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.
If you have questions
about the Division’s new EDI data collection agent and the billing registration
process, you’re not alone. Insurance carriers have so many questions that the
Division is hosting a Zoom call to address them. The call comes in the wake of
the Division’s announcement that it is changing the process by which insurance
carriers must report claim data through electronic data interchange
(EDI).
Currently, carriers are required to report EDI claim data using an antiquated
standard – to be precise, International Association of Industrial
Accident Boards and Commissions (IAIABC) Release 1.0. But beginning July 26,
2023, the Division will be requiring carriers to use the current standard,
IAIABC Release 3.1.4. This and other requirements are set out in new Division
rules 124.100 - 124.108.
As part of the conversion, the Division designated a private contractor,
Verisk, as its data collection agent for claim EDI release 3.1 data. Verisk
will bill insurance carriers, other than governmental entities, for the cost of
data collection. Accordingly, insurance carriers were required to register
their billing contact information with Verisk by June 13, 2022.
Also, as part of the conversion, each insurance carrier will be required to
designate one person as its claim EDI compliance coordinator and provide that
person’s contact information to the Division. Carriers can report this
information to the Division on new Form EDI-03.
Bonus cocktail party trivia:
According to its website, the IAIABC was founded in 1914 and is an association
of workers’ compensation jurisdictional agencies from around the world, as well
as private organizations involved in the delivery of workers’ compensation
benefits and services. It works to identify best practices, develop and
implement standards, and provide education and information sharing.
Copyright 2022, Stone Loughlin & Swanson, LLP
Speaking of appeals,
we continue to await the decision of the appeals court in our legal challenge
to the Division’s Supplemental Income Benefits rule.
Readers may recall that our firm, on behalf of an interested insurance carrier,
filed suit challenging the validity of the SIBs rule on the basis that it
impermissibly allows claimants to collect SIBs even if they do not document
their work search with job applications as required by the Texas Workers’
Compensation Act. Travis County district judge Maya Guerra Gamble agreed with
the carrier that the rule is invalid, and she enjoined the Division from
applying it. But the Division appealed to the Third Court of Appeals and,
because the Division is part of a state agency, the judgment is stayed during
the appeal.
The parties filed legal briefs in the court of appeals, and on August 30, 2021
the court announced that it did not need to hear oral argument and the
case was “ready for disposition on the briefs.” That was 10 months ago. By
comparison, in the recent case of Dobbs
v. Jackson Women’s Health Organization, in which the Supreme Court
of the United States ruled that the Constitution does not guarantee the right
to an abortion, the court issued its decision 8 months and 11 days after
briefing was complete. And one could
conclude that the issues in that case are more complicated than the issues in
our SIBs case.
By the way, SLS partner Jane Stone will be discussing the SIBs case at the
upcoming Texas Bar CLE Advanced Workers’ Compensation seminar in August, by
which time the court might have issued a decision.
Copyright 2022, Stone Loughlin & Swanson, LLP
The Texas Department
of Insurance, Division of Workers’ Compensation has posted job openings for
three Appeals Panel judges. This, apparently, is in response to three recent
departures – we’ve learned that Rafael Quintanilla, Gary Kilgore, and Tom Knapp
have retired. We’re envious, and we wish them well.
Speaking of envy, the Division’s job posting describes some sweet fringe benefits. They
include the following:
• Telecommuting
• 96 hours of accrued vacation a year
• 96 hours of accrued sick leave a year
• 20+ holidays every year
Copyright 2022, Stone Loughlin & Swanson, LLP
Don't do this:
Or this:
Copyright 2022, Stone Loughlin & Swanson, LLP
Those of you who listen to podcasts when you walk, run, or simply want to avoid
any conversation with the unwashed masses on Southwest Airlines should check
out Feedspot’s revised list of the 30
Best Workers’ Compensation Podcasts. Rounding out Feedspot’s top
three are:
1. Comp
+ Coffee
Described by Feedspot as a podcast from Payscale that talks through the art and
science of compensation management. Two episodes per quarter. Average length 38
minutes.
2. Third
Fridays
Described by Feedspot as a podcast from Lois LLC in which attorneys discuss
workers’ compensation issues, share their opinions, and engage in colorful
conversations. One episode per month. Average length 37 minutes.
3. Adjusted
Described by Feedspot as a podcast in which Claire Muselman and Greg Hamlin
take a deep dive with industry leaders who are changing the landscape of
workers' compensation to offer a new perspective on insurance. Two episodes per
month. Average length 36 minutes.
Copyright 2022, Stone Loughlin & Swanson, LLP
Kids’ Chance of Texas
has awarded 30 scholarships so far this year to kids who had a parent killed or
catastrophically injured at work. There are more waiting to apply, so the group
is hard at work raising money to make sure each one can be helped. You or your
company can impact this effort directly by buying a sponsorship for the
upcoming KCTX Golf Tournament on October 28.
SLS is sponsoring again this year because this effort is near and dear to us.
Go to www.Kidschanceoftexas.org for details, or send
a check made out to Kids’ Chance of Texas to the attention of Jane Stone at SLS
and she will make sure you get signed up . . . golf is included, depending on
the level of sponsorship.
Copyright 2022, Stone Loughlin & Swanson, LLP
New research suggests that many people suffer neurological symptoms long after
contracting COVID-19.
According to Neuroscience News,
researchers at the University of California San Diego School of Medicine are
conducting a longitudinal study to track neurological symptoms in COVID-19
“long-haulers.” The first round of results, published June 15 in Annals of Clinical and Translational
Neurology, found that the majority of participants still had some
neurological symptoms after six months.
56 persons with neurological symptoms following a COVID-19 infection were
recruited to the study. Baseline measurements were taken a few months
after their initial infection and repeated three and six months later. When
participants returned for their six-month follow-up, only one-third reported
complete resolution of symptoms. The other two-thirds reported persistent
neurological symptoms, though most had diminished in severity. The most
prevalent symptoms at six-months were memory impairment and decreased
concentration.
Copyright 2022, Stone Loughlin & Swanson, LLP
Legal Update by Attorney Alison Stewart and Law Clerk Tori Biggerstaff
Governor Reynolds signed a bill relating to injured workers’ entitlement to prosthetic device needs as a result of work-related injuries. (H.F.2411). An Act Relating to Replacements of Permanent Prosthetic Devices for Injured Workers, was signed into law on June 15, 2022. This bill changes the prosthetic allotment for workers injured on the job. Prior to this bill, injured workers were allowed one permanent prosthetic over their lifetime. When a worker is injured in a compensable injury while employed, the employer is now responsible for replacement prosthetics. Now, injured workers are eligible for a replacement permanent prosthetic if theirs is damaged or made unusable by circumstance arising out of and in the course of employment. They are eligible for this replacement whether or not the artificial member was previously provided by the employer. The replacement of the prosthetic device is now included in an employer’s obligation to provide reasonable medical care for employees injured at work as required by Iowa Code section 85.27.
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NOTICE TO THE PUBLIC
The determination of the need for legal services and the choice of a lawyer are extremely important decisions and should not be based solely upon advertisements or self-proclaimed expertise. This disclosure is required by rule of the Supreme Court of Iowa.
Peddicord Wharton Legal Updates are intended to provide information on current developments in legislation impacting our clients. Readers should not rely solely upon this information as legal advice. Peddicord Wharton attorneys would be pleased to answer any questions you may have about this update. ©2022 Peddicord Wharton. All Rights Reserved.
Notice Regarding Change to Nebraska Workers’
Compensation Mileage Reimbursement Rate
LINCOLN, Neb. — Effective July 1, 2022, the mileage rate will become 62.5 cents per mile for
travel to seek medical treatment or while participating in an approved vocational rehabilitation
plan.
Historic mileage reimbursement rate information is available in the Tables of Maximum / Minimum
Compensation Benefits, Burial Benefits, and Mileage Reimbursement Rates on the Nebraska
Workers’ Compensation Court’s “Benefits” web page (https://www.wcc.ne.gov/serviceproviders/
attorneys/benefitrates).
For more information about workers’ compensation in Nebraska, refer to the Nebraska Workers’
Compensation Court website (http://www.wcc.ne.gov) or call our Information Line at 4024716468
or 8005995155 (toll free).
Click here for more information!
On a global scale, one of the more unique aspects of the Nebraska Workers’ Compensation Act is the creation of vocational rehabilitation benefits. A primary purpose of the Act is restoration of an injured employee to gainful employment. When an injured employee is unable to perform suitable work for which he or she has previous training or experience, the employee is entitled to vocational rehabilitation services “as may be reasonably necessary to restore him or her to suitable employment.” The rules and regulations for vocational rehabilitation benefits can be found at § 48‑162.01. Generally speaking, before vocational rehabilitation benefits are awarded, the employee must prove that he or she has permanent restrictions or disability. This is because, absent permanent impairment or restrictions, the worker is fully able to return to any employment for which he or she was fitted before the accident, including the occupation held at the time the injury occurred. If an employee is able to work, he or she is not entitled to vocational rehabilitation.
There are two ways an employee can ask for vocational rehabilitation services. First, he or she may simply request these benefits at trial. However, an employee may also wish to request vocational rehabilitation services before trial or when litigation hasn’t been filed. This article focuses on the latter. The first step is for an employee to ask the employer if it will stipulate to a particular vocational counselor from the approved list of counselors provided by the Court. If the employer either does not agree that the employee is entitled to vocational rehabilitation benefits or will not agree to the proposed counselor, the employee may file a Request for a Vocational Counselor through the Court. At that point, the Vocational Rehabilitation Section of the Court will either grant the request and assign a counselor, or it may deny the request. If the employer does not feel that an employee is entitled to vocational rehabilitation benefits as a matter of law, it may file a Motion to Quash the appointment.
There are many reasons why an employee may not be entitled to vocational rehabilitation benefits. The first is a failure to show “prima facie” evidence of both a qualifying injury resulting from an accident, and corresponding permanent impairment and/or permanent restrictions. The Latin phrase prima facie means “first impression.” Stated another way, the prima facie standard means the employee only has to put forth enough evidence to show the Court that he/she may prevail on the issue – the Court will not actually decide if it agrees with that evidence.
This “prima facie” standard has been the center of several recent trial level decisions in the last year and therefore warrants a closer look at what the judges are saying about an employee’s entitlement to vocational rehabilitation. Before discussing the first decision, I should note that a common misconception is that an employee must have permanent work restrictions and that an impairment rating alone is not enough to support an award of vocational rehabilitation benefits. This is incorrect. See Font v. JBS USA, L.L.C., 2021 WL 1185840. The Nebraska Court of Appeals recently confirmed that, while creating a vocational plan absent permanent work restrictions may be “difficult,” it’s not necessarily legally impermissible. Stated another way, the Court can choose to award vocational rehabilitation benefits absent any evidence of permanent restrictions. This is precisely what Judge Fitzgerald did in Font. He awarded vocational rehabilitation benefits based on the employee’s 11% permanent impairment to her arm. However, just because a judge can doesn’t necessarily mean the judge must award benefits.
Judge Hoffert’s April of 2022 decision in Sorensen v. Sarpy County confirms this statement. Judge Hoffert fully recognized the employee had permanent impairment ratings for both ears, but after examining the evidence, he held, “there is no credible evidence at this juncture to quantify just how plaintiff’s medical impairments impact or diminish his ability to earn an income.” Judge Hoffert therefore declined to award vocational rehabilitation benefits as he wasn’t convinced the employee’s hearing loss meant he was not capable of performing suitable employment.
Judge Fridrich made a similar holding to that of Judge Hoffert in his 2019 decision in Rhodman v. White Trucking, LLC. In that case, the employee presented evidence of an impairment rating to his knee, but he did not have any permanent work restrictions. After declining to award vocational rehabilitation benefits, Judge Fridrich cited that a lack of permanent restrictions would result in a vocational counselor performing “unnecessary work at a cost to [the defendant].” He continued, “It seems more prudent and cost effective for there to be work restrictions in place before the costs of a vocational rehabilitation counselor are incurred.”
Judges Coe, Block and Martin have not directly analyzed vocational rehabilitation benefits in this context in the last few years, however, it should be noted that Judge Martin has discussed the “prima facie” standard as needing to be aligned with the “beneficent purpose of the Act.” Where the purpose of vocational rehabilitation benefits is to return employees to gainful employment, it’s a safe statement to say that Judge Martin will closely analyze the evidence and, if an employee presents credible evidence that he or she cannot return to suitable employment because of an accident-related injury, Judge Martin is likely to award vocational rehabilitation services.
Another common reason that vocational rehabilitation services are denied is the failure of the employee to show he or she cannot perform “suitable work.” In 2021, Judge Block recognized that an employee testified he could not use his shoulder which he claimed impacted his ability to work. However, the employee’s work record showed he had in fact returned to work after his accident without any apparent difficulties. In light of the same, Judge Block declined to award vocational rehabilitation services. Judge Stine made a similar opinion in August of 2019 when he held that the only evidence before him showed that the employee had no apparent issue returning to her pre-accident employment for some six months before she voluntarily resigned, and she failed to otherwise explain why she could not return to that job.
A final misconception is that vocational rehabilitation benefits are only eligible for employees who suffered whole body injuries. This thought is misapplying a separate role of vocational counselors. In workers’ compensation cases, vocational counselors are often asked to establish a vocational rehabilitation plan and/or assess an employee’s loss of earning capacity. While it’s true that an employee must have a whole-body injury in order to request a loss of earning power capacity evlauation, that does not apply to vocational rehabilitation services. All of the judges fully recognize this position and have been quick to reject any argument to the contrary.
Where vocational rehabilitation issues have been appearing more and more frequently in the Court, it’s important to understand both the legal requirements and each judge’s unique view of the evidence required from the employee to show a “prima facie” entitlement to vocational rehabilitation services. Knowing the unique viewpoints of each judge not only allows an employer to properly set reserves, but it also helps the employer construct an appropriate defense it if believes an employee is not entitled to benefits.
If you have questions about a potential vocational rehabilitation issue, 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.