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.
The Division has announced scheduling of its next CompCourses webinar on
December 11, 2024 at 1:00 p.m. The subject is compliance in the Texas workers’
compensation system. Participants will learn the differences between a dispute
and complaint, the administrative violation process, and the lifecycle of a
fraud case. The course is free, is approved for 1 hour of TDI general education
credit, and just might keep some of us from getting into trouble!
Interested parties may register to take advantage of this valuable resource here.
Copyright 2024, Stone Loughlin & Swanson, LLP
DWC will host a quarterly stakeholder meeting for insurance carriers and health
care providers via Zoom on Thursday, December 12, 2024 from 1:30 to 3:00 p.m.
The meeting will provide an update on routine information and data topics and
will highlight current issues relevant to each industry.
You may access the meeting agenda and Zoom information here.
Copyright 2024, Stone Loughlin & Swanson, LLP
All Division Offices will be closed for the Christmas Holidays on December 25,
2024, and December 26, 2024.
The Division will be closed for the New Year Holiday in the afternoon on
December 31, 2024, and all day on January 1, 2025, New Year’s Day.
Copyright 2024, Stone Loughlin & Swanson, LLP
The Department of Labor has issued a Final Order (effective: 8/11/24) for the publication of the revised Healthcare Practice Guidelines (which govern treatment of workers’ compensation patients in Delaware for certain common classes of work injuries).
This Order repeals all prior Practice Guidelines and replaces them with the revised Practice Guidelines, as approved by the Workers Compensation Oversight Panel.
The revised Guidelines are available on the Department of Labor’s website, specifically: Health Care Practice Guidelines - Delaware Department of Labor.
The most significant changes are to the Chronic Pain Guidelines, including language limiting the use of narcotic medication.
It is important to note that neither ortho-biologics for spinal disorders, nor medical marijuana, were added to the Healthcare Practice Guidelines in connection with these revisions. It is expected that these issues may be addressed in the future.
Should you have any questions, please contact any partner in our Workers’ Compensation Department.
Claimant attorneys’ attempts to negate a carrier’s subrogation interest are to
be expected but their methods of bilking carriers out of the amounts they are
due can get as convoluted and Machiavellian as this year’s election. The Tyler
Court of Appeals recently reaffirmed the importance of ensuring that carriers
receive “first money reimbursement” in Old Republic Ins. Co. v. Debra Morris, et al.
The plaintiffs in that case had attempted an end-run around the first money
rule by settling with most of the third-party defendants pre-trial, and
subsequently obtaining a verdict apportioning most of the responsibility to the
employer. The plaintiffs argued that the “employer responsibility offset”
(ERO)* should apply to all the funds received, including the pre-trial
settlements, which in this case wiped out the carrier’s lien of more than $3
million. In a tremendous win for Old Republic, the appellate court held that
the reduction of the carrier’s subrogation interest is limited to the amount
that the employer’s fault actually costs the claimant after applying sections
33.012(b) and 33.013(a) of the Texas Civil Practice and Remedies Code.** In
this particular case, that meant that the carrier’s subrogation lien was
reduced by only $33,967.20.
*Texas Labor Code section 417.001 provides that a carrier’s subrogation
interest is reduced by the amount by which the court reduces the judgment based
on the percentage of responsibility for the injury that the jury/judge
attributes to the employer. This is known as the “Employer Responsibility
Offset” (ERO).
**Section 33.012(b) of the Texas Civil Practices and Remedies Code requires the
court to reduce the amount of the claimant’s damages by a percentage equal to
the claimant’s percentage of responsibility for the claimant’s injuries.
Section 33.013(a) limits the claimant’s damages recovery from a particular
defendant to the “percentage of the damages found by the trier of fact equal to
that defendant’s percentage of responsibility” for the claimant’s injuries.
Copyright 2024, Stone Loughlin & Swanson, LLP
DWC released the 2024 insurance carrier PBO results and 1/3 passed the test
with flying colors! The DWC evaluated 130 carriers and placed them into a high,
average, or poor regulatory tier based on the following categories:
High tier performers
are generally exempted from DWC Compliance & Investigations Audits, while
average performers are included if selection criteria are met, and poor
performers are included regardless of whether selection criteria are met. A
carrier’s PBO tier rating is also one of the factors that DWC is required to
consider when imposing sanctions on any carrier that commits an administrative
violation.
Insurance Carrier Tier
Assessments Overall Results
|
Assessment Year |
Insurance Carriers |
High Tier Performers |
Average Tier Performers |
Poor Tier Performers |
|
2024 |
130 |
44 |
82 |
4 |
Congratulations to all
you High Tier Performers out there!
Copyright 2024, Stone Loughlin & Swanson, LLP
A total of three
Appeals Panel decisions have been published since the beginning of September.
System participants can breathe a sigh of relief, knowing that even when your
judge zones out during the hearing, the Appeals Panel has your back:
In Appeal No. 241147, the Panel remanded the case because the ALJ recounted a
mechanism of injury in his/her decision that was nowhere in evidence. The ALJ
wrote that the claimant slipped and fell backwards five feet and had pliers in
his back pocket. Instead, the claimant testified that he felt a sharp pain in
his left shoulder while sanding an airplane.
Similarly, in Appeal No. 241172, the Panel reversed a 0% IR and rendered a
decision that the IR was 5% because there was no certification in evidence from
any doctor certifying the claimant with a 0% IR.
And in other news, the Appeals Panel continued to demonstrate its usefulness by
reforming a finding of fact in Appeal No. 241035 to correct the parties’
stipulation to an anomaly of the tooth position of fully erupted teeth to
numbers 9, 23, and 24 and not tooth 10 or 25.
Copyright 2024, Stone Loughlin & Swanson, LLP
State agencies are required to review rules every four years and either
readopt, readopt with amendments, or repeal the rule. So this month, DWC went
out on a limb and readopted all sections in Chapters 126 (General Provisions
Applicable to All Benefits), 127 (Designated Doctor Procedures and
Requirements), and 128 (Benefits – Calculation of Average Weekly Wage). Well
done, guys and gals.
DWC is accepting public comments on a proposed rule amending Rule 120.2 to
update its Austin address and OIEC’s and DWC’s website addresses. If you’re
looking to shake things up a little bit, you can let the DWC know you take
issue with their changes of “shall” in the rule to “must” or “will.”
The DWC also renamed Rule 147.10 “Commutation of Impairment Income Benefits.”
In case you were diverted by all the election shenanigans, this was necessary
because in April 2024, the DWC inadvertently named this section Rule 147.11
(the horrors).
DWC also made DWC Forms 001 (Employer’s First Report of Injury or Illness), 002
(Employer’s Report for Reimbursement of Voluntary Payment), and 006
(Supplemental Report of Injury) more attractive… and removed references to
outdated violation language that the Legislature removed from the law… in 2005.
Copyright 2024, Stone Loughlin & Swanson, LLP
DWC is looking for input on the proposed Medical Quality Review Audit Plan for
the year 2025. The plan is to conduct one audit to evaluate the quality of
designated doctor (DD) reports and the necessity of additional testing or
referrals ordered by DDs to resolve the issue in question.
Meanwhile, the 2024 Annual Audit Plan was to evaluate the feasibility
and impact of adopting a more current version of the AMA Guides to the Evaluation of
Permanent Impairment. The 4th edition was published in 1993 and since
then, the 5th and the 6th editions have been published, with updates to the 6th
edition published yearly since 2021. There are two months to go in 2024 so we
will await the results of this study with bated breath. (Okay, okay, to be
fair, the DWC did acknowledge in its 2025 announcement that this study
was dependent on revisions to the musculoskeletal chapters, which were just
finalized on September 12, 2024 and effective December 1, 2024.)
Regardless:
Copyright 2024, Stone Loughlin & Swanson, LLP
Simon Law Group, P.C.
701 Market Street, Suite 340, St. Louis, MO 63101
314-621-2828
MISSOURI WORKERS’ COMPENSATION CASE LAW UPDATE
July 2024 – September 2024
Claimant Only Needs One Qualifying, Preexisting Disability Combined With the Primary Disability for Fund PTD Liability
Eckardt v. Treasurer of Missouri as Custodian of the Second Injury Fund, Case No. ED112132 (Mo. App. 2024)
FACTS: In the course of 40 years as an aircraft mechanic, the claimant sustained seven work injuries. Claimant was first injured in March 1998, injuring his right knee, resulting in two knee surgeries and, eventually in 2014, a right knee total arthroplasty. On September 6, 2001, he sustained a second injury, which resulted in two left knee surgeries. The third injury was on January 13, 2010, and resulted in surgeries on the left wrist and left shoulder with post-surgical complications. In November 2012, he injured his right shoulder and received treatment for a right shoulder strain and impingement. The fifth and sixth injuries occurred prior to January 4, 2013, resulting in chronic, severe bilateral carpal tunnel syndrome, and he had surgeries on his right wrist on February 8, 2013 and left wrist on March 1, 2013. Despite his multiple injuries and difficulties performing his job duties, the claimant testified that he continued to work.
The claimant sustained his seventh and primary injury on October 3, 2015, which resulted in a cervical disc herniation at C3-4 and he underwent surgery in July 2016.
At the hearing, on behalf of the claimant, Dr. Volarich opined he was PTD as a direct result of the October 3, 2015 work-related injury in combination with his pre-existing medical conditions from his prior injuries.
The ALJ issued an Award in favor of claimant for PTD benefits against the Fund. The ALJ concluded the claimant met his burden to show he was PTD due to a combination of his primary and qualifying preexisting injuries which resulted in the following disabilities: right knee-50% (80 weeks); left knee-50% disability (80 weeks); left shoulder-40% disability (92.8 weeks); left wrist-45% disability (78.75 weeks); and right wrist-40% disability (70 weeks).
The ALJ noted the only preexisting injury that did not reach the statutory threshold was the right shoulder injury, which was 47.5 weeks or 2.5 weeks short of the statutory minimum.
The Fund appealed the Award. The Commission reversed the ALJ’s Award. The Commission found “no credible or persuasive evidence in the record that [claimant] is PTD due to the primary injury in combination with only preexisting disabilities that qualify under [Section] 287.220.3.”
HOLDING: The Court of Appeals found the Fund liable for PTD. The Court stated that it was undisputed that claimant was PTD and the sole issue on appeal was whether his PTD qualified for Fund liability. To make a compensable claim against the Fund, a claimant must meet two conditions. First, the employee must have at least one qualifying preexisting disability, which must be medically documented, equal to at least 50 weeks of PPD and meet one of the four listed criteria in the statute; second, the employee must show he sustained a subsequent compensable work-related injury that resulted in a PTD when combined with the preexisting disability.
In this matter, Dr. Volarich may have considered all of claimant’s disabilities, but his final determination that claimant was PTD does not rely on claimant’s preexisting nonqualifying right shoulder injury. All of his other disabilities sufficiently combined to cause the PTD absent the right shoulder injury.
The Court concluded the evidence supported the statutory requirement for Fund liability because the claimant demonstrated he had sustained a “subsequent compensable work-related injury, that when combined with the preexisting disability, . . . results in a permanent total disability”. The Court instructed the Commission to grant the claimant PTD benefits to which he is entitled to from the Fund.
Also, the Court concluded that Section 287.220.3(2)(a)a(ii) which defines a qualifying preexisting disability included occupational diseases such as carpal tunnel syndrome. The Court stated that pursuant to longstanding principles of statutory interpretation, they recognized the legislature’s intent as evidenced by its decision not to exclude such coverage when it had sufficient opportunity to do so. The Court concluded that Section (ii) refers generally to a “compensable injury”, and they found it does not exclude from such injury the specific category of occupational diseases, defined as compensable in Chapter 287 as a whole. In this matter, the claimant’s preexisting bilateral carpal tunnel syndrome qualified under Section 287.220 because it was the result of compensable injuries.