State News

Rule 132.7 – Death Benefits
In accordance with HB 1094, the DWC published an informal draft rule that amends Rule 132.7 to
provide that a remarried former spouse of a first responder killed on the job is entitled to receive
death benefits for life. Formal proposal of the amended rule is anticipated before the end of 2015.

Rule 132.13 – Burial Benefits
An informal draft rule proposes to amend Rule 132.13 to raise the burial benefits for an injured
employee killed on the job to $10,000.00. The rule amendment is required to implement SB 653
and is expected to be formally proposed by the end of 2015.

Rule 127.130 – Designated Doctor Qualifications
The DWC is considering amendments to the qualification criteria for designated doctors to ensure
that the best-qualified doctor is selected for examinations. The working draft of the rule is expected
to be published on the DWC website prior to year’s end.

The DWC, in its regulatory capacity, is required under Section 402.075 of the Texas Labor Code
to assess the performance of insurance carriers at least biennially. For their 2016 Performance
Based Oversight (PBO) assessment, announced publicly in November, the Division will select
carriers based on the volume of initial payment of Temporary Income Benefit transactions between
January1, 2015 and June 30, 2015. Timely payment of TIBs, timely processing of initial medical
bills or request for reconsideration of medical bills, and timely submission of initial payment and
medical bill processing data are the criteria that comprise the 2016 PBO assessment. Incentives for
insurance carriers to achieve high performance include limited audits, modified or reduced penalties,
and access to the High Performer Logo as a marketing tool.

Jerry Franz, M.D. was fined $2,000.00 for failing to meet the standard of care for chronic pain
management for five patients.
Francisco Batlle, M.D. of Dallas has been ordered by the Division to complete additional medical
education after failing to complete a fair and reasonable evaluation of an injured employee.
By Official Order of the Texas Commissioner of Workers’ Compensation dated October 28, 2015,
Dr. Patrick Chidi Obasi, M.D., of Marshall, TX is prohibited from re-applying for DD or MMI/IR
certifications in the Texas workers’ compensation system for two years.

On November 19, 2015, this new bulletin was posted to alert workers’ compensation participants
of the annual change to the Medical Fee Guideline conversion factors. For 2016, the MEI reflects
a 1.1% increase. A table of conversion factors can be found on the TDI website.

Matt Zurek, Deputy Commissioner for Health Care Management and System Monitoring, urges
insurance carriers to identify all injured employees who have been prescribed Fentanyl Transdermal
Patches and/or MS-Contin, which will both require preauthorization beginning on February 1, 2016.
Mr. Zurek advises sending written notification to the injured employee, prescribing doctor, and
pharmacy informing them of the need for preauthorization to allow adequate time to discuss ongoing
treatment if Fentanyl Transdermal Patches or MS-Contin are currently being prescribed. Sample
notification letters for use by insurance carriers are available through the TDI-DWC website at
https://www.tdi.state.tx.us/WC/pharmacy/index.html.

The Division has hired Mayson Pearson as the new traveling Hearing Officer in the central Austin
office. Her employment with the Division commenced in November. Ms. Pearson graduated from
the University of Texas School of Law and has been licensed to practice law in Texas since
November of 2012.

On November 17, 2015, the Division announced that its Hearings section staff had been divided into
two regional docketing workgroups, North Western , comprising field offices located north and west
of Austin, and South Coastal, which includes the Austin Field Office and all points south and east.
The stated goal for the divide is to improve formal and informal dispute proceedings, docket
scheduling, and management. The staff assigned to the new workgroups schedule or reschedule
dispute proceedings, assist with docket management, and communicate scheduled proceedings and
pending actions to system participants. The reorganization establishes a single point of contact for
proceedings management in each field office. Rebecca Allen and Misty Haygood have been
designated as Program Specialists, who act as docketing team leads and oversee the staff for the
North Western and South Coastal regions, respectively.

In May 2015, Deputy Commissioner of Hearings Kerry Sullivan initiated a limited and voluntary
pilot project that introduced a bifurcated approach to resolving cases where the resolution of an
MMI/IR issue is dependent on an active extent of injury dispute. Upon agreement of the parties
during a BRC, the issues could be split between two hearings, the first addressing extent of injury
and then, following an interlocutory alerting the parties to the expected outcome of that issue, a
second hearing to resolve MMI and IR in light of the Hearing Officer’s findings. At the time it was
announced, the pilot project was limited to proceedings conducted in the Division’s Weslaco field
office, and the success of the program was to be monitored before expanding statewide. The
Division appears to be satisfied with the results of the pilot project; in November, the Division
broadened their bifurcation project to include the Dallas Field Office. As of November 5, 2015, the
option to split the extent and MMI/IR issues between two hearings became available at the BRC
level.

Employers often find New Jersey to be a very frustrating state for workers’ compensation because it is very difficult to close a file for good, unless the parties have grounds for a Section 20 disposition and the proposed Section 20 meets with the approval of the Judge of Compensation.  Now those employers will have added basis to complain in light of one of the most astonishing workers’ compensation decisions in decades.  InCatrambone v. Bally’s Park Place, A-3589-13T4 (App. Div. November 12, 2015), the New Jersey Appellate Division this month held that a man who received an award for total and permanent disability for his neck with Second Injury Fund contribution can reopen a prior award for his low back. 

The case appears to be the first of its kind in New Jersey and is causing waves in the workers’ compensation community because almost every practitioner had been of the impression that total disability means exactly what it says:  the most one can get in workers’ compensation court. 

It is important to understand the factual context.  Mr. Catrambone had two accidents: the first was on March 18, 2006 involving the low back.  That led to a settlement on May 15, 2008 for 27.5% of partial total with a small credit for a gross amount of $27,570. The second accident happened on June 14, 2008 and involved mainly the left shoulder.  On March 24, 2009, petitioner filed a reopener of the award on the low back and filed a claim petition for the second accident on June 14, 2008 for the left shoulder. Mr. Catrambone alleged that he was totally disabled from a combination of the second accident and the preexisting back problems from the first accident and applied for benefits from the Second Injury Fund.

The parties proposed a simultaneous resolution of both claims on November 29, 2010 with participation of the Second Injury Fund:

1)      The low back reopener was settled for 30% credit 27.5%.  That award became the basis for Second Injury Fund contribution because the Fund will only contribute if there is proof of previous disabling conditions, whether work-related or non-work-related.

2)      The left shoulder claim was settled for 100% permanent total disability with the employer paying 150 weeks and the Second Injury Fund paying 300 weeks and then paying for the rest of petitioner’s life.

All was well until November 14, 2011 when Mr. Catrambone moved to modify the prior low back award.  The modification, often called a reopener, was an attempt to increase the prior award of 30% to a higher percentage because Mr. Catrambone argued that his back was worse than it was when he settled on November 29, 2010.  Bally’s protested that Mr. Catrambone had already been adjudged totally and permanently disabled and could not therefore get any further increase in his low back award.  Bally’s also pointed out that the basis for the contribution of the Second Injury Fund was the prior 30% award, and that award had already been considered as part of the simultaenous settlement with the Second Injury Fund.

The Judge of Compensation disagreed with Bally’s and held that when there are two accidents, the first one being a partial award, the employee could settle for total disability on the second accident and still seek an increase later on the previous award for partial disability from the first accident.  The Judge did state that if there is only one accident resulting in total and permanent disability, that award cannot be reopened.  The Judge of Compensation entered an order for 35% permanent partial disability with a credit for the prior 30% award, granting petitioner another $27,048.  Bally’s appealed this decision.

The Appellate Division noted in its recent decision that when the case actually settled on November 29, 2010, the Judge of Compensation did say to the claimant that he had a right to reopen the partial award and neither attorney said anything at the time.  Further, the Appellate Division noted that no prior case directly on point existed precluding Mr. Catrambone from reopening the earlier award on his low back, even though he received total and permanent disability benefits for his left shoulder injury.  The Appellate Division held that if a claim for increased benefits is based on a different injury than the one that totally disables the claimant, then the earlier injury award can be reopened.  In this case, there was a period of about six months when Mr. Catrambone would be receiving both his additional partial award and total and permanent disability benefits from the Second Injury Fund. The Court ordered Bally’s to repay the Second Injury Fund during that period of double payment.  In the end, Bally’s had to pay $27,048, but Mr. Catrambone got $16,054 and the Second Injury Fund got repaid by Bally’s the sum of $10,994.

This case has serious implications for employers who resolve total disability claims with the Second Injury Fund using a prior partial award as a basis for Fund contribution, as well as employers who resolve total disability claims on their own without the Fund when the claimant has prior partial total awards.  There appears to be no end to the claimant’s right to reopen the prior award in these situations. While common sense would suggest that total and permanent disability is the end of the line, this case is now the leading one in New Jersey.  Based on this decision, Mr. Catrambone can continue to reopen his low back claim so long as he does so within two years from the last payment of compensation to him.  The sense of finality that employers had with regard to total and permanent disability claims appears now to be illusory.

 It is the understanding of this practitioner that Bally’s has applied for certification from the Supreme Court of New Jersey.

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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 November 18, 2015, the West Virginia Supreme Court of Appeals issued a new signed opinion inGoff v. W. Va. Dept. of Natural Resources, expanding benefits for a statutory rated loss of vision in one eye. In a Memorandum Decision also released November 18 the Court delineated calculation of Average Weekly Wage. In an October 18 order, the court set oral argument and invited interested parties to file amicus briefs by December 1, on the question of the correct methodology for apportioning the level of impairment in workers’ compensation cases involving preexisting conditions.

Goff and W. Va. Office of Ins. Comm., (No. 14-0977, November 18, 2015)

In a signed opinion, the Supreme Court addressed whether a claimant who lost an eye because of a workplace injury is limited to the statutory award in W. Va. Code § 23-5-6(f) for loss of vision in one eye. The Court allowed additional impairment for the physical removal of his right eye, in addition to the previously awarded statutory amount of the loss of vision in his right eye. In a new Syllabus point, the Court held: “The statutory percentage disability award contained within W. Va. Code § 23-5-6(f) (2005) for the total functional loss of vision of an eye caused by an occupational injury does not preclude an additional award, if appropriate, for permanent disfiguring effects and other permanent disabling effects caused by the physical removal of the eye itself.”

Claimant was struck in the right eye by a brier. His eye became infected and ultimately was removed. He was fitted with a prosthetic eye, but needed continuing treatment for conjunctivitis, blepharitis (eyelid inflammation) and other conditions related to the eye socket itself. In addition, medical reports indicate claimant suffered a permanent disfigurement to the area around the eye. The claimant was awarded 33% statutory permanent partial disability award under W. Va. Code § 23-5-6(f) for “the total and irrevocable loss of sight in one eye.” Nothing was awarded for the permanent impairment caused by his continuing problems with infections and related conditions in his right eye socket or for the permanent disfigurement caused by his eye injury. The Court held “the Legislature chose its words carefully, focusing on something short of a total physical loss of the eye – limiting its words to the ‘loss of vision’ or ‘sight’ of the eye, rather than the impairments related to the loss of the physical eye itself. Giving effect to this plainly worded statute, we therefore hold that the statutory percentage disability award contained within W. Va. Code § 23-5-6(f) (2005) for the total functional loss of vision of an eye caused by an occupational injury does not preclude an additional award, if appropriate, for permanent disfiguring effects and other permanent disabling effects caused by the physical removal of the eye itself.”

Lowry v. Team Environmental LLC and W. Va. Office of Ins. Comm., (No. 13-1125, November 18, 2015)

In a Memorandum Decision, the Supreme Court provided clear direction on how to calculate a claimant’s daily wage, the basis upon which temporary total disability and other benefits are established. Giving the words in the statute their ordinary and familiar meaning, the language of W. Va. Code § 23-4-14(b)(2) provides that in choosing between computing an injured worker’s benefits using his or her daily rate of pay or the weekly average derived from the best quarter of wages of the preceding four quarters, the computation which must be used is the one which is “most favorable to the injured employee.” There was a factual dispute whether the injured claimant was a full-time employee or a contractor whose work was intermittent. The claimant based his weekly wage on earning $16.00 per hour for a forty-hour work week which is what he was paid the day before his injury. He based his weekly wage on multiplying a forty-hour work week by his hourly rate of pay, and then dividing the number by a five-day work week, for a daily rate of pay of $128.00, and a corresponding average weekly wage of $640.00. Conversely the employer and the claims administrator used an average weekly wage of $595.38 calculated from 1099-MISC forms and checks from earnings in the fourth quarter of 2010, which was the highest-paid quarter of the year preceding the quarter of the year in which the injury happened. The daily rate of pay most favorable to the claimant was the one proposed by him and adopted by the court.

Cases from January 2015 Term of Court

In the January 2015 Term of Court, the Supreme Court issued three signed opinions. In two cases, the Court drastically diminished the enforceability of temporal limitations on claims brought under the West Virginia Workers’ Compensation Act. InSheena H. for Russell H. v. Amfire, the court ruled the claim of a dependent of a deceased employee may be accepted beyond the statute of limitations, until the dependent could reasonably learn the death was work-related.Hammons v. A & R Transport, Inc., allows claimants to apply for permanent partial disability benefits after the statutory period, if lengthy litigation on the underlying claim extended beyond the time limitation. These decisions allow injured employees, or their dependents, to claim benefits under the Worker’s Compensation Act beyond the limited time determined by the West Virginia Legislature.

Sheena H. ex rel. Russell H., et al. v. Amfire, LLC, 235 W.Va. 132, 772 S.E.2d 317 (2015)

This case addressed the tolling of the six month statute of limitations period in which W. Va. Code § 23-4-15(a) permits dependents of deceased employee to apply for death benefits under the Workers’ Compensation Act. In answering this question affirmatively, the Court utilized canons of statutory construction to avoid absurd results and overcome lack of explicit statutory permission for extending the jurisdictionally limited six month period. Ultimately, the Court decided the limitation period may be tolled under the limited circumstance in which the dependent is unaware of the work-related injury’s role in the death of a decedent because of delay by the medical examiner in preparing the autopsy which determined the cause of death. 

The peculiar facts produced a narrow holding. The decedent received a traumatic head injury while on the job. The decedent went to the hospital, returned to work less than three days later, and died in his sleep twenty-one months after the head injury. A medical examiner performed an autopsy the day after the decedent’s death; however, the medical examiner did not release the autopsy report for eight months. The autopsy report was the first, and only, indication a work-related injury caused the decedent’s death. The delay in the release of the autopsy prevented the dependents of the deceased from timely applying for death benefits within six months after the date of death in accordance with W. Va. Code § 23-4-15(a).

The Court determined the unique facts of this case were likely not considered by the legislature at the adoption of W. Va. Code § 23-4-15(a). The Court, to avoid what it characterized as a patently unfair and absurd result, determined the legislature could not have intended a claim for death benefits to be untimely simply because of a medical examiner’s delay. The Court buttressed their decision by reaffirming the purpose behind the time limitation of the Workers’ Compensation Act – to protect employers from frivolous claims and to afford claimants sufficient opportunity to investigate a claim before filing it. 

Hammons v. W. Virginia Office of Ins. Com'r, 235 W. Va. 577, 775 S.E.2d 458, 460 (2015)

The Court held that claimants may apply to reopen a workers’ compensation claim and request a referral for determining related PPD benefits after the time limits established by W. Va. Code § 23-4-16(a)(2) if four factors are met. To reopen a closed claim, the claimant must have (1) received an award of PPD for an initial workplace injury; (2) timely filed a reopening request under W. Va. Code § 23-4-16(a)(2) seeking additional, related injuries to the initial claim; (3) the additional injuries must be compensable, and (4) the Claim Administrator must fail to refer the claimant for a PPD evaluation in accordance to W.Va. Code § 23-4-7a(f). In adopting this new factor test, the Court recognized three rights afforded to claimants under the Workers’ Compensation Act; the right to the payment of benefits for workplace injuries, the right to appeal adverse decisions; and the right to be referred for a PPD evaluation.

In this case, both claimants were injured on the job, suffered from persistent pain stemming from the initial injury, and went through lengthy litigation to add new permanent partial disability benefits by reopening their initial claim. In reaching the ultimate decision to allow the untimely application for permanent partial disability referral, the Court reiterated that W. Va. § 23-4-7a(f) creates  an affirmative duty on a Claim Administrator to refer claimants for an examination to determine whether permanent partial disability exists if temporary total disability continues longer than one hundred twenty days from the date of injury or from the date of the last examination or evaluation. Here, the claimants were not afforded this right. Thus, the Court found it necessary to allow the untimely application to protect the rights recognized by the Legislature.  

Moore v. K-Mart Corp., 234 W.Va. 658, 769 S.E.2d 35 (2015). 

In a third signed opinion in the court’s January term, the court addressed a limited question whether an employee is entitled to reimbursement for medically necessary chelation therapy to treat heavy metal toxicity.  The Court found invalid the limitation to reimburse chelation therapy performed in an office as provided in W. Va. C.S.R. § 85-20-62.2 (2006). In a new syllabus point, the court ruled: “West Virginia Code of State Rules § 85–20–62.2 (2006), which provides, in part, that “[t]he Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, will not reimburse for IV chelation therapy performed in office[,]” unreasonably denies reimbursement when such treatment is medically necessary, in contravention of the Workers' Compensation Act, West Virginia Code § 23–4–3 (2010), and it is therefore invalid.”

Article by Dill Battle with assistance from James C. Walls III.

 If you have questions or need more information, please call or e-mail Dill Battle at 304.340.3800 ordbattle@spilmanlaw.com