NWCDN Members regularly post articles and summary judgements in workers’ compensations law in your state.
Select a state from the dropdown menu below to scroll through the state specific archives for updates and opinions on various workers’ compensation laws in your state.
Contact information for NWCDN members is also located on the state specific links in the event you have additional questions or your company is seeking a workers’ compensation lawyer in your state.
Tennessee Enacts Workers’ Compensation Statutory Changes Addressing
Penalties, Attorney’s Fees, Death Benefits, and PTSD for Firefighters
June 2023
On April 13, 2023, Tennessee Governor Bill Lee Signed Public Chapter
145, which brought about changes impacting several different areas of the
Tennessee Workers’ Compensation Law.
I.
Penalties for Failure to Pay Medical Expenses Pursuant
to Court Order
Under current law, Tenn. Code. Ann. § 50-6-118(d)(1) provides that if
an employer or workers’ compensation insurance carrier “wrongfully” fails to
reimburse an employee for medical expenses paid by the employee within 60 days
of a settlement or court order, or if an employer or workers’ compensation insurance
carrier fails to provide medical treatment pursuant to a settlement or court
order, then a penalty can be assessed in an amount up to 25% of the medical
expenses. Before this penalty is applicable, the employer or carrier must have
acted “in bad faith.” Public Chapter 145 will lower the standard necessary for
the imposition of this penalty. First, it changes the standard from
“wrongfully” to “unreasonably.” Second, it removes the requirement of “in bad
faith.” These changes should lower the standard for employers and carriers to
be penalized for these infractions. However, Public Chapter 145 did add
additional language relieving employers and carriers from liability for this
penalty if the medical expense/treatment is paid/authorized within 60 days after
receiving information and documentation reasonably necessary to determine
compensability and to issue payment.
II.
Court Approval of Attorney’s Fees
Under current law, the reasonableness of employee’s attorney’s fees is
subject to approval of the workers’ compensation judge. However, the current statute
also removes the judge’s discretion to reject an attorneys’ fee if the fee does
not exceed 20% of the award to the employee. This was confirmed by the Workers’
Compensation Appeals Board and Special Workers’ Compensation Appeals Panel in Henderson v.
Pee Dee Country Enterprises. Public Chapter 145 is clearly a response to
the Henderson ruling, since it removes the requirement that the workers’
compensation judge must approve an employee’s attorney fee as long as it does
not exceed 20% of the award. This effectively restores the judge’s discretion
to approve or reject an attorney’s fee, even if the fee is less than 20% of the
employee’s award.
III.
Attorney’s Fees for Failure to Provide Workers’
Compensation Benefits
Under current law, a workers’ compensation judge has the authority to
award reasonable attorney’s fees and reasonable costs when the employer
“wrongfully” denies a claim, or “wrongfully” fails to timely provide medical
benefits, temporary or partial disability benefits, or death benefits, if the
judge makes a finding that the benefits were owed at an expedited hearing or
compensation hearing. Public Chapter 145 retains this provision but changes the
applicable standard from “wrongfully” to “unreasonably.” Also, the
applicability of this authority is extended to dates of injury through June 30,
2025.
IV.
Admissibility of C-32 Medical Reports
Current Law requires that C-32 medical reports must bear the doctor’s
original signature to be admissible. A reproduced report is not admissible
unless accompanied by an originally signed affidavit from the doctor verifying
its contents. Public Chapter 145 will relax that standard by allowing the
report to bear either an original signature or electronic signature of the
doctor. It will also allow a reproduced copy to the same extent as the original
report unless a genuine question is raised as to its authenticity.
V.
Written Mediated Settlement Agreement
Under current law, if the parties reach a full and final settlement
through mediation, then the mediator must reduce the settlement to writing.
Public Chapter 145 will allow either the mediator, or one party’s legal
representative to draft a written settlement agreement.
VI.
Death Benefits Payable from the Uninsured
Employers Fund
Current law provides that the Uninsured Employers Fund may be used to
pay temporary disability benefits and medical benefits to any eligible employee
who suffered a compensable injury while working for an employer who failed to
properly secure workers’ compensation insurance coverage. Public Chapter 145
will expand the scope of that fund to also allow the payment of death benefits,
when applicable, and the maximum cap is raised from $40,000.00 to $60,000.00.
VII.
Certified Physician Program
Public Chapter 145 authorized the creation of a voluntary physician
education program that provides an additional reimbursement under the medical
fee schedule for Bureau-certified physicians. The two main goals of the program
are increasing access for injured workers to trained physicians and reducing
the number of days that injured workers are out of work.
VIII.
Effective Dates
The changes discussed above in section III, pertaining to Attorney’s
Fees for Failure to Provide Workers’ Compensation Benefits, went into effect
when Governor Lee signed the Public Chapter 145 on April 13, 2023. All other changes will go into effect on July
1, 2023.
On April 17, 2023, Tennessee Governor Bill Lee Signed Public Chapter
158, which brought about changes impacting death benefits.
I.
Remarriage of Surviving Spouse
Under current law, upon the remarriage of a surviving spouse, if there
is no child of the deceased employee, then periodic death benefits terminate. However,
Public Chapter 158 provides that in this scenario, the periodic benefits will
still terminate but the surviving spouse is entitled to a lump sum payment
equal to 100 weeks based on 25% of the deceased employee’s average weekly
wages.
II. Increased Percentage of Death Benefits
Under current law, there are certain scenarios where the qualifying
dependent is entitled to death benefits based on 50% of the deceased employee’s
average weekly wages – such as where there is a surviving spouse with no
dependent children, or a single dependent orphan. Public Chapter 158 increases benefits in each
of those scenarios to 66 2/3% of the deceased employee’s average weekly wage.
III.
Educational Requirements for Continued Periodic
Death Benefits to Orphans
Generally, periodic death benefits to dependent orphans will terminate
when the orphan reaches the age of 18. However, under current law, benefits can
continue until age 22 if the child is attending a recognized educational
institution. Public Chapter 158 clarifies that this includes completing
secondary education or a program leading to an equivalent credential, or
enrolled in a recognized institution that provides postsecondary career or
technical education.
IV.
Certification of Continued Eligibility
Public Chapter 158 creates a new right for employers/carriers who are
paying periodic death benefits, in that they can now periodically require a
dependent to provide information about whether the dependent continues to
qualify for benefits. Benefits may be suspended if the dependent fails to
provide the requested information within 15 days after receipt of the request.
V.
Effective Date
Public Chapter 158 takes effect July 1, 2023.
On May 17, 2023, Tennessee Governor Bill Lee Signed Public Chapter 465,
which creates a statutory causation presumption for firefighters with PTSD.
I.
Name of the Act
This law is known as the James “Dustin” Samples Act.
II.
Definition of “Firefighter”
For purposes of this act, “firefighter” means a regular or full-time,
paid employee of the fire department of a municipality, county, municipal form
of government, or other political subdivision of the state. It includes
employees whose previous duties required the employee to respond to and be
actively engaged in fire suppression, rescue services, or other emergency
response tasks.
III.
Presumption
If a firefighter is diagnosed with post-traumatic stress disorder
(PTSD) by a mental health professional because of one or more specified types
of incidents, then the injury is presumed to have been incurred in the line of
duty and is compensable under the workers’ compensation law, unless it is shown
by a preponderance of the evidence that the PTSD was caused by
non-service-connected factors. The types of incidents that may give rise to
this presumption are: (a) directly witnessing the death of a minor, or treating
the injury of a minor who subsequently died; (b) directly witnessing an individual
whose death involved a serious bodily injury of a nature that shocks the
conscience; (c) responding to an event where there was a victim with a serious bodily
injury that shocks the conscience; or (d) responding to an event where a
responder, co-worker of a responder, or family member of a responder sustained
a serious bodily injury or died.
IV.
Date of Diagnosis
This presumption applies to a firefighter who is diagnosed with PTSD
within one year of the firefighter’s final date of employment with the fire
department.
V.
Exception for Disciplinary Action
A mental condition resulting solely from disciplinary action, work
evaluation, job transfer, layoff, demotion, termination, or similar action
taken in good faith by the employer is not considered an injury sustained in
the line of duty.
VI.
Grant Program
Public Chapter 465 requires the Department of Labor and Workforce
Development to establish and administer a grant program to mitigate the costs
to an employer of providing workers’ compensation for firefighters diagnosed
with PTSD. The Department may award an employer a grant if the employer
provides mental health awareness training for its personnel.
VII.
Effective Date
This act takes effect January 1, 2024.
For any questions, please contact:
Fredrick R. Baker, Member
Wimberly Lawson Wright Daves & Jones, PLLC
1420 Neal Street, Suite 201
P.O. Box 655
Cookeville, TN 38503-0655
Phone: 931-372-9123
Fax: 931-372-9181
fbaker@wimberlylawson.com
www.wimberlylawson.com
by | Jun 21, 2023 | Workers' Compensation
In law school, one of the first concepts taught is the proverbial “eggshell” Plaintiff. The doctrine means that you take the victim (or in workers’ compensation cases, the employee) as you find him or her. In real world terms, some employees may be hired with absolutely no pre-existing problems while others may have a number of comorbidities that make them more susceptible to injury. However, the employee’s susceptibility to injury is not a defense to an otherwise compensable workers’ compensation claim.
The vast majority of workers’ compensation cases in Nebraska involve an employee with some extent of a pre-existing medical condition. However, the law is very clear: An injury, disability, or death that is solely the result of the normal progression of a preexisting condition or that is due to natural, idiopathic causes, although occurring while the employee is at work, is not compensable. Neb. Rev. Stat. § 48-151(4). Alternatively, if the work-related accident combines with, accelerates, or aggravates a pre-existing injury, the entire resulting disability is compensable. Heiliger v. Walters & Heiliger Electric, Inc., 236 Neb. 459, 461 N.W.2d 565 (1990).
Unlike some other states, Nebraska does not look for primary or secondary causes of an injury. Stated another way, if the employment was a “contributing factor” to the employee’s injury, the entire disability is compensable. Miner v. Robertson Home Furnishing, 239 Neb. 525, 531, 476 N.W.2d 854, 859 (1991). This is even true if the employee would not have been injured but for the pre-existing condition.
Because nearly every disputed case in Nebraska involves a pre-existing condition, it is not difficult to find cases from each of the six judges discussing the concept of aggravations. However, several recent decisions reveal an important factor that the judges routinely consider when deciding an aggravation case – honesty.
Often times, for whatever reason, an employee will misrepresent or significantly downplay the extent of his or her past medical conditions. For example, an employee with a work injury to his back may claim he’s never seen a doctor for his back prior to the work accident, only for that statement to be discredited by a neurosurgeon’s records from just weeks before the alleged accident. Alternatively, an employee may admit to prior ankle problems “years ago,” but her records show her ankle surgery occurred in the month before the work accident. It is abundantly clear that the workers’ compensation judges value when an employee is honest and forthcoming about his or her prior problems. In 2020, Judge Block specifically highlighted an employee’s honesty with his medical providers when deciding to award benefits for an aggravation to the employee’s back. Similarly, in 2022, Judge Stine awarded benefits to an injured employee who had been seeking medical treatment for his disputed knee claim just a few weeks before the alleged accident. In making that decision, Judge Stine highlighted that claimant was always forthright about his prior problems and how the accident made it worse.
Contrast these opinions with cases where employees aren’t forthright about their prior problems. In 2020, Judge Hoffert entered an Order of Dismissal in part because the employee was dishonest about her lack of prior back problems. He highlighted the voluminous records presented by the employer showing that the employee had been on a leave of absence for prior back problems right up until the day before her alleged accident. This evidence, he noted, was in stark contrast to the employee’s testimony on the stand.
While it may be somewhat obvious that judges value honesty from employees, these cases show the vital importance of securing employee’s prior medical records. When evaluating new cases, it’s important to pay attention to the parts of the medical records discussing an employee’s past problems or past medications. These portions of the treatment notes can be easily glanced over, but may contain information that sheds an important light on the employee’s prior medical history that he or she is unwilling to share voluntarily. Additionally, in cases where a recorded statement is taken, it’s necessary to ask the employee about his or her past medical problems. If an employee acknowledges a relevant past history, securing those records could be a major development in the case. While it’s true that employers take employees as they find them, to evaluate whether the eggshell plaintiff rule applies, one needs to know what “cracks in the shell” even existed before the accident.
If you have questions about a case involving an employee with a pre-existing condition, please contact any of the lawyers at CPW by phone or email. Want to ensure you don’t miss out on the next post in the CPW compendium series? Be sure to subscribe to our newsletter.
The Iowa Division of Workers’ Compensation has released updated rate information that will be in effect from July 1, 2023 through June 30, 2024. Peddicord Wharton has updated its rate and interest calculators which can be found on our website under the Resources page. We hope you will take advantage of these resources we have there for you, including our legal blog.
The Iowa Division of Workers’ Compensation releases annual rate information for mileage reimbursement and the following types of weekly workers’ compensation benefits: temporary total disability (TTD), healing period (HP), permanent partial disability (PPD), permanent total disability (PTD), and death.
In a 6-3 decision, the Oklahoma Supreme Court on 4/18/23, said the Legislature intended for injured workers to have at least one year from the date of an injury in which to file a workers' compensation claim before the Workers' Compensation Commission. The case is Schumberger Technology Corp. v. Paredes, 2023 OK 42. The case involves an un-represented claimant that later hires an attorney.
The Supreme Court was asked to interpret 85A O.S. Sec. 69, in pertinent part:
"A claim...shall be barred unless it is filed...within one (1) year from the date of injury or, if the employee has received benefits under this title for injury, six (6) months from the date of the last issuance of benefits."
Justice Gurich, writing for the majority, said the Legislature had created a method to extend payment of benefits beyond an arbitrary SOL since at least 1941. She noted that each time amendments were made to the workers' compensation law, the Legislature continued to provide for a way to extend benefits for injured workers.
Justice Gurich wrote, "that the SOL is "not an absolute time bar." The burden is on the employer to take affirmative action, or "arguably, even the one-year SOL will be extended." There must not only be an objection based upon the running of the SOL, but ALSO A HEARING. The opinion says otherwise the statute would be meaningless if the Commission did not have the discretion to adjust the statute of limitations based on the circumstances presented.
The holding is that an injured worker in Oklahoma has at least one year from the date of an injury in which to file his or her claim. The six-month provision of Sec. 69 only extends the SOL in cases in which the employer admits the injury and pays benefits. If a badly injured worker is off four years when treatment is terminated, he or she has six months from that date to file a claim before the Commission.
In the opinion, Justice Gurich also quoted comments by Commissioner Biggs during oral argument in this case. He told defense counsel, "My argument is simple, the system works when people know when deadlines are, when the SOL starts...if they didn't have notice of when your company paid, how do they know when the clock starts?"
The Court has created a new requirement that was not present previously. The opinion can interpreted to require a specific date which the SOL runs and the 6-month Statute of Repose will not begin to run until the date the claimant is informed of the specific date. An employer can no longer wait-out the SOL to assert the affirmative defense. The Court is requiring specific notice to an un-represented claimant before a SOL defense can be asserted.
As we reported last month, the DWC-32 form for requesting a designated doctor exam has been revised, most noticeably in its capacity to alert the examining doctor of the conditions for which he or she should be examining the injured worker. Parties must begin using the new version of the form very soon, on June 5, 2023.
Copyright 2023, Stone Loughlin & Swanson, LLP
In Hartford Accident & Indem. Co. v.
Francois, decided May 23, 2023, the Dallas Court of Appeals spells
out how to allocate a third-party settlement between the workers’ compensation
carrier, injured employee, and injured employee’s attorney. These
calculations are a source of continuing confusion for some despite the plain
language of the statute and the case law applying it.
The Dallas Court of Appeals’ decision also dispels the notion that the law
requires the parties to split a settlement three ways: one-third to the
carrier, one-third to the claimant, and one-third to the claimant’s attorney.
This idea refuses to die despite the fact that there is no support for it
in the law. As a result, some carriers still give up much more than they
should.
Janery Francois sustained a work injury for which Hartford paid her $356,669.73
in workers’ compensation benefits. Francois sued the third-party property owner
of the building where she was injured and recovered $150,000. Hartford argued
that under the Texas Workers’ Compensation Act’s subrogation statute, it was
entitled to $95,206.03 of Francois’s $150,000 recovery.
However, Judge Martin Hoffman, a former personal injury attorney, agreed with
the interpretation of the statute offered by Francois’s attorney and found that
Hartford was only entitled to $57,088.04 and that Francois and her attorney
were entitled to $92,911.96. Of this amount, $4,793.97 was for expenses
and the remaining $88,117.99 was for attorney’s fees for Francois’s attorney.
Judge Hoffman also awarded Francois’s attorney an additional $10,000 in fees
under the Uniform Declaratory Judgment Act (UDJA) which allows the trial court
to award fees that are equitable and just.
The Dallas Court of Appeals reversed Judge Hoffman’s decision and rendered
judgment that Hartford was entitled to $95,206.03 of the third-party
settlement. The court of appeals also found that Judge Hoffman abused his
discretion by awarding Francois’s attorney an additional $10,000 in attorney’s
fees under the UDJA because the award violates the Workers’ Compensation Act
and is not equitable or just.
Francois’s attorney argued at trial that the award is equitable and just
because Hartford refused to agree to a three-way split of the settlement which
would have provided $50,000 to Hartford, $50,000 to Francois, and $50,000 to
Francois’s attorney. This approach would have resulted in Hartford
recovering $45,206.03 less than it was entitled. The Dallas Court of
Appeals rejected this argument:
According to Francois’s counsel, the carrier, employee, and employee’s counsel “always” agree to split a settlement three ways, and he has entered into those agreements “dozens of times.” But Francois cites no authority to support an argument that Hartford was under any obligation to reduce its lien and accept a three-way split.
The Dallas Court of Appeals held that Hartford has a statutory right to recover
its entire lien amount and it should not be penalized for asserting its rights.
The court found that Judge Hoffman abused his discretion by awarding additional
attorney’s fees to Francois’s attorney when “Hartford was well within its right
to seek the full amount of reimbursement permitted under Chapter 417.”
Hartford Accident & Indemnity Co. v. Francois, No.
05-21-00981-CV (Tex. App—Dallas, May 23, 2023).
Copyright 2023, Stone Loughlin & Swanson, LLP
House Bill 2468 also amends Section 408.161(a)(7) which pertains to
serious burn injuries. Previously, an injured worker would be entitled to
LIBs if he/she sustained third degree burns to the majority of either both
hands, or one hand and the face. Now, third degree burns to both hands,
to one hand and one foot, or to the face and either one hand or one foot can
establish LIBs entitlement.
House Bill 2468 further expands LIBs entitlement to certain first responders in
the newly promulgated Section 408.1615. Peace officers, EMTs, and
firefighters (or those acting as EMTs or firefighters on a volunteer basis) who
are rendered “permanently unemployable” following a “serious bodily injury”
beyond those specifically enumerated in Section 408.161 may be entitled to
LIBs.
Qualifying claimants would be compelled to recertify their total unemployment
to Carriers annually. Carriers may audit the worker’s employment
status periodically, but not more than once in any five-year window, unless the
Carrier can show that the injured first responder’s assertion of non-employment
is false. Under such circumstances, the Carrier would be compelled to
request a designated doctor to evaluate the claimant’s employability.
LIBs may be suspended if the annual certification is not accomplished, or
if the first responder is employed in any capacity. Suspension of LIBs is
also codified under the new Section 408.0041(k-1).
Copyright 2023, Stone Loughlin & Swanson, LLP
The Texas Workers’ Compensation Act sets forth specifically prescribed
categories for grievously injured employees who qualify for Lifetime Income
Benefits (LIBs), most of which are straightforward: those who suffer permanent
loss of use in both eyes, both feet, or both hands, or a combination of one
hand and one foot; spinal injuries resulting in paralysis of both arms, both
legs, or one leg and one arm; and significant third-degree burn victims.
However, one classification has fostered equal parts ambiguity and scorn among
system participants for decades: head trauma injuries resulting in “incurable
insanity or imbecility.” The phrasing of this portion of the statute,
found in Texas Labor Code Section 408.161(a)(6), is not only inherently vague (as
neither “insanity” nor “imbecility” is defined anywhere in the Act), but also
antiquated, relying on medical terminology established during the reign of
Queen Victoria.
At long last, the Legislature is poised to rid us of the much-maligned clause.
House Bill 2468 replaces the unfortunate “incurable insanity or
imbecility” with “permanent major neurocognitive disorder.” But while the
revision may be exponentially more tactful, is it any clearer?
“Permanent major neurocognitive disorder” is not yet defined in the statute,
other than to say it necessitates “occasional supervision in the routine daily
tasks of self-care” and renders an employee “permanently unemployable.” What
constitutes “occasional supervision” or permanent unemployability remains to be
seen. If left unaddressed in the corresponding rules the DWC has been
charged with drafting, it is foreseeable that these phrases could generate as
much uncertainty as those they replace.
If signed by Governor Abbott, House Bill 2468 goes into effect September 1,
2023.
Copyright 2023, Stone Loughlin & Swanson, LLP
It never hurts to remember triumph over misfortune as a reminder that a work
injury - even a serious one - is rarely reason to despair. Maybe you never
thought about work injuries like that before, but if not, do you remember this
movie? Hard as it may be to believe, it has been thirty years since the release
of Dazed and Confused.
That’s almost twice the span of time between its premiere in 1993 and the
film’s setting: Texas, May 28, 1976. Since it’s late May in the Lone Star
state, it seems like the perfect time to revisit Richard Linklater’s
coming-of-age classic, shot in and around the director’s adopted home of
Austin. (Disclaimer:
Events depicted therein are for viewing enjoyment only, not for emulating.)
The ensemble comedy has gained a fanatical following far exceeding its paltry
box office grosses upon initial release, and some of today’s most recognizable
faces got their big breaks from the movie, including Academy Award winners Ben
Affleck, Renee Zellweger, and University of Texas alum Matthew McConaughey.
It turned the Texas capital into a viable alternative to Hollywood for
independent-minded filmmakers: Linklater co-founded the Austin Film Society.
It also spawned arguably the biggest movie catchphrase in recent memory,
albeit decades after the fact.
Melissa Maerz’s excellent book Alright,
Alright, Alright: An Oral History of Richard Linklater’s Dazed and Confused
(HarperCollins, 2020), is packed with insight and anecdotes about the making of
the film. Among those: the revelation that the movie’s two de facto
protagonists, freshman Mitch Kramer and senior Randall “Pink” Floyd, were
avatars for the writer/director at those ages, with his older, wiser self mentoring
his baby-faced doppelganger throughout the film. “Pink is me,” Linklater
admits to Maerz. “And so is Mitch.” (Eagle-eyed viewers will notice that
the characters are even dressed identically in gray t-shirts, blue pants, and
long brown hair when they first cross paths.)
When seeking the performers who would not only carry the film but embody its
creator, Linklater did not have to look far for his Mitch; Austin native Wiley
Wiggins happened to be outside a local coffee shop when the casting director,
looking for non-professional actors, offered him a chance to audition.
Finding the right person to play Pink, though, depended on an initially
horrific twist of fate in the form of a Texas work injury.
Jason London, who eventually won the role, never intended to become an actor
either. In Alright, Alright,
Alright, he recalls being fifteen and working construction for his
father in DeSoto, Texas, until his left foot got caught in the lift mechanism
on a forklift, amputating two toes. As he tells Maerz: “My whole life at
that point was all about sports, and the only way I was gonna get to go to
college was through scholarships in sports or the military. All of [a]
sudden, that path was gone. I thought it was the worst thing that could’ve
ever happened to me. But then I decided to take drama. I guess it was
destiny. I had to think about life beyond sports, just like Pink.”
London’s unfortunate Texas work injury inadvertently set him on an alternate
career trajectory, fortuitously intersecting with Richard Linklater in Austin
five years later and providing one of the most beloved Texas-based movies its
co-lead. The anecdote is one of triumph over misfortune and a reminder
that a work injury—even a serious one—is rarely reason to despair. As we
reminded you at the beginning, if you never thought of triumph over
misfortune before…
Copyright 2023, Stone Loughlin & Swanson, LLP
The Division, faced with a rapidly dwindling list of available designated
doctors (current numbers show 60 MDs, 9 DOs and 169 DCs for a total of 238 designated
doctors), has again changed things up in efforts to make more doctors available
to field the number of requests they receive each year.
The new rules change the qualification criteria to require less for certain
kinds of examinations and add to the list of board-certified doctors qualified
to evaluate traumatic brain injuries with the justification that those doctors
are to send out for testing anyway and they can then incorporate that testing
into their reports. These qualification changes are effective 6/5/23.
This is not the first rule change impacting the designated doctor suite of
rules, and it likely won’t be the last, but here are the high points:
• For DD
examinations involving traumatic brain injuries, the Division added doctors who
are or have been board certified in orthopaedic surgery, occupational medicine,
dermatology, plastic surgery, surgery, anesthesiology with a subspeciality in
pain medicine, emergency medicine, thoracic and cardiac surgery and family
medicine.
• For DD examinations involving injuries with multiple fractures, a
single spinal fracture or rib fractures where there is no vascular injury,
chiropractors are now qualified, in addition to MDs and DOs.
• DD examinations involving spinal cord injuries including spinal
fractures with documented neurological injury or vascular injury, more than one
spinal fracture or cauda equina syndrome are assigned to board certified
doctors in neurosurgery, neurology, PM&R or orthopedic surgery.*
• DD examinations involving multiple fractures accompanied by vascular
injury are assigned to board certified doctors in emergency medicine,
orthopedic surgery, plastic surgery, PM&R or occupational medicine.*
• Multiple certifications will no longer be ordered unless the Division
orders them as the result of a Presiding Officer Directive.
*These examinations are handled by the same specialties, but carve out the more complex fracture injuries for board certification while allowing chiropractors to evaluate multiple fractures, single spine fractures and rib fractures that don’t involve vascular injury.
• Doctors
who passed DWC certification on or after 5/13/13 don’t have to test again for
certifications that expire on or after 4/30/23.**
• Doctors still have to take required training and reapply every 2
years.
• The certification and re-certification rules have been streamlined.
• None of the
rule changes address billing and reimbursement for designated doctor
examinations. (Specifically, there is no mention of increasing
the reimbursement rate for designated doctor examinations. In 2022, the
Division posted and took comment on Rules 133 and 134 and the relevant sections
relating to billing and reimbursement for designated doctor examinations. The
second informal posting of those rules provided increased reimbursement for
examinations and even provided a $150.00 missed appointment fee. The
comment deadline for those rules was 12/16/22. There is no word yet on
the status of this rule project).
**The rule allows the
Division to require a doctor to take the test again on a case-by-case basis as
part of a performance review.
Copyright 2023, Stone Loughlin & Swanson, LLP