State News

We have all seen this situation: an employee with a physical job has major surgery and is given restrictions by the treating doctor, who issues an MMI note (maximum medical improvement).  When temporary disability benefits are stopped, the employee immediately calls to see about returning to work.  The employer indicates that it cannot take the employee back with such heavy restrictions.  The next day the treating doctor issues a note clearing the employee to return to work with no restrictions.  One month later the same employee reinjures his back at work severely, leading to another surgery and hundreds of thousands of dollars or even total and permanent disability. The hit to the employer’s workers’ compensation budget becomes astronomical.

What went wrong?Why does this sort of thing happen so often? This is the first of a two-part series on the critical importance of fitness-for-duty exams and functional capacity evaluations in the New Jersey workers’ compensation system.  In this blog, we will focus on mistakes employers make and why fitness exams can result in enormous savings for employers. The next blog will focus on how to do fitness exams correctly and how to avoid law suits when arranging fitness exams.

Every insurance adjuster in the state can tell you about a claimant with 10 or even 20 claim petitions against the same employer over a period of many years.  Employers throw up their hands and ask, “How can the judge let this guy return to work after all these accidents?”  The answer is that the Judge of Compensation has nothing to do with the decision to allow an employee to return to work. That decision is made by the employer and is outside the realm of workers’ compensation.  Many times the person handling the workers’ compensation case for the company is not in touch with Human Resources, with the result that the return-to-work issue may be missed entirely.

Most of the problem cases stem from injuries that result in surgery to the spine, shoulder, knee and hand, which comprise the majority of orthopedic claims in New Jersey.  The dynamic that frustrates the employer is that the employee will give a host of complaints to the IME doctors and the Judge of Compensation in support of a high partial permanent disability award, but then turn around and tell the employer or supervisor that there are no problems doing the job. 

For example, a DPW worker has fusion surgery followed by pain management, and eventually he reaches MMI.  There is no fitness exam requested by the doctor or employer, and the employee returns to work.  Now the comp case continues: the petitioner’s attorney sends the employee to his or her IME, and the respondent’s attorney does the same.  At the IME the petitioner complains about severe pain lifting anything over 15 pounds, difficulty bending or lifting at work, trouble getting dressed, throwing a ball or the like.  The job requires regular lifting over 50 pounds.  The case settles for 40% of partial total or $111,360, and at the time of settlement the employee is asked by the Judge of Compensation for his or her complaints at work and outside work.  The employee says that work is very painful, and at times, others have to help him get through the day.  He adds that there are many tasks that the employee can no longer perform. All the while, the employer has no idea that the employee is complaining about problems on the job or telling the IME doctors about difficulties doing routine work tasks.  Shortly thereafter this employee performs a relatively minor task on the job when he experiences incapacitating pain in the back leading to a long period of work absence followed by another award in workers’ compensation court.

You can see from these scenarios what the major mistakes are:

1)      Employers seldom request fitness-for-duty exams and FCEs before returning the injured employee to work, perhaps because they do not know they can do this, or because they mistakenly think the workers’ compensation third party administrator or carrier will do this for them.  Adjusters do not handle employment issues.

2)      The carrier or defense attorney does not send the IME report or the summary of testimony at the settlement to the employer to review.  Instead it just goes to the adjuster without a copy to the actual employer. So the employer never realizes that their employee is complaining about having problems on the job.

3)      The workers’ compensation manager in the company may not be familiar with employment issues.  Workers’ compensation may be a separate silo from HR, so no one really analyzes the question of whether the employee can safely perform the job functions.

4)      Treating doctors are often too eager to return a patient to work when asked by the patient for a full-duty clearance rather than deal with what could become an angry patient.

If a fitness-for-duty examination or an FCE is done properly and timely, the employer will have the opportunity to make an informed decision on whether to return the employee to work with or without accommodations.  If there is an ADA issue, the fitness process will help address it.  If the employee cannot perform the essential job functions, that employee may have to be terminated or reassigned to a position within the restrictions.  When that happens, the risk of reinjury is much lower, and workers’ compensation costs are greatly reduced.  For this reason, it is quite fair to think of fitness-for-duty examinations and FCEs as powerful cost-saving tools in workers’ compensation.   Employers with dozens of workers’ compensation claims could save hundreds of thousands of dollars, if not millions, by doing timely fitness examinations.  Unfortunately, however, fitness examinations and FCEs are grossly underutilized.

There was a time in 1979 when workers’ compensation rates amounted to $40 per week for permanency.  An award of 50% of partial total was $12,000.  Those days are long gone.  Now a 50% award amounts to $174,300.  An award of 70% amounts to $341,460 in tax free dollars. Every large employer has multiple employees at work who have such high awards where the employee has given a plethora of complaints about work and non-work activities in workers’ compensation court. 

Workers’ compensation medical costs have risen much faster than the rise in permanency costs.  A two-hour fusion procedure may result in a payment of $40,000 to the surgeon, plus fees for the assistant, hospital/surgery center and anesthesiologist.  So the employee who gets back to work but who cannot safely perform the job duties only to be reinjured can cost the employer quite literally half a million dollars in no time at all, considering the medical, temporary disability and permanency costs. 

It goes without saying that an employee who cannot safely perform the job duties should not be on the job.  The ADA does not require removal of essential job functions.  An employee must be able to perform the assigned job duties with or without reasonable accommodation. The fitness assessment must be made only with medical analysis usually informed by functional capacity examinations, which compare the physical abilities of the injured worker with the actual job duties.  A good FCE will provide tremendous guidance for employers in determining how much an employee can lift, bend, kneel, push or pull.  There are talented New Jersey physicians who do many fitness-for-duty assessments and are quite adept at helping employers decide whether the employee can perform safely the essential job functions.  

Consider this advice: employers should rethink the way their workers’ compensation programs function if injured workers who simply cannot do the job any longer routinely get back to work doing the very same job that caused their initial injury without having undergone a fitness examination.   In the next blog, we will discuss the basic rules for doing fitness examinations and traps to be avoided.

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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. 

Robinson v. Fairview Fellowship Home, 2016 OK 42

Holding: The Oklahoma Workers’ Compensation Commission and its administrative law judges have the power to determine whether a provision of Title 85A is constitutional.  The Court has granted the Commission the authority to decide the constitutionality of any provision related to either party.

Damien Smith v. Baze Corp, 2016 OK 41

Holding:  Scheduled members, arms, hands, feel, legs, eyes and ears are exempt for evaluation for permanent partial disability using the AMA Guides.  The deferral of permanent partial disability benefits if an injured worker returns to work is unconstitutional as a violation of due process.  The calculation of permanent partial disability to a scheduled member shall be tied to the amount in schedule and not converted to the 350-week whole man limitation.  The court did not address the constitutionality of using the AMA Sixth Edition Guides to rate permanent partial disability other than scheduled member.

Vasquez v. Dillard’s

The Workers’ Compensation Commission found the Oklahoma opt out scheme unconstitutional and inoperable in Vasquez v. Dillard’s because it treats employees differently, depending upon if their employer carries traditional insurance or opt out.

Dillard’s appealed the case to the Oklahoma Supreme Court.  The record was completed on April 28, 2016.  The Oklahoma Attorney General asked that the proceedings be stayed because the legislature is trying to fix the problem.  An objection was filed because whatever the legislature does, it does not fix the law that was in effect on the date of injury.  The case should be fully briefed by the middle of the summer with many amicus briefs filed on both sides.

On December 29, 2014 we reported on an opinion handed down by the Alabama Court of Civil Appeals inFlexicrew Staffing, Inc. v Champion. In that case, the Court of Civil Appeals agreed that the employee’s injury was compensable and the case went back to the trial court level for disability determination. Following the case being sent back to trial court, the employee amended his Complaint and named his supervisor as a defendant. After the appellate decision, Flexicrew ultimately settled the worker’s compensation case with the employee and the case went to trial on the claims against the employee’s supervisor.

The employee’s action against his supervisor was brought under §25-5-11(c)(2) based a willful failure to maintain, repair and/or replace the safety handle on the grinder. The employee further alleged that the supervisor was negligent and wanton in his actions when instructing the employee to drive himself to the clinic 30 miles away, which was in violation of the policies and procedures put in place by Flexicrew, the employer, which required that injured employees be transported and/or accompanied to a medical clinic or facility whenever possible. The employee did not specifically state which section of the act the negligence and wantonness claims fell under but willful and intentional violation of specific written safety rules of an employer would fall under §25-5-11(c)(4). The cause of action against the supervisor would fall under §25-5-11(b) which allows an employee to file suit outside of the worker’s compensation act against an officer, director, agent or employee of an employer when the officer, director, agent or employee commits willful conduct that results in the employee’s injury or death.

During the trial against his supervisor, the employee asserted that his supervisor had instructed him to drive himself to a distant medical facility in spite of his injured leg. He also made a claim that the side handle of the grinder that he was using when he cut his leg was missing causing it to be unstable and unsafe. The supervisor defended and argued that the employee’s cut was superficial and it was the supervisor’s position that the employee had simply run a red light. The supervisor further disputed whether or not the missing side handle of the grinder was significant in causing the employee’s leg injury. After a four day trial in Baldwin County, the jury returned a defense verdict in favor of the supervisor and the employee’s motion for a new trial was ultimately denied.

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About the Author

The article was written by Joshua G. Holden, Esq. a Member of Fish, Nelson & Holden, LLC, a law firm dedicated to representing employers, self-insured employers and insurance carriers in workers’ compensation and related liability matters. Mr. Holden is AV rated by Martindale-Hubbell, which is the highest rating an attorney can receive. Holden 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.

It can be difficult to predict the outcome of appeals where the issue before the Judge of Compensation is credibility of witnesses as opposed to pure legal issues.  InFrank Hodson v. C. Abbonizio Contractors, Inc., A-2083-14T3 (App. Div. May 2, 2016), Mr. Hodson said that while working as a laborer on May 9 and May 10, 2013, he threw a traffic barrel and “felt a small click-like pop in his back.”  He finished his shift and did not notify his supervisor, Dan Trainer, of the injury because he was distracted when he was informed that a “crash truck” was hit by a vehicle, requiring him to respond immediately. 

Hodson said he was sore while driving home that night and was in a lot of pain.  But he continued to work the next week.  Not until May 26, 2013 did he admit to notifying his employer.  He said his co-worker, Ray Batot, saw him limping on May 26, 2013 and asked him what was wrong.  Hodson said that he injured his back.  Hodson also said that he spoke with Tom Abbonizio and Trainer on May 26, 2013, informing them of his back injury.  Hodson saw a personal physician who provided him with two epidural injections after the accident.  He also was taking 10 milligrams of Percocet.

When his doctor took him out of work, Hodson called Human Resources and was informed that he could not collect workers’ compensation benefits because no incident report was filed.  Hodson was told to seek unemployment benefits.  He filed for those benefits through his family doctor, who certified that his injury was not work related.  Later petitioner filed a claim petition against Abbonizio and against his previous employer for a 2012 injury to his back and legs.

There were some inconsistencies that were brought up in trial.  Hodson admitted having Trainer’s cell phone number but said he did not call him because of the crash truck incident that was more pressing.  He also said he did not know that there were two hospitals he was permitted to go to in the event of a work injury, but he admitted that his co-worker Batot had been taken to one of those two hospitals on May 10, 2013 for Batot’s own work injury involving the crash truck.

Perhaps the most glaring discrepancy concerned prescription medications.  On direct examination, petitioner denied taking any prescription medications before the date of the alleged injury.  On cross examination he conceded that he was taking Lyrica for pain as of May 10, 2013, and he was also taking Percocet before May 10, 2013.  He had had prior back injuries and prior workers’ compensation claims.  Hodson then maintained that heincreased his medications after May 10, 2013.

Petitioner contended that he told his family doctor, who treated him after the alleged incident on May 9 or May 10, 2013 that he injured his back throwing barrels.   However, Dr. Winfield put on the TDB application that his injury was not work related.  There is no indication in the record of this case that Dr. Winfield testified at trial.

Petitioner offered corroborating testimony from his co-worker, Batot, who said he was working with petitioner and saw him moving barrels on the day petitioner claimed to have hurt himself.  Batot also said he spoke with Tom Abbonizio about petitioner’s back issue.  Batot said he was injured on the same night as petitioner (Batot was driving the crash truck) but that earlier in the day he saw petitioner limping. 

Two other lay witnesses testified at trial.  Ms. Carmen Ferrillo, HR Manager, said that petitioner told her the injury took place on May 14, 2013 (not May 10^th).  She spoke with Trainer and was told petitioner never mentioned a work injury.  She denied telling petitioner to file for unemployment benefits.  For his part, Trainer said that he did not see petitioner move any barrels on May 10, 2013.  He said petitioner never informed him of a work injury. 

One medical witness testified, Dr. Joseph Zerbo.  He said he saw petitioner on July 23, 2014.  Dr. Zerbo compared prior MRI films from 2011 with those of June 2013.  He said that there was a “worsening of the disease process” which the doctor attributed to the alleged work injury. 

The Judge of Compensation, the Hon. Audrey Kernan, ruled for petitioner, requiring the payment of medical and temporary disability benefits, based primarily on her assessment of petitioner and Batot as being more credible than the other witnesses in this case.  She also credited the testimony of Dr. Zerbo. The Appellate Division affirmed on the basis that there was sufficient evidence to support the credibility findings of the Judge of Compensation.  While there was a potential dispute in this case between prior employers for previous back injuries and Abbonizio Contractors, the court left that issue for the future when the permanency issue should be reached. 

The case demonstrates the difficulty respondents have when there is really no legal or medical issue in the case and the dispute centers on conflicting testimony of various witnesses. Based on this record, a judge of compensation could have made a convincing argument that the claim was not work related and never happened at all.   There was a plethora of inconsistencies and perhaps outright misrepresentations (such as not using pain medications before the accident) which would have formed a solid basis for denial.  But there was also strong testimony from a co-worker supporting the petitioner.

The lesson in cases like this is that the Judge of Compensation controls on credibility findings.  Appellate courts will not reverse unless there is insufficient evidence to support the decision of the Judge.  That is a high standard for either party to overcome on appeal.   

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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. 

                                                                     THE PA COMMONWEALTH COURT

DENIES COMPENSATION FOR PARKING LOT INJURY

By

Kevin L. Connors, Esquire

Inconceivable!

Interesting facts produce interesting law!

This was the case in Quality Bicycle Products, Inc. v. WCAB, decided by the Pennsylvania Commonwealth Court on April 25, 2016.

Quality Bicycle involved a course and scope of employment case, with Claimant originally being awarded workers’ compensation benefits by the Workers’ Compensation Judge, the award being affirmed by the Appeal Board, and the award then being overturned and reversed by the Commonwealth Court, which held that the Claimant’s injury, on the employer’s premises, did not occur within the course and scope of employment, as it was not caused by “a condition on the premises”.

Back to our interesting facts.

In Quality Bicycle, the Claimant was working in his employer’s warehouse when he was paged over the intercom that he had a telephone call from his fiancé, who was hysterical that their 9 year old daughter was missing from school.

The Claimant immediately told his manager that he had to leave work, for a family emergency.  Attempting to clock out, Claimant’s manager told him that he would clock out for him, and the Claimant immediately left the building.

As the Claimant was hurrying to his car, only about 10 or 12 feet into the parking lot, he felt a pop in his knee, and fell to the ground, unable to bear weight on his leg.

Ambulanced to the hospital, the Claimant eventually required surgery on his injured knee.

In support of his Claim Petition, Claimant testified that he was injured in the parking lot where he always parked for work, that all of his co-workers also parked in that parking lot, and that his employer had told him to park there for work.

However, the Claimant also testified, presumably on cross-examination, that there was no condition or abnormality of the parking lot that caused him to fall, as his knee simply gave out.

Awarding benefits to the Claimant, the Workers’ Compensation Judge accepted the Claimant’s testimony as being both credible and persuasive, including that the Claimant was injured on the employer’s premises in the course and scope of his employment.

Affirmed by the Appeal Board, probably through a statistical anomaly, the employer’s appeal to the Commonwealth Court argued that the Claimant’s injury was not in the course and scope of employment as the Claimant should have been required to prove, since he was not furthering the business or affairs of the employer when injured, each of the three following elements:

·         The injury must have occurred on the employer’s premises;

·         The employee’s presence on the employer’s premises was required by the nature of his employment; and,

·         The Claimant’s injury was caused by the condition of the premises, or by operation of the employer’s business, citing to Section 301(c)(1) of the Act and the Commonwealth Court’s 1991 Decision inMarkle v. WCAB, 785 A.2d 151, 153 (Pa. Cmwlth. 2001).

In reversing the Claimant’s award of compensation, the Commonwealth Court held that the Claimant was unable to prove that his knee injury was caused by a condition on the premises, such that the Claimant was not able to satisfy the requirements of Section 301(c)(1).

Reversing the Claimant’s award of compensation benefits, the Commonwealth Court reviewed several course and scope of employment decisions in which it had concluded that the Claimants’ injuries were not caused by conditions on the employer’s premises, to include:

·         Markle, involved the Claimant being injured while climbing over the center console in the front seat of her car, because the employer’s parking lot was snow-covered and the truck parked next to the Claimant was too close to allow her to open her driver’s side door, with the Court holding that the Claimant’s injury was caused by the Claimant’s act of climbing over the console, and not by any condition on the employer’s premises, to include either the accumulated snow, or the car parked next to the Claimant’s car;

·         Dana Corporation (548 A.2d 669), involving the Claimant being injured in the employer’s parking lot when a co-worker’s car moved backward as the Claimant was attempting to help push the car forward, with the Court determining that the Claimant’s injury was caused by the movement of the car, and not by the condition of the premises;

·         Anzese (385 A.2d 625), involving the Claimant being killed when he was struck by lightning in the employer’s parking lot, with the court holding that “death from lightning was in no way related to the condition of the premises …”

For argument sake, the Court also reviewed several decisions in which it had found that the Claimant’s injury, while not furthering the employer’s business or affairs, were caused by conditions on the premises, including:

·         WCAB v. United States Steel (376 A.2d 271), in which it was concluded that the employee’s injury was caused by a condition on the premises, when the employee, while driving to work in the employer’s parking lot, suffered a seizure and crashed into a concrete abutment, concluding that the abutment was a condition on the employer’s premises that contributed to the employee’s death;

·         Newhouse (530 A.2d 545), involving the employee being injured when thrown from the hood of a co-worker’s car on an access road on the employer’s premises, when the co-worker made an unexpected turn on the access road due to a closed exit gate, concluding that the closed exit gate and a bend in the road were conditions on the employer’s premises contributing to the employee’s injury.  

Since the Claimant did not allege, in Quality Bicycle, that the parking lot caused or contributed to his injuries, admitting that no physical condition of the parking lot caused his injury, the Commonwealth Court held that the Claimant had failed to prove any connection between his injury and any condition on the employer’s premises, resulting in the reversal of the Claimant’s compensation benefit award.

This appears to be a very straightforward decision predicated on the Claimant’s own testimony that his injury simply occurred, for no apparent reason, there being testimony from the Claimant himself that he was not injured because of somethingin or on the parking lot.

Keep in mind that this holding is also predicated on the Claimant’s injury occurring when the Claimant was not doing anything that could be construed to prove that the Claimant was furthering the business or affairs of the employer, as the Claimant was regrettably injured when responding to a family emergency.

Again, interesting facts make interesting law.

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.

 We are pleased to announce that our Blawg was named a Best Blog for 2016!  A complete list of the winners and the criteria used in the selection process can be found at http://www.workerscompensation.com/workers_comp_best_blogs.php.  We wish to thank the judges for their time and consideration as well as our readers who took time out of their day to submit nominations on our behalf. 

On April 29, 2016, the Alabama Court of Civil Appeals released its opinion in Leesburg Yarn Mills, Inc v. Thomas Hood.  In Hood, the trial judge found the claimed stenosing tenosynovitis (also known as “trigger finger”) to be compensable.  The employer had denied the claim presumably based on the opinion of the authorized treating physician.  The employee then proceeded to treat with his own physician, Dr. Glenn Wilson, and subsequently filed a Complaint for workers’ compensation benefits.  In finding in favor of the employee, the trial judge retained jurisdiction to later determine the extent of disability.  The employer appealed the decision. 

On appeal, the employer asserted that the employee failed to meet his burden of proving both legal and medical causation by clear and convincing evidence.  The employer argued that, in order for the employee to prove legal causation, it was necessary for him to establish that the repetitive nature of his job exposed him to his injury materially in excess of the risk to which people are exposed to in their everyday lives. 

In affirming the trial judge’s decision, the Court of Civil Appeals noted that the employee had worked for the employer for twenty-three years.  According to the employee, he was regularly exposed to repetitive pinching and grasping motions with his hands, multiple times per day.  He also testified that he regularly moved 306 lb cans, three or four times per day, on wheels that were in poor condition.

The Court also addressed medical causation.  At his deposition, Dr. Wilson testified that the employee’s exposure to job related overuse could be the cause of the trigger finger.  Although the employer offered the testimony of Dr. Howard Miller, who stated that the employee’s condition was age related, he was not able to rule out the possibility that the job activities were a contributing cause. 

Despite Dr. Wilson’s less than certain opinion as to medical causation, the Court of Civil Appeals affirmed the judgment because, considering the medical opinion along with the employee’s opinion and other evidence, the trial judge could reasonably have been clearly convinced that the employee met his burden of proof.

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About the Author

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

The CCH landscape is changing at a fairly rapid rate these days. The retirement of David Wagner
(Abilene), Carolyn Moore (Lubbock) and Cheryl Dean (Ft. Worth) ushers in a whole new crop of
judges. In Houston there are three new faces, Robin Burgess, Early Moye, and Francisca Okonkwo.
In Dallas/Fort Worth, DWC hired Amanda Barlow. Out West, Travis Dupree (Midland) and Teresa
Boone (Lubbock)joined the Hearings team. Finally, two traveling Hearing Officers, Mayson
Pearson and Dee Marlo Chico, will be filling in where needed. These changes should keep us on
our toes for several months to come.

The CCH landscape is changing at a fairly rapid rate these days. The retirement of David Wagner
(Abilene), Carolyn Moore (Lubbock) and Cheryl Dean (Ft. Worth) ushers in a whole new crop of
judges. In Houston there are three new faces, Robin Burgess, Early Moye, and Francisca Okonkwo.
In Dallas/Fort Worth, DWC hired Amanda Barlow. Out West, Travis Dupree (Midland) and Teresa
Boone (Lubbock)joined the Hearings team. Finally, two traveling Hearing Officers, Mayson
Pearson and Dee Marlo Chico, will be filling in where needed. These changes should keep us on
our toes for several months to come.

Three Appeals Panel cases of interest in the past couple of months include:
APD 160228 (decided 3/24/16) - the hearing officer erred in appointing a new designated doctor
after a CCH. The Appeals Panel noted the Rule 127.5(d) provision that a previously assigned
designated doctor is on the claim unless and until the DWC authorizes or requires the doctor to stop
providing services on a claim. The rules set out the reasons the DWC can authorize or require a
doctor to get off a claim, none of which applied in this case. The Appeals Panel looked at the DRIS
notes that the self-insured introduced during the CCH, and determined that those notes did not reveal
any exception to the requirement that the initially appointed designated doctor should remain on the
claim. The hearing officer appointed the second designated doctor because he exercised his
discretion in appointing a new designated doctor because he was concerned that the initial doctor
might “take umbrage in being instructed that his opinion of extent was rejected.” The Appeals panel
held that the hearing officer’s reason for appointing a new doctor was not one of those set out in the
rules and reversed the decision that the second designated doctor was properly appointed and held
that the doctor was not properly appointed.
APD 160074 (decided 3/21/16) - the hearing officer erred in admitting testimony of a doctor whose
identity was not timely exchanged and the decision on extent of injury, disability, MMI and IR was
reversed and remanded for the hearing officer to make a decision without consideration of that
doctor’s evidence. The Appeals Panel determined that the doctor’s name was received by the
claimant after the normal business hours (10:00 p.m.) on the 15th day following the BRC, it was not
timely exchanged (because it must be exchanged within 15 days of the BRC) and the hearing officer
did not discuss the reasons for the late exchange or make a determination of good cause to allow
the testimony despite the lack of timely exchange. The Appeals Panel excluded that doctor’s
testimony completely. The decision is silent on whether there was a report from that doctor in
evidence.
APD 160057 (decided 3/10/16) - Sure hope this is a trend ! The hearing officer erred in holding that
the claimant had not reached MMI per the treating doctor referral’s alternate certification, where that
doctor’s opinion was based on the fact that the claimant needed further treatment (injections) but
the compensable injury was limited to a lumbar sprain/strain (the other lumbar spine conditions
having been determined not to be compensable and not having been appealed). As the designated
doctor had rendered multiple certifications, one of which was for the lumbar sprain/strain only, the
Appeals Panel reversed and rendered an decision using the designated doctor’s certification that
claimant had reached MMI and assigned an impairment rating based on the DWC-determined
compensable injury. Of special significance to the Appeals Panel was the fact that there was no
evidence establishing that the recommended injections were treatment for the lumbar sprain/strain,
which was the only compensable condition.