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.
An attorney was denied coverage under their professional liability (PL) policy for failing to provide notice to the carrier. The attorney was sued after he failed to timely appeal a workers’ compensation claim (despite being instructed to appeal by the client), and he sought defense under the PL policy. The attorney had answered ‘no’ in the application and subsequent renewal applications for the PL policy as to whether he had knowledge of any circumstances that could result in a professional liability claim (ignoring the potential suit for his failure to timely appeal). The court found that his answers were material misrepresentations and declared the policy rescinded. Liberty Mut. Underwriters, Inc. v. Wolfe, 2017 WL 481468.
David Mattox has been appointed by Governor Abbott to continue serving as Commissioner of Insurance through February 1, 2019. He has been serving in that role since January 12, 2015. Before the Texas Department of Insurance, Mr. Mattox was with the Office of the Attorney General.
The 85th Texas Legislature is in session, and many of our representatives have an eye on issues affecting the world of workers’ compensation.
Commissioner Brannon has recommended that the Division’s Fraud Unit be granted authority similar to that of the TDI’s Fraud Unit. There are two broad proposals: (1) an assistant district attorney employed and funded by the Division that local district attorneys would be able to authorize to operate in their county; or (2) establishing a special prosecutor in Travis County. The Commissioner also seeks authority to investigate workers’ compensation fraud and to share the results with other agencies without the fraud investigation being subject to open records requests.
It is also recommended that the Legislature clarify a party’s duty to file any proposed judgment or settlement with the Division in judicial review actions. Specifically, the Commissioner seeks clarification that agreed judgments, voluntary dismissals, summary judgments, and judgments on the merits must all be filed with the Division for approval. The Division would also like a description of the terms of any settlement or agreement to be filed, including any anticipated payments and how the Division’s decision would be reversed, affirmed, or modified.
Not to be left out of the action, the Office of Injured Employee Counsel would like to eliminate the requirement that ombudsmen have at least 1 year of workers' compensation experience. They would also like the authority to request causation opinions from physicians for which the insurance carrier would be obligated to pay, and Senate Bill 1035 would amend section 408.0273 of the Labor Code to provide for the causation reports.
New back pain guidelines from the American Academy of Physicians counsel against prescribing pain medications. Chronic back pain should be treated with OTC medication and regular activity, not prescription pain meds. This is refreshing news for those of us on the front lines of the opioid epidemic. The study also confirmed what many of us already suspected . . . steroid injections provide little, if any, therapeutic help, and diagnostic MRIs are virtually useless to identify disc pathology caused by a work injury. The new guidelines have yet to be adopted.
Dallas-area surgeon Christopher Duntsch, a/k/a Dr. Death, was sentenced to life in prison for injury to an elderly individual, a first degree felony. The victim lost a third of her blood and the use of both legs. Dozens of surgery patients testified at the sentencing phase of his trial as to how he maimed them. Patients presented to Duntsch to address back problems and instead left his care disfigured or unable to move. Many patients are now left with chronic, debilitating pain. At least two patients died as a result of Duntsch’s actions. The lawyer representing Duntsch argued his client was merely incompetent, but in a chilling e-mail, Duntsch stated that he wanted to “become a cold blooded killer.”
Forest Park Medical Center was caught looking to put “more bodies on the table,” and they were willing to pay for those bodies. Payments were issued to doctors based on the number of surgeries that the doctor would steer to or perform at the medical center. Twenty-one individuals have been charged in the scheme, and 3 of those have already pled guilty. The medical center’s former owners allegedly paid approximately $40 million in payments and gifts in exchange for patient referrals. The scheme was allegedly hatched by two of the co-conspirators while they worked together at the now defunct Vista Hospital.
Dr. Gerald Foox, whose name many of you may recognize from workers’ comp claims, received approximately half a million dollars in the scheme. He is free on bail after attempting to flee to Panama. Dr. Foox was vacationing in Canada when he was indicted, and flew to Panama to avoid arrest. However, the good doctor was on a watch-list. He was deported to the US and was arrested by the FBI upon landing. After fleeing the indictment, guess how much did Dr. Foox had to put up for bail? $15,000,000!
SLS is proud to announce the unveiling of our new website! While the website is brand new, it can still be found atwww.slsaustin.com. We have been updating our look, and you may have noticed a new format to the newsletter and our new signature blocks. Our new website completes the transition to this new brand for SLS.
Senator Arthur Orr (R, Decatur) recently introduced SB-89, which would limit employers’ liability for permanent total disability benefits. Currently, an employer must pay permanent total disability benefits for as long as the employee remains permanently and totally disabled. SB-89 would amend § 25-5-57 (a)(4) a. of The Alabama Workers’ Compensation Act to provide that permanent total disability benefits would terminate upon the later of the employee’s 65th birthday, or 500 weeks after the date of injury. Additionally, SB-89 would amend § 25-5- 77(j) of The Alabama Workers’ Compensation Act to create a rebuttable presumption that medical treatment is not related to the work injury when the employee does not receive medical treatment related to the claimed injury for a period of two years. In addition, the employer’s obligation to provide treatment would conclusively end if the employee does not receive medical treatment related to the claimed injury for a period of four or more years. SB-89 was first read in the Senate Fiscal Responsibility & Economic Development Committee on February 7, 2017.
Senator Orr also introduced SB-196, which would amend Alabama Code § 13A-11-124 to (1) expand the type of activity related to workers’ compensation fraud that is subject to criminal penalties; (2) authorize an award of civil damages to employers and insurers damaged by fraudulent claims; (3) allow the Department of Labor to immediately terminate compensation payments upon a determination of fraud; and (4) provide for the repayment of fraudulently obtained workers’ compensation benefits (with interest). Under SB-196, it would be a class C felony to (1) knowingly make a false or misleading statement, representation, or submission concerning any fact that is material to a workers’ compensation claim; (2) coerce, solicit, encourage, or employ another to make a false or misleading statement concerning a fact material to a workers’ compensation claim or the payment of compensation or premiums; (3) present multiple claims for the same injury; (4) fabricate, alter, conceal, or destroy a document; or (5) attempt to obtain treatment or compensation for body parts that were not injured in the course and scope of the employment. SB-196 was first read in the Senate Fiscal Responsibility & Economic Development Committee on February16, 2017.
Continue to follow our blog for updates as these bills are debated in the legislature.
My Two Cents
The limitation on permanent total disability benefits makes a lot of sense, since employees are generally eligible for Social Security benefits in the mid-late sixties. If SB-89 becomes law, the costs of workers’ compensation insurance should decline, which could make Alabama more attractive to businesses looking to expand or relocate. Unfortunately, it will not likely pass because of the portion of SB-89 that seeks to cut off medical benefits after extended periods without treatment.
SB-196 would give Alabama one of the most aggressive anti-fraud laws in the country. If it becomes law, it could lower insurance costs by deterring fraud. However, like any criminal statute, how well it deters crime will depend primarily on how aggressively it is enforced.
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About the Author
This article was written by Charley M. Drummond, Esq. of Fish Nelson & Holden, LLC. Fish Nelson & Holden is a law firm located in Birmingham, Alabama dedicated to representing employers, self-insured employers, and insurance carriers in workers’ compensation cases and related liability matters. Drummond and his firm are members of The National Workers’ Compensation Defense Network (NWCDN). The NWCDN is a national and Canadian network of reputable law firms organized to provide employers and insurers access to the highest quality representation in workers’ compensation and related employer liability fields. If you have questions about this article or Alabama workers’ compensation issues in general, please feel free to contact the author at cdrummond@fishnelson.com or (205) 332-3414.
On January 23, 2017, the WCAB issued an en banc decision in the case ofMaxham v. California Department of Corrections and Rehabilitation, SCIF that provides insight as to whether a party may provide an advocacy letter to a med-legal physician over an opponent’s objection. The short answer to this question is one that lawyers and clients hear too often: it depends.
The Board provided the parties with two holdings as follows (verbatim):
So, what does this mean? First, for the purposes of this case, it’s best to understand “information” as evidence—whether medical or non-medical. Second, it’s best to understand “communication” as an advocacy letter for the purposes of this case as well as for the purposes of what we do on a daily basis.
To boil the holding down, the Board essentially defined “information” as either medical or non-medical evidence, and it explained that an advocacy letter can transform into evidence if it “contains, references, or encloses” any medical or non-medical evidence. Thus, for all intents and purposes, the Maxham case supports the notion that any advocacy letter worth its salt will always “transform” into evidence because, after all, if there is any reference to medical or non-medical evidence (including any information found in pleadings, such as an applicant’s occupation, age, mechanism of injury, etc.), then such a letter becomes evidence by way of merely mentioning other evidence. In fact, under this decision, the only way that an advocacy letter could not transform into evidence is if it simply identified the name of the alleged injured worker, authorized the doctor to see the applicant on a med-legal basis, and asked the doctor to address med-legal issues; such a letter could hardly be deemed an “advocacy” letter, though, because there is no advocating for any position whatsoever is such correspondence.
Please note that, technically, the Maxham case only dealt with letters that are sent to AMEs, but the case law can easily apply to cases where PQMEs are used.
In order to not be disheartened by the holdings in the Maxham case, it is important to read the case in its entirety. The Board engages in a dance of sorts. It explains that, even if a letter becomes evidence, there is a follow-up inquiry that must be made: “Is a party prevented from sending such a letter to a med-legal physician?” The answer depends upon whether the evidence mentioned in or attached to the letter has been agreed upon (in the case of an AME) or, as an extension of the case, whether the evidence has been properly and timely objected to (in the case of a PQME). TheMaxham case explains that, so long as the evidence in an advocacy letter has been agreed upon when there is an AME, then a party can send a letter to the AME that mentions or encloses such evidence, regardless of whether an opposing party objects to the letter.
The Labor Code and regulations provide that, when an AME is used, any medical and/or non-medical evidence must be agreed upon by both parties before it can be sent to the AME. Contrastingly, when a PQME is used, the standard is different; the opposing party only has the right to object to non-medical evidence within 10 days after service. If the opposing party fails to object timely, then, by default, the party may send all proposed evidence to the PQME.
It would follow then that, from the Maxham case, we can extrapolate rules that would apply in cases where a PQME is used. Hence, letters to a PQME can be sent to the med-legal physician, regardless of any objection by opposing counsel, so long as the letter only contains evidence to which the opposition has not properly and timely objected.
If opposing counsel fails to agree to evidence (in the case of an AME) or timely objects to non-medical evidence (in the case of a PQME), then the party wishing to present such evidence to the med-legal physician should file a DOR on the issue in order for a judge to determine whether such evidence may be sent to the physician.
The good news is that the Maxham case allows for advocacy letters to be sent to med-legal physicians regardless of any objection by opposing counsel, so long as the letter contains evidence that is not in dispute. Indeed, the Board explained inMaxham that the parties are within their rights to make legal arguments about undisputed evidence, and that is a good thing for all parties involved. After all, the legal system is set up to be an adversarial one for the benefit of the parties.
If you have any questions regarding the Maxham case, please contact Jessie Zaylia atjzaylia@hannabrophy.com.
The Fraternal Order of Police and certain police officers challenged the City of Camden Police Department for allegedly retaliating against certain officers who complained about city policies. One of the allegations involved the Family and Medical Leave Act. The city initiated a policy called “directed patrols” in 2008. That policy required officers to engage with city residents who were not suspected of any wrongdoing with the goal of obtaining information about the community and becoming more visible in the community. Contact with individuals on directed patrols was tracked and recorded.
Several officers complained about the policy and alleged that they were then placed on a low-performer list for failure to comply with the policy. Some were allegedly reassigned to regular patrol duty with a resultant pay decrease. The City responded that it expected a minimum of 27 directed patrols per shift for officers on supplemental patrol and 18 for officers on regular patrol. The City argued that it did not require an impermissible quota of arrests or citations, just a permissible quota for interactions with the public.
One officer whose performance lagged in the directed patrol policy claimed that he was approved for FMLA leave to care for his seriously ill mother in May 2009 but reprimanded for using too much time on May 27th . Then on June 17th he received a letter from a Lieutenant stating that he was being placed in the “Chronic Sick Category.” The officer also complained that Camden staff visited him at home while on leave. He argued that the City was interfering with his rights to use FMLA leave.
The City conceded that there was an internal miscommunication between one branch of the department, which knew the officer had approved FMLA leave, and another branch which did not. The City contended that it was not trying to deter the officer from using his FMLA rights.
The Third Circuit Court of Appeals held, “Camden officials only visited Officer Holland once while he was on leave, and we agree that this was minimally intrusive.” The Court added, “Although we are sympathetic to Officer Holland’s family situation, there is no right in the FMLA to be ‘left alone.’” It added, “Camden’s actions may have been insensitive, but they were not beyond the limitations the FMLA places on employers attempting to manage their workplaces.”
The Court went on to state that it found no particular harm done to Officer Holland. It cited the case of Shtab v. Greate Bay Hotel, 173 F. Supp. 2d 255 (D.N.J. 2001). “Shtab does not support Officer Holland’s claim that reprimands such as those he alleges can, on their own, support relief under the FMLA. Rather, they must occur in tandem with actual harm. Officer Holland does not allege he was actually denied FMLA leave. In fact, he concedes that he was able to take time off to care for his mother.” The Court therefore affirmed the dismissal of the FMLA claim.
This case can be found at FOP v. City of Camden, 842 F.3d 231 (3d Cir. November 17, 2016). The holding is consistent with other federal cases that have held that while someone is on FMLA, the employer has a right to require that employees call in and follow employer policies. The Court here found that one visit to the employee probably to make sure the employee was not abusing FMLA leave was certainly not intrusive.
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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.