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.
Sarah Sorenson v. Harbor Bar, LLC and Midwest Family Mutual Ins. Co., 2015 SD 88
This matter came before the South Dakota Supreme Court on appeal by the Employer/Insurer. Claimant was injured during her employment in December 2009 when she sustained a head injury, ultimately ending in her having brain surgery. There were three separate surgeries, and the Department found that the first two surgeries were the responsibility of the Employer/Insurer and that the third surgery was not. Employer/Insurer appealed the decision, and the Circuit Court affirmed in part and remanded in part for clarification regarding the amount of the compensable damages.
On appeal, the issues appealed were (1) Whether the Department was clearly erroneous in its finding that the alleged second incident actually happened before the work-place incident, if it happened at all; (2) Whether the Department was clearly erroneous in its determination that the work-related injury was a major contributing cause of Sorensen’s intracranial hemorrhage; and (3) Whether the Department abused its discretion by admitting Dr. Sabow’s undisclosed testimony as rebuttal testimony. As to the first issue, the S.C. held that they would not substitute their judgment for that of the Department, as the Department heard the witnesses live and was able to determine their credibility. As to the second issue, the S.C. held that it was the function of the fact-finder to assess the credibility attributed to the expert opinions and they believe the fact-finder got it right. As to the last issue, the S.C. stated that disclosure of a rebuttal witness has never been required in SD by statute, rule or caselaw. The S.C. went on to say that absent evidence of bad faith on the part of the Claimant, there was no reason to exclude this testimony and would only serve to stifle the Department’s truth-finding process. The Court also stated that even if they were to find that the Department abused its discretion, it would not merit reversal because the Employer/Insurer would have to show that they were prejudiced, and they would not be able to do so because they were able to supplement the record with additional expert testimony of their own.
If you have questions on this case or generally in South Dakota, please contact Charlie Larson atcalarson@boycelaw.com or at 605-336-2424
The Department of Justice charged five individuals, including two medical doctors and a
chiropractor, for their participation and profit in a scheme which provided illegal kickbacks to dozens of doctors, chiropractors, and other individuals in exchange for the referral of patients to
Pacific Hospital in Long Beach, California.
From 2005 through 2013, the DOJ estimates that insurers were billed over $580 million for spinal
surgeries performed on more than 4,400 patients who were referred to the hospital. The participating
doctors, chiropractors, and others referred patients in exchange for illegal payments which included
up to $15,000 for a lumbar fusion and $10,000 for a cervical fusion. The hospital, its owner, and its
executives made the payments using a combination of nefarious means, including making rental
payments to the referring doctors for use of their offices (the hospital never used the offices), making
$100,000 per month “option payments” to the referring doctors for the right to purchase medical
practices (a right that was never exercised), and paying the doctors to help the hospital collect on
surgical bills (the doctors did not participate in the collection efforts).
The individuals recently charged in the scheme were: James L. Canedo, former CFO of the hospital;
Philip Sobol, an orthopedic surgeon; Alan Ivar, a chiropractor; Paul Richard Ragnall, a health care
marketer; and Mitchell Cohen, an orthopedic surgeon. In April 2014, the former CEO and owner
of the hospital, Michael Drobot, pleaded guilty to participating in the scheme. Each of these
individuals is reportedly cooperating with the DOJ in its investigation.
“Operation Spinal Cap” is ongoing. Stay tuned.
The DWC is proposing a revision to DWC Form-048, to incorporate the 2014 revisions to Rule
134.11(a), which allows injured workers to request travel reimbursement to attend DD exams,
RMEs, or post-DD RMEs. The proposed revision also creates separate Spanish and English forms
and includes a section for a plain language explanation for the approval/denial of the travel
reimbursement request. The public comment period on the new form closes on December 28, 2015.
The DWC also proposes a new form to report administrative violations to the DWC. In accordance
with Rule 180.2(a), any person may submit a complaint to the DWC for alleged administrative
violations, and TEX. LAB. CODE §402.023(c), directs the DWC to develop a standardized form for
the filing of workers’ compensation complaints. The proposed Workers’ Compensation Complaints
Form is the DWC’s effort to meet these regulatory requirements. In its current draft, the proposed
form may be inadequate because it fails to provide sufficient space for the complainant to identify
his, her, or its relationship to the claim. Informal comments on the proposed complaint form are due
on or before January 4, 2016.
The DWC is proposing revisions to Rules 132.7 and 132.13 to incorporate changes to death benefits
codified in the recent legislative session. In accordance with House Bill 1094, the DWC proposes
to add subsection (f) to Rule 132.7 to specify that an eligible spouse who remarries is eligible for
death benefits for life if the employee was a first responder who died in the course and scope of
employment or while providing services as a volunteer. The proposed revisions to Rule 132.13, as
provided by Senate Bill 563, would increase to $10,000 (from $6,000) the amount of burial benefits
due for a compensable injury that occurs on or after September 1, 2015. The public comment period
closes on January 4, 2015, for these proposed rule revisions. The proposed rules may be reviewed
here.
The Texas Supreme Court recently held that an employer did not retaliate against a Claimant for
filing a workers’ compensation claim when the Claimant was terminated in accordance with the
employer’s uniformly applied leave policy following the expiration of the Family Medical Leave
Act (FMLA) leave period. Kingsaire, Inc. v. Melendez, ___ S.W.3d ___, 2015 WL 7950716, * 8
(Tex. 2015).
The Claimant sustained a compensable work injury on 07/02/09. Claimant was notified that he
would be placed on unpaid FMLA leave effective 07/03/09, for up to twelve weeks and that he was
required to provide status updates on his ability to return to work every two weeks. Claimant
provided the work status updates as required by the employer. On 09/24/09, the employer notified
Claimant that his FMLA leave expired, that he had not yet been released to return to work by his
workers’ comp doctors, and that his employment was terminated effective 09/25/09. In October 2009, Claimant sued the employer for wrongful termination in retaliation for his filing a workers’
compensation claim. The jury entered a verdict in favor of Claimant.
The Court reviewed the evidence on a legal sufficiency standard and determined that the evidence
showed Claimant was terminated in accordance with the employer’s consistent and uniform
enforcement of its leave policy. The Court held that no evidence supported the jury’s verdict on the
retaliatory discharge claim.
Grades are in. The PBO assessment evaluated the providers in four categories: (1) timely filing of
DWC 69s, (2) completeness of DWC 73s, (3) documentation supporting return to work
determinations recorded on DWC 73s, and (4) usage of MRIs. In each category, the DWC identified
which of the health care providers evaluated were high performers, average performers, and poor
performers. A complete list of the PBO Assessment results are available here.
In an article by EmploymentLawAcademy.com, WorkersCompensation.com reports that the
National Conference of Insurance Legislators plans to investigate efforts by several of the country’s
largest employers to expand the number of states allowing employers to opt out of workers’
compensation coverage. The investigation was prompted by media reports from ProPublica and NPR
criticizing the opt-out plans in Texas and Oklahoma as providing fewer benefits, more restrictions,
and less oversight. The National Conference’s endorsement or disapproval of the opt-out plans will
likely influence future legislation in many states.
Effective January 1, 2016, the standard mileage reimbursement rate for Alabama was decreased to 54 cents per mile.
Colleen Fitzgerald filed a claim petition alleging that on April 26, 2010 she was walking down an alley as a zone merchandising supervisor for Walmart, when she suddenly felt a “pop” in her lower back. She admitted that she was simply walking at the time the incident occurred. However, prior to this popping incident she said she was doing some lifting at work. She experienced severe pain radiating into her buttocks and down her legs.
Fitzgerald reported the injury to her zone manager but she did not fill out an accident report at that time. She thought the pain would subside. The next day at work the pain was more severe, causing her leg to give out and requiring her to leave work. She saw her family doctor on April 29, 2010 who prescribed for her two medications and an MRI.
Fitzgerald took FMLA leave for the next 12 weeks. On May 13, 2010 the MRI was performed revealing protruding discs at L4-5 and L5-S1 with mild displacement of the right L5 and S1 nerve roots. Fitzgerald also saw a chiropractor in May 2010.
Fitzgerald attempted to return to work following her FMLA leave but still had pain. In June 2011, she sought additional care when her back pain increased after a coughing spell. She then took a second leave of absence while getting epidural injections.
In September 2011, Fitzgerald was involved in a non-work-related slip-and-fall in which she broke her elbow, requiring a third leave of absence. She did not return to work and her employment was terminated. However, her back treatment continued into December 2013.
Fitzgerald filed two claim petitions in April 2012: first, she argued that a traumatic accident occurred on April 26, 2010; second, she argued that her injuries were the result of occupational exposures from December 2008 until April 2010. In December 2013 she filed a motion for medical and temporary disability benefits. Petitioner testified in support of her motion as well as her medical and psychiatric experts. Respondent produced its orthopedic expert and offered the report of its psychiatrist in evidence.
Both experts agreed that petitioner had protruding discs at L4-5 and L5-S1 but they disagreed completely on causation. The Judge of Compensation ruled for Walmart and dismissed both petitions. Petitioner filed an appeal and the Appellate Division affirmed the dismissal of the cases. The Court reviewed prior case law for the requirement that petitioner prove her injury would not have occurred but for her employment.
Applying the test, the judge concluded the petitioner failed to satisfy the first step of the test, in part because ‘[t]he facts here do not establish that the petitioner would not have been exposed to the risk if she had not been at work.’ An appellate court must give ‘due regard to the opportunity of the one who heard the witnesses to judge of their credibility’ and owes deference to the judge’s expertise in workers’ compensation issues.
This case was handled successfully for Walmart by Lora Northen, Esq., partner with Capehart Scatchard, with assistance from Andrea Schlafer, Esq. on the legal briefs. The case underscores the rule that just because an event happens at work does not mean it is compensable. There are many health issues that occur during work but are not necessarily caused by work. Feeling pain in one’s joints or spine while walking is not work related unless work effort or work premises cause or contribute to the medical condition. This case can be found at Fitzgerald v. Walmart, A-1186-14T3 (App. Div. November 20, 2015).
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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.