State News

Interesting Cases in Texas Workers’ Comp Law 

Coming and Going Rule – A Question of Fact

The El Paso Court of Appeals recently reversed a district court’s summary judgment decision involving a coming and going case. Duane Cook was employed by an oilfield fishing and rental tools company in far West Texas. The company issued him a truck, which included tools, that he was to take to and from their yard and other job sites as part of his job.  He was allowed to drive the truck to and from home and the employer’s shop, but could not use it for personal errands.  He was the sole mechanic employee and was responsible for checking all of the company equipment before the crews took it to the worksites from the shop.  

The night before the accident in question, his supervisor told Cook to drive to the employer’s yard the next morning to inspect some equipment that was to leave the yard early in the morning to arrive on site at a designated delivery time.  Early that next morning, Cook began driving from his home to the yard and was involved in a MVA only one or two blocks from his house.   The Division held Cook sustained a compensable injury and had disability.  The Appeals Panel reversed and rendered a decision against Cook and found he was not acting in the course and scope of his employment.  Cook filed suit in district court and Texas Mutual filed a motion for summary judgment, which the trial court granted.  The El Paso Court of Appeals analyzed Texas workers’ compensation course and scope law and the coming-and-going rule with its exceptions and ultimately held that there was a genuine fact issue as to whether Cook’s trip originated in the course and scope of his employment or was in the furtherance of the affairs of his employer’s business and remanded the case to the trial court.  Cook v. Texas Mutual Insurance Company, 2023 WL 2919332, ___ S.W. 3d ___ (Tex. App. – El Paso, April 12, 2023).

Venue for a Cowboy?

In most Texas workers’ compensation cases, the question of venue is pretty straightforward. In the case of Dallas Cowboys offensive lineman, Alcus Reshod Fortenberry, however, it was less so. Texas Labor Code §410.252(b) requires suits to be brought in the county where the employee “resided at the time of the injury.”   In this case, Mr. Fortenberry was injured while attending training camp in California on 8/2/15.  He signed a 3-year contract in May of that year to play for the Cowboys.  He stayed in a hotel in Dallas County while attending team practices that summer beginning in May.  He sprained his knee in June and had to sit out practice for 2 weeks, but continued to attend and participate in other activities during that time.  Later that month, he traveled to Louisiana to rehab his knee, but stayed in touch with the team regarding his progress and returned to Dallas for a conditioning test with his teammates in July before training camp began.  On 8/2/15, he injured his knee and was added to the injured reserve list with an estimated recovery time of 9 to 12 months.  His contract was ultimately terminated in May of 2016.  He filed for workers’ compensation benefits and the Carrier denied them. The parties stipulated to venue in the Dallas Field Office at the DWC level.  Unhappy with his impairment rating, Fortenberry filed suit in district court in Dallas, and the Carrier sought transfer to Travis County.  Fortenberry alleged his residence at the time of the injury was the Marriott Residence Inn in Dallas. The trial court denied the Carrier’s motion and the trial went forward in Dallas. The jury returned a verdict for Fortenberry and the Carrier appealed. The Court of Appeals held Texas Labor Code § 410.252(b) did not apply and rejected his other venue arguments and reversed the trial court’s judgment. The Texas Supreme Court held the venue provision of Labor Code § 410.252(b) was mandatory and Fortenberry more than presented enough evidence that he “resided” in Dallas County at the time of his injury.  The Court further held that the fact that he was staying in a hotel for a prolonged period of time did not preclude him from qualifying as a “resident” and found it probative that the parties stipulated to venue at the Division level.  Fortenberry v. Great Divide Insurance Company, 2023 WL 2719475 (Tex., March 3, 2023).

Copyright 2023, Stone Loughlin & Swanson, LLP

Sunrise, Sunset – Well, Maybe Just Sunrise…

In an unexpected move earlier this month, the Senate unanimously passed an amended bill that would delay by four more years the scheduled sunset review for TDI, DWC, OPIC and OIEC. This will push sunset review of the Division of Workers’ Compensation and the Office of Injured Employee Counsel to 2029, rather than 2025 as originally scheduled. SB1659, which was introduced by Senator Charles Schwertner of Georgetown - current chairman of the Texas Sunset Advisory Commission - will now go to the House of Representatives for further deliberations. At this time, we have no idea what is behind the legislation to postpone review of these agencies, but the legislation seeks to modify the review process for more than 40 Texas agencies.  
 

Copyright 2023, Stone Loughlin & Swanson, LLP

New Rule – New Forms

No rule change would be complete without changes to the corresponding forms and no form gets more facelifts than our beloved DWC-32. Here are some fun facts about the changes:

•  She’s lost some weight – down to four pages now – really 3-1/2 since the 4th page is just signatures.

•  Just the facts ma’am.  The form has been streamlined to request very basic identifying information of the parties, their representative and doctors.  Gone are the questions regarding authorized agents and bill review agents.   

•  The accepted compensable injury is a thing of the past. Box 37 is gone – caput – no one cares.  Regardless of whether the designated doctor is asked to address extent of injury.  Fear not, dear reader - the designated doctor will determine the compensable injury during the examination.  

•  Interestingly, there is a “yes” or “no” box” where you can tell someone that a DWC-24, CCH Decision or final court order determining the compensable conditions exists; however, there is no corresponding place to elaborate on that determination. 

The New DWC-32 must be used starting 6/5/23 and can be found on the Division’s website at: https://www.tdi.texas.gov/forms/form20numeric.html.

There are also new forms for the doctors to apply for certification and new DWC-68 forms for doctors to record extent of injury findings “more precisely.”

Copyright 2023, Stone Loughlin & Swanson, LLP 

NWCDN Conference in Charlotte, NC

The National Workers’ Compensation Defense Network will host its Southeast Regional Conference in Charlotte, North Carolina May 4-5, 2023. The conference is set to focus on what is on the horizon for workers’ compensation, with the keynote speaker – Mark Pew – speaking on managing pain through technology.  The conference is fee to guests of SLS.  You can check out the course agenda here: 
 

While you are in Charlotte, be sure to swing by and visit the home of world-famous race car driver Ricky Bobby – in fact, if you like it you can even put in an offer as his palatial mansion is for sale!
 

Copyright 2023, Stone Loughlin & Swanson, LLP  

More Changes at DWC

SLS bids farewell to Administrative Law Judge Rabiat Ngbwa who presided over Contested Case Hearings in the Austin Field Office.  No word yet on who will replace Judge Ngbwa, but we wish her well in her future endeavors.

Copyright 2023, Stone Loughlin & Swanson, LLP  

One Girl’s Opinion – Editorial by Erika Copeland

If you live long enough things definitely seem to come full circle. I began my workers’ compensation career as a Hearing Officer in the field when designated doctors only addressed MMI and impairment ratings. As time went by, they added other issues to their repertoire and the list grew. Local treating doctors provided MMI/IR certifications and, if you didn’t like it, you requested a designated doctor. Then the scheduling companies moved in and doctors started traveling from Houston to Abilene to see patients and the whole landscape changed. Seemingly before we knew it, the tail was wagging the dog and the companies were making 60% of the amount billed for the examinations and recruiting doctors from all disciplines, demographics and age groups to be designated doctors. It was truly the wild, wild west.  

The Division, spurred by the Sunset Advisory Commission and the 82nd Legislature took action and in January of 2011, I was in Austin and was charged – along with many others – with making changes to the designated doctor program.  Many people at the Division spent untold hours working very hard to improve the program and developed new rules, qualification and certification criteria, testing, and training curriculum that met the statutory requirements and systems designated to ensure qualified doctors were selected for the thousands of examinations that were requested each year.  It was a complete overhaul of the system that was not without its fits and starts, but overall, we saw great improvement in the training, testing, and competence and resources available to the doctors charged with providing the opinions necessary for the system participants to use in resolving their disputes.   

All of these changes came with consequences – some anticipated and some unforeseen.  The requirements to become a designated doctor – or even a doctor certified to evaluate MMI/IR – were now more burdensome, time consuming and costly.  The number of examinations available no longer justified the cost for many and some made the economic decision to let their certifications lapse.  The training for years had been perfunctory and the testing was not monitored or meaningful.  Now, the Division was requiring a three-day training at no small expense and was requiring doctors to have access to the ODG and MD Guidelines – additional expense items.  Many doctors did not want to take the time to learn or maintain the certification.   

Some unintended problems with the way the Division selected the most qualified doctors - and the additional costs associated with new training, testing and administrative requirements under the new rules - pushed many MDs and DOs out of the system.  In September of 2012, there were over 1,200 doctors on the Division’s list.  As of the date of this newsletter, the list is down to 238 and less than 30% are MDs and DOs. 

Over the years, the Division attempted to solve the problem of the ever-shrinking list with rule changes.  In December of 2018, they implemented a rule change designed to change the way the examinations were assigned and modified the qualification standards, yet the list continued to shrink.  This new set of rules has the stated goal of maintaining and increasing participation in the designated doctor program and allowing better access to certain kinds of examinations.  While it may well achieve the latter, there is little hope of it doing the former for one simple reason.  In the April 10, 2023 rule memo, the Division clearly stated that neither rule concerns one of the most important issues that the Division has not changed in decades – billing and reimbursement.    While they may be working to address that issue, the status of the billing and reimbursement rules project remains unclear. In light of the current state of the list, a change to the fee structure could be, at this point, too little too late.

The medical doctors and osteopaths left because it was no longer cost effective for them to do the work.  The medical fee guidelines for designated doctor examinations have not been updated to adequately reflect the changes in the designated doctor program.  The administrative burden on designated doctors – with or without scheduling company assistance – increased considerably when the rules changed.  The complexity of the cases the board-certified doctors are asked to address – especially regarding the extent of the injury - and the sheer volume of medical records they are asked to review in order to adequately evaluate those kinds of issues – are not reflected in the medical fee guidelines.   There is no reimbursement when a doctor travels out of town to see a claimant that doesn’t show up.  There is no incentive for local doctors who feel as though they are being priced out of the market by traveling doctors.

The administrative burden has lessened to some degree, however.  The doctors, under the new rule, don’t have to test anymore.  Over time other requirements have lessened: training is no longer three days long every two years and much of it is available by webinar instead of live training; doctors are no longer required to have access to MDGuidelines or ODG, they just have to “apply” them.  The obvious casualty of these changes – report quality.

While the doctors have concerns that are no doubt legitimate, practitioners have their own concerns about the rules.  Notwithstanding the obvious concerns about the declining quality of the designated doctor reports, we are now back to square one (circa 2010) with the designated doctor deciding what is compensable – without regard for what the carrier has accepted or disputed – whether the doctor is addressing extent of injury or not.  The designated doctor will no longer provide multiple certifications unless the Division orders it.  This begs the question – how does this help us with informal resolution?

Meanwhile, the Carrier is required to pay benefits based on the designated doctor’s certification of MMI/IR – even if they have disputed the condition the designated doctor has rated.   The question then becomes, is this a voluntary payment according to the SIF when it comes time to seek reimbursement if the Carrier is able to get the MMI/IR determination overturned at a CCH?  How do we advise our clients?  

A lot of very hard work went in to making positive changes to the designated doctor program after the last Sunset Commission recognized the problems the Division was facing.  In this girl’s opinion the Division was on the right track with training and testing and educating a group of doctors to provide meaningful tools to aid system participants and the Division in dispute resolution.  

Unfortunately, just easing up on the administrative burdens and continuing to change the qualification criteria will not bring more doctors into the system.  Changing the criteria to make it easier for a doctor to “qualify” does not make a doctor more qualified.  
 

Copyright 2023, Stone Loughlin & Swanson, LLP 

The burial benefit under the Nebraska Workers’ Compensation Act will increase to $11,300.00 effective July 1, 2023. This benefit applies upon the death of an employee, resulting through personal injuries as defined in NEB. REV. STAT. § 48-151

Please select this link to view the latest news from the Nebraska Workers’ Compensation Court (https://www.newcc.gov/home/court-news).

https://cpwlaw.com/news-releases-coming-burial-benefit-to-increase/

Cumulative Trauma - Sufficiency of Evidence 

Lexington Fayette Urban County Gov’t v. Gosper, 2021-SC-0386-WC (not final)

Claimant worked exclusively as firefighter and EMT for employer for 18 years. He presented to his treating physician, Dr. Balthrop, in December of 2017 with unbearable bilateral knee pain which his physician stated was work-related. He underwent two total knee replacement surgeries paid through workers’ compensation. Claimant had treated for knee problems for years and was diagnosed with osteoarthritis in 2012. He had a prior right knee work injury in 2007 that led to a meniscectomy. Dr. Balthrop testified that Claimant’s physically exacting work demands combined with his varus deformity accelerated the gradual deterioration of his knees and his occupation worsened his arthritis. The employer’s IME expert, Dr. Prince acknowledged that sustained, repetitive, and strenuous work is a risk factor for arthritis and would have accelerated Claimant’s degenerative changes. Dr. Prince, attributed 75% of his left knee impairment and 50% of his right knee impairment to non-occupational factors, including his varus deformity and being overweight. He testified that without the work-related component, Claimant would likely not have needed the knee replacement surgery at the age he had it. Claimant’s IME expert, Dr. Burke, noted that while Claimant experienced intermittent knee pain, he continued to work, however by the end of 2017 his knees deteriorated to where he couldn’t function with regular duty activities. Dr. Burke diagnosed progressive development of bilateral osteoarthritis contributed significantly by the nature and duration of his work. The employer also had a report prepared by Dr. Lyon, who attributed 50% of Claimant’s right knee condition to work and 0% of the left knee condition. Dr. Lyon emphasized Claimant’s history of knee pain and bowleggedness.

The ALJ found that the nature and duration of Claimant’s work aggravated his degenerative condition into active physical impairment sooner than would have been, awarding PPD benefits with the 3x multiplier and medical benefits. The employer appealed, arguing that the Claimant did not meet his burden of proving a work-related injury, noting injury does not include the effects of the natural aging process. The Supreme Court of Kentucky held that substantial evidence existed to support the ALJ’s determination, finding that three doctors, including one of the employer’s IME experts, acknowledged that the Claimant’s job duties significantly contributed to the acceleration or aggravation of his degenerative knee condition. 

The West Virginia Workers' Compensation Board of Review has implemented a new procedure for a claimant to file a protest to a claim administrator's order that does not include a Jurisdictional Claim Number. Claim administrators who are not following claim reporting procedures will be tracked by the Offices of the Insurance Commissioner. 

The Board of Review has changed the process for submitting a protest to a claim administrator's order that does not include the JCN. Claimants and their attorneys will no longer be required to call the claim administrator or the OIC's Claims Services in an effort to track down a JCN. Since a protest cannot be submitted on the Board of Review's portal without a JCN, please follow this process if you are submitting a protest to a claim administrator's order that does not include the JCN:

· Fax or mail the protest to the Board of Review (PO Box 2628, Charleston, WV  25329; 304-558-1322)

· A Temporary JCN will be assigned and the protest will be acknowledged.

· The Board will issue an order requiring the claim administrator to provide the JCN to the Board and the parties, in writing, within 15 calendar days from the date of the Board's order.  A copy of the Board's order will be provided to the OIC in order to track claim administrators who are failing to follow reporting procedures.

The Board of Review can be contacted by calling Beth Suter at 304-414-1027.

Written by: Logan Shipman

The N.C. Court of Appeals recently provided new guidance on calculating the average weekly wage (AWW) in a case involving a summer job for a full time graduate student. Although the case also addressed the admissibility of testimony under Rule of Evidence 702, the discussion below focuses primarily on the Court’s average weekly wage analysis.

In Gilliam, the decedent was an employee of a temporary employment agency and assigned to work at Bimbo Bakeries in a general utility position. At the time, the decedent was enrolled in graduate school at Mississippi College and began working for Defendant-Employer earlier that summer. Although his employment was at-will with no specified end date, the evidence demonstrated the decedent was set to end his employment with Defendant-Employer in August 2018, to return to school at Mississippi College.

On July 29, 2018, Plaintiff was working on the lid line in the bakery when he collapsed on the floor and was found unresponsive. EMS was called and he was pronounced dead at the hospital. An autopsy revealed the cause of death was probably dysrhythmia due to cardiomegaly. It showed an enlarged heart with increased concentric left ventricle thickness and noted that an enlarged heart impairs proper coordinated electrical conduction and predisposes the person to a fatal arrythmia. The autopsy further demonstrated increased fibrosis. Decedent’s parents filed a claim, alleging that Decedent collapsed and died while working in high heat inside the bakery. Defendants denied Plaintiffs’ claim on the basis that Decedent died from natural causes.

As noted above, the primary issue in this case was the proper method of calculating Plaintiff’s average weekly wage given his short term of employment. Plaintiffs contended the decedent’s average weekly wage should be calculated pursuant to the third method of calculating average weekly wage under N.C. Gen. Stat. § 97-2(5), which states, “where the employment prior to the injury extended over a period of fewer than 52 weeks, the method of dividing the earnings during that period by the number of weeks and parts thereof during which the employee earned wages shall be followed; provided, results fair and just to both parties will be thereby obtained.” Defendants, however, contended that the third method overestimated Plaintiff’s wages he would have earned but for the accident, since he was slated to end his employment shortly after the accident to return to graduate school. Defendants argued that the decedent’s average weekly wage should instead be calculated to the fifth method, which states, “but where for exceptional reasons the foregoing [methods of calculating average weekly wages] would be unfair, either to the employer or employee, such other method of computing average weekly wages may be resorted to as will most nearly approximate the amount which the injured employee would be earning were it not for the injury.”

After a hearing, the Deputy Commissioner concluded Decedent’s death was compensable and ordered Defendants to pay death benefits pursuant to the third statutory method of calculating average weekly wage. Defendants appealed to the Full Commission. The Full Commission affirmed the compensability of Decedent’s death but recalculated the average weekly wage pursuant to the fifth statutory method. The Full Commission found that the evidence demonstrated that Decedent would have ended his employment with Defendant-Employer and returned to school in August 2018. Medical records indicated Decedent was currently in grad school; a Facebook post from July 18, 2018, stated he was “so glad school starts in August so [he didn’t] have much longer in the bakery;” his sister testified he was in school at the time of his death; and his work history in the previous few years reflected he worked during the summer before returning to school each August. The Court concluded this evidence was sufficient to support its finding that Decedent would have ended his employment in August 2018. It held therefore that because he began working for Defendant-Employer on May 17, 2018, and would have ceased working in August 2018, within a few weeks of his death, Decedent’s earnings from May 17, 2018, to August 2018 would have constituted his total earnings in 2018. Thus, calculating his average weekly wage using the third method would overestimate his wages he would have earned but for the compensable accident. The Full Commission, using the fifth statutory method, calculated Plaintiff’s average weekly wage by adding his earned wages up to the date of the compensable accident and dividing that sum by fifty-two weeks. Defendants appealed the Full Commission’s Opinion and Award, and Plaintiffs cross-appealed.

The Court of Appeals ultimately found the Full Commission’s calculation did not fully capture the wages he would have earned but for the accident because it did not account for the remaining few weeks he would have worked before returning to school. The Court remanded the case to find the date he would have ended his employment and to recalculate the average weekly wage using that sum and dividing it by fifty-two weeks.  The appeal was dismissed in part and vacated and remanded with instructions in part.

Gilliam provides support for a lower calculation of an injured employee’s average weekly wage in cases in which the injured employee had worked less than fifty-two weeks as of the date of injury, but where the evidence demonstrates that the employee was going to terminate employment with the defendant-employer at a specific date shortly after the accident. As in Gilliam, this new guidance is particularly applicable to cases involving seasonal employment.