State News

A few Appeals Panel cases of interest in the past couple of months include:

Finality

APD 161628 (decided 10/4/16) - the Appeals Panel analyzed finality in the context of Rule 130.102(h), which provides that if there is no pending dispute regarding the date of MMI or the impairment rating prior to the expiration of the 1st quarter of SIBs, the date of MMI and IR shall be binding and final.  In that case, the first certification was rendered on 9/11/13.  A designated doctor was requested on 10/6/13.  On 10/18/13, a designated doctor was appointed, and saw the claimant on 11/7/13.  The designated doctor certified MMI on 9/4/13 with a 15% impairment rating.  Claimant subsequently applied for SIBs for the 2nd, 3rd and 4th quarters.    The Appeals Panel clarified that it is Rule 130.102(h) that controlled in this case, not Rule 130.12 (which the hearing officer cited).  The Appeals Panel explained that the preamble to the relevant portion of Rule 130.102 makes it clear that the finality provisions of that rule do not apply to any situation where a party has raised a dispute prior to the first quarter of SIBs, and the appointment of a designated doctor does not resolve a dispute of the MMI certification or assigned impairment rating.

APD 161503 (decided 11/7/16) - the hearing officer erred in holding the first certification of MMI/IR was not final based on compelling evidence of a previously undiagnosed condition.  A flight attendant injured her left wrist, hand and forearm when she was flung around the cabin during an episode of turbulence.   She was diagnosed with left wrist and hand contusions and ulnar radicular pain.  A left wrist sprain was accepted by the Carrier.  Her treating doctor determined that she reached MMI with no permanent impairment.  The hearing officer determined that the injury also included left ulnar nerve entrapment, and the Appeals Panel agreed.  The Appeals Panel disagreed, however, the left ulnar nerve entrapment was a previously undiagnosed medication condition that justified an exception to the finality rule.  The Appeals Panel cited evidence that the claimant was diagnosed with early with ulnar nerve radicular pain, and the treating doctor who rendered the first certification had continuously diagnosed her with a left ulnar injury.  Reversed and rendered on the issues of finality and MMI/IR.

Expert Medical Evidence Required - Causation 

APD 161780 (decided 10/18/16) - the Appeals Panel reversed a hearing officer decision that the compensable injury included lumbar radiculitis where there were no medical records that explained how the injury caused that condition, and requiring expert medical evidence to prove causation of lumbar radiculitis.
 
Treatment After MMI Can’t Be Considered in Impairment Rating

APD 161877 (decided 11/2/16) - the hearing officer erred in adopting the designated doctor’s certification of MMI/IR as the designated doctor included a rating for a surgical procedure that occurred after the statutory date of MMI, which was determined to be the proper MMI date by the Appeals Panel. 

Course and Scope - Deviation from Employment

APD 161985 (decided 11/7/16) - the hearing officer erred in holding the claimant was not in the course and scope of his employment when he was involved in a motor vehicle accident.   The claimant was driving to Discount Tire to repair the tires on his personal truck in preparation for a 10-hour drive to a location at the direction of his employer.  Claimant was paid $30.00 per day for the use of his truck and it was company policy to reimburse foremen and operators for use of their personal vehicles.  Claimant was reimbursed each months regardless of whether or not the truck needed maintenance.  The employer directed claimant to choose a crew to travel with him to Baytown for a safety meeting.  ON the date of injury he was driving to get his tires repaired before traveling to Baytown. 

DWC is losing two more Hearing Officers.  John Bell is leaving the Dallas Field Office and Marilyn Allen is leaving the Houston West Field Office.  Meanwhile, in Ft. Worth, long-time Benefit Review Officer, Larry Beckham has retired and in San Antonio, Mery-Margaret Cisneros has moved from BRO to OIEC to manage the ombudsmen in San Antonio and Corpus Christi.  The new year promises to be interesting.  

On 12/1/16, the DWC published its 2016 Biennial Report. The DWC reports significant improvements since the 2005 HB legislative reforms including lower claims costs and premiums, higher employer participation rates, better access to care and return to work outcomes and fewer disputes. While most of the signposts indicate improvement, according to DWC, designated doctor disputes remain high.  The DWC made several legislative recommendations including revising certain Labor Code provisions to allow for electronic transmission or information rather than requiring certified mail or personal deliver in certain circumstances.  The DWC will once again attempt to make changes to the LIBs statute and the archaic language of “incurable insanity” and “imbecility” currently used to describe the degree of a brain injury that qualifies an injured employee to be eligible for LIBs.  The entire 2016 Biennial Report can be found at:http://www.tdi.texas.gov/reports/dwc/documents/2016dwcbienlrpt.pdf. 

115 carriers participated in the 2016 PBO Audit.  42 were High Performers, 70 were Average Performers and 3 were designated as Poor Performers.  Performance measures included timely payment of initial TIBs, timely submission of initial payment data through EDI, timely processing of initial medical bills, timely processing of requests for reconsideration, and timely submission of medical bill processing data through EDI.  A detailed report of the PBO results is available on the DWC website athttp://www.tdi.texas.gov/wc/pbo/pboresults.html#icrslts.

Effective January 1, 2017, the standard mileage reimbursement rate for Alabama was decreased to 53.5 cents per mile.

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About the Author

This blog submission was prepared by Mike Fish, an attorney with Fish Nelson & Holden, LLC, a law firm dedicated to representing self-insured employers, insurance carriers, and third party administrators in all matters related to workers’ compensation. Fish Nelson & Holden is a member of the National Workers’ Compensation Defense Network. If you have any questions about this submission or Alabama workers’ compensation in general, please contact Fish by e-mailing him at mfish@fishnelson.com or by calling him directly at 205-332-1448.

Last month we reported that Travis County District Court Judge Stephen Yelenosky would hear the appeal of the State Office of Administrative Hearings’ (SOAH) decision in the lead group of air ambulance fee disputes between various workers’ compensation carriers and PHI Air Medical.  SLS’s own James Loughlin represents many of the insurers involved in this ground-breaking litigation.  

On December 15, 2016, Judge Yelenosky agreed with SOAH that the Airline Deregulation Act (ADA) does not preempt Texas workers’ compensation laws that govern the amount of reimbursement paid to air ambulance providers for transporting injured workers.  The judge also ruled that air ambulances are entitled to reimbursement of no amount greater than 125% of the Medicare fee schedule, which reversed the SOAH judge’s ruling that those companies could be reimbursed at 149% of the Medicare rate.  

PHI Air is expected to appeal Judge Yelenosky’s decision and the fee disputes at the DWC level have been abated pending the final outcome of this litigation.

On December 1, 2016, the United States Department of Justice (DOJ) announced the unsealing of an indictment returned in November of this year against founders and investors of Forest Park Medical Center (FPMC) in Dallas. FPMC was a chain of five high-end, doctor-owned hospitals in North Texas.  FPMC declared bankruptcy and its facilities were sold off earlier in 2016.

The indictment stemmed from a massive conspiracy involving $40 million dollars in bribes and kickbacks paid by FPMC in exchange for patient referrals over the four years between 2009 and 2013.  The victims named in the indictment included the Federal Employee Compensation Act, TRICARE, Medicare, Medicaid, Federal Employees Health Benefits Program, UnitedHealthcare, Aetna, and Cigna.

In the indictment, it is alleged that FPMC paid bribes to the defendants in exchange for referrals of patients who primarily were insured with high-reimbursing, out-of-network private insurance benefits or benefits under the federally-funded programs listed above.  By obtaining referrals of those patients, FPMC was able to essentially set its own fees and bill at much higher reimbursement rates than those allowed to network providers.  At the same time, however, FPMC attempted to sell patients with lower-reimbursing insurance coverage (Medicare and Medicaid beneficiaries) to other facilities in exchange for cash.  As a result of the bribes, kickbacks and billing practices, FPMC allegedly billed their patients’ insurance plans and programs over half-a-billion dollars and collected over $200 million dollars in paid claims.

Among the 21 people indicted were executives at the hospital, spine surgeons, bariatric surgeons, a pain management doctor, a West Texas chiropractor, a workers’ compensation pre-authorization specialist and a workers’ compensation lawyer.   Some of the physicians indicted were treating doctors in the Texas worker’s compensation system.  

In addition to the charges related to the payment and receipt of kickbacks, the five principal owners of FPMC were also indicted on money laundering charges.  All of the defendants face federal prison time, fines, potential forfeiture of property and restitution if found guilty of the charges stemming from this indictment.

Per Beltran v. Structural Steel Fabricators (2016) Cal. Wrk. Comp. P.D. LEXIS [citation pending], parties may resolve Supplemental Job Displacement Benefits ("SJDB vouchers") regardless of whether a date of injury occurred before, on, or after 1/1/2013.  In order to resolve the SJDB voucher for dates of injury on or after 1/1/2013, there must be at least one serious and good-faith issue, which, if resolved against the injured worker, would defeat all of the injured worker's rights to compensation benefits, including any SJDB voucher.

On December 15, 2016, a decision following trial in New Jersey was handed down on the question of whether medical marijuana can be ordered under workers’ compensation.  Petitioner Andrew Watson worked for 84 Lumber and was injured on November 6, 2008.  He received an award of one third of partial total in 2012 apportioned 50% of the hand and 12.5% for complex regional pain syndrome (CRPS).  The terms of the settlement required respondent to approve ongoing pain management treatment with Dr. Peter Corda.  Petitioner received prescriptions on a monthly basis, including 120 Endocet/Oxycodone tablets as well as other pain medications such as Ibuprofen 800mg and lidocaine patches.

In late 2013 petitioner consulted with Dr. Corda about participating in New Jersey’s medicinal marijuana program (MMP).  Dr. Corda referred petitioner to his partner, Dr. Jeffrey Drew Polcer, who possessed the required credentials to do medical marijuana evaluations.  Petitioner saw Dr. Polcer and complained of burning pain and swelling in his left hand with extreme sensitivity to light touch.  He said that his narcotic medications were not providing him with sufficient relief.  Petitioner admitted to Dr. Polcer that he had experimented with marijuana and obtained a significant reduction in pain.

Dr. Polcer diagnosed petitioner with neuropathic and complex regional pain syndrome of the left hand and recommended petitioner for medicinal marijuana.  He noted that neuropathic pain is one of the better indications for medicinal marijuana.  He further said that if successful with medicinal marijuana, petitioner should lower his use of narcotics.

The New Jersey Department of Health issued an Attending Physician Statement to the Petitioner which authorized petitioner to register for the MMP and purchase one ounce of marijuana per month for three consecutive months. Petitioner received his Patient Registration Card and then used the card to purchase medicinal marijuana at authorized dispensaries, making his first purchase on March 28, 2014.  Petitioner submitted the invoices and proof of cash payments to the respondent’s carrier for reimbursement, but the carrier denied reimbursement.

Petitioner filed an Emergent Motion to Enforce the terms of the Order Approving Settlement from 2012.  The respondent disputed Dr. Corda’s referral to his partner and contended Dr. Polcer was not an authorized physician.  Respondent also withdrew authorization of Dr. Corda in favor of Dr. Morris Antebi, who was asked to perform an IME of petitioner.

The Judge of Compensation, the Honorable Ingrid L. French, A.S.J.W.C., preliminarily entered an order requiring respondent to reinstate authorization of Dr. Peter Corda for pain management.  Trial then ensued on the central issue regarding medical marijuana as curative treatment.

Drs. Corda and Polcer refused to testify at trial because they had ongoing business relationships with the respondent’s third party administrator. Instead, petitioner offered the testimony of Dr.  Edward Tobe, Board Certified in Neurology and Psychiatry.  Respondent had petitioner examined by Dr. Morris Antebi, whose report supported the position of respondent.  However, Dr. Antebi also refused to testify and therefore his report was excluded from evidence.  Respondent tried to offer into evidence three explanatory letters written by Dr. Corda to the third party administrator in response to a request for explanation on his initial referral and Dr. Polcer’s recommendations. These three letters were written subsequent to Dr. Corda’s initial referral to Dr. Polcer for the MMP and tended to undercut Dr. Corda’s initial position in the case, but the trial judge would not allow these reports to go into evidence without Dr. Corda’s testimony, which he refused to provide.

Dr. Tobe testified that Dr. Polcer’s plan to begin a course of medicinal marijuana was medically appropriate.  He added that this plan made particular sense since it would lead to a reduction in the use of opiates. Dr. Tobe discussed the risks in using Percocet (oxycodone) in respect to kidney and liver function.  He said narcotics impact alertness, concentration, memory, and cognitive function, potentially causing emotional detachment.  In addition, possible side effects are loss of teeth, blurred vision, constipation, urinary retention and cardiac problems.

Concerning medical marijuana, Dr. Tobe said that the medicinal version is not tainted with contaminants that street marijuana might contain.  He said that one is less likely to have cravings with the medicinal product.  He did not agree that medicinal marijuana is a gateway drug, although he did admit that marijuana can have similar side effects as opiates in respect to withdrawal, impaired concentration and loss of memory. In his view, medicinal marijuana offers promising prospects as a pain management modality.

Based primarily on the testimony of Dr. Tobe, Judge French found that petitioner’s trial use of medical marijuana was medically warranted.  She concluded, “While the Court is sensitive to the controversy surrounding the medicinal use of marijuana, whether or not it should be prescribed for a patient in a state where it is legal to prescribe it, is a medical decision that is within the boundaries of the laws in the State of New Jersey.  In this case, there is no dispute that all of the credible evidence presented confirms that this Petitioner is an appropriate candidate for New Jersey’s medical marijuana program.”

An equally significant aspect of this case had to do with respondent’s challenge to the referral by Dr. Corda to Dr. Polcer.  The judge focused on the issue of whether a respondent has a right to object to a referral from the authorized doctor to another physician.  “Whether it is a second opinion directed by a Respondent/Carrier or a referral to an alternative specialty directed by an authorized doctor, this Court interprets the statutory language as requiring an analysis that focuses on whether the referral is in the best interest of the injured worker.”

The Court acknowledged that Dr. Corda failed to discuss his recommendation of Dr. Polcer with the respondent/carrier or obtain pre-approval for the referral.  “Medical experts must be given sufficient latitude in directing the care of an injured worker.  Here, the Court will not allow the respondent to deny authorization of a treatment, which has now proven to be beneficial to the Petitioner, simply because the doctor did not allow the Respondent an opportunity to second guess his medical opinion.” 

The Judge entered an order requiring respondent to pay for the costs of the medical marijuana program and prescriptions and ordered respondent to authorize either Dr. Corda (who since became licensed to participate in the MMP) or Dr. Polcer for petitioner’s ongoing participation in New Jersey’s MMP.

This case is not binding on other courts because it is a Division level decision.  Nonetheless, this decision will be studied by other judges and practitioners given that there are few trial decisions in New Jersey on the use of medicinal marijuana for workers’ compensation treatment.  Respondent could not prevail in this case because defense counsel never offered any expert testimony to rebut the opinions of Dr. Tobe.  The failure to produce expert testimony put respondent at an impossible disadvantage and all but guaranteed that Dr. Tobe’s testimony would carry the day on the issue of the reasonableness and necessity of medical marijuana.  Based on the evidence presented, the Judge of Compensation made the only decision she could make.  The most compelling evidence in favor of petitioner was that the use of medical marijuana would decrease the use of narcotics.

This case is also extremely useful in dealing with an often litigated issue of whether respondent is bound by a referral from the authorized doctor to another physician.  The 2012 court order in this case only referred to treatment by Dr. Corda.  Interestingly, the Court did not focus on the basic rule of agency, namely that a principal is bound by the actions of his or her agent.  Rather, the Court addressed the rule in Benson v. Coca Cola to the effect that the Court can make a retroactive analysis of the alleged “unauthorized treatment” to determine whether the treatment should be ordered.  The rule under Benson is that if the treatment proves helpful, that fact would strongly favor a conclusion that respondent must pay for it.  In this case, the only evidence presented at trial (Dr. Tobe’s testimony) supported petitioner’s position that medical marijuana helped relieve petitioner’s pain levels.

Practitioners who are interested in this case can email the undersigned for a copy of the opinion.

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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. 

There are a number of misconceptions about the rules on independent medical examinations.  Several provisions in the New Jersey Workers’ Compensation Act are helpful in clarifying these misconceptions:

§  Misconception One: An employer must set up an IME in the county where the employee resides.  Section 19 states that an IME may be arranged at any reasonable location within the state.  There is no limitation to the employee’s county of residence.

§  Misconception Two: An employee may have his lawyer present during the examination. Section 19 states than an employee only has the right to have his or her personal physician present.

§  Misconception Three: An employee may apply for mileage for travel to an IME. There is no statute or rule in New Jersey which requires that employers pay mileage for IMEs, even to those who travel from out of state back to New Jersey.

§  Misconception Four: An employee cannot object to an IME performed by a physician of the opposite sex. Section 68 states that where a physical examination is taking place, an employee may request an exam by a physician of the same sex. If such a request is made, the statute says that the employer “shall” comply.

§  Misconception Five: An employer is limited to only one IME during the case. Section 19 states that an employee may be required to attend an examination “as often as may be reasonably requested.”

§  Misconception Six: An employee is entitled to one missed IME before benefits are stopped. Section 19 states that during the period that the employee refuses to participate in attending examinations, the employer can terminate all workers’ compensation benefits.

§  Misconception Seven: An employer can make a voluntary offer within 26 weeks of MMI or return to work but the percentage of the offer must correspond to the estimate of the defense IME. Case law makes clear that an employer is not required to limit the bona fide or voluntary offer to the same percentage as respondent’s IME.  In fact, there is no requirement at all that an IME be done for an employer to make a voluntary offer of partial permanent disability.

§  Misconception Eight: After an IME, the physician must provide a copy of the report to the injured worker. The rules of the New Jersey Medical Society make clear that there is a difference between a patient and an examinee.  An independent medical examination occurs when there is no expectation of treatment and therefore no doctor/patient relationship. In that case, the injured worker is an examinee, not a patient, and has no right to a copy of the report that the defense IME expert prepares for the employer or carrier.  The report is the property of the employer/carrier.  During litigation of a formal claim petition, the parties must exchange independent medical exams at the pretrial stage of the case.

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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.