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.
Preparations for the Inaugural Reception for Kids’ Chance of Texas are being completed and we are
excited! SLS Partner Jane Stone is in charge of the event which will be held October 22, 2016 at
The Bullock Texas State History Museum in Austin from 6 to 8 p.m. Governor Greg Abbott, TDI
Commissioner David Mattax, DWC Commissioner Ryan Brannan, and our first scholarship
recipients (we already have two!)are among the invited speakers. There will be food, drink, a
presentation and a silent auction. If you would like to attend, please send your name, mailing
address, and email address directly to jstone@slsaustin.com and we will send you an invitation.
Individual tickets are $150. If you cannot attend but would like to make a donation, you can go to
www.kidschanceoftexas.org for PayPal, or send a check to P. O. Box 30111, Austin, Texas 78755.
Rabiat Ngbwa has been hired as the newest Hearing Officer in the Division of Workers’
Compensation. Most recently, Ms. Ngbwa served as a reviewing attorney at the Texas Workforce
Commission, where she was a Hearing Officer. Between her stints at the TWC, Ms. Ngbwa worked
as a consultant at the Equal Employment Opportunity Commission and then as an attorney with
Synergy Legal Professionals. She received her B.A. from Texas Lutheran University in 1997 and
her J.D. from Houston College of Law in 2003. She is also certified in both human resources and
mediation. Ms. Ngbwa will be the third traveling Hearing Officer in the Division’s central office.
Last month we informed you of Commissioner Brannan’s decision to authorize contested case
hearings to be held in the Metro Center Building, a.k.a., “Austin Central.” The expansion of
hearings sites was initiated as a “quick fix” to the surplus of recent work comp claims in the Austin
area and the Division’s inability to set disputes within the statutorily-mandated 60-day deadline for want of docket space. Officially, Austin has just one Hearing Officer, and the field office has only
one hearing room. Originally this temporary solution was to have extended only into September,
but because the high volume of cases has continued without abatement, the project has been
extended through at least December. How much longer this “temporary” remedy remains temporary
is anyone’s guess.
Maximum Attorney Fees Rate MIGHT Increase. The proposed rule would establish a new
maximum rate of $200/hour for attorneys and $65/hour for legal assistants. The proposed change
serves as the Division’s recognition that the cost of goods and services has increased significantly
in the last quarter-century. However, the Division’s hourly rate for legal services, which it adopted
in 1991, has not been updated until now. The low rates were beginning to discourage attorneys from
taking workers’ compensation cases when other, higher paying work is available. The increased rate
will provide injured workers with greater access to quality representation which is important to the
health of the system. The proposed new attorney fee rules will be found at DWC Rules 152.3, 152.4,
and 152.6.
DD Requests to be Attached to the DD Orders . . . Finally. Over the last few years, the DWC has
more than once reminded (admonished?) system participants to exchange the DWC 32 with the
opposing party when a DD request is made to the Division so that all are informed of what
information is being asked of the DD. The reminders were ineffective. Frequently, Carriers would
receive an order for a DD exam on extent of injury, for example, without having received the DWC
32. In the absence of the DWC 32, the Carriers were left without an understanding of what was the
injury the DD was asked to address. To resolve the “failure to exchange” problem, the Division has
elected a practical solution. Effective September 1, 2016, the Division will attach the DWC 32 to
the DD Order. Despite this practical solution, system participants are reminded that DWC 32s must
still be exchanged with all parties.
The Hearing Officer determined that the claimant, a truck driver, who stopped to assist a motorist
injured in an accident that did not involve the claimant sustained a compensable injury when his
knee later began to swell. The road on which he had been traveling was still blocked by the
accident, so after he rendered his aid, the claimant turned around and followed an alternate route to
his office. The Appeals Panel disagreed with the Hearing Officer’s determination that the claimant
had remained in the course and scope of his employment when he stopped to assist the motorist.
Although such aid rendered in the event of an emergency could arise during the course and scope
of employment if the employment is not deserted and the claimant’s actions are reasonable for
advancing the employer’s work interests, there was no evidence in this case that the claimant was
performing any action that he thought necessary for the employer’s business interests. His assistance of the motorist did not serve to clear the road, and an alternate route was available to him
to proceed with his work duties.
No Way Around it: Evidence of Impairment is Limited on Judicial Review is Limited to that
Presented to Division
The long-running litigation related to injured worker Daniel Samudio’s correct impairment rating
continues following the Texas Supreme Court’s decision in American Zurich Ins. Co. v. Samudio,
370 S.W.3d 363 (Tex. 2012) (Samudio I). TEXAS LABOR CODE § 410.306(c), provides, “Except as
provided by Section 410.307, evidence of extent of impairment shall be limited to that presented to
the division. The court or jury, in its determination of the extent of impairment, shall adopt one of
the impairment ratings under Subchapter G, Chapter 408.” In Samudio I, the Court held that if on judicial review a trial court finds that no valid impairment rating was presented to the Division in
the underlying contested case, the trial court may remand the claim to the Division to determine a
valid rating. Samudio I, at 368. The case was remanded to the trial court following Samudio I.
On remand, Mr. Samudio filed a motion for summary judgment on the issue of the correct
impairment rating. Attached to the motion was an affidavit and medical report supporting the 20%
impairment rating awarded by the Division in the contested case. The Carrier objected that this
evidence of impairment was not admissible because it was not presented to the Division. The trial
court overruled the objection, admitted the evidence, and granted summary judgment for Samudio.
The Houston Court of Appeals reversed and rendered explaining, “the evidence that Samudio
presented at summary judgment is precisely the type of evidence that the statute forbids, and
therefore, the trial court could not consider it.” American Zurich Ins. Co. v. Samudio, No. 01-15-
00478-CV, 2016 WL 4485818 *6 (Tex. App.–Houston [1st Dist.] Aug. 25, 2016) (Samudio II). The
court held that the Carrier had established as a matter of law that the 20% impairment rating was
invalid. Id.
An analysis by the Texas Department of Insurance shows that Texas’ use of the closed formulary
for prescription drugs in the workers’ compensations system is having a positive impact on both
Carrier’s wallets and on injured workers. Reporting on the study, www.workerscompensation.com
noted that total drug costs fell by 15%, N-drug costs fell by 80%, and prescriptions for N-drug
opioids fell 81%. The combination of lower costs and better care through less addictive prescriptions
shows the closed-formulary is working in Texas. For more information, visit here. In regard to
states which legalized marijuana, reports are that although opioid use is down, accidental poisonings
of children are on the rise.
The 2016 Rio Olympic Games brought the Zika virus to the forefront of national worry. The tropical
disease can cause brain damage and birth defects to infants of mothers infected in the womb, and
new studies suggest that Zika may cause brain damage in infected adults as well. As Zika creeps its
way into the United States from the tropical climates to our south, employers and carriers will likely
be presented with claims from injured workers alleging they contracted the disease in the course and
scope of employment. These claims will likely be very fact specific and require a challenging
causation analysis showing if, when and how the claimant contracted the disease while working.
On Monday May 23, 2016, the U.S. Supreme Court denied lien claimants’ petition for certiorari in the case ofAngelotti v. Baker. The denial effectively ends the litigation over the constitutionality of the lien activation fee imposed by SB 863, now Labor Code section 4903.06.
Labor Code section 4903.06 required payment of an activation fee of $100.00 to the Division of Workers’ Compensation prior to January 1, 2014 if the lien was filed prior to January 1, 2013. If the fee was not paid, the lien was subject to dismissal as a matter of law as of January 1, 2014. Due to litigation in the Angelotti case, the final day to pay the activation fee was extended to the end of December 31, 2015.
In Angelotti, several medical providers filed challenges to the constitutionality of the activation fee at the U.S. Ninth Circuit Court of Appeals. They argued that the activation fee was a forfeiture penalty and a governmental deprivation of their right to be paid. However, the circuit court found that a lien is only an expectation of payment, so there was no governmental “taking” with the imposition of a fee. The expectation of payment was not property subject to governmental taking. The DIR argued that the fee was akin to a user fee. The circuit court found that the activation fee was constitutional.
The plaintiffs requested reconsideration by the Ninth Circuit, which was denied. The only option remaining was to file a petition for certiorari to the U.S. Supreme Court, which they did. The California Department of Industrial Relations submitted a waiver of its right to respond, but the U. S. Supreme Court requested a response, which was filed. After receipt of the response, the Court issued notice on May 23, 2016 that it was declining to hear the case. Thus, the circuit court decision stands.
What does this mean in practical terms? Lien claimants subject to the activation fee who did not pay by the end of December 31, 2015 are deemed dismissed by operation of law without further action by the parties. Select medical liens are exempted from the activation fee as follows:
Additionally, non-medical lien claimants are not subject to the activation fee, including liens for attorneys’ fees, living expenses, burial expenses, spousal and child support expenses, Employment Development Department liens, and Victims of Crime liens.
Questions? Find your local Hanna Brophy attorney: www.hannabrophy.com/offices/
The new EEOC Guidance issued on May 9, 2016 upsets many of the assumptions employers routinely make in regard to leaves of absence. The EEOC states, “An employer must consider providing unpaid leave to an employee with a disability as a reasonable accommodation if the employee requires it, and so long as it does not create an undue hardship for the employer.” The Guidance adds that this is the case when:
The employer does not offer leave as an employee benefit;
The employee is not eligible for leave under the employer’s policy; or
The employee has exhausted the leave which the employer provided as a benefit (including leave exhausted under a workers’ compensation program or the FMLA or similar state or local laws).
The EEOC provides that reasonable accommodation does not require an employer to provide paid leave beyond what it provides as part of its paid leave policy. The employer can deny requests for unpaid leave when it can show that providing the accommodation would impose an undue hardship on its operations or finances. This may sound comforting but in reality it is hard for an employer to show undue hardship as is seen below.
The following examples come from the May 9, 2016 Guidance, and this Guidance clearly may cause employers to revise their leave policies:
Example Five from the EEOC Guidance
“An employer’s leave policy does not cover employees until they have worked for six months. An employee who has worked for only three months requires four weeks of leave for treatment for a disability. Although the employee is ineligible for leave under the employer’s leave policy, the employer must provide unpaid leave as a reasonable accommodation unless it can show that providing the unpaid leave would cause undue hardship.”
Example Six from the EEOC Guidance
“An employer’s leave policy explicitly prohibits leave during the first six months of employment. An employee who has worked for only three months needs four weeks of leave for treatment of a disability and the employer tells him that if he takes the leave, he will be fired. Although the employee is ineligible for leave under the employer’s leave program, the employer must provide unpaid leave as a reasonable accommodation unless it can show that providing the unpaid leave would cause undue hardship. If the employer could provide unpaid leave without causing an undue hardship, but fires the individual instead, the employer will have violated the ADA.”
Example Seven from the EEOC Guidance
“An employer’s leave policy does not cover employees who work fewer than 30 hours per week. An employee who works 25 hours per week and who has not worked enough hours to be eligible for leave under the FMLA requests one day of leave each week for the next three months for treatment of a disability. The employer must provide unpaid leave as a reasonable accommodation unless it can show that providing the unpaid leave would cause undue hardship.”
The EEOC further states that when an employee informs the employer that an accommodation is needed for a disability, the employer should promptly engage in an interactive process with the employee. The employer may need additional information to confirm that the condition is in fact a disability under the ADA. With the employee’s permission, the employer may obtain additional information from the employee’s health care provider to understand the need for leave.
These three foregoing examples will surprise most employers. Example seven defies conventional logic because the employer is not subject to FMLA but is still required to offer unpaid leave. Examples five and six are also surprising because in both instances the employer’s leave policy is disregarded.
Tha interactive process may be very burdensome for reasons that the EEOC provides in Example 9:
Example Nine from the EEOC Guidance
“An employee with a disability is granted three months of leave by an employer. Near the end of the three month leave, the employee requests an additional 30 days of leave. In this situation, the employer can request information from the employee or the employee’s health care provider about the need for the 30 additional days and the likelihood that the employee will be able to return to work, with or without reasonable accommodation, if the extension is granted.”
The EEOC also warns employers not to ask an employee on leave with a fixed return date for periodic updates, although it says that the employer may reach out to an employee on extended leave to check on the employee’s progress. This is at best a subtle distinction: the employer may ask about progress but not about periodic updates.
Another area that the Guidance attacks is maximum leave policies. It states that although employers are permitted to have leave policies that establish the maximum amount of leave an employer will provide or permit, this policy must be flexible when someone with a disability is involved.
Example Eleven from the EEOC Guidance:
“An employer covered under the FMLA grants employees a maximum of 12 weeks of leave per year. An employee uses the full 12 weeks of FMLA leave for her disability but still needs five additional weeks of leave. The employer must provide the additional leave as a reasonable accommodation unless the employer can show that doing so will cause an undue hardship. The commission takes the position that compliance with the FMLA does not necessarily meet an employer’s obligation under the ADA, and the fact that any additional leave exceeds what is permitted under the FMLA, by itself, is not sufficient to show undue hardship. . . “
This is one of the most alarming aspects of the Guidance because it creates an open-ended period of leave beyond the FMLA requirement. It also makes it extremely difficult for HR Managers to make intelligent decisions on when to take action in the event that an employee has used up all FMLA leave time.
Example 12 from the EEOC emphasizes that it does not matter whether the employer is covered under the FMLA:
Example Twelve from the EEOC Guidance:
“An employer is not covered by the FMLA, and its leave policy specifies that an employee is entitled to only four days of unscheduled leave per year. An employee with a disability informs her employer that her disability may cause periodic unplanned absences and that those absences might exceed four days a year. The employee has requested a reasonable accommodation, and the employer should engage with the employee in an interactive process to determine if her disability requires intermittent absences, the likely frequency of the unplanned absences, and if granting an exception to the unplanned absence policy would cause undue hardship.”
The burdens on employers are significant under this Guidance. The Guidance suggests that the employer must consider the following issues:
The specific accommodation that the employee requires
The reason an accommodation or work restriction is needed
The length of time an employee will need the reasonable accommodation’
Possible alternative accommodations that might effectively meet the employee’s disability-related needs; and
Whether any of the accommodations would cause an undue hardship
The only defense an employer has to a request for reasonable accommodation for additional leave is undue hardship and that is a very vague standard. The Guidance says that in assessing undue hardship an employer may take into account leave already taken by the employee, whether or not that leave is for FMLA or workers’ compensation. The undue hardship considerations include:
The amount and/or length of leave required
The frequency of the leave
Whether there is any flexibility with respect to the days on which leave is taken
Whether the need for intermittent leave on specific dates is predictable or unpredictable
The impact of the employee’s absence on coworkers and on whether specific job duties are being performed in an appropriate and timely manner
The impact on the employer’s operations and its ability to serve customers/clients appropriately and in a timely manner
Employers will have to exercise great caution in denying unpaid leave requests in the future based on this Guidance. It is true that the Guidance is not law, but practitioners and judges do refer to Guidance regularly. The job of an HR Professional has becomes even more challenging given this new Guidance.
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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.