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.
Nermin Awad-El-Hadik, owner of the Hope Pharmacy in Houston, appeared before a U.S. Magistrate Judge in Austin on November 9, 2016 and pleaded guilty to one count of willful offer and payment of illegal remuneration in relation to a federal health care program.
El-Hadik admitted to paying more than $5 million in kickbacks to Austin chiropractor Garry Craighead, D.C. during a short period between March 2015 and December 2015. Craighead operated the Union Treatment Centers with eight clinics in Texas. El-Hadik paid kickbacks to Craighead to refer federally insured employees to her pharmacy to have their prescriptions filled and for influencing physicians to prescribe compounded drugs that would be filled at her pharmacy. She faces up to five years in prison when she appears before Judge Sam Sparks for sentencing.
The wife and children of a deceased claimant brought wrongful death and survival claims against the third-party administrator that adjusted his workers’ compensation claim. The claimant was a ventilator dependent quadriplegic. Attorneys for the wife and children alleged that repeated requests were made to the administrator for a specialized bed for the claimant; that these requests were either ignored or refused; and that the failure to provide the specialized bed resulted in the claimant’s death. The Texarkana Court of Appeals noted that it’s not clear from their allegations whether they received a denial or no response at all. The Court stated that either way though, the matter could and should have been submitted to the Division. Yet, there is no allegation that they even attempted to exhaust their administrative remedies prior to filing suit. The Court dismissed their suit on the grounds that their claims were barred by the exclusive remedy provision of the Texas Labor Code and the wife and children were required to exhaust their administrative remedies. Having failed to do so, the trial court lacked subject matter jurisdiction.
Freeman v. JI Specialty Services, Inc., No. 06-15-00106-CV, 2016 WL 6503847 (Tex. App.–Texarkana, Nov. 3, 2016).
Chiropractic is a form of alternative medicine founded by Daniel David ("D.D.") Palmer at the end of the 19th century. Palmer worked as a magnetic healer prior to founding chiropractic. In 1895, he met a man with severely impaired hearing. Palmer discovered a lump in his back and claimed that he restored the man’s hearing by adjusting his spine. This led Palmer to develop the theory of chiropractic which is that the underlying cause of all diseases of the body is misalignment of the bones, primarily of the spinal vertebrae. Palmer explained, "A subluxated vertebra ... is the cause of 95 percent of all diseases ... The other five percent is caused by displaced joints other than those of the vertebral column." These subluxations of the vertebrae are treated by manipulating the spinal joints to correct "nerve flow." Palmer opened the Palmer School of Chiropractic in 1897 to teach his techniques. The theory of chiropractic does not have a scientific basis yet it has managed to survive to the present. Today, Palmer’s adherents are heavily involved in the examination and treatment of Texas injured workers, with 365 chiropractors certified to perform designated doctor examinations as of September 2016.
On October 19, 2016, Travis County District Court Judge Rhonda Hurley signed a final judgment in favor of the Texas Medical Association (TMA) in its latest lawsuit against the Texas Board of Chiropractic Examiners (TBCE). Judge Hurley declared void TBCE rules that permit chiropractors to make medical diagnoses and to perform vestibular-ocular-nystagmus (VON) testing.
Judge Hurley determined that the TBCE rule authorizing certain chiropractors to perform VON testing exceeds the scope of chiropractic as defined by the Texas Legislature. She also determined that the TBCE’s definition of "musculoskeletal system" to include "nerves," its definition of "subluxation complex" as a "neuromusculoskeletal condition," and its use of the term "diagnosis" in its scope of practice rule, all exceed the scope of chiropractic, and are therefore void.
The TBCE’s website states that the Board voted to appeal Judge Hurley’s decision. If her decision is affirmed on appeal, it could have implications in workers’ compensation cases where a chiropractor diagnoses a condition outside their scope of practice to do so.
TMA previously brought another successful lawsuit against the TBCE challenging its rules that permitted chiropractors to perform needle EMG and manipulation under anesthesia. Travis County District Court Judge Stephen Yelenosky declared the rules void because they exceeded the statutory scope of chiropractic practice and, therefore, constituted the unlawful practice of medicine. The Austin Court of Appeals affirmed, in an opinion issued July 6, 2012.
The Texas Association of Acupuncture and Oriental Medicine has also brought suit against the TBCE. They seek a declaration that the TBCE rule authorizing chiropractors to perform acupuncture is invalid. That case is presently pending in Travis County District Court.
On December 2, 2016, Travis County District Court Judge Stephen Yelenosky will hear the appeal of the decision from the State Office of Administrative Hearings (SOAH) in the lead group of air ambulance fee disputes between various workers’ compensation carriers and PHI Air Medical. SOAH Judge Craig Bennett ruled in favor of the carriers in 2015 when he held that the federal Airline Deregulation Act does not preempt Texas workers’ compensation laws that govern the amount of reimbursement paid to air ambulance providers for transporting injured workers. Judge Yelenosky will decide whether that decision is correct. The Division has intervened in support of the carriers’ position on preemption. Judge Yelenosky is retiring at the end of the year so his decision is expected before then.
On December 7, 2016, the United States Court of Appeals for the Fifth Circuit in New Orleans will hear oral argument inAir Evac EMS, Inc. v. State of Texas, Department of Insurance, Division of Workers’ Compensation. Air Evac, another large for-profit air ambulance provider, filed a declaratory judgment lawsuit against the Division based on the SOAH decision in the lead group of fee disputes with PHI Air Medical. The suit was filed in federal district court in Austin, Texas. Air Evac sought a declaration that the ADA preempts Texas workers’ compensation laws that govern the amount of reimbursement paid to air ambulance providers for services provided to injured workers and therefore, the Division must order carriers to pay its unregulated billed charges.
The carriers in the PHI Air Medical case intervened in Air Evac’s lawsuit. The carriers and Division moved to dismiss on the grounds that Air Evac has no right to bring suit in federal court but that even if it did, Air Evac’s lawsuit should still be dismissed to allow the preemption issue to be decided in the state proceedings where that issue was litigated for the last three years. Federal District Court Judge Sam Sparks granted the motions and dismissed Air Evac’s lawsuit. Air Evac appealed the dismissal to the United States Court of Appeals for the Fifth Circuit to determine whether Judge Sparks was correct to dismiss the case. If it rules he was not, the case will go back to Judge Sparks for further proceedings consistent with the court’s ruling. Oral argument is set in the case on December 7, 2016.
There were 643 air ambulance disputes pending at the Division as of October 21, 2016, by far the single largest category of medical fee disputes. Additionally, there are around 130 more cases pending at SOAH. In April, Commissioner Brannan announced that he directed Division staff to abate all air ambulance disputes until the final outcome of the litigation regarding federal preemption. The number of disputes pending at the Division will continue to grow as more disputes are filed at a rate of about 30 per month.
| |||||||||||||||||||||||||||||||||||||
|
Kenneth Camp worked for 38 years for Bi-Lo, LLC., a grocery store in Tennessee, as a stock clerk. He worked with two others stocking the grocery with product each night. In March 2012 the Store Director, Mr. Gilreath, arrived at the store and noted that the three stock-shift clerks had not finished shelving all the product. He asked why not. The supervisor, Mr. Bishop, said that Camp had a bad back and the other two workers had to pitch in to help with the heavy stuff. Bishop also said that “it was hard for them to get done with Camp on restrictions.”
Since a teenager Camp suffered from scoliosis but he had always worked with this medical condition. Gilreath never knew about the back condition until March 2012. He approached Camp and told him the company was thinking of putting him on light duty. The HR Director asked Camp if he felt he could do the job. Camp said, “Yes, I can still do everything. I know what I can lift and what I can’t, and I can do all the other things except lift the real super heavy items.”
Camp was given a job description which was written in 2007, almost 30 years after Camp began working for the company, which identified lifting requirements, including being able to safely lift over 35 pounds. The job description also said he had to be able to lift at least 20 pounds constantly and 20-60 pounds frequently. On April 24, 2012 the company advised Camp he would have to take a leave of absence. He was instructed to use his remaining sick leave and vacation days, followed by short-term disability in order to reach his 62nd birthday. At that point he could retire.
Camp wanted to return to work after his short-term disability ended but the HR Director said he would have to be cleared by his doctor to lift 60 pounds. Camp’s leave was extended several times but on October 12, 2012, he was advised he would be terminated if he did not provide a fitness for duty form from his doctor. Camp requested that he be permitted to return to work as he had done for many years with his two co-workers lifting the heaviest items. The company refused this request and terminated his employment.
Camp sued and argued that the company discriminated against him on the basis of his disability. He lost at the federal court level and appealed. The issue on appeal came down to whether heavy lifting was an essential job function. Bi-Lo argued that the 35 pound lifting requirement was an essential job function. Camp and his two co-workers testified that they had never seen this 2007 job description or any other job description during their long period of employment. Bishop, who was Camp’s immediate supervisor, testified that “heavy lifting was not an essential function of Camp’s job, and Mr. Camp did his job fine.” Bishop also said that heavy lifting was only a very small part of the job. The other co-worker said the same thing. Both co-workers said that the way they worked was Camp would put items on the shelves while the other two men would carry the heavier items so there was no loss of efficiency. In essence, the two workers made accommodations for Camp’s inability to lift very heavy items.
Given this testimony, the Sixth Circuit Court of Appeals said that a supervisor’s testimony may rebut the written job description regarding what constitutes an essential function. The Court said, “This is not a case involving a firefighter, nurse, police officer or a military person where the inability to lift the ‘required’ weight could put an innocent person’s life at risk or cause ‘undue hardship’ or even endanger a colleague.” The Court said that summary judgment should not have been granted for the employer in this case because there was enough evidence for a jury to decide that the ability to lift more than 35 pounds is an essential function of the stock-clerk job. The Court further noted that the record showed Camp was meeting all job expectations, and his termination stemmed from only one incident when the crew did not get their work done on time. There was no proof by the company of any other instances where the 35 pound requirement could be shown to explain why there were delays in getting work done. “Bi-Lo has presented no evidence that accommodating Camp’s disability caused undue hardship to his coworkers.”
This case can be found at Camp v. Bi-Lo LLC, 2016 U.S. App. LEXIS 19053 (6th Cir. 2016). It is a case worth studying. When it comes to deciding what is an essential job function and what is a reasonable accommodation, this case emphasizes the importance of considering not just the written job description says but what actually happens in the workplace. It also shows how important it is to speak with supervisors on the job before making termination decisions. Ironically, in this case the plaintiff’s own supervisor turned out to be the key witness against the company.
------------------
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.
A number of prominent Medicare experts disseminated Legal Alerts last week to the effect that changes may be occurring with respect to the requirements for CMS to approve zero allocations. These changes would spell bad news in New Jersey for employers who want to settle disputed cases on a Section 20 basis. According to Martin Cassavoy of ISO Claims Partners in his October 27, 2016 News Alert, the Workers’ Compensation Review Contractor (WCRC) has stated that CMS will soon require the following for approval of a zero allocation:
The case or the body part in question has been denied throughout the case;
There has been no medical or indemnity payment for the denied case or body part; and
There is either a finding from a hearing by the Judge of Compensation relieving the carrier of liability or a report from the treating physician recommending no future treatment.
No official enactment of these requirements has occurred to date, but if this is the new approach that CMS is going to adopt, it will be very hard for employers to obtain zero set aside allocations in New Jersey and other states. Compensation judges in New Jersey have enormous caseloads. They have not historically been actively involved in ruling on Medicare issues. If a judge now has to determine that no compensable workers’ compensation claim exists, that will create a long back-up of trials on cases that were formerly resolved simply and efficiently by way of Section 20 settlements.
Attorney Heather Schwartz Sanderson, Esq., Chief Legal Officer for Franco Signor, LLC., wrote in her Alert: “Our recommendation has always been where the workers’ compensation claim is completely denied, no medicals have been paid, and the claim is settling on a compromise basis CMS approval is not recommended.” Ms. Sanderson’s statement makes sense since Medicare would have been and would continue to be the primary payor in this situation. Her reasoning is persuasive and should be considered by employers. She argues that there should be no allocation for future medical care in the above situation.
Our office will continue to update clients if these changes are adopted by CMS. Thanks to Marita Tortorelli, Assistant Vice President of PMA Insurance Companies for bringing this issue to the undersigned’s attention.
------------------
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.
One of the most anachronistic aspects of New Jersey workers’ compensation law is that employers pay workers’ compensation benefits even when intoxication is a substantial cause of injury. In Diaz v. National Retail Transportation, Inc., A-3927-14T2 (App. Div. November 9, 2016), Antonio Diaz was injured moving a heavy lift which fell over on him. He admitted that prior to work on January 28, 2014, he drank at least two eight-ounce glasses of half whisky and half ice and water. Respondent’s toxicologist testified at trial that petitioner had a blood alcohol level of at least .173 percent. Had petitioner been driving, that percentage would have been more than double the legal limit.
Respondent denied the workers’ compensation claim on the basis that petitioner’s intoxication was the cause of the injury based on the expert testimony of respondent’s toxicologist. Petitioner argued that there was another factor which contributed to the injury, namely a flat tire on the lift. He said that the lift fell over when it “tilted to one side at the same moment” that he was pulling the lift. He noted that one of the tires on the lift was flat.
Respondent produced a forensic engineering expert, who testified that “a flat tire didn’t contribute in any way to this accident.” The expert did concede that a flat tire on the lift could have caused the lift to tilt to one side or the other. The expert conceded that if someone pulled the lift backwards and it had a flat tire, the lift could fall backwards “cockeyed.” The expert said, however, that the lift with a flat tire would tilt only a very small amount, only the one inch that the equipment is off the ground.
Petitioner did not offer expert testimony. Instead, petitioner filed a motion to dismiss the intoxication defense on the basis that under N.J.S.A. 34:15-7, respondent must prove that intoxication is the sole cause in order to defeat a claim. In this case the Judge of Compensation believed that both the petitioner’s intoxication and the flat tire contributed to the cause. Therefore the intoxication was not the sole cause, and petitioner prevailed.
Respondent appealed the dismissal of its intoxication defense. The Appellate Division affirmed the dismissal of the intoxication defense on the grounds that respondent failed to prove that intoxication alone caused the accident. Even if the flat tire contributed in just a small degree, that was enough to permit petitioner to recover workers’ compensation benefits.
The case underscores the onerous burden that employers must meet in New Jersey to defeat a workers’ compensation claim on the intoxication defense. In most states, if intoxication is found to be a substantial cause, that is enough to defeat the claim. In some states, merely a contributory case is enough. But in New Jersey the legislature requires the employer to prove that there was no other factor which contributed to the happening of the accident. Sole cause means sole cause, which is why there have only been a couple of reported cases over many decades where the intoxication defense succeeded.
------------------
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.
Sioux Falls, SD.— (November 5, 2016) Awards were presented for outstanding contributions to the workers compensation industry at the 5th Annual Comp Laude Awards and Gala, Saturday, November 5 in Burbank, CA.
“Our mission with this event is to show what is going right with our industry,” said Yvonne Guibert, Marketing Director. “This event was the vision of WorkCompCentral’s founder, the late David DePaolo. He felt our industry gets so much negative press, he wanted to change the story of our industry. So we’ve designed these awards with rigorous judging protocols in place to identify the best of the best.”
The Attorney Comp Laude Award was presented to Michael S. McKnight, of Boyce Law Firm, LLP for his contributions and leadership in the work comp industry.
The Comp Laude Awards, meaning “with honor” were presented to individuals and companies representing many segments of the workers compensation industry, even injured workers. This year, awards were presented in 13 categories.
Top honor awards were presented to two well-known industry veterans. Mark Pew, Prium received the Magna Comp Laude (with great honor) award, and Richard Victor, Sedgwick, received the Summa Comp Laude (with highest honor) award. WorkCompCentral announced that the Summa Comp Laude award will now be called the David J. DePaolo award, in memory of the company’s founder and CEO who passed away earlier this year.
For a complete list of the nominees and Honor Roll Recipients, visit http://bit.ly/2016Nominees
Next year’s Comp Laude Awards and Gala event is scheduled for October 30-November 1 in San Diego, CA. Call 805-484-0333 for details.
About WorkCompCentral
Based in Camarillo, Calif., WorkCompCentral produces daily news, continuing education courses and other live events and can be reached at 805-484-0333 and viawww.workcompcentral.com.
WorkCompCentral contact:
Yvonne Guibert, marketing director
805-484-0333, ext. 140
yguibert@workcompcentral.com
