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.
Janice Hustvet worked for Courage Center, which merged with Allina Health System in 2013. Hustvet worked for 15 years at Courage Center as an Independent Living Skills Specialist, educating, supporting and assisting clients with disabilities including spinal cord and brain injuries.
On May 13, 2013, Hustvet completed her pre-placement health assessment. She acknowledged that she did not know if she had been immunized for rubella. She later confirmed that she had not been immunized for rubella. There was some confusion whether her job would require completion of a Respirator Medical Evaluation (“RME”). Following the merger on July 1, 2013, Hustvet was informed that she had to submit a complete RME and take one dose of a Measles, Mumps, Rubella vaccine (“MMR vaccine”).
Hustvet never took the MMR vaccine. She had had a severe case of mumps and measles, and she also had many allergies and chemical sensitivities. However, she did agree to take a rubella vaccine only, (without the mumps and measles), but no such vaccine was available. When Hustvet refused to do take the MMR vaccine, her employment was terminated.
Hustvet sued Allina Health alleging discrimination under the ADA. The federal court ruled against Hustvet, and she appealed to the United States Court of Appeals for the Eighth Circuit. Hustvet argued that she never received an offer of employment, and therefore the rules of post-offer medical examinations did not apply to her. She also argued that she was a continuous employee and that the health screen requirement was imposed after her employment.
The Court of Appeals interpreted the letter Hustvet received during the merger period advising that she would soon be an employee of Allina Health as an offer of employment. The Court noted that an employer has a right to apply entrance examination standards and withdraw an offer to those who do not meet those standards if the standards are job-related and consistent with business necessity.
Even if Hustvet were viewed as an existing employee and not subject to the post-offer requirement, the Court said that an employer can require an examination of an employee if that exam is shown to be job-related and consistent with business necessity. The Court said: “… We believe Allina’s decision to force a class of employees (those employees with client contact who merged into the company) to undergo a health screen was job-related and consistent with a business necessity. The information requested and the medical exam, which tested for immunity to infectious diseases, were related to essential, job-related abilities. The undisputed evidence shows that the purposes of Allina’s health screen were to (a) insure that incoming employees who might come into contact with clients had immunity to communicable diseases as recommended by the Centers for Disease Control and Prevention. . .”
The Court noted that rubella has been eliminated in the United States but observed that rubella remains a common disease in many parts of the world and can be contracted through foreign travel. The Court further observed that rubella is particularly dangerous to expectant mothers and infants.
Hustvet also argued that her multiple chemical sensitivities constituted a disability that Allina should have accommodated by foregoing the requirement of the MME. The Court rejected this argument as well. “There is insufficient evidence in the record to support the conclusion that Hustvet’s chemical sensitivities or allergies substantially limit her ability to perform major life activities. She has never been hospitalized due to an allergic or chemical reaction, never seen an allergy specialist, and never been prescribed an EpiPen. Nor has she ever sought any significant medical attention when experiencing a chemical sensitivity, taken prescription medication because of a serious reaction, or had to leave work early because of a reaction.”
For these reasons, the Eighth Circuit affirmed summary judgment in favor of Allina. The case shows that courts will support termination of applicants who cannot pass a post-offer examination if the standards are job-related and consistent with business necessity. Readers may find this case at Hustvet v. Allina Health System, 910 F.3d 399 (8th Cir. 2018).
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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.
Membership in the AWCO offers a number of professional and social opportunities annually to interact with other workers' compensation professionals. The highlight of the year is the annual AWCO Spring Conference where its members come together for three days of education, fun, and fellowship. Membership is only $75 if paid prior to February 27, 2019. After that, the annual fee goes up to $150. Once you are an AWCO member, the Spring Conference is free. You pay nothing, nada, zero, zilch to register and attend. This year, the 38th Annual AWCO Spring Conference will be held May 9-10, 2019 at the Sheraton Hotel in downtown Birmingham! For more information on how to join the AWCO or register for the Spring Conference, please call or e-mail me (contact info below).
About the Author
This blog submission was prepared by Mike Fish, an attorney with Fish Nelson & Holden, LLC, a law firm dedicated to representing self-insured employers, insurance carriers, and third party administrators in all matters related to workers’ compensation. Fish Nelson & Holden is a member of the National Workers’ Compensation Defense Network. If you have any questions about this submission or Alabama workers’ compensation in general, please contact Fish by e-mailing him at mfish@fishnelson.com or by calling him directly at 205-332-1448.
Ombudsmen Patricia Fraley and Ted Roose plan to continue to keep regular office hours on the 2nd and 4th Tuesdays of every month from 9-12 and 1-3 for anyone who wants to submit a settlement for their review. There is no need to make an appointment for these times but it is a good idea to call and give them a heads up just to make sure they will be there.
2019 OFFICE DAYS FOR BRCS
ALABAMA CARRER CENTER
3216 4TH AVENUE SOUTH BIRMINGHAM, AL 35222
9:00 AM- NOON & 1:00 PM-3:00 PM
FEBRUARY 12, 2019 FEBRUARY 26, 2019
MARCH 12, 2019 MARCH 26, 2019
APRIL 9, 2019 APRIL 23, 2019
MAY 14, 2019 MAY 28, 2019
JUNE 11, 2019 JUNE 25, 2019
JULY 9, 2019 JULY 23, 2019
AUGUST 13, 2019 AUGUST 27, 2019
SEPTEMBER 10, 2019 SEPTEMBER 24, 2019
OCTOBER 8, 2019 OCTOBER 22, 2019
NOVEMBER 12, 2019 NOVEMBER 26, 2019
DECEMBER 10, 2019 DECEMBER 17, 2019
Ombudsmen
Patricia Fraley 205-305-6343 patricia.fraley@labor.alabama.gov
Ted Roose 205-307-8576 theodore.roose@labor.alabama.gov
The Career Center located at 3216 4th Avenue South (Birmingham).
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.
No less inventive than the pleadings in the prior entry is the basis for a lawsuit filed by a group of injured workers against the Division, claiming that a designated doctor’s ability to assign maximum medical improvement prior to the date of the certifying examination amounts to an unconstitutional “taking” of property under the Fifth Amendment. The grounds for suitseems to be that an insurance carrier’s ability to recoup or convert overpaid Temporary Income Benefits (TIBs) deprives them of a vested property right to said benefits.
“Seems” is the operative word here, as per the Court of Appeals’ memorandum opinion: “Appellants’ pleadings are so vague as to be difficult to assess and their briefing is at times insufficient under the rules.” The Court elaborates: “Appellants . . . have not identified which statutory provision they seek to challenge, presented clear argument about how the statute was unconstitutional, or provided citations to the record or to relevant authority.”
The Court of Appeals explained that for a takings claim to have validity, the injured workers must establish a vested, constitutionally protected property interest. That requires more than mere expectancy of a benefit, it demands a “legitimate claim of entitlement.” An injured worker has “a mere expectancy” in receiving TIBs, per the Court, and not a vested right to such benefits. The injured workers in this case provided no authority to support their assertion to the contrary other than to argue, in essence, that because the insurance company paid their benefits, they must be entitled to them.
Holt v. Texas Department of Insurance—Division of Workers’ Compensation, No. 03-17-00758-CV, 2018 WL 6695725 (Tex. App.—Austin Dec. 20, 2018, affirmed) (mem. op.).
- Copyright 2018, Stone Loughlin & Swanson, LLP.
Of the twenty-one original defendants indicted in the Forest Park bribery and kickback scheme in 2016, ten remain scheduled to appear in federal court in Dallas. Among them is Royce Bicklein, noted claimants’ attorney and the chairman of the State Bar of Texas' Workers’ Compensation Section. Bicklein is accused of receiving kickbacks in the amount of $100,000 for referring clients to Forest Park Medical Center, and if court filings are any indication, Mr. Bicklein appears poised to offer a novel defense strategy: his clients authorized him to break the law.
Bicklein maintains that his clients were asked to sign a consent form, which apprised them of the possibility that their attorney might stand to gain financially from referrals made to certain medical professionals on their behalf. Mr. Bicklein’s defense seems to suggest that he committed no crimes because his clients knew of his financial relationship with Forest Park and consented to it.
Aside from the fact that subpoenas have thus far produced no such signed consent forms, prosecutors argue that client consent does not obviate penalties for commission of a crime, and the existence of such a form may actually demonstrate that Bicklein and his law firm knew that they were in violation of Texas and federal anti-kickback statutes; the consent form was apparently generated on the advice of Mr. Bicklein’s own law partner.
Mr. Bicklein’s trial is set to start February 19, 2019, in federal district court in Dallas.
- Copyright 2018,Stone Loughlin & Swanson, LLP.
The Texas Department of Insurance, Division of Workers’ Compensation, adopted a new rule, 28 TAC §140.9, which took effect on January 7, 2019, requiring that parties seeking to reset, reschedule, or continue any proceeding include with their requests a signed statement that reasonable efforts were made to confer with the opposing party about the subject of the request. Parties must indicate whether the motion is opposed and provide dates and times they areboth available for a rescheduled proceeding. Those dates and times must also be coordinated with the DWC docketing staff, thus ensuring that none of this will ever happen. The Division has modified the DWC Form-045 pursuant to the rule change.
In addition, 28 TAC §141.2 has been amended to clarify that a “first request” to reschedule a benefit review conference, which does not require a demonstration of good cause, pertains to the first such request made in adispute, not the first request made by a particular party. In other words, any subsequent request to reschedule a BRC by either party will require a showing of good cause.
Finally, 28 TAC §142.11 has been amended to legitimize the Division’s long-standing practice of issuing a “10-day letter” to a party who fails to attend a scheduled contested case hearing. The absent party is afforded ten days to respond and request that the hearing be reset. With the addition of this new rule, Administrative Law Judges are empowered to determine whether good cause has been established for the failure to attend and, if not, issue a decision based on the evidence previously admitted.
- Copyright 2018,Stone Loughlin & Swanson, LLP.
Several of the Division’s Administrative Law Judges are relocating to new offices, while others are either leaving for good or returning for more.
Just last October, Judge Geri-Lyn Thomas left the DWC to preside over cases at the State Office of Administrative Hearings. However, after a brief sojourn, Judge Thomas has returned to her post at the Division’s Dallas Field Office. We are certainly glad to have her back.
Judge Katie Kidd will be transferring from the Dallas Field Office to the Division’s Central Office in Austin, where she will assume a new position in quality control and oversight.
As one judge arrives in Austin, another departs. Last May, Dee Marlo Chico, formerly one of the DWC’s traveling judges, accepted a position on the Appeals Panel, but has decided to move on. Judge Chico is leaving the DWC imminently for her new post at the Railroad Commission.
No word yet on who might replace Judge Chico on the Appeals Panel, but one possibility might be Judge Travis Dupree. Judge Dupree has been the Division’s sole ALJ in Midland since 2015, but is also relocating to the Central Office in Austin as the Division’s new designated traveling ALJ, a position most recently held by . . . Judge Dee Marlo Chico!
Finally, the Midland judgeship is the province of Robert Clarkson, a University of Houston alum who graduated from the University of Pittsburgh Law School in 2000. Judge Clarkson previously practiced insurance defense litigation in Irving, Texas. We are happy to welcome him.
- Copyright 2018,Stone Loughlin & Swanson, LLP.
Extreme overcharging for medical services is the basis for a class action lawsuit filed against CIGNA Health and Life Insurance in the U.S. District Court for the District of Connecticut. The class is comprised of patients who allege CIGNA and a home-care service provider, CareCentrix, were unjustly enriched through the fraudulent inflation of copayments and coinsurance paid by their patients. One particularly egregious example of overcharging cited in the lawsuit involved a blood test billed to a patient at the rate of $2,000, under the pretense that it cost the insurance company $17,000. The actual cost: $471.
- Copyright 2018,Stone Loughlin & Swanson, LLP.
News from the Office of Injured Employee Counsel: OIEC’s public counsel, Jessica Barta, has recommended a change in filing deadlines for ombudsman-assisted claimants seeking judicial review of their work comp decisions.
In their Biennial Report to the Legislature, OIEC suggests that the current 45-day deadline by which a petition for judicial review must be filed is simply too short to afford an unrepresented injured worker time to locate an attorney and submit the necessary paperwork. Because Texas law prohibits claimant attorneys from collecting fees for such litigation, and because ombudsmen are not permitted to assist injured workers in judicial reviews, OIEC asserts that the deadline should be extended to 90 days to give unrepresented claimants time to hire representation and marshal their evidence.
OIEC has also proposed a method by which doctors may be compensated for supplying medical causation letters to claimants, an essential component of meeting their burden of proof on most extent of injury disputes.
- Copyright 2018,Stone Loughlin & Swanson, LLP.