 2011 Decision in this case, holding that the Claimant should have anticipated the possibility of being robbed at gunpoint, and, therefore, that the armed robbery resulting in the Claimant’s alleged mental/mental injuries “was a normal condition of his retail liquor store employment.”

The Commonwealth Court’s ruling was then appealed to the Supreme Court, which granted the Claimant’s Appeal, vacating the Commonwealth Court’s denial of workers’ compensation benefits, and remanding the case back to the Commonwealth Court, in reliance upon the Supreme Court’s Decision in Payes v. WCAB, 79 A.3d 543 (Pa. 2013), in which the Supreme Court had held that mental/mental injury cases are highly fact-sensitive, requiring the Court, at whatever level, to give deference to the fact-finding functions of the Workers’ Compensation Judge, thereby limiting the Appellate review to determining whether the Judge’s findings of fact were supported by substantial competent evidence.

As for the underlying claim, the Claimant had been working an evening shift, and was preparing to close the store in April of 2008, when a masked man approached him with a drawn gun.  The Claimant was asked to remove all money from the store safe, with the armed robber holding a gun to the back of the Claimant’s head.

The Claimant was then tied to a chair, along with a co-worker, with the Claimant getting agitated and anxious when the gunman put the gun to the back of the Claimant’s head.

After the gunman left, the Claimant freed himself, called the Police, and his Supervisor.

The Claimant then asked Human Resources if he could take time off of work, because of the robbery.

The Claimant had never been robbed during his thirty years of employment, and the Employer referred the Claimant to a panel social worker.

The Claimant then saw his own personal physician the following day, and then began to treat with a psychologist, to whom the Claimant had been referred by his counsel.

Applying the legal precedent set by the Pennsylvania Supreme Court in Payes, the Commonwealth Court held that a Claimant seeking workers’ compensation benefits carries the initial burden of proving that he sustained a mental/mental injury within the course and scope of his employment, and that the injury results in a loss of earning power, the standard for proving disability under the Pennsylvania Workers’ Compensation Act.

Once the mental injury is proven by the Claimant, the Claimant carries a secondary burden of proof, requiring that the injury is “other than a subjective reaction to normal working conditions.”

In Kochanowicz, the Employer did not contest that the Claimant had sustained a mental injury in the course and scope of his employment, as the Employer defended the claim on grounds that the Claimant’s injury was merely a “subjective reaction to normal working conditions.”

To prove the subjective reaction defense to normal working conditions, the Employer presented evidence as to the number of robberies at State liquor stores, to include armed robberies, that the Claimant had attended Employer-sponsored training on workplace violence, that the Employer provided pamphlets and educational tools to its Employees, in the handling of a workplace robbery, and workplace violence.

However, although the Workers’ Compensation Judge concluded that the armed robbery resulting in the Claimant’s mental/mental injury was an “abnormal working condition”, and that although workplace violence does occur, that fact alone does not “place workplace violence into the realm of a normal working condition”, finding as well that “robbery by gunpoint at the back of the head is neither a normal societal occurrence, nor a normal working condition.”

Finding that the WCJ’s findings of fact were supported by substantial competent evidence, the Commonwealth Court deferred to the Supreme Court’sPayes’ dictate, that the Claimant had been subjected to a “singular, extraordinary event during a work shift” causing the Claimant’s post-traumatic stress disorder, and that the Claimant had proven, in deference to the workplace violence training and statistics evidence presented by the Employer, that the armed robbery that the Claimant was a victim of, was “not a normal working condition.”

This resulted in the Claimant being awarded workers’ compensation benefits for a mental/mental injury, as the Workers’ Compensation Judge had granted the Claimant’s Claim Petition, and the Appeal Board had affirmed that award of workers’ compensation benefits to the Claimant.

ConnorsO’Dell LLP

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

Defending workers’ compensation claims throughout Pennsylvania for employers, self-insureds, insurance carriers, and third party administrators, our 100+ years of cumulative experience defending our clients against compensation-related liabilities, empowers our workers’ compensation practice group attorneys to be more than mere claim denials, entrusting 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’s Workers’ Compensation Act.

With every member of our workers’ compensation practice group being AV-rated, our partnership with the NWCDN magnifies the lens through which our professional expertise imperiously demands that we always be dynamic and exacting advocates for our clients, businesses, corporations, and insurance carriers, seeking our trial and compensation acumen, navigating the frustrating and form-intensive minefield pervasive throughout Pennsylvania workers’ compensation practice and procedure.

As previously reported here, the Alabama Legislature passed HB-107 last year, increasing the maximum burial expenses an employer may be liable for from $3,000 to $6,500. Governor Bentley recently signed HB-107 into law. As a result, employers are required to pay up to a maximum of $6,500 in burial expenses associated with the death of any employee which results from an accident occurring in and arising out of the employment.

______________________________

ABOUT THE AUTHOR

This article was written by Charley M. Drummond, Esq. of Fish Nelson & Holden, LLC. Fish Nelson & Holden is a law firm located in Birmingham, Alabama dedicated to representing employers, self-insured employers, and insurance carriers in workers’ compensation cases and related liability matters. Drummond and his firm are members of The National Workers’ Compensation Defense Network (NWCDN). The NWCDN is a national and Canadian network of reputable law firms organized to provide employers and insurers access to the highest quality representation in workers’ compensation and related employer liability fields. If you have questions about this article or Alabama workers’ compensation issues in general, please feel free to contact the author at cdrummond@fishnelson.com or (205) 332-3414.

        Joe Wilkerson worked for Boomerang Tube, LLC  first as a general laborer and then as a mill operator. He injured his left hand on December 13, 2010 while operating the mill.  He returned to work on restricted duty on December 17, 2010.  On that evening at work, he reinjured his hand requiring another visit to the emergency room for stitches and antibiotics.  He returned to work on December 20, 2010.  There was a dispute whether he returned on light duty or full duty initially, but he did eventually return to full duty.

             In April 2011 Wilkerson popped a ligament in his right hand and was placed on light duty.  He was scheduled for hand surgery on April 27, 2011.  In the meantime, he was offered light duty with instructions not to use his injured hand.  There was a good deal of dispute regarding the events of April 21, 2011, which is the date Wilkerson was terminated.  Wilkerson claimed that his supervisor was trying to make him do activities that were unsafe for him with one hand and Wilkerson allegedly kept asking if he could work in the store room.  He said his supervisor refused to allow this.

                Boomerang disputed this version and said that even before the shift started, the company planned to have Wilkerson clean offices.  The supervisor claimed that he told Wilkerson to go get the cleaning supplies but fifteen minutes later Wilkerson had done nothing.  Wilkerson asked his supervisor if he could work in the storeroom.  The supervisor said that Wilkerson did not get to choose the type of light duty he would have to perform.  Wilkerson said he could not use a mop or a broom, so his supervisor told him to get some Simple Green and a box of rags to wipe down all the restroom and breakroom fixtures. According to the supervisor, he told Wilkerson he was being insubordinate, to which Wilkerson replied that he would leave and go home.  Wilkerson refused to do any wiping down work with one hand.  The supervisor called his superior, who then gave approval to fire Wilkerson for insubordination.

                Wilkerson sued and alleged that Boomerang discriminated against him based on his disability.  He further contended that he could have performed the essential functions of his mill operator job with reasonable accommodations.  He suggested the following accommodations:  1) receiving assistance from his supervisor; 2) being assigned a trainee; 3) job restructuring or being permitted to wipe down walls and fixtures; 4) receiving a transfer to a vacant position in the storeroom; or 5) being allowed a short leave of absence.

                The Court held that plaintiff failed to show that any of these accommodations was reasonable.  First, it held that it is unreasonable to require an employer to assign an existing employee to perform essential functions or to hire new employees for this purpose.  Second, it held that the company did not have to relieve Wilkerson of the essential functions of his mill operator job.  The purpose of reasonable accommodation is to allow the employee to perform his or her job.  Third, the Court said that there is no requirement that the company create a new job in the storeroom for Wilkerson or transfer him to a new job since he never proved that such a job was available and that he was qualified for that job. The Court also held that a request for a short leave of absence is not reasonable because it would not help Wilkerson perform the essential job functions.  (This aspect of the Court’s ruling is contrary to New Jersey law).

                 Since Wilkerson could not show that he could perform his job with any reasonable accommodation, the Court dismissed his law suit.  This case can be found atWilkerson v. Boomerang Tube, LLC, 2014U.S. Dist. LEXIS 146695 (E.D. Texas October 15, 2014).

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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.  

Dr. Marshall was ordered by DWC not to accept new patients nor participate in the comp system as a health care provider. DWC issued a violation order on the basis that he administered improper, unreasonable or medically unnecessary treatment by treating an injured employee for a diagnosis not supported by the medical record.

. . . was fined $1,000 and ordered to complete medical training because according to DWC he failed to provide acceptable health care to an injured employee by improperly utilizing diagnostic tests not supported by the medical record or evidence- based criteria. This is a familiar scenario.

Dallas Medical Center apparently ignored a refund request filed by a carrier, and ended up on December 2, 2014 with an order to pay a $15,000 fine.  It is easy to forget that if a carrier makes a refund request against a provider and the provider fails to appeal the request to the carrier, or appeals a refund request and the carrier denies the appeal, the requested refund must be paid.  The provider’s only remedy after paying the refund is to take the refund request to dispute resolution for a final determination by the agency– it cannot refuse to pay without risking the ire of the DWC (and a hefty fine).

The Texas Board of Chiropractic Examiners took Dr. VanderWerff to a contested case hearing after a complaint was filed with the Board accusing him of providing excessive and unnecessary treatments to a patient. The Board issued an order in the case determining that he had violated the Chiropractic Act by engaging in grossly unprofessional conduct and assessed a fine against him.  He couldn’t appeal the Board’s order directly because he missed his deadline to do so.  He filed suit for declaratory and injunctive relieve against the Board instead. The Board then filed a plea to dismiss his suit for lack of jurisdiction. The trial court granted the plea and dismissed the lawsuit. The Austin Court of Appeals affirmed the trial court, stating that the Board was acting within its statutory authority in issuing its order, and that the lawsuit appeared to be an attempt to create a way to get around his failure to timely file a direct appeal of the agency’s order. The bottom line is that the Board’s order and its finding of grossly unprofessional conduct against Dr. VanderWerff is final. Dr. Eric A. VanderWerff, D.C. v. Texas Board of Chiropractic Examiners,WL 7466814 (Tex. App.–Austin)

DWC is reminding all employers without statutory workers’ compensation coverage that there are reporting requirements that apply to them. They must report every year that they elect to opt out of the regulatory system. They also must report work-related fatalities, occupational diseases and on-the-job injuries.