State News

DEFENSE COUNSEL SELECTION IN WORKERS’ COMPENSATION MATTERS

Kevin L. Connors, Esquire

With grateful appreciation to one of our very favorite workers’ compensation bloggers, Michael Stack, a Principal in COMPClub and Amaxx LLC, and an expert in workers’ compensation cost containment systems and Consultant to Employers seeking to reduce their workers’ compensation costs, we are reprinting Michael’s recent article, published on December 21, 2016, which he had titled “Important Factors In Workers Comp Defense Attorney Selection,” endorsing and adopting the selection factors cited by Michael:

Selecting the right person to defend a workers’ compensation claim is an important component of any program.

Not selecting the right attorney can be detrimental.

This includes failing to settle cases in a timely manner, unnecessary litigation costs and other missed opportunities.

Now is the time to review the panel of attorneys you are working with and remove those who are not meeting the needs of your program.

It All Starts with the Selection Process

Over the years, experienced claim handlers develop relationships with countless attorneys who defend workers’ compensation and other insurance related claims.  This results in a referral process where various firms are selected to represent the program on claims and the funneling of a consistent file load to those who make the grade.

While the development of these relationships is great, it can often have a negative impact on your claim files if the attorneys are not meeting the objectives of your program.

The review of defense attorneys and panels should be done on an ongoing basis.  While the development of a prior professional relationship is important, it should never be the sole or controlling factor.

Important Factors to Consider

There are a number of factors members of the claims management team should consider when selecting the right attorney to defend a case.  This includes some thoughtful consideration on the part of all members on the claims team who need to deal with and interact with attorneys.

·                     Ability to think independently.  All workers’ compensation cases are subject to evaluation based on criteria related to the statute and interpreting case law.  While component counsel must understand these basics, effective defense attorneys have the ability to peel back the layers of a claim and develop strategies that will drive a case toward settlement.

·                     Ability to be a zealous advocate.  This is the core of what separates a good attorney from one who is great.  In workers’ compensation, a zealous advocate is able to see through the smoke and provide the claims handler with an honest analysis on the case and all likely outcomes.  They will also be able to provide common sense solutions that take into consideration the law and other extraneous factors that are in play when it comes to a demanding file load.

·                     Ability to “win” every case.  The inherent bias in the workers’ compensation system toward the employee and compensability of claims means a majority of cases that go to hearing will result in an award to the employee.  It is important to work with those defense attorneys who understand the biases within the system and proceed with caution.  Top-notch defense attorneys are able to pick the cases that should go to court, and settle those that are destined for failure.

Other Important Intangibles

Interested stakeholders responsible for programs should also monitor and be aware of important intangibles that make a defense attorney great.  This should never include the inducement of free tickets to sporting events or fine wine.  Instead, those who seek to improve the counsel they work with should look at other facts:

·                     Ability to seek creative solutions to complex problems;

·                     Responsiveness to inquiries such as voicemail messages and email;

·                     Regular status reports and forthright analysis on files; and,

·                     A positive reputation amongst peers and ability to deal with difficult opposing counsel and claimants.

Conclusions

Most claims management teams have a number of good defense attorneys to work with on their disputed files.  The ability of claims handlers to find the great attorneys will reduce time spent on files and promote savings in their workers’ compensation program.  Part of this process includes the need to evaluate all defense counsel on a regular basis and work only with those dedicated to effective and efficient representation.

ConnorsO’Dell LLP

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.

The Supreme Court recently released its decision in Ex Parte Lincare, Inc., which involved an employee who was allegedly assaulted by her supervisor on the employer’s premises immediately after she was terminated. The employee sued her employer for workers’ compensation benefits, and sued both her employer and her supervisor for assault, battery, and the tort of outrage. The employer and supervisor filed motions to dismiss and motions to sever, arguing that the workers’ compensation claim should be severed from the employee’s tort claims, and that the tort claims were due to be dismissed based on the exclusivity provisions of §§ 25-5-52 and 25-5-53 of The Alabama Workers’ Compensation Act. , The supervisor also filed a motion to strike the plaintiff’s jury demand, based on an agreement in the employee’s job application that stated such a waiver was a condition of hire. The trial court issued an order granting the severance, but denying the motions to dismiss and the motion to strike. Both defendants then filed a petition for writ of mandamus with the Supreme Court.

The Supreme Court held that the employee’s alleged assault occurred in and arose out of her employment because it was precipitated by her resignation while she was on her employer’s premises and concerned her possession of certain documents owned by her employer. The Court also noted that the employee’s alleged injuries were not expected or intended by her employer, so they fell within the definition of a "accident" within the meaning of the Act. The Court noted that "even following an employee’s termination, the employee must be given a reasonable time to leave the premises before the employer-employee relationship is considered severed and the workers’ compensation act is rendered inapplicable". As such, the Supreme Court granted the employer’s petition for writ of mandamus, holding that the assault and battery claims were barred by the exclusivity provisions of the Act. However, the Supreme Court denied the supervisor’s petition for writ mandamus, because Alabama law provides for mandamus review of the denial of a motion to dismiss only in cases where the motion is based in immunity (as was the case for the employer, but not the supervisor). Finally, the Supreme Court denied the supervisor’s motion to strike the plaintiff’s jury demand, because the supervisor was not a party to the employment agreement.

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.

Also, new DWC policy (coming, we’re told, from the Chief Docketing Clerk) is for Benefit Review Officers to set disputes for CCH within 60 days of the BRC regardless of whether the participants can be available on the selected date.　 So, if there is only one slot available within two months of the BRC and one or both parties cannot attend, it will be set anyway.　The conflicted party is advised to request a continuance. How this outcome differs substantively from just setting the thing outside of 60 days to begin with is anyone’s guess.　 We chalk it up to DWC-logic.　

Larry Beckham, one of the Ft. Worth Benefit Review Officers, will be retiring effective November 30, 2016.　

John Bell, one of the Dallas Hearing Officers, has accepted employment with a carrier firm.　He, too, will leave the Division on November 30.　

The DWC is apparently having trouble finding qualified applicants to take Mr. Bell’s place and to fill the vacancy left by David Northup in San Antonio last August.　

Chiropractor Garry Craighead, recipient of the aforementioned kickbacks, treated Texas injured workers until the Division got wise to him and denied him admission to the Division’s former approved doctors list on August 26, 2007. Thereafter, he was prohibited from providing healthcare services in the Texas Workers’ Compensation System. However, he continued to treat federal injured workers until being charged with federal crimes.

Craighead pleaded guilty in December 2015 to counts including solicitation and receipt of illegal remunerations in federal health programs. He was sentenced June 10, 2016 to 14 years in prison and ordered to repay more than $17 million to the U.S. Department of Labor.

Craighead treated mainly U.S. Postal Service workers at his Union Treatment Centers. In 2008, Craighead issued a notice to all AFL-CIO union members and postal employees stating:

Important Notice to all Branch 181 Letter Carriers in the Austin Area, our Union brothers and sisters were recently informed of the numerous advantages being offered by Garry Craighead, a physician and Director of Union Treatment Centers located at 8900 Shoal Creek Blvd. Building 200, in Austin, TX. 78757. . . . .

Dr. Craighead is providing assistance and treatment for all Federal and State Workers Compensation claims to benefit your "on the job injury needs" . . . .

The notice did not identify the specific "advantages" Craighead offered the Union brothers and sisters for treating with him over other providers.

Nermin Awad-El-Hadik, owner of the Hope Pharmacy in Houston, appeared before a U.S. Magistrate Judge in Austin on November 9, 2016 and pleaded guilty to one count of willful offer and payment of illegal remuneration in relation to a federal health care program.

El-Hadik admitted to paying more than $5 million in kickbacks to Austin chiropractor Garry Craighead, D.C. during a short period between March 2015 and December 2015. Craighead operated the Union Treatment Centers with eight clinics in Texas. El-Hadik paid kickbacks to Craighead to refer federally insured employees to her pharmacy to have their prescriptions filled and for influencing physicians to prescribe compounded drugs that would be filled at her pharmacy. She faces up to five years in prison when she appears before Judge Sam Sparks for sentencing.

The wife and children of a deceased claimant brought wrongful death and survival claims against the third-party administrator that adjusted his workers’ compensation claim. The claimant was a ventilator dependent quadriplegic. Attorneys for the wife and children alleged that repeated requests were made to the administrator for a specialized bed for the claimant; that these requests were either ignored or refused; and that the failure to provide the specialized bed resulted in the claimant’s death. The Texarkana Court of Appeals noted that it’s not clear from their allegations whether they received a denial or no response at all. The Court stated that either way though, the matter could and should have been submitted to the Division. Yet, there is no allegation that they even attempted to exhaust their administrative remedies prior to filing suit. The Court dismissed their suit on the grounds that their claims were barred by the exclusive remedy provision of the Texas Labor Code and the wife and children were required to exhaust their administrative remedies. Having failed to do so, the trial court lacked subject matter jurisdiction.

Freeman v. JI Specialty Services, Inc., No. 06-15-00106-CV, 2016 WL 6503847 (Tex. App.–Texarkana, Nov. 3, 2016).

Chiropractic is a form of alternative medicine founded by Daniel David ("D.D.") Palmer at the end of the 19^th century. Palmer worked as a magnetic healer prior to founding chiropractic. In 1895, he met a man with severely impaired hearing. Palmer discovered a lump in his back and claimed that he restored the man’s hearing by adjusting his spine. This led Palmer to develop the theory of chiropractic which is that the underlying cause of all diseases of the body is misalignment of the bones, primarily of the spinal vertebrae. Palmer explained, "A subluxated vertebra ... is the cause of 95 percent of all diseases ... The other five percent is caused by displaced joints other than those of the vertebral column." These subluxations of the vertebrae are treated by manipulating the spinal joints to correct "nerve flow." Palmer opened the Palmer School of Chiropractic in 1897 to teach his techniques. The theory of chiropractic does not have a scientific basis yet it has managed to survive to the present. Today, Palmer’s adherents are heavily involved in the examination and treatment of Texas injured workers, with 365 chiropractors certified to perform designated doctor examinations as of September 2016.

On October 19, 2016, Travis County District Court Judge Rhonda Hurley signed a final judgment in favor of the Texas Medical Association (TMA) in its latest lawsuit against the Texas Board of Chiropractic Examiners (TBCE). Judge Hurley declared void TBCE rules that permit chiropractors to make medical diagnoses and to perform vestibular-ocular-nystagmus (VON) testing.

Judge Hurley determined that the TBCE rule authorizing certain chiropractors to perform VON testing exceeds the scope of chiropractic as defined by the Texas Legislature. She also determined that the TBCE’s definition of "musculoskeletal system" to include "nerves," its definition of "subluxation complex" as a "neuromusculoskeletal condition," and its use of the term "diagnosis" in its scope of practice rule, all exceed the scope of chiropractic, and are therefore void.

The TBCE’s website states that the Board voted to appeal Judge Hurley’s decision. If her decision is affirmed on appeal, it could have implications in workers’ compensation cases where a chiropractor diagnoses a condition outside their scope of practice to do so.

TMA previously brought another successful lawsuit against the TBCE challenging its rules that permitted chiropractors to perform needle EMG and manipulation under anesthesia. Travis County District Court Judge Stephen Yelenosky declared the rules void because they exceeded the statutory scope of chiropractic practice and, therefore, constituted the unlawful practice of medicine. The Austin Court of Appeals affirmed, in an opinion issued July 6, 2012.

The Texas Association of Acupuncture and Oriental Medicine has also brought suit against the TBCE. They seek a declaration that the TBCE rule authorizing chiropractors to perform acupuncture is invalid. That case is presently pending in Travis County District Court.

On December 2, 2016, Travis County District Court Judge Stephen Yelenosky will hear the appeal of the decision from the State Office of Administrative Hearings (SOAH) in the lead group of air ambulance fee disputes between various workers’ compensation carriers and PHI Air Medical. SOAH Judge Craig Bennett ruled in favor of the carriers in 2015 when he held that the federal Airline Deregulation Act does not preempt Texas workers’ compensation laws that govern the amount of reimbursement paid to air ambulance providers for transporting injured workers. Judge Yelenosky will decide whether that decision is correct. The Division has intervened in support of the carriers’ position on preemption. Judge Yelenosky is retiring at the end of the year so his decision is expected before then.

On December 7, 2016, the United States Court of Appeals for the Fifth Circuit in New Orleans will hear oral argument inAir Evac EMS, Inc. v. State of Texas, Department of Insurance, Division of Workers’ Compensation. Air Evac, another large for-profit air ambulance provider, filed a declaratory judgment lawsuit against the Division based on the SOAH decision in the lead group of fee disputes with PHI Air Medical. The suit was filed in federal district court in Austin, Texas. Air Evac sought a declaration that the ADA preempts Texas workers’ compensation laws that govern the amount of reimbursement paid to air ambulance providers for services provided to injured workers and therefore, the Division must order carriers to pay its unregulated billed charges.

The carriers in the PHI Air Medical case intervened in Air Evac’s lawsuit. The carriers and Division moved to dismiss on the grounds that Air Evac has no right to bring suit in federal court but that even if it did, Air Evac’s lawsuit should still be dismissed to allow the preemption issue to be decided in the state proceedings where that issue was litigated for the last three years. Federal District Court Judge Sam Sparks granted the motions and dismissed Air Evac’s lawsuit. Air Evac appealed the dismissal to the United States Court of Appeals for the Fifth Circuit to determine whether Judge Sparks was correct to dismiss the case. If it rules he was not, the case will go back to Judge Sparks for further proceedings consistent with the court’s ruling. Oral argument is set in the case on December 7, 2016.

There were 643 air ambulance disputes pending at the Division as of October 21, 2016, by far the single largest category of medical fee disputes. Additionally, there are around 130 more cases pending at SOAH. In April, Commissioner Brannan announced that he directed Division staff to abate all air ambulance disputes until the final outcome of the litigation regarding federal preemption. The number of disputes pending at the Division will continue to grow as more disputes are filed at a rate of about 30 per month.