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.
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First Responder PTSD Bill Advances to the Full West Virginia House of Delegates
February 17, 2020: A first responder PTSD bill advanced to the full House of Delegates after an unanimous voice vote from the House Judiciary Committee meeting this morning. House Bill 2321 provides that PTSD suffered by a first responder is a compensable injury "upon a diagnosis by a licensed psychiatrist that the first responder suffers from the disorder and upon a finding that the disorder occurred as a result of an event or events that occurred in the course of within the scope of the first responder's employment duties." HB 2321 modifies W. Va. Code § 23-4-1f which provided that mental-mental claims are not compensable in West Virginia. The current law states: "No alleged injury or disease shall be recognized as a compensable injury or disease which was solely caused by nonphysical means in which did not result in any physical injury or disease to the person claiming benefits." The proposed bill defines first responder as a law-enforcement officer, firefighter, emergency medical technician, or paramedic. PTSD is defined as a "disorder that meets the diagnostic criteria for post-traumatic stress disorder specified by the American Psychiatric Association in the Diagnostic and Statistical Manual of Mental Disorders, fifth edition, or a later addition as adopted by rule of the insurance commissioner." The Legislature finds it is the moral obligation of the state to provide coverage to this class of individuals for their work-related injury because first responders are required "to expose themselves to post-traumatic stress disorder causing events" during the course of their employment, and because of "the severe nature and deliberative effect of post-traumatic stress disorder."
The Legislature may have meant to say PTSD is severe and can have a "debilitating effect" on those suffering from it. PTSD symptoms or diagnosis may not manifest immediately after an event, so noticeably lacking from the bill is criteria for determining whether the PTSD claim is an occupational injury or an occupational disease for the purpose of determine the statute limitations. As drafted, it appears the drafters believe PTSD is an injury because the disorder arises on the date of the event or events causing PTSD, which would trigger a six-month statute limitations for occupational injuries under W. Va. Code § 23-4-15(a). The longer three-year period for filing an occupational disease claim in W. Va. Code § 23-4-15(c) would not apply. If the PTSD does not manifest and a diagnosis is made within the six-month period after the triggering event, a first responder could be barred from filing a claim.
If you have questions or need more information, please call or e-mail Dill Battle at 304.340.3823 ordbattle@spilmanlaw.com
H. Dill Battle III, Esq.
Spilman Thomas & Battle, PLLC
300 Kanawha Boulevard, East
Charleston, WV 25301
304.340.3823 - office
304.340.3801 - fax
dbattle@spilmanlaw.com
The recently passed legislation L. 2019, C. 387 increasing the value of hand and foot injuries in New Jersey has generated considerable debate about which cases the law affects. Does it affect only cases filed after the date the law was passed? Or does it affect all cases presently pending in the Division of Workers’ Compensation but not yet subject to a court order?
One point all practitioners agree on is that the law does not affect prior court orders. There is no indication that the law was meant to be primarily retroactive, requiring old orders to be reconsidered. But there remains the question of whether the law is supposed to be secondarily retroactive, meaning affecting all present claims, even those filed before the effective date of the law, but not yet subject to a court order.
The law states that “This act shall take effect immediately.” There is no language specifically stating that the law should have “prospective relief only,” nor any clear language stating that the law should be in any way retroactive. So the focus is on the meaning of the words “shall take effect immediately.”
Practitioners have two reported workers’ compensation cases to consider on this issue. Unfortunately, these two cases seem to be in conflict. Both involve the dependency statute. The first is Harris v. Branin Transport, 312 N.J. Super. 38 (App. Div.), certif. denied, 156 N.J. 408 (1998). In that case, Anne Harris became a statutory dependent back in 1979 when her spouse died in a work-related accident. Under the old law, any income after 450 weeks had to be offset against dependency benefits. Harris was earning $128 per week after 450 weeks, so that amount was deducted from her dependency award.
In 1995 the law was changed removing the earnings credit. Harris applied to end the removal of the earnings credit. The question was whether or not the new law removing the earnings credit would apply to only new dependents after 1995 or to all current and existing dependents. The Appellate Division held that the new law was intended to apply to Harris and others like her who were already receiving dependency benefits, calling this “secondarily retroactive.” The Supreme Court declined to accept the case, so that the Appellate Division stood. If Harris is followed, the hand and foot bill would affect all existing claims in the Division not yet decided.
Nine years later another change in the dependency law occurred. In Cruz v. Central Jersey Landscaping, Inc., 195 N.J. 33 (2008), the Supreme Court considered an amendment that removed the graduated dependency scale. Prior to 2004, one dependent received 50% of wages, two received 55%, three received 60%, four received 65% and five or more received 70% of wages. The new law established that one dependent alone would receive 70% of wages, eliminating the graduated scale.
Four separate cases were tried and eventually were consolidated before the Supreme Court. All four claimants were existing dependents who had filed claims before the law was passed in 2004, and they argued that they should get the benefit of the new law. The Division split on whether the new law was prospective only; the Appellate Division ruled the new law was secondarily retroactive as in Harris above, but the Supreme Court reversed. The very same language appeared in that Act, namely that the law was supposed to have immediate effect. The Supreme Court held that the new law should only apply to those who filed after the effective date of the Act. The Supreme Court said:
Indeed there is nothing in the amendments or in the sponsors’ statements that suggests that the Legislature intended to give the new benefit level retroactive effect of any kind. We certainly see no basis in the legislative history, and in an interpretive framework that includes our prior holding that vesting occurs on the date of death, to conclude that the Legislature intended to effect a reopener of settled awards. Nor is there anything in the directive that the act ‘shall take effect immediately’ to suggest retroactivity. On the contrary, these words bespeak an intent contrary to, and not supportive of, retroactive application.
The Supreme Court interpreted the words “shall take effect immediately” to imply only to those cases filed in the future, i.e., filed after the effective date of the amendment to the Act. The Court was concerned about how far back one goes, stating that retroactive application would mean reaching even beyond pending and non-finalized claims, implying that it could be applied to closed orders in the past. But no one is arguing that the hand and foot bill should affect orders entered in the past. The argument on the hand and foot bill is between secondary retroactivity (existing claims) versus prospective effect. If Cruz is followed, the hand and foot bill will only apply to claim petitions filed after the effective date in late January 2020.
It is very difficult to reconcile the decision in Harris with the decision in Cruz. In Harris the Supreme Court did not take the case and therefore let the Appellate Division stand; In Cruz the Supreme Court took the case and reversed. The decisions were only nine years apart but the reasoning diverged markedly.
This practitioner has spoken with many attorneys and clients about this issue. Defense attorney Joe Soriano took the time to review the legislative history and the sponsor’s statement and notes that there is no clear intention that the bill should be retroactive in any way. He points out the word “retroactive” does not appear anywhere in the legislative history, sponsor’s statement or the legislation itself.
This practitioner has also spoken with several petitioners’ counsel. They make the point that the words “shall take effect immediately” do not mean the same thing as “shall have prospective effect.” The argument from the petitioner side is that if that was the intention, why wouldn’t the Legislature have simply said: “This law shall only apply to claim petitions filed after the effective date.” The meaning of the language “shall take effect immediately “ is open to interpretation.
In the meantime, what should employers and carriers do? Suppose they settle a case without paying the new higher rates on hand and foot injuries, only to receive a decision a year from now from the Appellate Division ruling that they should have paid the increased weeks? In that instance, the award would have to be reopened and corrected. For this reason, it may be wise to reserve for this potential outcome until there is a decision.
What about petitioners’ counsel? Suppose the Judge of Compensation rules that the petitioner is entitled to the benefit of the new law, only for the Appellate Division to rule a year from now that the law is not retroactive. Does the petitioner owe the money back to the carrier? Should an amount be set aside for that eventuality?
The sooner we hear from the courts on this issue the better for all workers’ compensation practitioners. We thank the many counsel who have provided their input on this important issue.
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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.
In New Jersey a medical provider dispute arising from a work injury can only be filed in the Division of Workers’ Compensation ever since the 2012 Amendments. But the 2012 Amendments to the New Jersey Workers’ Compensation Act failed to answer one fundamental question: how long does the provider have to bring a claim in the name of the injured worker? Are medical providers bound by the same two-year rule that applies to claimants? The Supreme Court provided the final answer on February 3, 2020 in The Plastic Surgery Center, P.A. v. Malouf Chevrolet- Cadillac, Inc.
The case involved several claim petitions filed by The Plastic Surgery Center more than two years after the employee’s accident. The Judge of Compensation ruled that the claims were out of time, but the Appellate Division reversed in favor of the medical providers. The Supreme Court granted certification and heard the arguments last month. In its decision the Supreme Court adopted the reasoning of the Appellate Division wholesale.
First the Court observed that before the 2012 Amendments, medical provider claims were governed by the general six-year statute of limitations which applies to contract claims. The Supreme Court agreed with the two main arguments that the medical providers made to the Appellate Division. The 2012 Amendments could not have been intended to restrict claims to two years because the definition of claimant in the New Jersey Workers’ Compensation Act would have to be expanded to include medical providers.
More importantly, the Court said:
Second, the two-year period simply doesn’t fit: N.J.S.A. 34:15-51 requires that a petition for compensation be filed within two years of ‘the accident,’ but it is likely that an employee might be treated by a medical provider for a period greater than the two-year period following the accident or even not be treated by a particular medical provider until after two years elapsed from the work-related accident. . . . As a result, a provider’s legitimate claim might actually be extinguished before it even accrued. . . . The appellate court declined to interpret legislative silence to produce such a result.
This represents a significant win for medical providers. The result basically guarantees that the number of medical provider claims will continue to rise sharply in the New Jersey Division of Workers’ Compensation. New Jersey remains one of the few states without a medical fee schedule in workers’ compensation. This decision emphasizes the need for employers to work with medical repricing companies which really know the New Jersey market for workers’ compensation treatment in respect to usual and customary charges.
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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.
On January 28, a Houston-based security guard company was convicted of fraud and ordered by a Travis County District Court judge to pay over $50K in restitution. Between May 28, 2005 and April 1, 2013, HHDP Security made misrepresentations about the payroll and operations of its business and a related company, Houston Harris Division Patrol, Inc. Workers’ compensation insurance premiums are based, in part, on a company’s payroll and the type of work the company performs, so an employer who misrepresents its payroll and operations may receive a lower premium, thus gaining an unfair and unwarranted advantage over its competitors.
The Division of Workers’ Compensation’s prosecution unit obtained the indictment. The Division urges individuals suspecting workers’ compensation fraud to report it by calling 1-844-FRAUD99 (1-844-372-8399).
- Copyright 2020,Erin Shanley, Stone Loughlin & Swanson, LLP
On January 21, the Texas Department of Insurance announced three staff changes within the DWC.
Kara Mace will serve as Deputy Commissioner of Legal Services. The newly-created Legal Services program will handle rule development, open records, litigation, contracts, subpoenas, and other legal issues for the agency. Kara formerly served as deputy counsel for TDI’s Office of Public Insurance Counsel, and spent several years with TDI's Policy Development Counsel. She has also served as both senior counsel for External Litigation and senior counsel for Enforcement for the New York City Department of Homeless Services.
Nicholas “Nick” Canaday, formerly general counsel for the DWC since March 2016, will now act as “Special Counsel,” focusing on litigation impacting the workers’ compensation system. According to the DWC, he will also serve as a liaison to the Office of the Attorney General and provide counsel to executive management and staff on legal issues. It’s unclear how Mace and Canaday will divide their legal duties within the department, but some have suggested Mace will manage the department, with Canaday focusing on litigation.
The DWC also added a new prosecutor with the Fraud Unit: Jessica “Jess” Bergeman. Ms. Bergeman is a former prosecutor in Chicago, and joins Donna Crosby in the comp fraud division within the District Attorney’s Office. Bergeman was most recently director of the Client-Attorney Assistance Program in the Attorney Compliance Division at the State Bar of Texas.
Under 2017 legislation, the DA’s office is eligible for funding for up to four comp fraud prosecutors, but has not had more than one prior to the addition of Bergeman. We are hopeful this means the DA will undertake more workers’ comp fraud cases.
- Copyright 2020,Erin Shanley, Stone Loughlin & Swanson, LLP
On December 19, 2019 the Division developed the new PLN-14 (“Notice of Continuing Investigation (PLN-14)”). The form was developed pursuant to Division rule 124.2 and Senate Bill 2551, which involve process changes for claims involving first responders (i.e., peace officers, paramedics, firefighters, or emergency medical attendants and technicians) who may qualify for a presumption of compensability of certain illnesses. In the case of a first responder, the following diseases are presumed to be work-related under state law if certain conditions are met: smallpox, tuberculosis or other respiratory illnesses, certain cancers associated with firefighting, as well as heart attack or stroke.
In the case of a first responder, Rule 124.2 provides that a Carrier must make one of three alternative actions no later than the 15th day from the notice of injury: pay the claim, deny it, or issue a Notice of Continuing Investigation. Subsection (s) requires the Carrier to utilize the form developed by the Division (in this case, the PLN-14) to provide notice that the first responder’s condition may be subject to a presumption of compensability.
The form is intended to act as a template for Carriers to use when communicating with a first responder whose claim may be subject to a presumption. According to the form’s instructions, the notice is to be used by the Carrier to notify a Claimant or death benefits beneficiary and the Division that the Carrier still needs to investigate whether the claim qualifies for a “statutory presumption,” and whether the insurance carrier is going to pay income or medical benefits on the claim. The form was developed because some of that information may be needed from the injured employee or beneficiary to determine if the statutory presumption applies.
The new PLN-14 form is posted in the “forms” section of the Division’s website.
On January 16, the Division announced that it adopted the Fiscal Year 2020 Research Agenda of the Workers’ Compensation Research and Evaluation Group (REG). Texas Labor Code §405.0026 requires REG to annually prepare a research agenda for the commissioner of workers’ compensation to review, approve, and publish in the Texas Register. The REG is to conduct professional studies and research “related to the operational effectiveness of the workers’ compensation system”, and to publish that agenda annually.
The FY 2020 Research Agenda was adopted on January 15, and includes: (1) completion and publication of a 2020 Workers’ Compensation Health Care Network Report Card, (2) an update of the 2018 “Setting the Standard” biennial report on the impact of the 2005 legislative reforms to the Texas workers’ compensation system, which will report on the affordability and availability of workers’ comp insurance for employers and the impact of certified workers’ compensation health care networks on medical costs, quality of care issues, return-to work outcomes, and medical dispute resolution, and (3) an update on the 2018 biennial study to estimate employer participation in the Texas workers’ comp system.
The Division announced that it is reviewing rules relating to compensation procedures for employers and claimants, and on carriers’ required notices and payments (Texas Administrative Code Chapters 120, 122, and 124). After hearing public comment, the Division will decide if the rules should be repealed, readopted, or readopted with amendments. Public comments will be accepted through March 3 and can be e-mailed torulecomments@tdi.texas.gov.
- Copyright 2020, Erin Shanley, Stone Loughlin & Swanson, LLP
Our own James Loughlin has received the distinction of being elected a Fellow of the College of Workers’ Compensation Lawyers, class of 2020. The college honors attorneys in the field of workers’ compensation who have been practicing 20 years or longer. Only individuals who possess the highest professional qualifications and ethical standards, character, integrity, professional expertise and leadership are considered for the distinction.
The Annual Induction Dinner will be held at the Westin New Orleans Canal Place in New Orleans, LA on March 28, 2020 following the Workers’ Compensation Midwinter Meeting and the College of Worker’s Compensation Lawyers (CWCL) Symposium. Congratulations, James!
- Copyright 2020, Erin Shanley, Stone Loughlin & Swanson, LLP
