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MEDICAL TREATMENT GUIDELINES: DEVELOPMENTS IN THE FIRST YEAR
Presented by:
Renee E. Heitger, Esq.
Hamberger & Weiss
Livingston County, 2011 WL 5618432 (WCB No. 79905338)
3 Big Questions:
1) Does the Chair have the Statutory Authority to issue the MTG and 12 NYCRR 324?
2) Are the MTG and 12 NYCRR 324 contrary to the Statute, WLC Section 13?
3) When will treatment for an exacerbation be deemed consistent with the MTG?
Legal Analysis re: Question 1
WCL Section 117 authorizes the Chair to make reasonable regulations consistent with the provisions of this chapter, and authorizes the Board to adopt reasonable rules consistent with and supplemental to the revisions of this chapter, so long as they are rational and not arbitrary and capricious.
WCL Section 141 authorizes the Chair to enforce Regulations & Orders.
WCL Section 142 grants the Board the power to hear and determine claims for compensation or benefits and power to require medical service for claimants.
Comparison to 12 NYCRR 300.38(f) which requires timely, PH-16.2 in controverted cases or all defenses waives.
Answer to Question 1
Yes, Chair has Regulatory Authority to promote overall Statutory framework of WCL Section 13, and provide swift and sure determination of scope of reasonable and necessary treatment.
Therefore, the MTG and 12 NYCRR 324 were lawfully promulgated.
Legal Analysis re: Question 2
WCL Section 13(a) requires the employer to pay for treatment for such period as the nature of the injury and process of recovery requires.
However, no payment required for unnecessary, duplicative or inappropriate treatments and tests.
Claimant is entitled to needed care, but not unlimited and unchecked.
MTG are a logical supplement to the statute, designed to decrease disputes and increase timely payment.
Burden of proof is on Treating Medical Provider (TMP) to establish evidence to support variance.
Basis for opinion
Claimant agrees
Why alternatives not appropriate
And if frequency and duration issue,
Objective functional improvement with treatment
Reasonably expected to improve with further treatment.
Answer to Question 2
MTG comport with the spirit and intent of, and are not contrary to Section 13(a), in providing appropriate and medically necessary treatment.
Legal Analysis re: Question 3
General statements not supported by documented objected measures of functional improvement are insufficient, e.g.:
Periodic flare-ups with gradual and insidious onset.
Treatment decreases pain and restores and maintains positional tolerances and ROM.
Suspects continued exacerbations will occur.
Answer to Question 3
An exacerbation must be fully documented by
When and how it occurred.
Show objective changes from baseline function.
Show claimant’s response to treatment with documented measures of functional improvement.
Sometimes documenting past history of exacerbations supports that future exacerbations are likely.
Medical Director’s Office BulletinMDO-2012 #1
What is an exacerbation?
Temporary worsening of prior condition by an exposure/injury.
Following transient increase in symptoms and signs, and decrease in function, claimant recovers to baseline.
Variance Required?
Not for initial treatment if consistent with MTG.
Yes, if inconsistent, such as beyond recommended limits, or not showing objective functional gains.
What are the documentation requirements?
Reiterates findings by Board Panel inLivingston Co.
Treating provider cannot request treatment for future exacerbations.
What are the most relevant general principles pertaining to exacerbation?
General Principal 1:Medical Care
General Principal 3:Positive Patient Response
General Principal 4:Re-evaluate Treatment
General Principal 5:Education
General Principal 10:Active Interventions
How can objective functional improvement be documented?
Initial evaluation—compare to pre-exacerbation
Re-evaluation
Objective functional findings/abilities
Return to baseline (pre-exacerbation exam)?
Goals
If function not at baseline, what gains are expected and what treatment is planned in order to get there?
Ultimate goal: return to pre-exacerbation function
What forms to use?
C-4.2 or EC-4NARR if treatment consistent with MTG.
MG-2 if not consistent.
Additional Questions answered byLivingston Co.
Contrary medical evidence is not required to deny variance if
Treatment done before variance
Treating provider failed to meet burden of proof
Such denial must be articulated.
To respond to variance, no IME or formal record review is necessary, medical professional opinion is acceptable.
Suggests that partial granting of variance request is acceptable if treating provider did not meet burden of proof.
Full Board Review request was denied inLivingston Co., but Notice of Appeal to Appellate Division filed.
To be continued . . . .
Practice Tips
If you believe there is a Burden of Proof issue, specifically raise it on the MG-2 denial citing §324.3.a.3.
If you only raise a Burden of Proof issue, and the Medical Arbitrator or ALJ disagrees and finds the TMP met his or her burden, then the treatment will be authorized.
Therefore, if you want to preserve your right to submit a contrary medical opinion, you cannot wait and it must be submitted with the denial. Include Burden of Proof and the contrary medical opinion as the basis for denial.
The contrary medical can be from an IME, a records review with an IME or authorized provider, or from your medical professional. Watch the deadlines!
If you obtain a contrary medical opinion, make certain your consultant comments on more than just the maximum amount of treatment permitted under the Guidelines and focuses on the substance of what TMP has provided to support his variance request, as TMPs are getting more proficient in supporting their MG-2 requests.
If there is no evidence of a re-examination by the TMP within the first 2-3 weeks after initiating treatment, TMP really cannot meet Burden of Proof.
True exacerbations don’t require
MG-2. TMP frequently still utilize them. If the criteria outlined in the Livingston Co. case and the Medical Director’s Office Bulletin are not met:
Deny the MG-2 specifying that the criteria required to establish an exacerbation have not been met.
If there is no MG-2, file a C-8.1(B) objecting to treatment citing the MTG issues.
More relevant Board Panel Decisions
Place Optical Co. Inc., 2012 WL 369707 (WCB No. 78511469)
Prior WC Decision authorizing treatment without term limit, end date or statement that treatment authorized for life does not preempt MTG.
Suggested that a prior valid written stipulation (pursuant to 12 NYCRR 300.5) is binding.
Delphi Harrison, 2012 WL 607066 (WCB No. 80100230)
Treating provider may not collect fees from claimant for treatment for work-related injury.
Will be referred to Office of Health Provider Administration for review and appropriate action.
Evergreen Painting Studios, 2012 WL 606857 (WCB No. 00714529)
MTG do not apply to consequential headaches despite that they are consequential to neck, a covered site.
Vastly different opinions on medical necessity and appropriateness of prescription medications resulted in WCB referring the issue to its impartial specialist.
Note: Here C-8.1’s were filed against treating provider for prescriptions, but if filed against pharmacy, in some cases, examiners are simply advising carriers that C-8.1’s are not appropriate against a pharmacy, but direct employer/carrier to notify pharmacy, with copy to claimant and attorney, of the objection.
Tompkins Metal Finishing, 2011 WL 6963865 (WCB No. 70501432)
RFA-2 to address treatment with prescription narcotics filed prior to 12/1/10, based on pre-MTG IME.
WCLJ authorized narcotics per MTG at 12/6/10 hearing.
Board cited its Subject No. 046-457 which states
“The Medical Treatment Guidelines do not require, and are not intended to recommend, the immediate cessation of prescription narcotics… for claimants who have been using such medication long term.
There are very significant health risks associated with the sudden withdrawal of narcotics and other pain medications. The MTG allow for the use of pain medication beyond the maximum duration.Therefore, carriers should continue to pay for these medications without a variance request.”
Board found no variance request required and the WCLJ properly applied MTG in authorizing narcotic medications and properly found trial moot.
However, thereafter, variance request was filed, denied based on medical professional opinion, and development of the record took place with testimony of treating provider and prior IME.
WCLJ found Board’s prior decision only addressed whether variance was needed immediately after effective date of MTG.
WCLJ found treating provider did not meet burden of proof in establishing variance for further narcotics, and authorized weaning program recommended by IME.
Claimant appealed . . To be continued.
Practice Tips
Before a claimant begins using medication “long term,” notify the prescribing doctor from the very beginning that the Medical Treatment Guidelines apply and inform him that those Guidelines generally state “narcotic medications should be prescribed with strict time, quantity and duration guidelines and with definitive cessation parameters. . . ” Then refer the TMP to the Guidelines for specific details.
Consider C-8.1(B) and (A) if TMP does not provide this treatment plan for prescriptions.
Consider early IME if medications continue beyond the maximum.
If a claimant is already on medication long term, obtain an IME with a clear focus on the various prescription medications being utilized, review of those prescription medications and any tox screens, and have the doctor comment on the medical necessity and appropriateness of those ongoing medications. If not medically necessary and appropriate, have the doctor outline a weaning program which you are willing to authorize. Then request a hearing to address the issue.
Request that the prescribing doctor conducts regular tox screens to ensure compliance. They should provide the results.
If abnormal, consider IME for medical necessity and appropriateness, and treatment plan.
If multiple providers prescribing medication, advise each what else is being prescribed and ask if still medically necessary and appropriate. Consider IME.
PROPOSED CARPAL TUNNEL SYNDROME TREATMENT GUIDELINES
Subject No. 046-469
Enclosed proposed CTS Treatment Guidelines
Requested comments by 12/1/11.
Nothing new since then.
Proposed Guidelines
Introduction
∙“Both documentation of appropriate symptoms and signs and a statement attesting to probable work-relatedness must be present for a CTS claim.”
History and Exam
Objective clinical findings should have preference if findings on clinical exam and other diagnostic procedures do not complement each other.
Laboratory testing rarely indicated unless another condition suspected.
Establishing work relatedness
Exposure
Outcome (diagnosis)
Relationship to work stated as a “probability”
Usually see
Forceful use of hands, wrists
Repetitive use combined with some force
Constant firm gripping of objects
Moving or using hand and wrist against resistance or with force
Exposure to strong regular vibrations
Regular or intermittent pressure on wrist
Making Diagnosis:
Signs and symptoms
Exam
Diagnostics
Non-operative treatment
Medications
Wrist splint at night
Restrict activities like forceful grip, awkward wrist position, repetitive motion
Patient education
RTW ASAP including light duty
Steroid injections
Nerve gliding exercises
Ultrasound
Generally manual therapy not recommended nor is low level laser, iontophoresis, magnets or laser acupuncture
Surgical indications
Various indications recited.
Of interest, clinical impression of moderate-severe CTS, with normal EDS studies is generally a mistaken diagnosis. Surgery may be considered only if these criteria are met.
Signs and symptoms are specific for CTS and
Significant temporary relief after steroid injection into carpal tunnel.
Only under this circumstance is preauthorization required.
Operative procedures
Neurolysis—not proven advantageous
Internal neurolysis never; external neurolysis rarely indicated.
Tenosynovectomy generally only in unusual case when CTS accompanied by R.A. Would need C-4 AUTH.
Post-operative treatment
Home therapy and use of hand.
Immediate mobilization generally shown to be better, but possible splinting is at the discretion of the doctor.
Sometimes individualized rehabilitation program are helpful if no functional improvement or in patients with heavy or repetitive jobs.
Open communication re: RTW. It is the responsibility of the doctor to provide clear restrictions and the responsibility of the employer to determine if temporary LD is available.
Repeat surgery requires C-4 AUTH.
CHRONIC PAIN TREATMENT GUIDELINES: MEDICAL ADVISORY COMMITTEE APPOINTED
To develop additional guidelines for treatment of work related conditions, starting with management of chronic pain conditions.
9 doctors on the committee as well as a representative of the Business Council of NYS and Art Wilcox representing the NYS AFL-CIO
To be continued. . . . . . .
Question re: Licensing fee, in connection with use of the MTG, being charged by American College of Occupational and Environmental Medicine (ACPEM).
*See WCB;’s official response attached.
For more information, contact Ronald Weiss at 585-262-6391,rweiss@hwcomp.com or
Mark Hamberger at 716-852-5200, mhamberger@hwcomp.com
2012 New York Guidelines for Determining Permanent Impairment and Loss of Wage Earning Capacity
Presented by
Joseph P. DeCoursey, Esq.
Hamberger & Weiss
Overview
• New process for Non-Schedule PPD cases.
• Shift away from medical impairment as sole component in determining percentage disability.
• Determination of SLUs remains the same as under 1996 Guidelines.
• Ultimate Determination of Loss of Wage Earning Capacity (LWEC) left to litigation and negotiation
• Only for evaluation ofpermanent disabilities.
• Buffalo Auto Recovery still good law.
} Effective Date of 2012 Guidelines
• January 1, 2012
• EXCEPT - for claims that already have at least one medical opinion finding a permanent impairment with a rating based on the 1996 Guidelines on or before January 1, 2012, the Board will determine the claimant's degree of permanent disability using the 1996 Guidelines.
} Maximum Medical Improvement
• Process doesn't start until claimant reaches MMI.
•
"a medical judgment that (a) the claimant has recovered from the work related injury to the greatest extent that is expected and (b) no further improvement in his/her condition is reasonably expected. The need for palliative care or symptomatic treatment does not preclude a finding of MMI. In cases that do not involve surgery or fractures, MMI cannot be determined prior to 6 months from the date of injury or disablement, unless otherwise agreed to by the parties."
} Effect of LWEC on Benefit Cap
∙The percentage loss of wage earning capacity (LWEC) determines both the benefit rate and the duration of benefits in PPD classification cases.
∙ For non-working claimants at the time of classification, the %LWEC is determined by the process described in this presentation.
∙ For working claimants at the time of classification, the %LWEC is determined by a reduced earnings calculation. Buffalo Auto.
} The 3 Components of LWEC
2. Evaluation of Residual Functional Capacity
3. Evaluation of Vocational Factors
} Medical Impairment
• Largest topic covered by 2012 Guidelines
• Impairments to different body parts are divided into categories.
• Physician must objectively assign the category of impairment a severity ranking from A to Z that best fits the claimant at the time of MMI.
• Severity Ranking is based on the estimated impact of the condition on the claimant's overall health and bodily function.
• Chapter 18 (“The Crosswalk”) of the 2012 Guidelines translates each impairment's letter ranking into a 1-6 severity ranking to allow comparisons across different types of impairments.
• Medical impairment cannot be directly translated into loss of wage earning capacity.
• BUT, in general, more severe impairments lead to greater losses of work opportunity and reduced earning capacities. (Chapter 9.3).
} Medical Impairment – How measured
Example 1:
Claimant sustained a low back injury after a chair she was sitting on at work collapsed beneath her. She landed on her buttocks. After physical therapy and medications, her symptoms improved. She now has intermittent pain across her low back with radiation into the back of her legs, but not her feet. Her neurological exam is normal.
} Medical Impairment –How measured
Example 1
• Non surgically treated soft tissue spine condition - use Table 11.1
• Claimant meets "Class 2" because of persistence of symptoms without objective clinical findings or correlative imaging findings.
• "Class 2" for lumbar spine on Table 11.1 = "A" Severity Ranking (least severe)
} Medical Impairment –How measured
Example 2:
Claimant lifted a 80lb. concrete slab, resulting in a back injury. His MRI showed a L4-5 herniated disc with right L5 nerve root displacement. He failed conservative treatment, leading to a L4-5 surgical discectomy. On exam he has: 1) absent right ankle jerk; 2) straight leg raise with radicular pain in L5 pattern at 30 degrees; and 3) leg atrophy of 2cm, comparing right to left.
} Medical Impairment –How measured
Example 2
• Surgically treated spine condition - use Table 11.2.
• Claimant meets "Class 4" because of surgical intervention with residual symptoms and additional objective findings.
• "Class 4" for lumbar spine on Table 11.2 = "D" through "J" Severity Ranking. Need to refer to supplemental tables to determine exact severity ranking.
Table S11.4: Radiculopathy Criteria: add up the points from claimant's objective testing. After obtaining point total, refer to Table S11.7 for exact letter Severity Ranking in class.
• Claimant has muscle atrophy, demonstrated by bilateral circumferential measurement -6 points
• Claimant has absent right ankle jerk -6 points
• Claimant has positive SLR -4 points
• Total =16 points
• This translates to an "E" severity ranking.
} Medical Impairment - Crosswalk
• Example 1: "A" Severity Ranking = "1" (least severe) on Crosswalk
• Example 2: "E" Severity Ranking - "2" on Crosswalk
• Even though claimant in Example 2 had more significant injury, treatment, and residual problems, his ranking is only one level higher than Claimant 1 on the Severity Crosswalk.
• Would probably be "mild" and "marked" under 1996 Guidelines.
• Emphasize the Crosswalk!
} Evaluation of Functional Capacity
"The medical assessment of the injured worker’s residual functional abilities and losses is akey component in a judge's determination of loss of wage earning capacity." (2012Guidelines)
• Physician to document claimant's functional capabilities on new C-4.3 Form.
• Physician to obtain job description of claimant's pre-injury employment and discuss with claimant.
• If alleging claimant can return to pre-injury job, employer to provide job description to physician.
} Evaluation of Functional Capacity
C-4.3 Form
1) Describe the claimant's residual functional capabilities for any work.
2) Determine the claimant's exertional ability.
3) Describe other relevant medical considerations (such as the use of pain medications).
4) Determine whether the claimant could perform his or her at-injury work activities with restrictions.
5) Describe whether the claimant has had any injury or illness since the date of injury that impacts residual functional capacity.
6) State whether the physician has discussed the claimant's return to work or limitations with the claimant or claimant's employer.
7) Determine whether the claimant would benefit from vocational rehabilitation.
} Evaluation of Functional Capacity
• The physician shouldmeasure the claimant's performance and restrictions across the range of functional abilities listed on the C-4.3 form.
• Section F of Form C-4.3 asks the physician to rate the claimant's exertional ability as one of six categories from the Social Security Dictionary of Occupational Titles.
• Categories range from "Less than Sedentary Work" to "Very Heavy Work“.
} Evaluation of Vocational Factors
• Factors to consider include: education, training, skills, age, literacy, English proficiency, and "other considerations“.
• Another form! - VDF-1.
• VDF-1 asks about education, work experience, literacy and English language proficiency.
• No comment on use of vocational experts by Board or carriers.
VDF-1 Form
} LWEC Hearing Process
1. Maximum Medical Improvement
} LWEC Hearing Process (con't)
2. Severity and Functional Loss
} LWEC Hearing Process (con't)
3. Vocational Factors
4. Conclusion
For more information, please contact:
Ronald Weiss, 585-262-6390,rweiss@hwcomp.com
Mark Hamberger, 716-852-5200,mhamberger@hwcomp.com
Market Trends for West Virginia – October 1, 2012
By: Mary Jane Pickens
NCCI’s George Ortiz announced on August 15, 2012, that the West Virginia Offices of the Insurance Commissioner advised NCCI that the proposed overall average workers’ compensation loss cost level change of -9.1% and -14.3% decrease in the assigned risk rates have been approved as filed. The changes are effective as of November 1, 2012.
As noted in NCCI’s previously released summary of the filing, the two primary drivers for the lost cost level change are (1) that West Virginia claims experience has significantly improved in calendar-accident year 2011, and (2) NCCI employed West Virginia-specific data in determining Loss Adjustment Expense provision, particularly the Defense and Cost Containment Expense (DCCE). The Loss Adjustment Expense is the cost of adjusting losses, excluding the amount of the loss itself.
In the old West Virginia Workers Compensation System rates were calculated on 94 classifications and employer’s premiums were calculated by using the classification with the highest rate associated with that employer’s payroll. In July 2006 the NCCI classification system was implemented in West Virginia and advisory costs for 477 classifications were filed. Because of the changes in the classification system NCCI did not have the statistical data to use its standard method of calculating loss costs. Previous filings for West Virginia utilized loss costs filed with regional states. With the 2012 filing NCCI implemented its standard classification ratemaking methodology. The NCCI classification system more accurately reflects the overall cost of losses and expenses associated with each type of risk.
The latest loss cost filing reflected average changes by industry groups as follows:
Manufacturing -4.8%
Contracting -14.5%
Office & Clerical -10.5%
Goods & Services - 4.1%
Miscellaneous -4.1%
This resulted with an overall loss cost level change of -7.6%.
The residual market provides coverage for employers that are unable to obtain coverage in the voluntary market. The policy count grew in the residual market grew 50 %, from 885 to 1,325. Much of the growth in the residual market policies was from volunteer fire departments. Currently 381, or 14.2%, of the residual market are volunteer fire departments. Premium volume in the residual market increased from $7.4 million in 2010 to 10.4 million in 2011.
In 2011 the Offices of the Insurance Commissioner issued a Request for Proposal for servicing carriers. As a result of the competitive bid process the weighted average servicing carrier allowance decreased from 25.42% of net premium to 21.21%. This change was the major contributor to the decrease in the expense provision for the assigned risk rates. The three servicing carriers are American Mining, Guard and Travelers.
NCCI reported in its 2012 Filing Summary that this year marks the seventh consecutive overall average loss cost level decrease filed in West Virginia since the conversion from a Monopolistic state fund to private competition. With the approval of NCCI’s filing, the cumulative impact of loss cost level changes since NCCI’s 2006 is -40.4%.
Mr. Ortiz reported that an official circular will be released shortly and additional information will be available onwww.ncci.com.
West Virginia Supreme Court of Appeals – Case Law Update October 1, 2012
By: Dill Battle
The September 2012 Term of the West Virginia Supreme Court of Appeals convened on September 5, 2012. The Court has not produced a published decision in this term. However, the Court has issued 14 Memorandum Decisions under the revised rules of appellate procedure. The case update discusses several cases.
Compensability of Psychiatric Conditions
The Court addressed the denial of a psychiatric consultation to determine the compensability of psychiatric conditions in Maynard v. WVOIC and Dillard Smith Construction Co. (No. 10-1120)(W. Va. 09/18/2012). The Court applied the recent case of Hale v. WVOIC and Rockspring Development, Inc., 724 S.E.2d 752 (W.Va. 2012). The Maynard Court repeated its instructions inHale that a three-step process must be followed when a claimant is seeking to add a psychiatric disorder as a compensable injury in his/her workers’ compensation claim: (1) the claimant’s treating physician refers the claimant to a psychiatrist for an initial consultation; (2) following the initial psychiatric consultation, the psychiatrist is to make a detailed report consistent with the procedure described in W.Va. C.S.R. § 85-20-12.4; and (3) the claims administrator, aided by the psychiatrist’s report, is to determine whether the psychiatric condition should be added as a compensable injury in the claim.
In another case applying theHale decision, the Court in Jones v. WVOIC and Trumbull Corp. (Nos. 11-0293 and 11-0867)(W. Va. 09/14/2012), found that claimant was entitled to an initial psychiatric consultation because possible symptoms of depression did not manifest until 2009, thus a 2006 evaluation was premature on the issue of possible compensable depression related to chronic pain from physical injuries suffered in 2003.
Compensability - Intoxication
In Paynter v. WVOIC and Wendy’s International, Inc. (No. 11-0333)(W. Va. 09/14/2012), the Court affirmed the Board of Review’s Order affirming the Office of Judges decision that affirmed the Claim Administrator’s order rejecting a claim for benefits due to claimant’s intoxication. The Court agreed that the claimant was not entitled to workers’ compensation benefits under W. Va. Code § 23-4-2(a) because a swab test taken by Wendy’s was positive for benzodiazepines and opiates.
Apportionment of Preexisting Impairment – Carpal Tunnel Syndrome
In Canaday v. WVOIC and Kokosing-Frucon, LLC (No. 11-0065)(W. Va. 09/18/2012), the Court addressed apportionment of preexisting impairment in a carpal tunnel syndrome case. The Court found that while the claimant suffers from certain risk factors for the development of carpal tunnel syndrome, the medical evidence fails to establish any evidence of carpal tunnel symptoms prior to the work-related injury. While W. Va. Code §23-4-9b provides for apportioning impairment awards for pre-existing conditions, there is no evidence establishing that the claimant’s carpal tunnel syndrome is a preexisting condition sufficient for this statute to apply. Therefore, pursuant to Davies v. West Virginia Office of Ins. Comm’r, 227 W.Va. 330, 708 S.E.2d 524 (2011), the claimant is entitled to a 6% permanent partial disability award for each affected hand.
Statute of Limitations – Permanent Partial Disability Benefits
In Lovas v. WVOIC and Consolidation Coal Co. (No. 11-0288)(W. Va. 09/14/2012), the Court affirmed the decisions of the Board of Review and Office of Judges that a claimant’s request for additional permanent partial disability benefits was time barred by W. Va. Code§23-4-16(a)(2). Claimant argued that permanent partial disability in relation to dysphagia had never been evaluated or litigated. The evidence showed that the claimant’s initial permanent partial disability award was received on November 22, 1999, and that claimant did not apply to reopen a claim for an additional permanent partial disability award within five years of the date of the initial award.
For further inquiries regarding West Virginia law contact Mr. Battle at (304) 340-3823 or at dbattle@spilmanlaw.com.
Named Best Lawyers' 2013 Burlington Workers' Compensation Law - Employers "Lawyer of the Year"
Menard, Inc. and Zurich American Insurance v. James Jones Jr., No. 2-579/12-0027
[(1) Substantial evidence supports Commissioner's decision that a running healing period was appropriate; (2) Merely stating that an employee is working part time hours is not enough to invoke the rate calculation set forth in 85.36(9). Evidence as to the hours worked by similarly situated full time employees in the same field is required.]
The Claimant, James Jones Jr., was a recipient of social security benefits who began employment at Menards stocking shelves. He was employed four hours a day for five days and was considered a part time employee. Six weeks after he began his employment the Claimant injured his back.
Many years prior, the Claimant had injured his low back with another employer. He underwent surgery for the injury and was ultimately given lifting restrictions. This was not disclosed on his Menards application as he stated he felt better than he had in a decade. After his injury at Menards the Claimant saw an orthopedic surgeon who saw no need for surgery and referred him to a pain specialist. This specialist found the injury to be an exacerbation of his previous injury. Once Menards learned of this they refused to approve further treatment.
The Claimant then filed a petition with the Workers’ Compensation Commissioner alleging an injury to his low back. Menards stipulated that the Claimant’s injury arose out of and in the course of his employment but disputed the permanency of the injury and his rate of compensation. At hearing, the deputy found that the Claimant had not yet reached MMI and awarded him healing period benefits. This was affirmed by the Commissioner and eventually appealed to the district court.
The district court affirmed the ruling that the Claimant had yet to reach MMI but reversed the agency’s rate calculation under section 85.36(9) finding that there was no evidence to support the application of the provision. Both the employer and the Claimant appealed the ruling of the district court.
The Court first examined the issues presented to it, whether the Claimant had reached MMI and whether the rate was correctly calculated, and noted that both fell under the Court’s substantial evidence standard of review; meaning the rulings would be upheld if substantial evidence was found to support them.
The Court then began its analysis of the issue of whether the Claimant had reached maximum medical improvement. The Court noted that the finding of the agency rested upon two independent medical examinations which opined the Claimant required further treatment and was not at MMI. Thus the Court found the finding supported by substantial evidence. These opinions had been provided by both an examiner chosen by the Claimant and one chosen by the employer. Thus the finding of that MMI had not been reached was affirmed.
The Court then turned its attention to the issue of the Claimant’s weekly compensation rate. The agency in making its rate determination relied upon section 85.39 of the Iowa Code which provides:
If an employee earns either no wages or less than the usual weekly earnings of the regular full-time adult laborer in the line of industry in which the employee is injured in that locality, the weekly earnings shall be one-fiftieth of the total earnings which the employee has earned from all employment during the twelve calendar months immediately preceding the injury.
The district court had found that substantial evidence did not support the application of this provision. The district court had stated:
The provision found in subsection 9 requires a finding that the employee was earning nothing, or less than the usual full-time employee in that field. . . .
. . . [T]here is no evidence in the record of the usual weekly earnings of other workers in [the Claimant’s] field. . . . The Commissioner relies upon the fact that Jones worked four hours per day, as shown by Menards’s own records. The number of hours worked is not determinative of this issue. . . . The true inquiry is into wages earned. No evidence on this subject is discussed by the commissioner or contained in the record.
The Court noted that invoking section 85.39 required more than the Claimant’s claims that he was a part time employee. Indeed, the Court noted that recently the Supreme Court of Iowa emphasized that a finding of part time employment is not sufficient to invoke 85.39. The Court noted that the Supreme Court had held that 85.39 distinguished between full and part time employees on the basis of weekly earnings and not the number of hours worked per week. Thus, a factual finding must be made as to whether the employee earns no wages or earns less than the usual weekly earnings of the regular full-time adult laborer in the line of industry in which the employee is injured in that locality.
The Court went on to state that such a finding had not been made in this case as the agency simply found that the Claimant worked four hours per day and was clearly a part time worker. The Court did not find
this to be enough to invoke section 85.39 based on previous Iowa Supreme Court precedent. Thus the finding of the district court was affirmed and the case was remanded to the agency for a recalculation of the Claimant’s healing period benefits under section
85.36.
Call Mark Bosscher or Lee Hook with any questions @ 515-243-2100. We’d be happy to help, whether it be a quick or a complex issue!
Case Report - Bowens v. Allied Warehousing Services, Inc., (W. Va. June 15, 2012)
By: Dill Battle
The Supreme Court of Appeals of West Virginia recently decided that a second employer can be considered a “special employer” giving rise to special employment status for workers’ compensation immunity purposes. The specific issue of whether a temporary employer can obtain workers’ compensation immunity protection from common law suits based upon the commonly accepted “special employer” rule was an issue of first impression in West Virginia. Justice Benjamin wrote the June 15, 2012 opinion in Bowens v. Allied Warehousing Services, Inc., Case No. 11-0210, where the West Virginia Court joined the majority of jurisdictions and found that a second employer meeting the requisite criteria set forth in 3 Larson’s Workers’ Compensation §67.01 (2011 ed.) may be deemed a special employer for workers’ compensation immunity purposes.
Bowens worked for a temporary employment agency, Manpower, and was assigned to operate a forklift for Allied Warehousing. While operating the forklift, Bowens suffered injuries and filed a workers’ compensation claim listing Manpower as his employer. Allied had no involvement in the workers’ compensation proceeding. After Bowens’ temporary total disability benefits were suspended by an administrative law judge decision, he sued Allied asserting various claims including negligence, unsafe workplace, negligent hiring, workers’ compensation fraud and common law fraud. The Court affirmed the Circuit Court of Wayne County’s dismissal of the workers’ compensation fraud and common law fraud claims and granted summary judgment to Allied finding it to be a special employer of Bowens for the purpose of workers’ compensation immunity.
The Court adopted the widely accepted test set forth in 3 Larson’s Workers’ Compensation §67.01 (2011 ed.) and by the United States Fourth Circuit Court of Appeals in Maynard v. Kenova Chemical Co., 626 F.2d 359 (4th Cir. 1980). The test provides three basic elements which must be satisfied to determine whether a second employer is a special employer giving rise to a special employment status for workers’ compensation purposes: (1) whether the employee has made a contract of hire, express or implied, with the second employer; (2) whether the work being done is essentially that of the second employer; and (3) whether the second employer has the right to control details of the work. Bowens at pp. 23-24. When all three of the above conditions are satisfied in relation to both employers, both employers will be liable for workers’ compensation and both will have the benefit of the exclusivity defense of tort claims.
Additionally, when analyzing the factors as they applied to the facts of the case, the Court found that whether an individual is a special employee for workers’ compensation purposes is generally a question of fact. However, a court may find special employment status as a matter of law where the pleadings, depositions, answers to interrogatories, together with affidavits establish that these is no genuine issue of material fact to the contrary. Through established facts that Allied controlled all the details of Bowens’s day to day work, the Court found that Allied’s authority to exercise complete supervision and control over Bowens while he was on Allied’s premises established Allied as Bowens’s special employer within the meaning of West Virginia’s workers’ compensation statutes.
For further inquiries regarding West Virginia law contact Mr. Battle at (304) 340-3823 or at dbattle@spilmanlaw.com.
Market Trends for West Virginia – June 1, 2012
By: Mary Jane Pickens
According to the National Council on Compensation Insurance, which manages the nation’s largest database of workers compensation insurance information and is the statistical agent for the workers’ compensation system in 33 states, the market “descriptor” for 2012 is “conflicted,” following “precarious” in 2010 and “deteriorating” in 2011. At its Annual Issues Symposium in May 2012, NCCI presented considerable information on trends in property and casualty lines generally, and workers’ compensation specifically. While claim frequency went up by 3% in 2010, that appears to be an anomaly. In 2011 claim frequency continued to drop. Net written premium increased in NCCI states by 7.5%. Of this amount, 3% represented an increase in employer wages. Wages are now at pre-2008 levels, but with fewer workers. And while fewer people are unemployed, the length of unemployment is longer.
NCCI filed for more loss cost increases in states than it did for decreases. The largest increase in loss cost filings was 10.5% in Virginia, and the largest decrease was in -9.3% in Alabama (West Virginia was the second largest decrease with -8.1%). Indemnity claim costs increased modestly in 2011 (2%), as did medical costs (4%). The combined loss ratio in 2011 for private carriers is about 115%; for residual market is about 121%; and for state funds it is running in the 130’s. In the residual market, the largest growth by policy size is seen in risks exceeding $100,000.00. The first quarter of 2012 shows an even more dramatic uptick in the residual market among these large risks.
On May 21, 2012, Commissioner Michael D. Riley addressed the Insurance Commissioner’s 3rd Annual West Virginia Workers’ Compensation Educational Conference. Commissioner Riley discussed several areas of focus at the OIC for 2012, particularly Failure to Timely Act (“FTA”) petitions. The OIC is analyzing the FTA data and will investigate carriers and administrators that have repeated failures to timely act as required by the statutes and regulations in West Virginia. Commissioner Riley stated that he wants to see FTA petitions eradicated. Commissioner Riley also discussed market conduct studies and self-insurer audits that the OIC is conducting. According to Commissioner Riley, one area of focus in these examinations and audits will be unreasonable denials under W. Va. Code § 23-2C-21(c) and W. Va. C.S.R. § 93-1-19.
It should be noted that at the OIC’s Educational Conference and in her latest report to the Industrial Council, Chief Administrative Law Judge Rebecca A. Roush presented statistics on claimants’ FTA petitions. In 2010, 87 such petitions were filed, and in 81% of these matters, the Office of Judges (“OOJ”) concluded that the carrier/TPA did not act timely. Medical treatment and compensability decisions were the most common source of the petitions in 2010. In 2011, 88 such petitions were filed. While only 67% have resulted in a finding that the carrier/TPA did not timely act, 25% were still pending resolution by the OOJ at the time of the report. Compensability decisions were the most common source of the petitions in 2011, followed by a comparable number of FTA petitions on medical treatment and failure to comply with decisions by the OOJ, the Board of Review, and the West Virginia Supreme Court of Appeals.
In addition, Judge Roush carefully reviewed all of the information that a claims adjuster must include in an order for it to be considered in compliance with legal requirements in West Virginia. This has been an ongoing area of concern for the OOJ and the Insurance Commissioner. Finally, Judge Roush covered the law surrounding a claimant’s right to attorney fees in the event of an unreasonable denial of compensability, medical treatment or TTD, however statistics were not offered.
West Virginia Supreme Court of Appeals – Case Law Update June 1, 2012
By: Dill Battle
The January 2012 Term of the West Virginia Supreme Court of Appeals ends June 30. The Court produced one reported workers’ compensation decision in the January term. However, the Court was very active and issued 105 Memorandum Decisions in the workers’ compensation practice area. In a presentation to the West Virginia Self Insurers Association on May 10, 2012, Justice Brent Benjamin noted that workers’ compensation appeals were 532 in 2011 (compared to the high-water mark of 2894 petitions in 2007).
On March 22, 2012, the Court issued a new reported decision on the addition of psychiatric diagnoses as a secondary condition to a compensable injury. In Hale v. WVOIC and Rockspring Development, Inc., 724 S.E.2d 752 (W.Va. 2012), the Court continues its recent trend of weakening the Rule 20 medical management guidelines. The Court addressed whether a claimant must get prior authorization from a claims administrator before seeking an initial psychiatric consultation. In a unanimous opinion, the Court held that W.Va. C.S.R. § 85-20-12.5(a) was invalid because it is in direct conflict with W.Va. C.S.R. § 85-20-9.10(g) and W.Va. Code § 23-4-1(a), and because it requires the claims administrator to make a psychiatric treatment decision without having the benefit of an expert psychiatric report, as required by W.Va. C.S.R. § 85-20-12.4. Hale, 724 S.E.2d at 757. The Court provided a roadmap for claims administrators when it held that W.Va. C.S.R. § 85-20-12.4 sets forth a three-step process that must be followed when a claimant is seeking to add a psychiatric disorder as a compensable injury in his/her workers' compensation claim: (1) the claimant's treating physician refers the claimant to a psychiatrist for an initial consultation; (2) following the initial psychiatric consultation, the psychiatrist is to make a detailed report consistent with the procedure described in W.Va. C.S.R. § 85-20-12.4; and (3) the claims administrator, aided by the psychiatrist's report, is to determine whether the psychiatric condition should be added as a compensable injury in the claim. Id.
The Hale decision is a pragmatic decision based on the facts of the case although it seems like a relatively light burden for a treating doctor who suspects a psychiatric consequence to seek authorization for a consultation. In that sense it is no different than asking for a neurosurgical or orthopedic referral. However, carriers, self-insured employers, and claims administrators are still allowed to make the ultimate decision about whether to add the psychiatric diagnosis aided by a detailed psychiatrist's report.
Federal Black Lung Update
By: Karin Weingart
On March 26, 27, and 28, 2012, the United States Supreme Court heard oral arguments on what is probably the most controversial piece of legislation in recent history, the Patient Protection and Affordable Care Act (PPACA).
Oral arguments covered four key legal issues stemming from the PPACA:
Do the states have the ability to challenge the PPACA now based upon a technical interpretation of the Anti-Injunction Act? (the Tax Issue) Does the Commerce Clause give the federal government the right to mandate each individual to purchase insurance or pay a fine? (Individual Mandate) Should the entire Act be over-turned because of the missing Severability Clause? (The Severability Clause) Can the federal government expand Medicaid? (Medicaid Expansion)
The third listed issue has particular relevance to anyone involved in federal black lung claims. Section 1556 of the PPACA reinstated the “15-year presumption” of Section 411(c)(4) of Title IV of the Federal Coal Mine Health and Safety Act of 1969, 30 U.S.C. §921(c)(4), for claims filed after January 1, 2005, that were pending on or after March 23, 2010. The presumption provides that if a claimant establishes at least fifteen years of qualifying coal mine employment, and that he has a totally disabling respiratory impairment, there is a rebuttable presumption that he is totally disabled due to pneumoconiosis. The PPACA also revived Section 422(l) of the Act, 30 U.S.C. §932(l), which provides that an eligible survivor of a miner who was receiving benefits at the time of his or her death is automatically entitled to survivor’s benefits without having to establish that the miner’s death was due to pneumoconiosis. 30 U.S.C. §932(l).
Although constitutional arguments specific to Section 1556 of the PPACA have failed, if the US Supreme Court rules that one or more of PPACA’s key provisions is unconstitutional or otherwise illegal and that the lack of a severability clause therefore defeats the entire bill, the black lung amendments will also fail. A final decision may be published in June.
[Note - the Supreme Court ruled on June 28, 2012, in the case of National Federation of Independent Business v. Sebelius, Secretary of Health and Human Services. The Court found constitutional most of the provisions of the PPACA.]
West Virginia Legislative and Regulatory Update – June 1, 2012
By: Dill Battle
At its March 22, 2012 meeting, the Workers’ Compensation Industrial Council approved a change to W.Va. C.S.R. § 85-11, “Employer Default, Enforcement, Collections and Related Matters.” After a comment period, several non-substantive changes were made by the OIC.
Also at the March 22 meeting Commissioner Riley reported to the Industrial Council regarding a comparison between the Voluntary Market and Self-Insured Market. He compared market share for the private market to the self-insurance market. Based on a report of policy accounts from NCCI’s Proof of Coverage System, Commissioner Riley reported that at the end of 2011 there were 34,000 workers’ compensation policies and 90 active self-insureds in West Virginia. Also, the estimated average employee accounts cover 590,000 employees by the private market and 80,000 employees for self-insureds in West Virginia. Finally, the private market provides about $21 billion in wages compared to $3.5 billion payroll for self-insureds.
On May 29, 2012, Insurance Commissioner Michael Riley issued Informational Letter #181 that summarizes 2012 insurance legislation from the 20012 Regular Session of the West Virginia Legislature. In an election year, the session was quiet with respect to workers’ compensation issues.
114 CSR 42 – Continuing Education for Individual Insurance Producers (Amended Rule – Effective April 20, 2012)
This rule, which sets forth the continuing education requirements for producers, previously established the 2-year reporting period as beginning on July 1 of every even-numbered year. This rule amendment allows the Commissioner to establish different 2-year reporting periods, which in turn permits the period to be set to coincide with licensing periods that are tied to each producer’s birth month. According to the Commissioner, this change brings West Virginia into compliance with uniformity and reciprocity standards adopted by the NAIC that provide that “the biennial CE compliance period shall coincide with the producer’s license continuation date.”
114 CSR 94 – Workers’ Compensation Insurance for State Agencies (New Rule effective April 20, 2012)
BrickStreet, as the successor to the state-run workers’ compensation system, was required to provide coverage to government agencies since 2006, but it was authorized to refuse to renew the policy of any such agency beginning in July 2011. See W.Va. Code §23-2C-15(b). In 2011, the Legislature made the Insurance Commissioner responsible for “managing the workers’ compensation risks” of all “executive agencies” (i.e. those under a cabinet secretary) and certain other state agencies. See W.Va. Code §33-2-21a(b). This new rule (initially promulgated as an emergency rule) includes conditions for participation by and removal of “discretionary participants” (non-executive state agencies), provides for an annual “open enrollment” period during which non-executive agencies may enroll, and permits the Commissioner to require the execution of a participation agreement.
West Virginia Supreme Court’s Access to Justice Commission
By: Dill Battle
The Workers’ Compensation Subcommittee of the West Virginia Supreme Court’s Access to Justice Commission continues its study of several areas related to access to the workers’ compensation system for indigent and pro se claimants. At its April 24, 2012 meeting the committee discussed proposed changes to W.Va. C.S.R. § 85-1 concerning access to file materials. The Committee is also studying recovery of attorney fees in medical treatment litigation which is currently not allowed in W.Va. Code § 23-5-16.
For further inquiries regarding West Virginia law contact Mr. Battle at (304) 340-3823 or at dbattle@spilmanlaw.com.
Rayford H. Taylor
Of Counsel
Casey Gilson P.C.
Six Concourse Parkway, Suite 2200
Atlanta, Georgia 30328
770-512-0300 -Ext. 529
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Decostar Industries, Inc., et al. v. Juarez
Factual findings of the State Board of Workers' Compensation will be upheld if supported by any evidence, and the Board's ruling will not be reversed on appeal based solely on the facts.
The record reflects Ms. Sonia Juarez began working on Decostar's production line in 2006. Her duties included moving automotive bumpers weighing approximately 15 pounds from the floor to a chest-level bench; using a blade to cut two holes in them; sanding them; placing them at a separate work station; and later placing them into a mold. In August 2009, she began to experience pain in her right shoulder and arm, and reported it to her employer. Because Decostar did not offer medical treatment, she saw her own general practice physician, Dr. Gonzalez, who referred her to an orthopedist, Dr. Anthony Colpini. Dr. Colpini, on January 20, 2010, placed Juarez on work restrictions. He concluded that her injuries, while not caused by work, were aggravated by her job duties.
Ms. Juarez resigned on April 13, 2010 because of the injury to her right shoulder. She saw Dr. Robert Karsch who diagnosed her with, among other things, rotator cuff tendinopathy and impingement syndrome, finding that the direct cause of her shoulder injury and pain was the repetitive nature of her job, as opposed to being an aggravation of a pre-existing condition. Dr. Duncan Wells, on behalf of Ms. Juarez, issued an opinion agreeing with Dr. Karsch that the injuries were a direct result of her job duties.
After a hearing, an administrative law judge (“ALJ”) concluded Ms. Juarez aggravated a long-standing right shoulder condition by performing her repetitive job duties; but she was not entitled to temporary total disability benefits from the date of her resignation because light-duty work remained available to her; she was not entitled to change her treating physician from Dr. Colpini to Dr. Karsch; and Decostar was only responsible for MRI expenses. Juarez appealed, and the Board's appellate division adopted the ALJ's decision. Juarez then appealed to the superior court, which, after a hearing, found in her favor, reversing the findings of the Board's appellate division.
On appeal to the District Court, Decostar argued the trial court's decision to designate the claim as a new injury rather than an aggravation of a pre-existing injury resulted from its improper reinterpretation of evidence and misapplication of the standard of review.
The ALJ in the case chose to believe Dr. Colpini, although his testimony was contradicted by other evidence. The District Court ruled because courts reviewing a decision of the Appellate Division are not authorized to weigh the evidence in the first instance or substitute their own findings of fact for those of the Appellate Division, the superior court had no authority to interfere with the decision of the Appellate Division. The ALJ and appellate division were authorized to conclude Ms. Juarez had a pre-existing condition that was aggravated by her job duties. Thus, the trial court erred when it found that the record contains “no evidence” that Juarez suffered from medical conditions that predate her work for Decostar. We reverse.
The District Court reversed the Superior Court's ruling and upheld the ALJ and the Appellate Division's denial of Ms. Juarez's claims.
671260.1