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NWCDN is a network of law firms dedicated to protecting employers in workers’ compensation claims.


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.


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Written by: Matt Marriott

Starting on December 31, 2017, the North Carolina Industrial Commission will have a permanent Employee Classification Section charged with investigating and punishing employers who misclassify employees as independent contractors.  The Employee Classification Section was initially created through an executive order signed by former Governor Pat McCrory on December 18, 2015, Executive Order No. 83.  The North Carolina legislature recently codified many provisions of Executive Order No. 83 through the Employee Fair Classification Act, which was passed in August of 2017.

The Employee Classification Section is tasked with receiving complaints from the public regarding employers who are misclassifying employees and investigating those complaints.  When a complaint is received, the Director of the Section will provide the information to the North Carolina Department of Labor, the Fraud Investigation Division of the North Carolina Industrial Commission, the Division of Employment Security in the North Carolina Department of Commerce, and the North Carolina Department of Revenue.  Each agency will then conduct an investigation to assess whether the employer has violated any of their operating statutes.  If any of the agencies find a violation of an applicable statute, they will assess appropriate penalties and fines.  Each respective agency will then report its findings back to the Director of the Employee Classification Section.  Additionally, if any of the aforementioned agencies receive a direct complaint from the public regarding employee misclassification, the agency will report that complaint to the Director of the Employee Classification Section, who will pass the complaint along to all of the other agencies for investigation.

While the Employee Classification Section of the NCIC has been around since 2015, it was made a permanent fixture of the NCIC by the recently passed Employee Fair Classification Act (“EFCA”).  The EFCA also formally codified that the Employee Classification Section must takes the steps outlined in paragraph 2 above whenever it receives a complaint regarding employee misclassification.

Practice Tips: Prior to the creation of the Employee Classification Section of the NCIC, a complaint of employee misclassification often would not result in significant consequences for the guilty employer.  North Carolina is making a significant effort to reduce instances of employee misclassification going forward.  The potential penalties that could be assessed against an employer include fines for not properly carrying workers’ compensation insurance and paying back taxes on each misclassified employee for up to 5 years before the misclassification occurred.  Additionally, misclassified employees will have the ability to file private lawsuits against their employers to recover overtime wages and minimum wage amounts that should have been paid under state and federal wage and hour laws (e.g the Fair Labor Standards Act, etc.).  In some instances, the employees can also receive treble damages against the employers depending on the nature of the conduct.

Because the consequences associated with employee misclassification are greater than they have ever been in the state of North Carolina, it is imperative for employers utilizing independent contractors to consult with counsel to ensure they are not mistakenly violating any laws.  Teague Campbell’s employment law team is focused on this ever emerging issue and is ready to help employers navigate this complex area of the law.

We are please to announce that Cousineau, Waldhauser & Kieselbach has been selected as a Tier 1 law firm by “Best Law Firms”.  Six of the attorneys at CWK have been selected to be listed in “Best Lawyers in America”.

Jim Waldhauser, Tom Kieselbach, Mark Kleinschmidt, Richard Schmidt, Jennifer Fitzgerald, and Tom Coleman have been selected for inclusion in the 2018 Guide to Best Lawyers in America.

Best Lawyers and Best Law Firms have collaborated with U.S. News and World Report to evaluate attorneys and law firms throughout the world. The attorneys and law firms are selected for inclusion by peers for their responsiveness, integrity, and expertise.

Major legislative changes occurred in Iowa effective for all injuries that occur on or after July 1, 2017. Under prior law injured workers were awarded permanency benefits based on loss of earning capacity for non-extremity type injuries including the neck, shoulders, back and hips (“body as a whole” injuries). Under the new law shoulders are no longer injuries to the body as a whole, but are rather considered scheduled member-type injuries. Workers with shoulder injuries are now entitled to receive permanency benefits only to the extent of his/her functional impairment, and are not entitled to receive benefits for loss of earning capacity.

 Further, after July 1, 2017, if the injured worker sustains an injury to his/her body as a whole and returns to work or is offered work for which he/she receives or would receive the same or greater salary, wages, or earnings, than the injured worker received at the time of the injury, the injured worker is compensated based only upon his/her functional impairment resulting from the injury.

Legislative changes also stiffened the employer’s intoxication defense adding a presumption that an employee was intoxicated at the time of his or her injury if the employee had a positive test result reflecting the presence of alcohol, narcotic, depressant, stimulant, hallucinogenic or hypnotic drug not prescribed by a medical practitioner or not used in accordance with prescribed use. The new law made changes with respect to independent medical evaluations, pre-existing conditions, vocational rehabilitation, and commencement date for the payment of permanency benefits.

Legislative changes will most certainly result in a very significant decrease in the value of claims.


Call Lee Hook with any questions @ 515-243-2100.  We’d be happy to help, whether it be a quick or a complex issue!.

 

 

 

 

 

 

 

Whitney Teel prepared a chapter in “Workers’ Compensation Emerging Issues Analysis”, 2017 edition. Whitney analyzed the 2017 trends and developments in Minnesota Workers’ Compensation law.

 The Co-editors-in-chief are Thomas A Robinson of LexisNexis and the National Workers’ Compensation Defense Network (NWCDN). CWK is the Minnesota representative for NWCDN.

 This is an excellent book which is an essential tool for attorneys, risk managers, and insurance professionals. The book is a reference guide to issues and cases as well as a 50 state survey of trends and developments.

 You can purchase this tool here http://www.lexisnexis.com/wcrisk or by calling 1-800-223-1940 (mention WCRisk to receive a discount).

The California Insurance Commissioner has approved the admission of Golden Bear Insurance Company to sell “cannabis business insurance” in the state. The insurance is intended to provide coverage to the cannabis industry, including coverage for workers in the industry. The filing, the first of its kind nationwide, raises a number of questions including: will “cannabis business insurance” cover the “gaps” provided by workers’ who are intoxicated on marijuana? Will it cover slow-downs in productivity from using the product? Will it cover vending machine abuse by workers with the munchies? Inquiring minds want answers to these questions and we look forward to California providing them. HT:Insurance Journal.

The work day begins once the employee arrives at the office and thereafter any travel home which furthers the affairs of the employer is within the “course and scope” of employment. Recently, the Appeals Panel addressed this situation where an employee arrived at work, but left shortly after to return home to retrieve a work laptop he had forgotten. While on the way home, the employee was killed in a motor vehicle accident. The Appeals Panel determined the work day started when the employee arrived at his office and that his travel to and from his residence to retrieve the work laptop (which was necessary for the performance of his duties) was within the course and scope of employment. Unlike in a “coming and going” situation, the travel in this case was not simply transportation to and from the workplace, but rather was travel that both furthered the employer’s business andoriginated in the business. – Appeal No. 171936, decided October 5, 2017.

The general rule in Texas is that a Carrier is not liable for workers’ compensation benefits when a worker is injured while traveling to or from work. The “coming and going” rule, as it is known, was recently applied by the San Antonio Court of Appeal to uphold the Division’s denial of death benefits to the widow of Robert Estrada, a worker who was killed while traveling from his home to work to drop off his weekly timesheets while on his way to a jobsite.

In its decision, the appellate court explained that an activity is in the “course and scope” of employment, if itoriginates in the employer’s business and furthers the employer’s affairs. The court focused on the “origination component” and found that Mr. Estrada’s travel to his office did not originate in the employer’s business. The employer did not require its employees to start or end their day at the office, but rather, their work day began at the jobsite. Additionally, the employer exerted no influence on Mr. Estrada’s route to work, and Mr. Estrada could have delivered his timesheets in some other manner, including using a fax machine at the job site or sending them with another employee. Moreover, Mr. Estrada was not on a “special mission” in delivering the timesheet. Finally, the employer did not furnish Mr. Estrada with transportation or reimburse him for his travel. While it did provide a stipend for gas, the stipend was an “accommodation,” not a “necessity,” and there was no evidence that Mr. Estrada was required to use the stipend for gas or for any other specific purpose.

Ultimately the appeals court upheld the Division and trial court’s ruling that Mr. Estrada’s travel was not in the course and scope of his employment, stating that the risks to which he was exposed while traveling to and from work were shared by society as a whole and did not arise as a result of the work of his employer.  – Fuentes v. Texas Mutual Ins. Co., No.04-16-00662-CV, 2017 WL 4942859 (Tex. App.—San Antonio Nov. 1, 2017).

The American public is aware of the rapidly escalating opioid crisis sweeping the country. According to the Center for Disease Control, fifty-three thousand Americans died from opioid overdoses in 2016, which is more than people who died in car crashes or from gun violence in 2015. Bringing attention to the issue, New Jersey Governor Chris Christie reports that opioids kill roughly 142 Americans every day, which he describes as “September 11th every three weeks.” In late October, President Trump declared the opioid crisis a Public Health Emergency and vowed to alleviate the scourge of drug addiction that has affected every demographic. But what does this actually mean?

By acting through the Public Health Services Act, President Trump directed the Acting-Secretary of Health and Human Services to declare a nationwide health emergency, a designation that will not automatically be followed by additional federal funding. Instead, the order will expand access to tele-medicine in rural areas, instruct agencies to curb bureaucratic delays in dispensing grant money, and shift some federal grants toward combating the opioid crisis. 

The order allows Congress to fund the Public Health Emergency Fund and to increase federal funding in year-end budget deals currently being negotiated on Capitol Hill. The biggest concerns remain whether President Trump will follow through on a nationwide health emergency declaration and how many toes he is willing to step on to do it.

“Copy and paste” reports are not just for college kids on tight deadlines anymore. Recently, we have noticed that some medical providers are copying and pasting, word-for-word, their causation opinions from unreliable web sources. One such instance was identified by our own attorneys, Robert Greenlaw and Amanda Schwertner, while preparing for a hearing in Weslaco. The “Letter of Causation” provided by an Edinburg chiropractor lifted several large blocks of text—verbatim—from several webpages, two of which were written by two different personal injury attorneys in California. (Both of the lawyers’ websites urge the reader to call their offices for a free consult regarding their claim – Call Now!) This particular chiropractor also lifted several text blocks—verbatim—from the websites www.shimspine.com and www.patient.info. These latter websites warn that the information provided is not medical advice and should not be used for diagnosis or treatment of medical conditions. Moreover, the information fromwww.patient.info is based on UK and European Guidelines, not the US or accepted worker’s compensation guidelines.

 

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Everything Old is New Again: Board Releases “Revised” SLU Impairment Guidelines on 11/22/17 for Public Comment

 

On 11/22/17, hours before the start of the Thanksgiving holiday, the Board issued itsrevised Impairment Guidelines for schedule loss of use and proposed regulations viaSubject Number 046-1005. In a complete departure from the draft proposed guidelines that the Board issued on 9/1/17 (to which the Board has removed access to from its website), as well as the statutory mandate contained in WCL §15(3)(x), the new revised guidelines are nothing more than the current guidelines that have been in place since 1996 in a new package with a few minor tweaks that will do little to control schedule loss of use (SLU) costs. The regulations that the Board proposed on 9/1/17 that addressed changes to the SLU process, IMEs, and other things have been eliminated and replaced with a new Section 325-1.26 which incorporates the proposed 11/22/17 Impairment Guidelines by reference and requires their use in all evaluations for schedule loss of use. Our summary comments are below; for a more detailed analysis, please read our Summary and Analysis of the 11/22/17 Proposed SLU Guidelineshere.

In April 2017, the Workers’ Compensation Law was revised to include a new WCL §15(3)(x), which required the Board to adopt new permanency guidelines by 1/1/18 for calculation of schedule loss of use that are “reflective of advances in modern medicine that enhance healing and result in better outcomes.” Arguably, the draft guidelines released on 9/1/17 addressed this statutory requirement in providing SLU guidelines that, in general, resulted in markedly lower SLU awards. Rather than relying primarily on loss of range of motion, the 9/1/17 Guidelines ranked injuries according to their severity into A, B, and C groupings to establish a baseline schedule loss. After the initial grouping, the examiner would then be required to analyze loss of range of motion, loss of function, and pain. This analysis would then be combined with the Board’s determination of the claimant’s loss of earning power to determine the final schedule loss of use award. This multi-factored analysis was designed to be reflective of “better outcomes” in healing that one might expect in the 20 years of medical advances since the publication of the 1996 Guidelines. The 9/1/17 draft Guidelines rejected the simple range-of-motion analysis from the 1996 Guidelines and emphasized that determination of SLU was a legal determination based in part on medical evidence and in part on an analysis of the claimant’s “loss of earning power.” The 9/1/17 draft guidelines were met with vociferous opposition from labor and the claimants’ bar.  

Rejecting the new system envisioned by the 9/1/17 draft guidelines, the 11/22/17 revised guidelines return to the 1996 Guidelines, but in a somewhat easier to understand package that attempts to clarify a few ambiguities. As noted above, the 11/22/17 proposed guidelines will result in largely the same awards for SLU as under the current 1996 Guidelines. The primary calculation is based on loss of range of motion. The proposed guidelines contain helpful diagrams illustrating the various motions used in evaluating schedule loss of use. Each section of the proposed guidelines states that the examiner should first assess whether any special considerations apply. If so, then the schedule loss of use enumerated in the special consideration should apply without any addition for loss of range of motion unless the special consideration requires it. If the special consideration is silent on schedule loss of use value, then the examiner can consider loss of range of motion. If no special consideration applies, then the SLU analysis is based solely on loss of range of motion, using the chart provided in each section. Again, the percentage SLU values for loss of range of motion are basically unchanged from the 1996 Guidelines. 

These proposed guidelines present little more than the current 20-plus year old SLU guidelines in a new package. They contain some minor tweaks and provide clarification regarding some issues but do very little to address the enormous cost of schedule awards for major extremities in cases with little or no lost time. Despite its flaws, the 9/1/17 Guidelines would have attempted to address this with the “loss of earning power” analysis.

We recommend that our clients strongly oppose the 11/22/17 proposed guidelines. We suggest that the Board return to the 9/1/17 draft impairment guidelines but eliminate the regulations regarding cooperation with IMEs objected to by labor and the regulations restricting the employer's right to cross-examine the claimant objected to by business. The 9/1/17 draft at least appeared to consider "advances in modern medicine" by tying the SLU evaluation to a claimant's medical outcome, rather than a mere loss of range of motion analysis. The 11/22/17 proposed guidelines do not address the statutory requirements of WCL Section 15(3)(x) because they are virtually the same as the 1996 Guidelines and thus cannot be said to be “reflective of advances in modern medicine that enhance healing and result in better outcomes.”

The proposed guidelines only state that examiners “should consider” the limitation in range of motion in the claimant’s uninjured contralateral limb, which indicate that the loss of range of motion in the contralateral limb should be deducted from the calculation of loss of range of motion in the injured limb. Such comparison was not part of the 1996 or 2012 Guidelines but was included in the initial 9/1/17 draft guidelines. The inclusion of this suggestion in both the 9/1/17 and 11/22/17 proposals highlights its apparent importance. At the very least, when submitting comments to the Board, we would urge our clients to recommendrequiring examiners to compare a claimant’s injured limb with the baseline normal range of motion on the claimant’s contralateral limb andmandate that the loss of range of motion in the injured limb be calculated from the baseline range of motion in the contralateral uninjured limb.
 
Additionally, the award for defects in range of motion should never equal ankylosis or amputation of the relevant joint.  To award a person with reduced range of motion, even if it is marked, benefits equal to a person with no movement in the joint or with an amputation, is inequitable and does not accurately represent the functional loss.  For example, range of motion deficits in the hand may not exceed 55% as ankylosis is 60%.  The same result should apply to all joints.  Placing a maximum of 90% of the value of the ankylosed or amputated member would recognize that some movement is better than none, while at the same time, compensating for significant reduction in function.
 
We recommend that our readers take time to provide commentsvia the Board’s online survey, accessible through this link. The Board will close the public comment period on 12/22/17. Although we expect little more than technical changes from the Board when it finalizes these proposed guidelines, there will be no change at all unless Board hears comments from its stakeholders. 

 

Appellate Division Split Decision Creates New Standard for Permanent Total Disability

 

On 11/16/17, the Appellate Division, Third Department, decided Wohlfeil v. Sharel Ventures, LLC. This split 3-2 decision represents a marked departure from previous practice and precedent on how non-statutory permanent total disabilities are determined. Because it is a 3-2 split decision, the employer and carrier have an appeal as of right to New York State’s highest appellate court, the New York Court of Appeals. It is unknown at this time if the carrier/employer will pursue such an appeal.

At issue was a claim for permanent total disability versus permanent partial disability.  Claimant’s treating physician issued a report with a Class 5F permanent partial disability ranking under the 2012 Guidelines. He also opined a "less than sedentary" work capacity. The carrier’s IME consultant opined a Class 4G permanent partial disability under the 2012 Guidelines.  During deposition testimony, the treating physician said that he gave the claimant, “rather significant restrictions” and that the claimant was “not…capable of performing any type of gainful employment at this time.” The carrier’s IME consultant testified during his deposition that “It was unlikely claimant would ever be able to return to meaningful employment.”

The WCLJ classified claimant with a permanent partial disability and a 75% loss of wage earning capacity. A three-member Board Panel affirmed on appeal. 

The Appellate Division majority reversed, relying on the above statements from the physicians. The Court stated, “Since the Board’s findings as to claimant’s ability to perform some type of sedentary work are contrary to the consistent medical proof presented, the Board’s finding of a permanent partial disability and a 75% loss of wage earning capacity is not supported by substantial evidence….”  Had the Court stopped there and remanded the case for further proceedings regarding claimant’s exertional capacity, this decision would be arguably consistent with previous precedent. However, the Court went a step further and classified claimant with a permanent total disability, stating, “The operative standard here isgainful employment, not some undefined type of limited sedentary work.” (emphasis added). The Court did not define the term “gainful employment.” This statement departs from past precedent, because a claimant has always been considered partially disabled if there is any form of work he or she can do, however limited.  The “gainful employment” standard described by the Court here represents a re-definition of the standard for finding total disability.

Both physicians opined permanent partial disabilities under the Board’s 2012 Guidelines in their reports and only opined total disabilities off-the-cuff during their depositions. The Board's decision finding a 75% loss of wage earning capacity was based on the 2012 Guidelines. The Board is entitled to apply the Guidelines it has promulgated to ensure consistency in disability assessments. The Court’s decision conflicts with previous precedent holding that the Board, in its role as fact finder, is entitled to selectively adopt and reject portions of medical opinions and testimony so long as the final result is based on substantial evidence. In this case, the Board rejected the total disability statements from the treating physician and IME consultant and credited the permanent partial disability assessment from the treating physician based on the 2012 Impairment Guidelines. If previous precedent were applied here, this decision should have been affirmed as a legitimate exercise of the Board’s fact-finding powers to selectively adopt and reject portions of an expert’s medical opinion.

The Court’s decision is further inconsistent with its previous holding inBurgos v. Citywide Insurance Program, which held that a claimant’s exertional ability is irrelevant to the degree of medical impairment.  In that case, the Court rejected a claimant’s argument that a less than sedentary exertional capacity represents a de facto permanent total disability.  Ironically, the New York Court of Appeals, affirmed the Appellate Division’sBurgos holding the very day the Appellate Division issued this decision.  The Court’s decision here appears to rely heavily on the treating physician’s testimony that claimant has a less than sedentary exertional capacity.  In this vein, the “gainful employment rather than some undefined type of limited sedentary work” standard appears to establish ade facto permanent total disability in cases where a claimant has a less than sedentary exertional capacity in direct contravention to the Court’s holding inBurgos.

The Court’s holding also blurs the distinction between the medical issue of permanent total disability and the functional/vocational issue of total industrial disability.  Permanent total disability is purely a question of medical impairment whereas total industrial disability applies to permanently partially disabled claimants who meet various requirements for functional and vocational limitations.

 

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