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.
Senate Bill 863 was signed into law by Governor Brown on Sept. 18, 2012,. Many of its provisions take place January 1, 2013. The bill makes wide-ranging changes to California's workers' compensation system, including increased benefits to injured workers and cost-saving efficiencies. Click on our Power Point Presentation in the Updates Section of our website for a complete discussion of the changes. Hanna Brophy Clients: please contact your local Hanna Brophy office or email this website for the next Hanna Brophy in-person presentation of SB 863 changes and strategies http://www.hannabrophy.com
O’Reilly Auto Parts and Gallagher Bassett Services v. Jerry Alexander, No. 2-711 / 11-1864, Court of Appeals of Iowa
The Claimant began working with the employer in 1999. On May 8, 2008, the Claimant alleged he sustained hip and back injuries while unloading at tote from a truck and twisting his body to take a step. He encountered his supervisor and told him he could barely walk. He returned to work on May 12, 2008 using a walker and reported the injury to the store manager.
An injury report was filled out, however it listed the injury dates as August 8, 2006 and December 2007. This report was signed by both the Claimant and his manager. The claimant testified at hearing that he was upset as he was denied seeing the company doctor and likely signed the document without reading it. He further testified that he did not understand the importance of the form and that he was confused about what the dates represented.
The Claimant’s manager testified that the Claimant did report injuring his hip but she was uncertain as to when the report occurred. She apparently was also questionable of the report of injury as the Claimant had previously reported him pain which he had associated with a hip injury he sustained in 2003. Due to the inconsistencies in the Claimant’s statement, the employer maintained that the Claimant had not suffered any injury in May 2008.
The Claimant treated with Dr. Ray who ultimately opined that the Claimant’s work with the employer contributed to a worsening of pain from his pre-existing condition of spinal stenosis and assigned 8% whole person impairment. Prior to his deposition and hearing of this matter, the Claimant sustained a stroke. During his deposition and at hearing he frequently explained that he was having difficulties with his memory. After hearing of the matter, the deputy commissioner found that the Claimant had not sustained an injury in the course of his employment. This was reversed on appeal to the Commissioner, who found that the testimony of the Claimant and his wife, along with the medical records in the case provided substantial evidence that the claimant suffered an injury in May of 2008.
The decision of the commissioner was upheld on appeal to the district court. At the district court level, the employer argued there was insufficient evidence of the necessary causal connection between the conditions of employment and the injury to support the commissioner’s finding. The district court declined to address this argument as it was not presented at the agency level and not preserved for judicial review. The case was appealed to the Court of Appeals.
The Court first addressed that the argument on appeal was one that presented a mixed question of law and fact and thus the commissioner’s decision would only be disturbed if irrational, illogical or wholly unjustifiable. The Court then turned its attention to whether the argument that the injury to the Claimant was not caused by or related to the conditions of his employment as his work presented no particular hazards of such an injury. The Court first recognized that this was not raised in the initial pleadings nor as an issue the parties agreed were in dispute. However, the Court noted that among the issues identified by the deputy was “whether the injury arose out of and in the course of employment.” The Court then stated that while the majority of the focus of the proceedings centered upon whether and injury occurred and if so, if it occurred in the course of employment, the employer had consistently raised the issue of whether the Claimant’s act of lifting and carrying a tote allegedly containing a four ounce filter was sufficient to establish a compensable injury. Therefore, the Court viewed the contention as there being no causal connection between the injury and a condition, risk or hazard of the Claimant’s employment.
In the Court’s eyes, this satisfied them that the error was preserved as the “arising out of” requirement was raised, litigated and decided by the agency.
The Court next turned its attention to the issue of whether substantial evidence supported the commissioner’s finding that the Claimant sustained an injury arising out of and in the course of his employment. The Court stated that credibility determinations are to be made by the commissioner as a trier of fact and that while some testimony can be disregarded due to its impossibility or absurdity, the Claimant’s testimony did not fit that description. The Court did note that he exhibited confusion in his testimony and that he himself acknowledged that his memory was not as good as it used to be. However, the Court also found that the Claimant’s manager was in no way consistent in his testimony as to when the injury was reported. The Court also noted that while the Claimant did not report an injury to his family doctor in later May of 2008, he did report a fall having occurred a few weeks prior in a June 2, 2008 appointment with another doctor.
Ultimately the Court found that there was substantial evidence to support the Commissioner’s finding that the claimant did sustain an injury in May of 2008.
The employer also contended that Dr. Ray’s opinion on causation could not be relied on as he was unaware of the weight of the tote the Claimant was carrying at the time of the alleged injury. In finding that the Commissioner could rely on Dr. Ray’s opinion noted that the employer had not offered an expert opinion calling Dr. Ray’s opinion into question; nor had they offered evidence that Dr. Ray’s opinion would have changed if he had known that the tote was light in weight. Ultimately the Court concluded that substantial evidence supported the Commissioner’s reliance upon the testimony of Dr. Ray in finding medical causation was present for the Claimant’s injury.
The Court ultimately found that substantial evidence supported the findings of the Commissioner and the determination that the injury sustained by the Claimant was not irrational, illogical or wholly unjustified.
The final issue taken up by the Court on appeal was whether the Commissioner’s review of the employer’s proof of coverage information on the agency’s website to verify the appropriate insurer constituted bias or reversible error. The Court first noted that the Iowa Administrative Procedures Act provides that “[A]n individual who participates in the making of any . . . final decision in a contested case shall not have personally investigated . . . or advocated in connection with that case, the specific controversy underlying that case . . . .” The Court however found no evidence that the commissioner investigated the specific controversy underlying the case. Rather the Court found that he simply “consulted records maintained by the agency and corrected an error, which counsel failed to identify and remedy, making the decision he rendered enforceable against the proper insurance carrier.”
The Court then examined the
commissioner’s decision in adding the correct insurance carrier for errors at
law. The Court found that the “commissioner’s action in adding the correct
insurance carrier was necessary and within the authority granted to him by the
legislature under the power to adjudicate the rights and duties as between
injured workers and the responsible insurance carriers and the power to enforce
the provisions of the code.” Thus the Court did not find that the
Commissioner’s action created an appearance of impropriety or evidence of bias.
Call Mark Bosscher or Lee Hook with any questions @ 515-243-2100.
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NC Risk Handling Hint - Attorneys' Fees
Ensley v. FMC Corp. is a yet another reminder of the broad discretion afforded the Industrial Commission both in awarding and denying attorney’s fees.
Grover M. Ensley worked in various jobs with FMC Corporation and was exposed to asbestos when he removed metal from“dipping cells” insulated with asbestos and installed asbestos insulation in the cells. Ensley retired from work in 1998. In 2006, he underwent chest X rays which were reviewed by a board certified pulmonologist who diagnosed Ensley with asbestosis and silicosis caused by his employment. The Industrial Commission determined that Ensley had developed compensable asbestosis and awarded indemnity and medicalbenefits. Ensley was also awarded attorney’s fees under N.C.G.S. § 97-88.1.
Defendants appealed to the Court of Appeals, contending that Ensley retired because of medical conditions unrelated to his employment, and as such, he had no loss of earning capacity in 2006 when he was diagnosed with asbestosis. The Court of Appeals disagreed and noted that the Full Commission’s unchallenged findings of fact established that Ensely was unable to work in any capacity due to asbestosis in 2006.
The case was then remanded to the Full Commission because the evidentiary record lacked any findings of fact or conclusions of law regarding whether Defendants pursued a defensewithout reasonable grounds. On remand, the Full Commission determined that Defendants defendedthe claim without reasonable grounds and that Ensley was entitled to $12,000.00 in attorney’s fees. Defendants appealed to the Court of Appeals.
On August 21, 2012, inEnsley v. FMC Corp.,the Court of Appeals first considered whether the Industrial Commission erred in awarding Plaintiff attorney’s fees under N.C.G.S. § 97-88.1. It upheld the Full Commission award of attorney’s fees, noting Defendants’ denial was unreasonable because four doctors testified that Ensley had asbestosis as a result of his employment. Although Defendants argued that none of Ensley’s witnesses testified that he was actually disabled as a result of that condition, Defendants’ own medical expert determined that Ensley was disabled due to asbestosis. The record also showed that two of Ensley’s experts testified that he was disabled from any work as a result of asbestosis.
The Court also considered whether the Full Commission erred in reducing the sanction amount from 25 percent of the compensation awarded to Ensley to $12,000.00 in attorney’s fees. In finding no error, the Court noted that during the previous appeal, the Court of Appeals only required the Industrial Commission to make findings of fact and conclusions of law in support of its award of attorney’s fees. Ensley argued that the Industrial Commission was precluded from altering the amount of attorney’s fees awarded in its original opinion and was limited to making findings of fact and conclusions of law in support of its award of sanctions.
On remand, however, the Industrial Commission concluded, in its discretion, that an award of $12,000.00 in attorney’s fees was appropriate. The Court held that in making this decision, the Industrial Commission was within the authority granted under N.C.G.S.§ 97-88.1 and did not abuse its discretion.
Consideration of requests for attorney’s fees are typically fact-intensive and the Full Commission’s findings of fact and conclusions of law will rarely be disturbed on appeal. Therefore, Defendants need to carefully consider the evidence supporting their defenses and recognize the risk of attorney’s fees when such evidence is limited.
Luz Lukasik agreed to provide house cleaning services for Marguerite Hollaway and two others. Respondents contacted Lukasik after hearing about her from an acquaintance. At that time she was cleaning five or six other houses and one office building on a regular basis. Petitioner Lukasik and her daughter went to the home of respondents and examined the house. A discussion occurred about the potential for doing laundry, but petitioner declined, stating that she would consider that in the future. The parties did agree to $100 per day for cleaning services.
On January 16, 2007 petitioner came to the respondents’ home with a friend and began cleaning, using the supplies furnished by respondent. Within the first hour on the job, petitioner fell off a stool and injured her hand. An ambulance was called and petitioner received treatment for hand fractures. She came to the house on another occasion but directed someone else and her daughter in doing the cleaning. She told respondents that she needed to purchase supplies and expected to be reimbursed for those costs. Thereafter, respondent refused to pay her for the cleaning and supplies.
Petitioner filed a workers’ compensation claim asserting that she was employed by respondents when she was injured. The Judge of Compensation ruled in petitioner’s favor and held she was an employee. The Judge focused on the right of control test and noted that respondents set the day for the work to be done, expected her to provide this service on a regular basis, and had the ability to direct her work even if they chose not to do so. The Judge found 45% of the hand or $22,170.75.
Respondent appealed and contended that petitioner was an independent contractor under either the “control” test or the “relative nature of the work” test. The Appellate Division reversed inLukasik v. Marguerite Holloway, A-5913-10T3 (App. Div. August 22, 2012) holding that there was insufficient control of petitioner’s work activities to constitute an employer/employee relationship. The Court said that respondent did not control how petitioner did her cleaning, what supplies she used, or who did the cleaning. There was no discussion about the specific day of the week petitioner would clean and no agreement that petitioner herself would do the cleaning. In fact, on the second day of cleaning petitioner did no cleaning herself but directed her daughter and a friend. “An employee would not have the option to produce helpers or a substitute to do the employee’s work.”
 nbsp; Other factors that argued against employment were that respondents set a price of $100 per day rather than pay wages to each of the persons performing the cleaning work. Additionally, petitioner herself purchased the supplies for the second cleaning and determined what equipment to use. Further, there was no proof of economic dependence by petitioner on respondents. “We conclude that respondents did not control petitioner’s work to the extent that an employer controls the work of an employee.”
This case is an interesting one, particularly since New Jersey decisions seldom come down on the side of independent contractor status. The case does not mean that all home cleaners are independent contractors. As the Court stressed, the facts of each case must be considered.
From time to time plaintiff’s counsel takes the position that respondent’s lien is applied to the net proceeds after deduction for plaintiff’s total costs of suit. In Greater New York Mutual Insurance Company v. Calcagno & Associates, A-0900-11T4 (App. Div. September 20, 2012), that very issue was decided.
John Phillips was injured arising from work, and the workers’ compensation carrier paid benefits in the gross amount of $29,733.84. Phillips also sued a third party and recovered $35,000. Greater New York (hereinafter GNY) asserted its full lien. In response, counsel for Phillips requested a lien compromise. GNY refused to compromise its lien and insisted that it was due two thirds of $29,733.84 minus $750 for costs of suit for a balance of $19,073.55.
Calcagno & Associates, counsel for Phillips, did not pay $19,073.55. Instead the law firm sent a check to GNY for $14,821.85 after deducting $12,767.23 for “disbursements of suit.” GNY then sued for the balance of $4,251.70.
The trial judge ruled that the New Jersey subrogation statute (N.J.S.A. 34:15-40) is clear on its face in stating that costs of suit are limited to $750. Counsel for Phillips appealed and argued that N.J.S.A. 2A:13-5 governing attorney’s liens had priority over a workers’ compensation lien. Counsel also argued that the carrier’s lien only attached to the net settlement proceeds in the third party action.
The Court rejected these arguments. “N.J.S.A. 2A:13-5 is irrelevant to this matter, and defendants cite no authority for the proposition that this statute has priority over a workers’ compensation lien pursuant toN.J.S.A. 34:15-40.” The Court further held, “Here, the third party tortfeasor or his insurance carrier paid Phillips $35,000 to settle the negligence lawsuit. The employer’s liability, therefore, was based on that sum, not the net sum.”
The Court said that GNY was entitled to its full two thirds minus $750 or $19,073.55. It said that Phillips’ lawyer could seek reimbursement of the litigation costs in excess of $750 from Phillips pursuant to their retainer agreement.
Carriers and third party administrators encounter this issue fairly often, so this decision is a useful one. While the workers’ compensation statute may provide an unrealistically low allowance for costs in a third party action, this is a statutory matter that the Legislature alone can change.
Defining what is a flare up from a new injury as opposed to objective worsening in the condition has always been more art than science. InAllison v. L&J Contracting Company, A-1352-11T4 (App. Div. September 27, 2012), the petitioner Allison injured his low back falling in a hole on July 27, 2006. He filed a claim petition against L&J, which admitted the accident.
L&J subsequently moved to join a subsequent employer, Baumgardner Floor Covering, for two accidents occurring in June 2007 and March 2008. Petitioner had returned to work for Baumgardner and found that his normal activities on that job and at home were worsening his back and leg. He claimed he was injured in June 2007 and in March 2008 while working for Baumgardner, but he never reported either incidents to Baumgardner, nor did he seek treatment. He himself thought these incidents were flare ups of his previous symptoms.
An MRI was done in 2006 showing small disc herniations at L4-5 and L5-S1 as well as a bulging disc at L3-4. Petitioner treated with Dr. Steven Valentino for the 2006 injury and got three injections of cortisone. Dr. Valentino did not observe radicular pain during his treatment in 2006.
When Dr. Valentino saw petitioner in November 2007, he noted that petitioner’s symptoms had increased. He gave him epidural injections. Dr. Valentino saw petitioner in February 2008 but did not recommend surgery.
On March 17, 2008, petitioner saw Dr. Valentino and reported lifting a 92 pound bag of sand at work (during Baumgardner’s employment) and experiencing low back pain with sciatic pain. Dr. Valentino found definite worsening related to lifting the 92-pound bag. A new MRI in April 2008 showed no change in the discs other than some increase at L4-5.
Dr. Valentino continued to treat petitioner and eventually performed surgery on October 3, 2008 consisting of a laminectomy at L4-5. After his surgery, petitioner experienced improvement.
The petitioner’s expert, Dr. Henry David, found an 80% disability, apportioning 65% to L&J and 15% to occupational exposures at Baumgardner. Baumgardner produced testimony from Dr. Tim Pinsky, who found that all of the disability was from the first accident with L&J. He said that petitioner had ongoing problems from the time of his first accident. Dr. A. Gregory McClure testified for L&J, making no attempt to apportion disability between the two employments.
The Judge of Compensation found that all of petitioner’s back problems stemmed from his 2006 accident. He said that the incidents in June 2007 and March 2008 were “descriptive of occupational activities” rather than “accidents or traumatic events.” The judge said that nothing petitioner did while working with Baumgardner was any different than his normal everyday occupational activities. The Judge assessed all responsibility for the claim against L&J, which filed an appeal.
The Appellate Division reviewed the rule inPeterson v. Hermann Forwarding Co.,267 N.J. Super. 493 (App. Div. 1993). In that case the first employer in a series of employments was held responsible for petitioner’s disability where the claimant continued to work after the original injury and the subsequent employments were not shown to have materially worsened his condition. The Appellate Division held that as inPeterson, the petitioner here got worse over time simply by the progressive worsening of his condition, not necessarily by the subsequent work. The Court said that there was only proof of one compensable accident in 2006 against L&J. Although the court does not discuss this point, it was no doubt problematic that petitioner never reported either incident, nor sought treatment for the two alleged subsequent incidents.
This case shows how difficult it can be to render subsequent employers liable after a significant initial injury. It is clear that this was a close case. One factor that no doubt hurt L&J was that its own expert did not apportion disability between the two employers. Most of all courts focus on objective testing, and there were legitimate differences of opinion among medical experts whether the second MRI showed any material difference from the MRI done immediately after the first incident in 2006.
MISSOURI WORKERS’ COMPENSATION
CASE LAW UPDATE
JULY 2012-SEPTEMBER 2012
Each Pre-existing Injury Alone Has to Meet Threshold for Fund to be Liable for that Injury
Joseph Salviccio v. Treasurer of the State of Missouri, as Custodian of the Second Injury Fund,Case No. ED97862
FACTS: The claimant sustained an injury to his left knee and settled against the employer for 20% of the left knee. He then pursued benefits against the Second Injury Fund. The claimant had pre-existing disabilities of 59% of the left finger, 4% of the body referable to a hernia, 3.5% of the body referable to a hernia and 20% of the body referable to diabetes. The ALJ found no Fund liability because none of the claimant's pre-existing injuries arose to the level necessary, which was 15% of a major extremity, or 50 weeks for body as a whole injuries. The Commission found that because the claimant had more than a single pre-existing PPD, it was necessary to convert all of his pre-existing disabilities to weeks of compensation and combine them to see if they met or exceeded the 50 weeks of compensation. The Commission looked to all of the claimant's pre-existing disabilities, which amounted to 123 weeks. Therefore, the Fund was responsible for 12.3 weeks of PPD enhancement.
HOLDING: The Court concluded that the Statute makes no allowance for combining body as a whole injuries together, or combining a body as a whole injury with a major extremity injury. The Court did note that it is acceptable to combine pre-existing PPD of a major extremity, for instance, PPD of the right wrist and the right shoulder, which results in 15% of the right arm, which is a major extremity. The Court found that only the claimant's diabetes, which was considered to be 20% PPD, satisfied the 50 weeks of compensation threshold and could be included in calculating Fund liability. Therefore, the Court concluded that the Fund was not liable for PPD enhancement due to the claimant's two hernias and the injury to his little finger, and was only responsible for enhancement with respect to the claimant's diabetes. Please note that this matter was directly transferred to the Supreme Court.
Dyson v. Treasurer of the State of Missouri as Custodian of the Second Injury Fund, Case No. ED97865
FACTS: On June 23, 2008, the claimant sustained an injury to his right shoulder, which required surgery. He settled his claim against the employer for 25% PPD of the right shoulder. He also had a prior neck injury, which he settled against the employer for 15% PPD and also had a prior right ankle injury. The claimant went to a hearing against the Fund. The ALJ found that the Fund was responsible for 15% PPD of the body for the pre-existing neck injury and that the Fund was not responsible for the 7.5% PPD of the right ankle. The claimant filed an Application for Review, and the Commission found that the Fund was responsible for the 7.5% PPD of the ankle. The Fund appealed, noting that the 7.5% PPD of the ankle did not meet the threshold, which was 15% of a major extremity.
HOLDING: The Court, basically quoting the opinion ofthe Salviccio Court, noted that combining or stacking different pre-existing injuries is not permissible. Only combining pre-existing PPD of a major extremity, for instance, the right wrist and right shoulder to result in 15% PPD of the right arm, is permissible. Therefore, the claimant's 7.5% PPD to his ankle does not meet the minimum 15% PPD threshold for major extremities, and does not trigger Fund liability.
The Court also addressed the Fund's argument that the claimant's ankle injury was not a hindrance or obstacle to his employment. The Court found that Dr. Volarich noted that the injury was a hindrance to his employment, due to ongoing pain, particularly with prolonged weight bearing and deep squatting activities. The Court further noted this was supported by the claimant's testimony that he had pain in his ankle, had to wear boots, even in the summer, to support his ankle, and had discomfort at the end of the day. Therefore, the Court found that there was sufficient competent and substantial evidence in the record that the claimant's injury was a hindrance or obstacle to his employment. However, because it did not meet the threshold, the Fund was not liable for the 7.5% PPD of the ankle.
15% Penalty Against Employer Does Not Apply to Claimant's Award Against Fund
Terry Hornbeck v. Spectra Painting, Inc, and the Treasurer of the State of Missouri as Custodian of the Second Injury Fund,Case No. SC92116
FACTS: The claimant was a painter and fell from a ladder onto a concrete surface. The ladder that he fell from was on a makeshift scaffolding platform. The claimant alleged that his work injury resulted from the employer's violation of the Scaffolding Act, and sought application of the 15% statutory violation penalty under the Statute. The ALJ determined that the employer had not violated the Scaffolding Act and the 15% penalty was inapplicable. The Commission found that the employer had violated the Scaffolding Act, and the 15% penalty applied to the Award against the employer and the Fund.
HOLDING: The Court found that 15% statutory violation penalty against the employer does not apply to the claimant's Award from the Fund. The Court noted that because the Award issued to the claimant from the Fund is intended to reflect his pre-existing condition, not the injury caused by his work with the employer, it would be inappropriate to order the employer to pay a penalty on that Award.
Statutes in Effect on Claimant's Date of Injury Govern
Gary Gervich, deceased, and Deborah Gervich, v. Condaire, Inc. and Treasurer of Missouri as Custodian of the Second Injury Fund,Case No. SC91727
FACTS: The claimant sustained a work-related injury on April 6, 2006 while working for the employer and alleged that he was permanently and totally disabled. While the claimant's claim was pending, the legislature in 2008 amended the Workers' Compensation Statute pertaining to the right of an injured worker's dependent to collect continuing compensation when the injured worker dies of causes unrelated to the work injury. On April 5, 2009, the claimant died from causes unrelated to his work injury. The Commission found that the claimant's right to total disability benefits terminated at the time of his death because his wife's right to such benefits had not "vested" prior to the 2008 statutory amendments that eliminated dependents from the definition of an employee.
HOLDING: The Court found that the Statutes in effect at the time of the claimant's injury, which was April 6, 2006, governed. Those Statutes provided that the dependents of an injured worker who was receiving permanent total disability benefits would continue to receive those benefits when the claimant died of causes unrelated to the work injury. Furthermore, the Statute stated that a claimant's dependents are determined at the time of the injury and include the spouse of an injured worker. Therefore, the Commission was not authorized to deny such benefits to the claimant's widow. The Court reversed and remanded the Commission's decision noting that the claimant's widow's status as a dependent was set on the date of her husband's injury, and she fit within the statutory definition of an employee in effect on the date of injury. Therefore, she is entitled to receive continuing permanent total disability benefits as his dependent.
Willie White v. University of Missouri - Kansas City and Treasurer of the State of Missouri - Custodian of the Second Injury Fund,Case No. WD74081
FACTS: The claimant was injured on June 11, 2007 and filed a claim for PPD against his employer and the Fund on June 17, 2008. On September 30, 2009, the claimant amended his claim alleging permanent and total disability. An ALJ determined the claimant was permanently and totally disabled as a result of his work injury in combination with his pre-existing disability. The ALJ denied the claim for benefits for his wife, asserted underSchoemehl v. Treasurer, in which the Court found that dependents continue to receive benefits when the claimant dies of causes unrelated to the work injury. The ALJ noted that the claimant's claim was not amended to a permanent disability claim until after Schoemehl was abrogated by the 2008 amendments. The Commission concluded the Fund was responsible for the claimant's PTD benefits, and the claimant's wife qualified for application of theSchoemehl case. The Fund appealed arguing that because the injured employee was not deceased, dependent benefits cannot "vest" until the injured employee is deceased.
HOLDING: The Court noted that inGervich v. Condaire the Court found that the Statutes in effect at the time of the injury govern whether his/her dependent was entitled to receive disability benefits, not the Statutes on the date of death. The Court found that even though the claimant's wife's dependency status was determined prior to the date of the statutory amendments in 2008, her right to receive these benefits remains contingent and cannot be adjudicated. The Court determined that because the claimant was still alive and his wife cannot be substituted as an employee for him at this stage, she is not entitled to receive benefits underSchoemehl at this time.
COMMISSION DECISIONS
New Law
Pre-existing Disability Irrelevant if Last Injury Alone Renders Claimant PTD
In Mackey v. Superior Cartage, Inc. and Treasurer of Missouri as Custodian of Second Injury Fund, Injury No.: 09-065400,the claimant sustained an injury to his lower back, which required surgery, and he settled his claim with the employer for 23.5% PPD of the body. The claimant also had a prior shoulder injury which he settled for 56% PPD of the left shoulder. He then went against the Fund for permanent total disability benefits. The ALJ found that the Fund was responsible for benefits. The Commission reversed the ALJ's decision, stating that the ALJ failed to look to the last injury alone before considering the claimant's pre-existing disabling conditions. The evidence revealed that the claimant had considerable disabilities that resulted from his primary August 2009 low back injury, including daily pain and medication, the inability to sleep, use of a cane and the inability to walk for more than 5 - 10 minutes. The Commission noted that when determining whether the Fund has any liability, it must first determine the degree of disability from the last injury considered alone. Pre-existing disabilities are irrelevant until this determination is made. If the last injury, in and of itself, rendered the claimant permanently and totally disabled, then the Fund has no liability, and the employer is responsible for all compensation. The Commission found that the effects of the primary injury considered alone, in isolation, rendered the claimant permanently and totally disabled, and therefore, the Fund had no liability.
Pre-existing Condition of Diabetes was Hindrance or Obstacle Even Though It Was Controlled
In Bollinger v. The Education Institute and Treasurer of Missouri as Custodian of Second Injury Fund, Injury No.: 08-120375,the claimant sustained a compensable right knee injury on September 16, 2008. He settled his claim against the employer and proceeded to a hearing against the Fund. The ALJ found that the claimant's pre-existing diabetes was not a hindrance or obstacle to employment at the time of the primary injury, because at the time of his primary injury his diabetes was not out of control, even though at the time of the hearing it was out of control. The Commission disagreed because they were convinced that a cautious employer could reasonably perceive the claimant's diabetes as having the potential to combine with a work-related injury so as to produce a greater degree of disability then would occur in the absence of such condition. The Commission further noted that the claimant's diabetes negatively impacted his treatment leading to delays while doctors tried to get his diabetes under control. Therefore, the claimant's diabetes in fact hampered his ability to recover from the work injury, and thus exposed a perspective employer to more liability than otherwise would have resulted from the work injury. Therefore, the Commission concluded that the claimant's diabetes is precisely the sort of pre-existing condition that the legislature had in mind when the Fund was created.
Fall Not Compensable Because Claimant Failed to Prove In Course and Scope of Employment
In Burt v. Reckitt Benckiser, Injury No.: 10-009704, the claimant did not remember any of the circumstances surrounding his fall. There were no witnesses to the fall and the only firsthand account of the incident was from a woman who saw the claimant sliding down the stairs just after the fall had occurred. The last thing the claimant remembered prior to his fall was looking at a clock. He did not recall going up the stairs and did not recall falling down the stairs. The ALJ noted that it was pure speculation as to where the claimant was located on the stairs when he first began to fall, and there was no evidence that he slipped or that he had fallen because of the lack of a guard. Therefore, the ALJ found the claimant failed to carry his burden of proof that he experienced an injury by accident arising out of and in the course of employment, since he experienced an idiopathic cause which resulted in his injury.
The Commission agreed with the ALJ's conclusion but disagreed with the analysis. The Commission noted that when an employer defends on the ground that there was an idiopathic cause, the first step in the analysis is to ask did the claimant sustain an accident arising out of and in the course of employment, and if so, did the accident result in personal injuries. Then, if so, did the employer prove the injuries resulted directly or indirectly from idiopathic causes, and if so, the injuries are not compensable under the Statute. The Commission noted that the claimant failed to prove that he sustained an accident arising out of and in the course of employment because he did not prove that his injury came from a hazard or risk unrelated to the employment, to which workers would have been equally exposed to outside and unrelated to the employment, in normal non-employment life. In essence, the claimant failed to prove that his fall was related to the fact that he was on the stairs. Therefore, an analysis as to whether the claimant's injuries resulted directly or indirectly from an idiopathic cause was improper.
Claim Denied Because Claimant Not Credible
In Meachum v. Dana Corporation, Injury No.: 07-034564,the ALJ found that the claimant sustained an injury to her low back by reaching into a basket and pulling out parts, which caused an L5-S1 disc herniation, and she sustained 15% PPD as a result of her injury. The Commission reversed the ALJ because they found that the claimant's testimony was not credible. The Commission found that the claimant's testimony was in stark contrast to the medical records, which noted the claimant had longstanding problems with her back and she had reported low back problems before the work accident. Also, in the medical records, there was no mention of the claimant reporting a work injury. There were multiple practitioners' records that noted a long history of back problems and failed to mention a work injury at all. Furthermore, the claimant testified that she had no memory of the circumstances surrounding her prior low back pain. She then testified that she was "fine" up until her March 23, 2007 injury. The Commission failed to see how the claimant was able to reconcile an inability to remember anything at all about her back before the work injury with a belief that her back was doing fine up until the date of the alleged accident. The Commission further noted that the claimant's inability to remember anything about her low back condition before her injury cast doubt on her testimony as a whole. Therefore, the claimant's testimony regarding her March 23, 2007 incident lacked credibility, and she failed to meet her burden of proof. Therefore, the Commission found the claimant did not sustain an accident at work on March 23, 2007.
In Parmeter v. Ramey's Automotive Machine Service, Injury No.: 07-016489,the ALJ found that the claimant failed to establish a compensable accident, and therefore, denied the claim. The claimant alleged that on January 16, 2007, he leaned over to pick up an engine head at work and felt a snap in his groin. At the hearing before the ALJ, the claimant acknowledged that he didn't remember the actual date that this happened. There were numerous contradictions between the claimant's account of what occurred and his statements set forth in the medical records. Also, the claimant's supervisor and two of his co-workers each denied that the claimant reported or otherwise complained of a back or groin injury on or about January 16, 2007. In light of the numerous inconsistencies and concerns identified by the ALJ, the Commission also found that the claimant lacked credibility as to the circumstances of the alleged accident and affirmed the decision of the ALJ.
Claimant Can Attempt to Prove Causal Connection Between Two Incidents Even Though Two Separate Claims Filed
In Pease v. Stockton R1 Public School, Injury No.: 07-080701, the claimant sustained an injury to her right knee when she fell at work in August 2007. Her treatment included surgery, after which she used a walker consistent with the treating doctor=s recommendations. In April 2008, the claimant fell again when she lost control of the walker while trying to open a door, and she sustained an injury to her left knee and elbow as a result of the fall. The ALJ found the April 2008 fall was a natural consequence of the 2007 injury, and included the injury to her knee and elbow from the 2008 fall in his determination as to the nature and extent of the employer's liability for the 2007 work injury. On appeal, the employer argued that since the claimant filed a separate claim for the 2008 fall, and because the 2008 fall met the criteria for an accident under the Statute, the claimant is precluded from proving a causal connection between the 2007 and 2008 events.
The Commission found that the employer's argument failed. The Commission noted that the Courts have held that when a compensable work injury is found to have occurred, every natural consequence that flows from that injury, including a distinct disability to another area of the body, is compensable as a direct and natural result of the primary or original injury. The Commission noted that the claimant is not prohibited from showing a causal connection between the incidents simply because separate claims were filed. Therefore, the claimant was entitled to make her case that the 2008 fall was a natural consequence of the 2007 work injury, despite filing a claim for both incidents.
Doctor Found Not Credible Because He Did Not Review Records From Prior Injury
In Doss v. St. Louis Public School, Injury No.: 07-124868, the claimant had numerous pre-existing conditions. He had two laminectomies along with fusions, one at L4-5 and another at L3-4. He also settled a workers' compensation claim for 7.5% PPD of the body and 6% PPD of the right knee. On December 21, 2007, the claimant sustained an accident at work when he slipped and fell in the school hallway. He treated at Concentra and was diagnosed with a lumbar strain. The claimant was then sent to a physiatrist for pain management. At the time of the hearing, he was still seeing pain management doctors for epidural steroid injections. The claimant noted that prior to his December 2007 injury, he could do a variety of activities. However, after this injury, he was unable to walk more than 10 feet before feeling pain. Dr. Doll, the doctor for the employer, opined that the December 2007 fall was not the prevailing factor in causing the claimant's current condition. Dr. Doll did not review any of the prior medical records, but testified that he believed that he had enough background to make a determination to a reasonable degree of medical certainty. The Commission was not persuaded.
The Commission noted that the claimant had an extensive and complicated history with regard to his low back and it did not believe that Dr. Doll could render a medical causation opinion without seeing any of the records from his prior treatment. Therefore, the Commission found Dr. Poetz, the doctor for the employee, more credible. Dr. Poetz opined that the December 2007 fall was the prevailing factor in causing the claimant's condition, therefore the Commission found that the claimant met his burden proving that his accident was the prevailing factor in causing both the resulting medical condition and disability.
Claim Denied Because Untimely Filed
In Johnston v. ABC Seamless Siding & Windows, Inc. (Uninsured), Injury No.: 07-135219, the claimant was working for Jeremy Atchley, who was an independent contractor performing work for the alleged employer, ABC Seamless Siding & Windows (ABC). The ALJ found that Mr. Atchley was an employer because he held himself out as a contractor, and agreed to pay the claimant at an hourly rate. The ALJ determined that Mr. Atchley was the direct employer of the claimant, and ABC was liable to the claimant as a statutory employer. Both Mr. Atchley and ABC were uninsured. The claimant only filed a claim against ABC, and the issue here is whether the claimant timely filed his Claim against ABC. The ALJ found that the claim was not timely filed, and therefore, the claim was denied.
The owner of ABC testified that Mr. Atchley did not talk to him about the claimant's accident. It was also noted that ABC did not make any payments on his claim. The claimant filed an original Claim against ABC Roofing & Contracting (not the correct employer) on February 27, 2009. He filed an amended Claim on December 20, 2010, listing ABC Seamless Siding & Windows. The Statute of Limitations begins to run after the last payment was made on the claim, and in this case no payments were made on the June 21, 2007 injury by the direct employer, Mr. Atchley, or the statutory employer, ABC. Since a Report of Injury was not filed, the applicable three year Statute of Limitations began to run on the claimant's date of injury. Therefore, the claimant had until June 22, 2010 to file his claim. The Commission agreed with the ALJ and found that because ABC did not become a party to this case until December 20, 2010, the claimant did not file a timely claim against the statutory employer and his claim was denied.
2012 IMPAIRMENT GUIDELINES
Presented by
Susan R. Duffy, Esq.
Hamberger & Weiss
Impairment from Conditions Other than Spinal
} Asthma (Chapter 12.2)
} Traumatic Brain Injury (Chapter 15)
} Psychiatric (Chapter 17)
} Pain (Chapter 16)
} Impairment Due to Asthma
} Diagnostic work up must confirm diagnosis of asthma
} Compatible history of episodic symptoms
} Airflow obstruction that is at least partially reversible
} Alternative diagnoses are excluded
Medical Impairment Class—Asthma (Table 12.2)
} Severity rankings include A, B, D, F, L, R, Z
} If claimant does not meet all the necessary requirements for any one medical impairment class, objective tests should be given greater weight than other criteria in determining the appropriate class
} Asthma Class 1(a): Severity Ranking “A”
} Intermittent Asthma Symptoms: not more than two times per weekor nighttime awakening not more than two times per month.
} And all of the following:
} No interference with normal activity
} Rescue medication for symptom control not more than two times per week
} Lung function normal FEV1 and FEV1/FVC between exacerbations
} FEV1 more than 80% predicted
} Exacerbations up to one time per year requiring systemic oral corticosteroids
} Asthma Class 1(b):Severity Rank “B”
} All of the above but exacerbations more than two times per year requiring steroids
} Asthma Class 3:Severity Ranking “L”
} Daily symptoms or nighttime awakening more than one time per week but not nightly
} And all of the following:
} Some limitation of normal activity due to symptoms
} Rescue medication needed not more than one time per day
} Lung function FEV1 between exacerbations of more than 60% but less than 80% predictedor FEV1/FVC reduced by less than 5% of predicted
} Exacerbations more than one time per year requiring steroids
} Asthma Class 5:Severity Ranking “Z”
} Persistent severe symptoms throughout the dayor nightly awakening due to symptoms
} And all of the following:
} Extremely limited in normal activities
} Rescue medication required several times per day
} Lung function: FEV1 between exacerbations less than 35% predicted
} Exacerbations more than one time per year
} Traumatic Brain Injury (Chapter 15)
} Intended for residuals resulting from organic injury to the brain.
} Distinction among classes reflects impact on activities of daily living and ability to function in the workplace.
} Episodic neurological disorders includes:
◦ Seizure disorder
◦ Vestibular disorder
◦ Neuro-ophthalmologic disorder or oculomotor
◦ Headaches
} Medical Impairment Brain Class 2: Severity Ranking “A” to “C”
} “Nuisance” level residuals with only minor impact on ADL
} Cognition – minimal cognitive or memory deficits do not materially impair ADL or work capability
} Language deficit no more than minimal
} Emotional disturbances, fatigue, lethargy minimal and and transient
} Episodic sleep disturbances are minimal
} Episodic neurological disorders must be completely controlled and not interfere with ADL
} Brain Class 4:Severity Rank “Q” to “S”
} Not completely independent in ADL, requires some type of supervision, assistance or guidance at times
} Cognition (Rancho Los Amigos Scale—Revised Level 7)
} Mild to moderate language deficit
} Emotional/behavioral disturbances or personality changes moderate, disproportionate to situation and consistently present
} Episodic sleep disturbances are moderate and interfere with ADL
} Episodic neurologic disorder that is not completely controlled and markedly interferes with ADL
Psychiatric Impairment (Default Guidelines – Table 17.3)
} Post-traumatic neurosis, post-traumatic stress disorder and other causally related psychiatric conditions
} Should have psychiatric and psychological evaluations and opinions as well as psychological and/or neuropsychological testing
} Impairment evaluation should include impact of the psychiatric impairment on functional ability, including ADL
} Document impact on ability to function in the workplace, including activities relevant to obtaining, performing and maintaining employment
} No “A” to “Z” ranking
} Pain (Chapter 16)
} Designed for individuals with extraordinary, severe, persistent painful conditions
} Extent to which pain symptoms can reasonably be accepted as consistent with objective medical evidence
} Examples include headache following severe head trauma or skull fracture, Chronic Regional Pain Syndrome (CRPS – Table S 16.2)
} Pain Impairment Rating: Yes or No
} Extraordinary, severe, persistent pain with all of the following:
◦ Reasonable medical basis for pain
◦ Consistency of pain over time and situation
◦ Consistency with anatomy and physiology
◦ A pain disability questionnaire score of at least 101
◦ No behavior that is inconsistent with pain symptoms
} Impairment of More Than One Body Part or System
} Not a mathematical combination of severity rankings
} Consider impact of each impairment on function and LWEC to determine cumulative effect
} Impact of impairments on ability to perform specific job functions of particular occupation
For further information, please contact:
Ronald Weiss, 585-262-6390,rweiss@hwcomp.com
Mark Hamberger, 716-852-5200, mhamberger@hwcomp.com
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MEDICAL TREATMENT GUIDELINES: DEVELOPMENTS IN THE FIRST YEAR
Presented by:
Renee E. Heitger, Esq.
Hamberger & Weiss
Livingston County, 2011 WL 5618432 (WCB No. 79905338)
3 Big Questions:
1) Does the Chair have the Statutory Authority to issue the MTG and 12 NYCRR 324?
2) Are the MTG and 12 NYCRR 324 contrary to the Statute, WLC Section 13?
3) When will treatment for an exacerbation be deemed consistent with the MTG?
Legal Analysis re: Question 1
WCL Section 117 authorizes the Chair to make reasonable regulations consistent with the provisions of this chapter, and authorizes the Board to adopt reasonable rules consistent with and supplemental to the revisions of this chapter, so long as they are rational and not arbitrary and capricious.
WCL Section 141 authorizes the Chair to enforce Regulations & Orders.
WCL Section 142 grants the Board the power to hear and determine claims for compensation or benefits and power to require medical service for claimants.
Comparison to 12 NYCRR 300.38(f) which requires timely, PH-16.2 in controverted cases or all defenses waives.
Answer to Question 1
Yes, Chair has Regulatory Authority to promote overall Statutory framework of WCL Section 13, and provide swift and sure determination of scope of reasonable and necessary treatment.
Therefore, the MTG and 12 NYCRR 324 were lawfully promulgated.
Legal Analysis re: Question 2
WCL Section 13(a) requires the employer to pay for treatment for such period as the nature of the injury and process of recovery requires.
However, no payment required for unnecessary, duplicative or inappropriate treatments and tests.
Claimant is entitled to needed care, but not unlimited and unchecked.
MTG are a logical supplement to the statute, designed to decrease disputes and increase timely payment.
Burden of proof is on Treating Medical Provider (TMP) to establish evidence to support variance.
Basis for opinion
Claimant agrees
Why alternatives not appropriate
And if frequency and duration issue,
Objective functional improvement with treatment
Reasonably expected to improve with further treatment.
Answer to Question 2
MTG comport with the spirit and intent of, and are not contrary to Section 13(a), in providing appropriate and medically necessary treatment.
Legal Analysis re: Question 3
General statements not supported by documented objected measures of functional improvement are insufficient, e.g.:
Periodic flare-ups with gradual and insidious onset.
Treatment decreases pain and restores and maintains positional tolerances and ROM.
Suspects continued exacerbations will occur.
Answer to Question 3
An exacerbation must be fully documented by
When and how it occurred.
Show objective changes from baseline function.
Show claimant’s response to treatment with documented measures of functional improvement.
Sometimes documenting past history of exacerbations supports that future exacerbations are likely.
Medical Director’s Office BulletinMDO-2012 #1
What is an exacerbation?
Temporary worsening of prior condition by an exposure/injury.
Following transient increase in symptoms and signs, and decrease in function, claimant recovers to baseline.
Variance Required?
Not for initial treatment if consistent with MTG.
Yes, if inconsistent, such as beyond recommended limits, or not showing objective functional gains.
What are the documentation requirements?
Reiterates findings by Board Panel inLivingston Co.
Treating provider cannot request treatment for future exacerbations.
What are the most relevant general principles pertaining to exacerbation?
General Principal 1:Medical Care
General Principal 3:Positive Patient Response
General Principal 4:Re-evaluate Treatment
General Principal 5:Education
General Principal 10:Active Interventions
How can objective functional improvement be documented?
Initial evaluation—compare to pre-exacerbation
Re-evaluation
Objective functional findings/abilities
Return to baseline (pre-exacerbation exam)?
Goals
If function not at baseline, what gains are expected and what treatment is planned in order to get there?
Ultimate goal: return to pre-exacerbation function
What forms to use?
C-4.2 or EC-4NARR if treatment consistent with MTG.
MG-2 if not consistent.
Additional Questions answered byLivingston Co.
Contrary medical evidence is not required to deny variance if
Treatment done before variance
Treating provider failed to meet burden of proof
Such denial must be articulated.
To respond to variance, no IME or formal record review is necessary, medical professional opinion is acceptable.
Suggests that partial granting of variance request is acceptable if treating provider did not meet burden of proof.
Full Board Review request was denied inLivingston Co., but Notice of Appeal to Appellate Division filed.
To be continued . . . .
Practice Tips
If you believe there is a Burden of Proof issue, specifically raise it on the MG-2 denial citing §324.3.a.3.
If you only raise a Burden of Proof issue, and the Medical Arbitrator or ALJ disagrees and finds the TMP met his or her burden, then the treatment will be authorized.
Therefore, if you want to preserve your right to submit a contrary medical opinion, you cannot wait and it must be submitted with the denial. Include Burden of Proof and the contrary medical opinion as the basis for denial.
The contrary medical can be from an IME, a records review with an IME or authorized provider, or from your medical professional. Watch the deadlines!
If you obtain a contrary medical opinion, make certain your consultant comments on more than just the maximum amount of treatment permitted under the Guidelines and focuses on the substance of what TMP has provided to support his variance request, as TMPs are getting more proficient in supporting their MG-2 requests.
If there is no evidence of a re-examination by the TMP within the first 2-3 weeks after initiating treatment, TMP really cannot meet Burden of Proof.
True exacerbations don’t require
MG-2. TMP frequently still utilize them. If the criteria outlined in the Livingston Co. case and the Medical Director’s Office Bulletin are not met:
Deny the MG-2 specifying that the criteria required to establish an exacerbation have not been met.
If there is no MG-2, file a C-8.1(B) objecting to treatment citing the MTG issues.
More relevant Board Panel Decisions
Place Optical Co. Inc., 2012 WL 369707 (WCB No. 78511469)
Prior WC Decision authorizing treatment without term limit, end date or statement that treatment authorized for life does not preempt MTG.
Suggested that a prior valid written stipulation (pursuant to 12 NYCRR 300.5) is binding.
Delphi Harrison, 2012 WL 607066 (WCB No. 80100230)
Treating provider may not collect fees from claimant for treatment for work-related injury.
Will be referred to Office of Health Provider Administration for review and appropriate action.
Evergreen Painting Studios, 2012 WL 606857 (WCB No. 00714529)
MTG do not apply to consequential headaches despite that they are consequential to neck, a covered site.
Vastly different opinions on medical necessity and appropriateness of prescription medications resulted in WCB referring the issue to its impartial specialist.
Note: Here C-8.1’s were filed against treating provider for prescriptions, but if filed against pharmacy, in some cases, examiners are simply advising carriers that C-8.1’s are not appropriate against a pharmacy, but direct employer/carrier to notify pharmacy, with copy to claimant and attorney, of the objection.
Tompkins Metal Finishing, 2011 WL 6963865 (WCB No. 70501432)
RFA-2 to address treatment with prescription narcotics filed prior to 12/1/10, based on pre-MTG IME.
WCLJ authorized narcotics per MTG at 12/6/10 hearing.
Board cited its Subject No. 046-457 which states
“The Medical Treatment Guidelines do not require, and are not intended to recommend, the immediate cessation of prescription narcotics… for claimants who have been using such medication long term.
There are very significant health risks associated with the sudden withdrawal of narcotics and other pain medications. The MTG allow for the use of pain medication beyond the maximum duration.Therefore, carriers should continue to pay for these medications without a variance request.”
Board found no variance request required and the WCLJ properly applied MTG in authorizing narcotic medications and properly found trial moot.
However, thereafter, variance request was filed, denied based on medical professional opinion, and development of the record took place with testimony of treating provider and prior IME.
WCLJ found Board’s prior decision only addressed whether variance was needed immediately after effective date of MTG.
WCLJ found treating provider did not meet burden of proof in establishing variance for further narcotics, and authorized weaning program recommended by IME.
Claimant appealed . . To be continued.
Practice Tips
Before a claimant begins using medication “long term,” notify the prescribing doctor from the very beginning that the Medical Treatment Guidelines apply and inform him that those Guidelines generally state “narcotic medications should be prescribed with strict time, quantity and duration guidelines and with definitive cessation parameters. . . ” Then refer the TMP to the Guidelines for specific details.
Consider C-8.1(B) and (A) if TMP does not provide this treatment plan for prescriptions.
Consider early IME if medications continue beyond the maximum.
If a claimant is already on medication long term, obtain an IME with a clear focus on the various prescription medications being utilized, review of those prescription medications and any tox screens, and have the doctor comment on the medical necessity and appropriateness of those ongoing medications. If not medically necessary and appropriate, have the doctor outline a weaning program which you are willing to authorize. Then request a hearing to address the issue.
Request that the prescribing doctor conducts regular tox screens to ensure compliance. They should provide the results.
If abnormal, consider IME for medical necessity and appropriateness, and treatment plan.
If multiple providers prescribing medication, advise each what else is being prescribed and ask if still medically necessary and appropriate. Consider IME.
PROPOSED CARPAL TUNNEL SYNDROME TREATMENT GUIDELINES
Subject No. 046-469
Enclosed proposed CTS Treatment Guidelines
Requested comments by 12/1/11.
Nothing new since then.
Proposed Guidelines
Introduction
∙“Both documentation of appropriate symptoms and signs and a statement attesting to probable work-relatedness must be present for a CTS claim.”
History and Exam
Objective clinical findings should have preference if findings on clinical exam and other diagnostic procedures do not complement each other.
Laboratory testing rarely indicated unless another condition suspected.
Establishing work relatedness
Exposure
Outcome (diagnosis)
Relationship to work stated as a “probability”
Usually see
Forceful use of hands, wrists
Repetitive use combined with some force
Constant firm gripping of objects
Moving or using hand and wrist against resistance or with force
Exposure to strong regular vibrations
Regular or intermittent pressure on wrist
Making Diagnosis:
Signs and symptoms
Exam
Diagnostics
Non-operative treatment
Medications
Wrist splint at night
Restrict activities like forceful grip, awkward wrist position, repetitive motion
Patient education
RTW ASAP including light duty
Steroid injections
Nerve gliding exercises
Ultrasound
Generally manual therapy not recommended nor is low level laser, iontophoresis, magnets or laser acupuncture
Surgical indications
Various indications recited.
Of interest, clinical impression of moderate-severe CTS, with normal EDS studies is generally a mistaken diagnosis. Surgery may be considered only if these criteria are met.
Signs and symptoms are specific for CTS and
Significant temporary relief after steroid injection into carpal tunnel.
Only under this circumstance is preauthorization required.
Operative procedures
Neurolysis—not proven advantageous
Internal neurolysis never; external neurolysis rarely indicated.
Tenosynovectomy generally only in unusual case when CTS accompanied by R.A. Would need C-4 AUTH.
Post-operative treatment
Home therapy and use of hand.
Immediate mobilization generally shown to be better, but possible splinting is at the discretion of the doctor.
Sometimes individualized rehabilitation program are helpful if no functional improvement or in patients with heavy or repetitive jobs.
Open communication re: RTW. It is the responsibility of the doctor to provide clear restrictions and the responsibility of the employer to determine if temporary LD is available.
Repeat surgery requires C-4 AUTH.
CHRONIC PAIN TREATMENT GUIDELINES: MEDICAL ADVISORY COMMITTEE APPOINTED
To develop additional guidelines for treatment of work related conditions, starting with management of chronic pain conditions.
9 doctors on the committee as well as a representative of the Business Council of NYS and Art Wilcox representing the NYS AFL-CIO
To be continued. . . . . . .
Question re: Licensing fee, in connection with use of the MTG, being charged by American College of Occupational and Environmental Medicine (ACPEM).
*See WCB;’s official response attached.
For more information, contact Ronald Weiss at 585-262-6391,rweiss@hwcomp.com or
Mark Hamberger at 716-852-5200, mhamberger@hwcomp.com
2012 New York Guidelines for Determining Permanent Impairment and Loss of Wage Earning Capacity
Presented by
Joseph P. DeCoursey, Esq.
Hamberger & Weiss
Overview
• New process for Non-Schedule PPD cases.
• Shift away from medical impairment as sole component in determining percentage disability.
• Determination of SLUs remains the same as under 1996 Guidelines.
• Ultimate Determination of Loss of Wage Earning Capacity (LWEC) left to litigation and negotiation
• Only for evaluation ofpermanent disabilities.
• Buffalo Auto Recovery still good law.
} Effective Date of 2012 Guidelines
• January 1, 2012
• EXCEPT - for claims that already have at least one medical opinion finding a permanent impairment with a rating based on the 1996 Guidelines on or before January 1, 2012, the Board will determine the claimant's degree of permanent disability using the 1996 Guidelines.
} Maximum Medical Improvement
• Process doesn't start until claimant reaches MMI.
•
"a medical judgment that (a) the claimant has recovered from the work related injury to the greatest extent that is expected and (b) no further improvement in his/her condition is reasonably expected. The need for palliative care or symptomatic treatment does not preclude a finding of MMI. In cases that do not involve surgery or fractures, MMI cannot be determined prior to 6 months from the date of injury or disablement, unless otherwise agreed to by the parties."
} Effect of LWEC on Benefit Cap
∙The percentage loss of wage earning capacity (LWEC) determines both the benefit rate and the duration of benefits in PPD classification cases.
∙ For non-working claimants at the time of classification, the %LWEC is determined by the process described in this presentation.
∙ For working claimants at the time of classification, the %LWEC is determined by a reduced earnings calculation. Buffalo Auto.
} The 3 Components of LWEC
2. Evaluation of Residual Functional Capacity
3. Evaluation of Vocational Factors
} Medical Impairment
• Largest topic covered by 2012 Guidelines
• Impairments to different body parts are divided into categories.
• Physician must objectively assign the category of impairment a severity ranking from A to Z that best fits the claimant at the time of MMI.
• Severity Ranking is based on the estimated impact of the condition on the claimant's overall health and bodily function.
• Chapter 18 (“The Crosswalk”) of the 2012 Guidelines translates each impairment's letter ranking into a 1-6 severity ranking to allow comparisons across different types of impairments.
• Medical impairment cannot be directly translated into loss of wage earning capacity.
• BUT, in general, more severe impairments lead to greater losses of work opportunity and reduced earning capacities. (Chapter 9.3).
} Medical Impairment – How measured
Example 1:
Claimant sustained a low back injury after a chair she was sitting on at work collapsed beneath her. She landed on her buttocks. After physical therapy and medications, her symptoms improved. She now has intermittent pain across her low back with radiation into the back of her legs, but not her feet. Her neurological exam is normal.
} Medical Impairment –How measured
Example 1
• Non surgically treated soft tissue spine condition - use Table 11.1
• Claimant meets "Class 2" because of persistence of symptoms without objective clinical findings or correlative imaging findings.
• "Class 2" for lumbar spine on Table 11.1 = "A" Severity Ranking (least severe)
} Medical Impairment –How measured
Example 2:
Claimant lifted a 80lb. concrete slab, resulting in a back injury. His MRI showed a L4-5 herniated disc with right L5 nerve root displacement. He failed conservative treatment, leading to a L4-5 surgical discectomy. On exam he has: 1) absent right ankle jerk; 2) straight leg raise with radicular pain in L5 pattern at 30 degrees; and 3) leg atrophy of 2cm, comparing right to left.
} Medical Impairment –How measured
Example 2
• Surgically treated spine condition - use Table 11.2.
• Claimant meets "Class 4" because of surgical intervention with residual symptoms and additional objective findings.
• "Class 4" for lumbar spine on Table 11.2 = "D" through "J" Severity Ranking. Need to refer to supplemental tables to determine exact severity ranking.
Table S11.4: Radiculopathy Criteria: add up the points from claimant's objective testing. After obtaining point total, refer to Table S11.7 for exact letter Severity Ranking in class.
• Claimant has muscle atrophy, demonstrated by bilateral circumferential measurement -6 points
• Claimant has absent right ankle jerk -6 points
• Claimant has positive SLR -4 points
• Total =16 points
• This translates to an "E" severity ranking.
} Medical Impairment - Crosswalk
• Example 1: "A" Severity Ranking = "1" (least severe) on Crosswalk
• Example 2: "E" Severity Ranking - "2" on Crosswalk
• Even though claimant in Example 2 had more significant injury, treatment, and residual problems, his ranking is only one level higher than Claimant 1 on the Severity Crosswalk.
• Would probably be "mild" and "marked" under 1996 Guidelines.
• Emphasize the Crosswalk!
} Evaluation of Functional Capacity
"The medical assessment of the injured worker’s residual functional abilities and losses is akey component in a judge's determination of loss of wage earning capacity." (2012Guidelines)
• Physician to document claimant's functional capabilities on new C-4.3 Form.
• Physician to obtain job description of claimant's pre-injury employment and discuss with claimant.
• If alleging claimant can return to pre-injury job, employer to provide job description to physician.
} Evaluation of Functional Capacity
C-4.3 Form
1) Describe the claimant's residual functional capabilities for any work.
2) Determine the claimant's exertional ability.
3) Describe other relevant medical considerations (such as the use of pain medications).
4) Determine whether the claimant could perform his or her at-injury work activities with restrictions.
5) Describe whether the claimant has had any injury or illness since the date of injury that impacts residual functional capacity.
6) State whether the physician has discussed the claimant's return to work or limitations with the claimant or claimant's employer.
7) Determine whether the claimant would benefit from vocational rehabilitation.
} Evaluation of Functional Capacity
• The physician shouldmeasure the claimant's performance and restrictions across the range of functional abilities listed on the C-4.3 form.
• Section F of Form C-4.3 asks the physician to rate the claimant's exertional ability as one of six categories from the Social Security Dictionary of Occupational Titles.
• Categories range from "Less than Sedentary Work" to "Very Heavy Work“.
} Evaluation of Vocational Factors
• Factors to consider include: education, training, skills, age, literacy, English proficiency, and "other considerations“.
• Another form! - VDF-1.
• VDF-1 asks about education, work experience, literacy and English language proficiency.
• No comment on use of vocational experts by Board or carriers.
VDF-1 Form
} LWEC Hearing Process
1. Maximum Medical Improvement
} LWEC Hearing Process (con't)
2. Severity and Functional Loss
} LWEC Hearing Process (con't)
3. Vocational Factors
4. Conclusion
For more information, please contact:
Ronald Weiss, 585-262-6390,rweiss@hwcomp.com
Mark Hamberger, 716-852-5200,mhamberger@hwcomp.com