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.
The Office of Injured Employee Counsel is holding its annual stakeholder meeting in a few days. A key part of the agenda is OIEC’s legislative agenda for the 2015 Legislative Session. Not surprisingly, OIEC’s wish list would create considerable expense to Carriers. Here are the changes OIEC wants –
Expand LIBs – OIEC wants a statutory amendment clarifying that a Claimant qualifies for LIBs if he or she loses use of a body part as a result of a compensable injury even if the Claimant’s compensable injury was not to that body part.
Increase TIBs Amount – OIEC wants increases in TIBs calculations: (1) increase in the benchmark earning rate from $8.50 an hour to $12.40 an hour, (2) increase TIBs from 70 percent to 75 percent of the AWW for a Claimant that earn $12.40 an hour or more, and (3) increase TIBs from 75 percent to 80 percent of AWW for a Claimant that earn less than $12.40 an hour.
Limit Carrier Ability to Dispute Extent of Injury – OIEC wants a deadline to dispute extent of injury placed in the statute. It wants a Carrier to have to dispute extent of injury within 60 days of receiving written notice that the injury extends to include a certain body part or that defense would be waived. The intention of this legislative change is to codify a 60 day waiver period in extent of injury cases, contrary to the Supreme Court’s decision inState Office of Risk Mgmt. v. Lawton.
Same Venue for Judicial Review of Medical Fee Dispute Decisions and BenefitDecisions
– OIEC wants the venue to be the same for judicial review of a medical fee dispute decision as it is for a benefit decision. That is, judicial review of both types of proceedings should be filed in county where the employee lived at the time of injury or death.
Provide Attorney’s Fees to Claimants for Medical Necessity Dispute Cases–
OIEC wants Carriers be liable for Claimants’ attorneys’ fees incurred when a Claimant prevails in a judicial review of a medical necessity dispute, if the injured employee prevailed administratively at the Appeals Panel.
Carriers Should Pay for Claimant’s Expert Evidence of Causation– OIEC wants to require Carriers to pay for treating doctors to provide opinions on causation through reports or testimony at the CCH, or if the treating doctor is not available, to pay adesignated doctor to provide such report or testimony. Alternatively, OIEC wants a legislative grant to give OIEC money to hire experts.
You might have to disgorge four times the amount of benefits withheld from the injured worker. An alternative to statutory workers’ compensation is a plan under the Employee Retirement Income Security Act – an ERISA plan provided to an employer by a plan insurer. Like statutory comp, an ERISA plan may provide for disability benefits for an on the job injury. Unlike statutory comp, however, an insurer who denies disability benefits may be ordered to provide withheld disability benefitsand to disgorge any “profits” on the withheld benefits under an “appropriate equitable relief” provision of the ERISA statute. The U.S. Court of Appeals for the Sixth Circuit recently upheld an award of withheld benefits in addition to disgorgement of four times the amount of withheld benefits representing the insurer’s “profits” on the withheld benefits. The trial court found the insurer breached its fiduciary duty simply by denying benefits. Considering the insurer’s potential exposure for disgorgement of profits as a claims handling expense, statutory comp may be a less risky option Texas.
Rochow v. Life Ins. Co. of N. Am., No. 12-2075, 2013 U.S. App. LEXIS 24271 (6th Cir. Dec. 6, 2013).
The Appeals Panel recently reversed a Hearing Officer’s determination that the first certification of MMI/IR provided in 2010 did not become final because the Hearing Officer determined in 2013 that Claimant’s injury extended to include additional, unrated conditions. The preamble to Rule 130.12 warns parties not to delay in timely disputing the first certification of MMI/IR pending resolution of an extent of injury dispute, because such resolution may occur after the 90-day period expires. In this decision, the Appeals Panel noted “there is no provision in [the Act or Rules] that provides that the exclusion of a condition in an assignment of IR constitutes an exception to finality.” The Appeals Panel held that subsequent resolution of the extent of injury dispute is not, in and of itself, an exception to finality. The Appeals Panel did not foreclose the possibility that an exception to finality may exist where a Claimant does not receive adequate treatment for the entire injury prior to the first certification of MMI because of the extent of injury dispute.
Appeal No. 132594-s, dated Jan. 3, 2014.
The Appeals Panel considered whether a designated doctor properly assigned IR based on range of motion (ROM) measurements of a Claimant’s right knee. In his report, the DD recorded 100 degrees of flexion and 10 degrees of flexion contracture of the knee. According to Table 41 of the Guides, these measurements correspond to 4% whole person impairment for flexion and 8% whole person impairment for extension/flexion contracture. The DD did not add the two whole person impairments together (4% plus 8%), but, rather, the DD assigned a whole person IR of 8%. The issue on appeal was whether the AMA Guides required the DD to combine the whole person IR of each angle of the knee joint. The Appeals Panel concluded the AMA Guides do not require the ROM deficits to be combined to increase the impairment for a single joint. Rather, it was within the DD’s discretion as a matter of medical judgment to not combine the different angles of loss of ROM of Claimant’s knee. The DD’s 8% IR was in accordance with the Guides.
Appeal No. 132734, dated Jan. 9, 2014.
Point-of-service drug testing is becoming more common. If a provider decides to do urine drug tests on a patient, the ODG evaluates the need for testing based on the risk of adverse events or of drug misuse by the Claimant. Before paying, the Carrier should look for documentation of a risk assessment, as well as evidence of the reasoning behind the frequency of the testing. For Claimants with a low risk of adverse events or drug misuse, the ODG recommends random testing no more than twice a year. For Claimants at intermediate risk, the ODG recommends random testing 3 to 4 times a year. Claimants with high risk may be tested at every other, or even at every, office visit.
We have seen a few recent cases where Carriers are being charged for designated doctor appointments missed or rescheduled by Claimants. The DWC medical fee guidelines do not permit a designated doctor to bill a Carrier for a rescheduled or missed appointment. DWC Rule 134.204. Bills that invoice Carriers for a fee for missed or rescheduled appointments should be denied.
The DWC recently circulated a memo reminding system participants that Rule 127.1 requires parties submitting Requests for Designated Doctor Exams (DWC 32s) to send a copy of the DWC 32 to the opposing party at the same time the document is filed with the DWC. The DWC reports that some system participants are not exchanging DWC 32s. As part of a new “customer service initiative” to address the issue, the DWC will begin automatically sending to the injured employee a copy of any DWC 32 filed by a Carrierprior to sending the order for the designated doctor exam. Curiously,
Claimants’ frequent failures to exchange DWC 32s with Carriers is not mentioned.
Industry news outlet Work Comp Central recently interviewedTom Atchison regarding the Supreme Court ruling inDykoff v. Xcel Energy.
The article discussed the Minnesota Supreme Court’s endorsement of the “increased risk” test as the standard for compensability.
The article also discussed how Minnesota courts have previously interpreted the statutory requirement that injuries “arise out of and in the course of” employment. According to Atchison, the interpretation has “varied from court to court and case to case” over the years and the recent ruling “clears up a point of uncertainty” for workers, employers, and carriers.
The full article is available from Work Comp Central here.
Remi Beausejour had problems with his lower back dating back to 2006 when he injured his back at work. He had pain in his back down his right leg. An MRI showed degenerative disc disease and a disc herniation at L3-4 and L4-5 levels. He also experienced radiculopathy at the time and was discharged from treatment four months post injury.
Beausejour suffered a second low back injury in January 2008 and another one on September 17, 2009. Both injuries required treatment to the lower back. After the September 2009 incident, he was unable to sit due to the extreme pain.
An MRI was performed on September 28, 2009, showing a small right paracentral annular tear and disc herniation at L1-2, with bulging discs at L2-3 and L3-4, and a disc herniation at L4-5 with lumbar radiculopathy. He required epidural injections at this time and was out of work for three weeks. The last injection occurred in November 2009.
The accident which was the subject of this case occurred on December 2, 2009 when Beausejour fell 18 feet from a ladder and fractured his left ankle. Beausejour had an EMG in 2010 which revelaed acute L5-S1 radiculopathy. He contended that this fall at work aggravated his preexisting lower back condition. A new MRI was ordered on January 17, 2011. That MRI showed much the same findings as the 2009 MRI.
At trial two orthopedic experts testified. Dr. Lance Markbreiter compared the 2009 MRI with the 2011 MRI and said that there was no significant change and no traumatic findings. He felt that the degenerative changes on the MRI were what one would have expected given the two-year gap in dates of the studies. Dr. Markbreiter felt that there would have been much more pathology on the 2011 MRI if the fall from the ladder had actually produced a back injury. He felt that petitioner’s lower back complaints would have been the same regardless of the fall.
Dr. Cary Skolnick testified for petitioner. He said that the fall in 2009 aggravated and exacerbated petitioner’s preexisting lumbar degenerative disc disease.
The Honorable Watson Berich, Judge of Compensation, held that Dr. Markbreiter’s testimony was more persuasive, in part because he had been petitioner’s treating doctor after the 2009 fall. In contrast, Dr. Skolnick had only seen petitioner on one occasion for an IME. Judge Berich found that there was no demonstrable objective medical evidence of any aggravation of the petitioner’s preexisting condition and therefore dismissed the claim petition.
Petitioner appealed to the Appellate Division, which noted that a petitioner in an aggravation case must provide proof of both legal and medical causation. “Medical causation means the injury is a physical or emotional consequence of work exposure” and “that the disability was actually caused by the work-related event.” (citations omitted). The court added that generally an opinion of a treating doctor is entitled to greater weight than that of an evaluating doctor on causation. For these reasons the Appellate Division affirmed the dismissal of petitioner’s claim petition for partial permanent disability.
This case provides guidance on the term “aggravation.” The Judge of Compensation clearly appreciated that this term means more than just “more pain.” Since the MRI findings were exactly the same after the fall as before the fall, it was very difficult for petitioner to prove aggravation. The case also illustrates the advantage given generally to treating doctors over IME doctors.
This case can be found at Beausejour v. Chamberlin Plumbing & Heating, Inc., A-1459-12T4, (App. Div. January 29, 2014).
The Annual Midwinter Conference will be held this year in Chicago from March 13 until March 15 at the Conrad Chicago Hotel. It is a jointly sponsored by the ABA Tort Trial & Insurance Practice Section and the Section of Labor an Employment Law.
The Seminar begins on Thursday afternoon to allow for morning travel and will finish up at mid-day on Saturday with a presentation on mediation and negotiation techniques presented by the National Association of Workers’ Compensation Judges and the College of Workers’ Compensation Lawyers.
New this year will be several sessions specifically designed for the Medical community such as back-to-back sessions on Thursday,The Litigators Guide to Understanding Medicine and Evaluating & Treating Back Painand Healthcare Reform’s Impact Nationally and on Workers Compensation, and a presentation on Friday,CMS Regulations and Medicare Legislation.
This not to be missed program is open to all. The stellar speakers will discuss rainmaking, social media and ethical considerations, MSAs, healthcare reform’s impact on workers’ compensation, insurance premium fraud, opioid use and abuse, best practices, negotiation and mediation techniques, and diagnostic medicine.
Following this blockbuster program, the College of Workers’ Compensation Lawyers
will hold their annual dinner on Saturday evening. This is an invitation only event and
tickets are required.
For more information, please feel free to contact Mike Fish or Josh Holden. Both are former ABA TIPS Committee Chairs and would be happy to assist you. Contact information below.
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Mike Fish and Josh Holden are both members of Fish Nelson LLC, a law firm dedicated to representing employers, self-insured employers and insurance carriers in workers’ compensation matters. Fish Nelson is a member of The National Workers’ Compensation Network (NWCDN). If you have any questions about this post, please feel free to contact Mike atmfish@fishnelson.com or 205-332-1448 or Josh atjholden@fishnelson.com or 205-332-1428.