State News

It's almost time to register for the 36th Annual AWCO Spring Conference to be held May 4-5, 2017 at the Hyatt Wynfrey Hotel! Online registration will open March 1, 2017 on the AWCO web site atwww.awcotoday.com. You can register and pay online, register as a member with no fee or print the paper registration to be mailed in. Online registration will remain open through April 30, 2017. On site registration will be available, but pre-registration is strongly encouraged to avoid long lines. 

The conference is FREE to all paid members. The cost of an annual membership is $75 whereas regular conference registration is $100.  This amounts to a no brainer.  Membership does not automatically register you for conference attendance. Please note, members MUST register to attend the conference. Registration can be completed online with no associated cost. Membership is open on the web site through 2/28/17 for those who have not yet completed the application. Memberships received after 2/28/17 are not eligible for free conference registration. 

Thursday evening features a Casino night including a silent auction for the Cystic Fibrosis Foundation.  We hope to see you there!

---------------------------

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.

Recently, the Minnesota Supreme Court reversed a decision by the WCCA and held that a psychological examiner had adequate foundation to provide an expert opinion regarding a concussion and post-concussion syndrome. In the case, an employee injured her head in the scope of employment, and filed a medical request seeking coverage for various treatments. Following the hearing, the compensation judge denied the employee’s medical request and found that she had not sustained a concussion or post-concussive syndrome. The compensation judge relied heavily on the opinion of a psychological examiner in ruling in favor of the employer and insurer.

 The employee filed an appeal to the WCCA, which reversed the compensation judge’s decision. The WCCA found that the psychological examiner lacked foundation and was not competent as an expert. The issue of competence was never raised on appeal. The WCCA brought it up sua sponte (“on their own”), and ruled in favor of the employee after second-guessing the decision of the compensation judge.

 The case was then appealed to the Minnesota Supreme Court, which reversed the WCCA’s decision. The Court found that the WCCA erred when it ruled on the issue of the psychological examiner’s competence. Pursuant to Minn. Stat. 176.421, Subd. 6, the WCCA is “limited to issues raised by the parties in the notice of appeal” and therefore should never have raised the competence issuesua sponte. Furthermore, the Court indicated that it was frankly perplexed at the WCCA’s opinion that the psychological examiner did not have adequate foundation. The Court made it clear that the WCCA should not have second-guessed the compensation judge, and ultimately ruled in favor of the employer and insurer.

 The case is Gianotti v. I.S.D. 152, A16-0629 and can be found here: http://mn.gov/law-library-stat/archive/supct/2017/OPA160629-020817.pdf

 This article was prepared by Parker T. Olson and edited by Michael R. Johnson.

Please find the link below to Thomas Coleman's law review article entitled, "The Fundamentals of Workers' Compensation in Minnesota." It is a comprehensive overview of Minnesota Workers' Compensation Law and provides an in-depth look into developing case law and rules. Feel free to reach out to Thomas Coleman, shareholder at Cousineau, Waldhauser, & Kieselbach, P.A. with any questions.

http://open.mitchellhamline.edu/cgi/viewcontent.cgi?article=2901&context=wmlr 

In this case, the employee was a registered nurse.  At the time of the injury, the employee was sharing information regarding patients with the oncoming shift nurses.

There was a code called, causing the employee to rush to it.  It turned out to be a “mock code,” which required the employee’s response as if in an emergency situation. 

After the code was over, the employee chose to take the stairs to her work station, rather than the elevator.  She “rushed up” the stairs to return to the nursing station as soon as possible to complete her report. On her way, she fell and injured her shoulder.

There is no evidence that there was debris or moisture on the steps.  The lighting was adequate. Primary liability was denied based upon a lack of increased risk per Dykhoff. 

At the Hearing, the compensation judge found the employee was not a credible witness when she stated she felt pressured to rush up the stairs because of hospital policy regarding overtime.  The judge found that that there was no arising out of and denied the claim.

The W.C.C.A. reversed the findings of the compensation judge and found the injury compensable.

The W.C.C.A. noted that there was no contention of defective stairs.  The issue was whether the employee’s employment increased her risk of injury.  There was a finding that the employee was “rushing up the stairs” because she felt pressure to do so because of hospital policy discouraging overtime.  The W.C.C.A. professed to defer to the compensation judge’s credibility determination.  However, they noted the employee claimed that she was fatigued due to her work schedule and had heavy legs and secondly that she felt she was rushed to complete her job and was injured as a result.

The court noted that when fatigue arises from the employee’s work activities resulting in injury, fatigue meets the criteria of increased risk to satisfy the arising out of standard.  Likewise, hurrying or rushing on the job is found to be “arising out of” if it results in injury to the employee. The evidence was uncontroverted that the employee was suffering from fatigue and hurrying.

This case has been appealed to the Minnesota Supreme Court.

The employee worked as a painter for the University of Minnesota.  On the date of injury, she parked at the Oak Street Ramp, a facility owned and operated by the University of Minnesota.  The ramp was available to University employees and the public.  The ramp was located less than three blocks from the building where the employee was working.  At the end of work, the employee punched out and was walking to the parking lot at the Oak Street Ramp.  Her entire route was on U of M campus premises. 

The weather was bad and had been snowing and sleeting that day.  The employee slipped and fell at an intersection with an incline suffering work injuries.  Primary liability was denied for the injury per Dykhoff.

The Workers’ Compensation Court of Appeals reversed the compensation judge’s finding that the injury did not arise out of her employment with the employer.  The court distinguished the Dykhoff case in that there was no incline, the floor was not wet, and there was no debris on the floor in Dykhoff. 

The W.C.C.A. noted that arising out of means that there must be some causal connection between the injury and the employment.  The employment must:

1. Expose the employee to a hazard which originates on the premises as a part of the working environment; or

2. Particularly expose the employee to an external hazard whereby the employee is subjected to a greater risk than had he been pursuing ordinary personal affairs (special hazard). 

The W.C.C.A. held that the special risk or special hazard doctrine applies only in those cases in which the employee is injured off the employer’s premises.

If the employee suffers a work injury on the work premises, the employee need only establish an increased risk of injury from the employment.  In other words, there is an increased risk of injury on the employee’s premises because the employee is an employee and the injury follows from that risk.  The court held it is irrelevant if members of the general public might encounter the same risk because they were not brought to that risk by the job. 

The court cited Foley v. Honeywell which held that an injury on the employee’s premises arises out of the employment if it occurs as a result of an increased risk of injury while the employee is going from one part of the premises of the employer to another, even if it occurs on a public street.

This case has been appealed to the Minnesota Supreme Court.

This case involves an interpretation of Minn. Stat. §176.021 which contains an exclusion from workers’ compensation coverage for employee’s who participate in a “voluntary recreational program."

In this case, the employee attended an annual employee recognition event, which was deemed to be voluntary by the employer. However, if the employee elected not to attend this event, he/she would not receive any pay and he would have to use vacation time.

The employee was injured at the event while participating in laser tag event.

The court found that the employee had sustained a compensable work injury. The court held that the employee sponsored event was not voluntary as the employee’s options were limited to:

1. Attending the program and getting paid; or

2. Not attending the program and forfeiting pay or benefits.

A recreational program sponsored by the employer is not “voluntary” when the employee risks forfeiting pay or benefits if he/she elects not to attend the program.

The court further held that even though the employee “voluntarily” participated in the laser tag, the injury was still compensable. The court distinguished a term “program” which is a collection of activities versus an individual activity within the program.

In this case, the employee commenced a cause of action against the employer. Two intervenors filed Petitions to Intervene in the proceeding, but failed to attend the hearing before the compensation judge.

The Minnesota Supreme Court held that Minn. Stat. §176.361 subd. 4, unequivocally requires intervenors' attendance at court proceedings unless a Stipulation has been signed and filed or the intervenor’s right to reimbursement has otherwise been established. Further, failure to appear at court preceding’s shall result in a denial of the intervenors' claim(s).

The court noted that for purposes of statute, attend and appear are synonymous.

New Jersey employers know that they have a right to subrogate against the party who caused injury to their employee to recover workers’ compensation benefits paid, but they must wait one year before taking any action.  After one year, if the injured worker has not pursued a third party action, the employer must make a written demand on the injured employee giving the employee 10 days to pursue such action, or else the employer will file it in his or her name.  But what if the employer neglects to send the 10 day letter and then tries to bring suit?

That was the precise issue in Hartford Underwriters Insurance Company v. Jacquelin Salimente, A-3687-14T2 (App. Div. February 6, 2017).  A Hartford insured employee, Mishkoff, had been injured in a work-related accident by Salimente, who had lost control of her vehicle, causing injuries to Mishkoff.  But Mishkoff never filed suit against Salimente.  On the last day that the statute would have run, Hartford filed suit (failing to sue in Mishkoff’s name) against Salimente to protect its lien of $16,332.79 for workers’ compensation payments it had made to Mishkoff.  However, Hartford failed to provide proof that it had issued a 10-day notice.  Salimente’s carrier moved to dismiss the case for failure to comply with the statute under N.J.S.A. 34:15-40.  The trial judge dismissed Hartford’s suit, and Hartford appealed.

The Appellate Division reviewed old case law indicating that the 10-day notice can be waived, particularly where the carrier notified the injured worker of his right to sue.   Hartford produced two letters, one to Mishkoff two months after the accident and then other to Mishkoff’s counsel 18 months afterward.  In the first letter, Hartford informed Mishkoff of its subrogation rights and asked him whether he intended to pursue a third-party action.  In the second letter, Hartford asserted its subrogation rights, and it requested that Mishkoff advise whether he was pursuing a third party action.  Unfortunately, these letters were not produced by Hartford at the time of the initial hearing in Superior Court.  Had they been timely produced, perhaps the trial judge would not have dismissed Hartford’s case.

The Appellate Division considered Hartford’s motion to reopen the record and agreed that the case should not have been dismissed because the purpose of the 10-day letter is to inform the injured worker of his or her rights to pursue a third party action.  The letters that Hartford wrote to Mishkoff satisfied this purpose.  Therefore the Appellate Division allowed Hartford to pursue the third party claim on behalf of Mishkoff.

-----------------

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. 

Over the years, an Alabama pain management doctor built a reputation for prescribing large quantities of opioid medications out of his Huntsville office, and his patients included many workers’ compensation claimants.  In 2012, he prescribed over 12.3 million pills, many of which authorities say should have never been prescribed.  Additionally, it was determined that he defrauded Medicare and private insurers out of at least $9.5 million. 

In October 2016, the doctor pleaded guilty to illegally writing prescriptions, and to health care fraud. Prior to his arrest, he was once considered the nation’s most prolific Medicare prescriber of opioid painkillers.  Now, he will spend the next 15 years in federal prison and has to pay $6.7 million in restitution to Medicare and Blue Cross Blue Shield of Alabama.

It’s no secret that “pill mills” have long been a problem in Alabama.  A 2013 study by the Centers for Disease Control and Prevention found that Alabama was among the top 20 states nationally in the number of prescription drug overdoses.  In response to that report, the Alabama Legislature passed The Alabama Pain Management Act and made changes to the laws that pertain to the Alabama Department of Public Health’s Prescription Drug Monitoring Program.

My Two Cents

The Prescription Drug Monitoring Program includes a database where doctors can determine what prescription drugs a patient has had filled by other doctors.  It can be a very useful tool for doctors to identify patients that are “doctor shopping” to obtain prescription painkillers.  Only doctors can access the database, and they cannot share the information that they obtain.  However, it is a good idea for claims professionals to insist that the physicians they select to treat claimants review the database, at least on suspect claims.

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 atcdrummond@fishnelson.com or (205) 332-3414.

Please clink the link below to see a comprehensive overview of Workers' Compensation in the state of Minnesota, courtesy of Cousineau, Waldhauser, & Kieselbach. P.A. It contains information on the following topics: Types of Injuries Triggering Liabilities, Common Defenses, Employee Deadlines, Payment Deadlines, Significant Dates of Benefit Changes, Compensation Rates, Adjustment of Benefits under M.S. 176.645, PPD Schedule, Supplementary Benefits, Interest Calculations, Settlements, Stipulation for Settlements, Third Party Action, and the Special Compensation Fund.

The Reference Sheet was prepared by Associate Parker Olson. Please contact him with any questions you may have. Parker.Olson@cwk-law.com   (952) 525-6930

http://cwk-law.com/wp-content/uploads/2017/02/Minnesota-Workers-Compensation-Law-Reference-Sheet-3.pdf