State News

Accordingto arecent TDIreport resultingfrom aOpen RecordsRequest bythe Insurance Council of Texas, insurancecarriers prevailedthe majority ofthe timein bothprospective and retrospective medical necessityIndependent ReviewOrganizationreviews.  Thereport coversthe years2009-2013. These numbers are not surprising since the adoption of the Official DisabilityGuidelines (effective 5/1/07),but itis goodto knowthattheIRO reviewsystem appears tobe producing consistent outcomes applying evidence-based guidelines fromthe ODG.

BeginningJune 1,2015, Carriersare requiredto usethe revisedDWCForm PLN-11 to disputea workers’ compensation claimand provide the factual basis of the dispute.

TheDivision’s statedreason forthe revision isto help theagency andinjured employeesclarify whether acarrier isdisputing extentof injury, disabilityand/or eligibilityto receivedeath benefits. In itsmemorandumannouncing the finalized form,theDivision alsowarned against usingthe PLN-11 for issues outside the

scope of the PLN-11.

Carriers haveuntil June1, 2015to begin usingthe newform,but there isno harm    in practicing to doso nowin order toget used to using it. The finalizedform isavailable nowon theDWCwebsite at http://www.tdi.texas.gov/forms/form20numeric.html.

December ushered in a DWC effort to providemuch needed education to workers’ compensation treatingdoctors. Theeducation is aimedat teaching treatingdoctors theappropriate wayto address and report oncausation ofa claimedcompensableinjuryin hopesthat thereport willaid indispute resolution.

Wewelcomebetter reportsfrom treatingdoctors. Butthe training materialsfocus onthe formof the report over the substance of the opinion and the underlying science a doctor should use to formulate his or her opinion. The use of templates andmagic words should not replace a well- reasonedopinion thataddresses causationin thecontextof theclinical recordand evidence-based medicine relevantto thespecifics ofa given case.Weare awareof atleast onecase where ahearing officer under the guise of an LOC mid-hearing sent the trainingmaterials to a designated doctor where thedesignated doctorhad notprovided acausation opinion that met evidentiary standards. The expectation was that the doctor would then issue an “amended” report.

Ofnote isthe factthat thereis norequirementthat atreating doctorreview allthe medicalrecords and list what hehas reviewed.   Thatis notthe casefor peerreview doctors,RMEdoctorsand designated doctors who are held to amuch more stringent standard.

Membership in the AWCO offers a number of professional and social opportunities annually to interact with other workers' compensation professionals. The highlight of the year is the annual AWCO Spring Conference where its members come together for three days of education, fun, and fellowship. Membership is only $75 if paid prior to February 27, 2015. After that, the annual fee goes up to $150. Once you are an AWCO member, the Spring Conference is free. You pay nothing, nada, zero, zilch to register and attend. If you have any questions about the AWCO, membership, the Spring Conference, or simply need an application for membership, feel free to call or e-mail Mike Fish (contact info below). ________________________ 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.

Under the New Jersey Workers’ Compensation Act, the independent contractor defense is seldom successful, but one area where the defense is still viable is in the horse racing industry as seen in the recent decision of Perry v. Robert Horowitz Stable, A-3845-12T2 (App. Div. December 9, 2014). 

Randolph Perry was a licensed horse owner and trainer and agreed to train horses for Robert Horowitz Stable (hereinafter “Horowitz”) at the Meadowlands Race Track.  In January 2004, he slipped on a patch of ice and was seriously injured.  He filed  a workers’ compensation claim against Horowitz.  He also recovered a substantial third party suit against the Meadowlands Race Track.  In the workers’ compensation trial, Perry argued that under both the control test and the relative nature of the work test, the court must find employment. 

Perry argued that Horowitz controlled his duties sufficient to render him an employee.  He said that Horowitz would specify how many miles the horses would run, how to care for the horses’ feet, and how much the horses were to be fed.  In response, Horowitz argued that the stable did not have an ongoing training relationship with Perry.  While Horowitz did provide instructions related to the amount of miles to jog the horses and how to care for their feet, Horowitz countered that Perry had discretion to control other aspects of training.

Horowitz further contended that it did not furnish any equipment or stalls, nor provide Perry with food to feed the horses.  Horowitz said that the stable did not specify the type of food needed.  Rather, Perry would buy the food himself.  Horowitz further argued that Perry disregarded his instructions on how much food to provide and in fact provided less food because of Perry’s view that horses should not eat as much food as Horowitz required.  

Perry maintained that he was substantially dependent on Horowitz under the relative nature of the work test.  However, it was noted in the record that Perry worked with many different owners for income over his 40-year career

The Judge of Compensation found for Perry on employment, but the Appellate Division reversed.  The court noted that Perry did not receive a W-2 or 1099 from any of the owners for whom he trained horses.  He was not paid a specific wage, and there were no deductions or withholdings from Perry’s pay.  It said,  “This is indicative of an independent contractor.”  The court also relied on the fact that Perry rented stalls directly from the Meadowlands Racetrack where he performed his work.  It said this too was consistent with being an independent contractor because it shows Perry carried on his own business.  The court felt that Perry used his own methods to run his business. 

There was one specific item of testimony that the court focused on in its opinion in favor of independent contractor status.  At trial Perry testified, “If I needed the money, I would [train the horses] for less.  If I didn’t need it, I would charge more.”  The court suggested that this was proof of an independent business, not employee status.  For much the same reasons, the court also found that Perry was not an employee of the New Jersey Horse Racing Injury Compensation Board. 

This decision could clearly have gone either way.  The Appellate Division focused on the facts that tended to show Perry was running his own business together with the absence of a W-2 or 1099, but there were clearly some elements of control that favored Perry’s argument on employment.  The Appellate Division decision does not disclose how much money Perry earned from Horowitz as opposed to other trainers, nor how many days he trained horses for Horowitz.   What is more clear is that a jockey would have a much stronger argument for employment than a horse trainer would because of the predominance in New Jersey of the relative nature of the work test.