State News

OCIP agreement did not prevent worker from suing property owner who failed to show that agreement was with worker’s employer, a subsidiary of a parent company.

It is a common misperception in the industry that the exclusive remedy defense prevents an employee of a subsidiary company from suing the parent company. It does not. The Dallas Court of Appeals makes this clear in Olivares v. Chevron, issued March 14, 2023. 

For a defendant to assert the exclusive remedy defense, the defendant must be the plaintiff’s employer.  However, the Dallas Court explains that employees of a subsidiary company are not by default also employees of the parent company and in fact, there is a strong presumption that a parent corporation is not the employer of its subsidiary employees. The court’s decision continues:

“An injured employee of a subsidiary corporation, who is estopped under an exclusive remedy provision in his state's workers’ compensation act from suing his employer, may nonetheless bring a third-party claim against the subsidiary's parent or sibling corporation.” Sims v. W. Waste Indus., 918 S.W.2d 682, 684 (Tex. App.—Beaumont 1996, writ denied) (cleaned up). “We are not persuaded that the legislature ever intended parent corporations, who deliberately chose to establish a subsidiary corporation, to be allowed to assert immunity under the Texas Workers’ Compensation Act by reverse piercing of the corporate veil they themselves established.” Id. at 686. 

The plaintiff in Olivares v. Chevron was employed by Apache Global, a subsidiary of Apache Industrial Services, Inc. Chevron sought to show that it had an owner-controlled insurance program (OCIP) with the plaintiff’s employer meaning that Chevron would also be considered his employer and therefore, could not be sued for his work injury.  The court held that Chevron failed to show that the OCIP was with Apache Global, the subsidiary company, rather than Apache Industrial, the parent company and because employees of a subsidiary company are not also employees of the parent company, the exclusive remedy defense did not prevent the plaintiff from suing Chevron.

Chevron presumably spent a lot of money to put this OCIP together to prevent it from being sued for work injuries on its premises and it was for naught. This case provides some good practice pointers for anyone working with OCIPs to make sure they are set up and administered properly.  

Copyright 2023, Stone Loughlin & Swanson, LLP  

Recent SIBs decision may lead to positive changes.

The Third Court of Appeals decision issued on February 28, 2023 in Texas Department of Insurance, Division of Workers’ Compensation v. Accident Fund Insurance Company of America and Texas Cotton Ginners’ Trust prevents the Division of Workers’ Compensation (DWC) from using work search contacts as a substitute for job applications submitted to a prospective employer by a worker eligible to apply for Supplemental Income Benefits.  Experience over the years since 2005 when the Texas Legislature did away with the “good faith” SIBs standard and replaced it with the four objectively verifiable methods by which a worker qualifies for SIBs, showed that the methods used gradually devolved over time.  

In recent years, SIBS applications were approved by the DWC administrative law judges where only work search contacts were submitted in a check-box manner with no supporting documentation that the worker made an active, meaningful, and personal work search. During discovery, DWC admitted that its position was that solo job seekers do not need to personally file any job applications to qualify for SIBs: they could rely on "work search activities" filed by another on their behalf. Applications were rare where the worker attested to participating in a vocational rehab program, participated with the Texas Workforce Commission (TWC), or documented his job search with copies of applications submitted to employers.  

As a result, many carriers rubber-stamped and approved applications showing only contacts, knowing that disputing a workers’ entitlement to SIBs was a fool’s errand because of the DWC’s instructions through its Appeals Panel Manual to system participants simply to count whether the requisite number of “contacts” was made. For the same reason, carriers were not offering vocational rehabilitation programs to their injured workers eligible to apply for SIBs.  And the incentive was removed for workers to go through the TWC, an agency with a variety of resources for Texas workers who can work in some capacity to find employers who post job openings for which the worker would qualify.

What can we expect next? We can expect closer scrutiny by the DWC when considering SIBs applications, either at the first quarter or subsequent ones as may be disputed and taken to a contested case hearing.  Even though applying for jobs can now be done on-line, the worker can prove his search by submitting a copy of applications submitted and attach them to the DWC-52 for review by the carrier and the agency for credibility.  He can show that he is participating with the TWC.  He can accept a carrier’s offer to participate in vocational rehabilitation.  These methods will result in a meaningful, active job search—a search most likely to bring a job offer and return the worker to gainful employment.   

This is, after all, the goal of the Labor Code. SIBs are to provide a bridge to support a worker returning to the workforce to the extent he is able.  It is short-sighted for workers to forego the resources available to them for finding work. This is because even if they manage to get a regular check from the carrier for the entire SIBs period, the benefits will end 401 weeks from the date disability began, leaving the worker without income.  

A job is a much more reliable and meaningful outcome of the SIBs process, and is what the Texas Legislature intended. 

Editor’s note: Jane Stone and David Swanson of the Firm represent Accident Fund Insurance Company of America in this case.

Copyright 2023, Stone Loughlin & Swanson, LLP  

Non-subscribers, do not forget to file the DWC-Form 005!

For all you non-subscribers not enjoying the many benefits of the Texas workers’ compensation system, it is that time of year again when you must tell DWC that you do not care enough to provide your employees with workers’ compensation coverage.  Employers must use the DWC-Form 005 to let DWC know they have opted out of the workers’ compensation system.  According to the Division’s Biennial Report to the 88th Legislature, “In 2022, the percentage of employers that were non-subscribers (25%) was the lowest in six years” and “The percentage of Texas employees working for non-subscribers (17%) was the lowest in 12 years.” In other words, three out of four employers have decided that it is in the best interest of them and their employees to carry workers’ compensation coverage.  Check out this link for more information for non-subscribers including a coverage comparison and analysis of alternative coverages: https://www.tdi.texas.gov/wc/employer/cb007.html

Copyright 2023, Stone Loughlin & Swanson, LLP

How the burden of proof determines the outcome of a case.

In Appeal No. 230067 issued March 3, 2023, the Appeal Panel reversed the ALJ’s decision that the carrier is entitled to reduce the claimant’s IIBs by 50% based on contribution from an earlier compensable injury and rendered a new decision that the carrier is not entitled to a reduction of the claimant’s IIBs.  The Appeals Panel held that the carrier still bore the burden of proof at the hearing even though the Division issued an order approving the carrier’s application for contribution which the claimant appealed.  The Appeals Panel held that because the carrier failed to present a cumulative impact analysis, it did not meet its burden of proof.  The Appeals Panel analogized the case to the situation in which the Division determines a claimant is entitled to first quarter SIBs and the carrier appeals the determination.  In that situation, the employee still has the burden of proof at the hearing.  The decision was authored by Appeals Panel Judge Carisa Space-Beam. Appeal No. 230067, filed March 3, 2023.

Copyright 2023, Stone Loughlin & Swanson, LLP

What has the Division’s enforcement section been up to lately?

The Division expends a great deal of effort to ensure compliance with its deadlines and in fact, most of its enforcement actions involve a missed deadline. Here is an overview of some of the most recent workers’ compensation disciplinary orders:

Fine: $14,000. Violation: Carrier paid IIBs on a DD report 186 days late.  
No. 2023-7845 03/15/23 Security National Ins. Co.

Fine: $1,500.  Violation: Carrier took action on a medical bill 159 days late. 
No. 2023-7842 03/10/23 Travelers Property Cas. Co. of Am.

Fine: $800.  Violation: Carrier reported the true death benefit termination 5,536 days late.  
No. 2023-7831 03/01/23 West American Insurance Co.

Fine: $11,000.  Violation: Carrier failed to timely make IIBs payments from 6 to 111 days late.  
No. 2023-7830 03/01/23 LM Insurance Corp.

Fine: $2,500.  Violation: Carrier paid a medical bill 198 days late.  
No. 2023-7829 02/28/23 National Interstate Ins. Co.

Fine: $10,000.  Violation: Carrier failed to timely pay SIBs.
No. 2023-7827 02/28/23 Safety National Cas. Corp.

Fine: $10,000.  Violation:  Carrier paid IIBs on a DD report 175 days late. 
No. 2023-7824 02/28/23 New Hampshire Ins. Co. 

Fine: $5,500.  Violation: Carrier paid benefits on a CCH decision 52 days late. 
No. 2023-7823 02/28/23 New Hampshire Ins. Co.

Fine: $8,000.  Violation: Carrier took action on a medical bill 35 days late. 
No. 2023-7820 02/24/23 Chubb Indem. Ins. Co.

Fine: $700.  Violation: Carrier paid medical bill 97 days late. 
No. 2023-7815 02/21/23 Montgomery County

Fine: $3,500.  Violation: Carrier started death benefits 57 days late. 
No. 2023-7814 02/21/23 TASB Risk Mgmt. Fund 

Fine: $4,000.  Violation: Carrier paid benefits on a CCH decision 16 days late. 
No. 2023-7812 02/21/23 TASB Risk Mgmt. Fund
 

Copyright 2023, Stone Loughlin & Swanson, LLP

State ex rel. AutoZone Stores, Inc. v. Indus. Comm., 2023-Ohio-644 (March 2, 2023)

On June 15, 2020, Jason Schomaker sustained an injury when he was moving batteries while working for AutoZone. On September 5, 2020, Mr. Schomaker was involved in an argument with another employee. AutoZone conducted an investigation and terminated Mr. Schomaker on September 16, 2020. On November 16, 2020, Mr. Schomaker underwent surgery and filed a request for temporary total compensation.

AutoZone argued that Mr. Schomaker was not eligible for temporary total compensation pursuant to R.C. 4123.56(F) because he was terminated from employment prior to his surgery. The Industrial Commission rejected AutoZone’s argument and granted Mr. Schomaker’s request for compensation beginning on the date of his surgery as he was unable to return to and perform his former position of employment due to the allowed conditions in his claim. AutoZone appealed.

The Court noted that when a claimant removes himself from employment for reasons unrelated to the work-related injury, he is no longer eligible for temporary-total-disability compensation since the voluntary abandonment—and not the injury—causes the loss of wages. Amended R.C. 4123.56(F) contains two distinct sections for determining whether an employee is entitled to TTD compensation based upon wage loss. Pursuant to the first section, an employee is entitled to receive compensation if the employee is unable to work or suffers a wage loss as the direct result of an impairment arising from an injury or occupational disease. Pursuant to the second section of R.C. 4123.56(F), if an employee is not working or has suffered a wage loss as the direct result of reasons unrelated to the allowed injury or occupational disease, the employee is not eligible to receive wage-loss compensation.

The Court concluded that the first section applied to Mr. Schomaker. He was entitled to receive compensation because he underwent an authorized surgery to treat the allowed conditions on November 16, 2020. Mr. Schomaker was unable to work as of the date of his surgery as the direct result of an impairment arising from an injury. At that point, his failure to work was not “a direct result of reasons unrelated to the allowed injury” as stated in the second section. The Court noted that contrary to the employer's argument, as of November 16, 2020, Mr. Schomaker was unable to work regardless of the reason for or cause of his termination on September 16, 2020. His reason for not working up until the date of surgery was irrelevant for purposes of determining his eligibility for wage-loss compensation after the surgery due to the allowed conditions.

                                    Simon Law Group, P.C.

                 720 Olive Street, Suite 1720, St. Louis, MO  63101

                                             314-621-2828

   MISSOURI WORKERS’ COMPENSATION CASE LAW UPDATE

                              January 2023 – March 2023

Claimant Must Establish a Medically Documented Pre-existing Condition Significantly Aggravated the Primary Injury

Dubuc v. Second Injury Fund, Case No. SC99605 (Mo. S. Ct. 2023)

FACTS: The claimant sustained an injury in October 2015 when he fell off a ladder at work injuring his wrist, kidneys and low back. He settled with his employer for his primary injuries but alleged that he was PTD under Section 287.220.2 and that the Fund was liable for benefits due to his pre-existing disabilities, including multiple hernias and Factor V Leiden mutation with anti-coagulation and his primary injury.

Following the hearing, the Administrative Law Judge denied benefits because the ALJ determined the primary injury alone rendered him PTD. Claimant appealed and the Commission reversed the Award of the ALJ and awarded him benefits from the Fund. The Fund appealed.

While the case was pending the Supreme Court handed down Cosby, which required the claimant to meet the standards in Section 287.220.3 to prove his claim. Prior to Cosby, Section 287.220.3 applied only when both pre-existing and primary injuries occurred after January 1, 2014 but Cosby held that Subsection 3 applies when any injury occurred after January 1, 2014.

Thereafter, the Court of Appeals reversed the Commission’s Award and remanded the case, instructing the Commission to determine if the claimant was entitled to benefits from the Fund under Section 287.220.3. The Commission did not award the claimant benefits from the Fund.

HOLDING: The Supreme Court affirmed the Commission’s decision. The claimant failed to establish his primary injury and pre-existing disabilities entitled him to PTD benefits from SIF under Section 287.220.3. He failed to establish any “medically documented” qualifying pre-existing disability that “directly and significantly aggravated or accelerated” his primary injury.

First, there was no “direct evidence” in the record of claimant’s hernias but only “self-reported history.” Claimant’s own statements about hernias noted by doctors in medical records were not considered “medically documented” because the doctors’ references to hernias were not based on records of diagnosis or treatment, but based on the claimant’s own statements.

Second, there was no showing that claimant’s Factor V Leiden mutation and anti-coagulation “directly and significantly aggravated or accelerated” his primary injury. When discussing the relationship between claimant’s pre-existing injuries and primary injury, Factor V Leiden mutation and anti-coagulation were omitted from the expert’s report. The claimant must show that “the impact of the pre-existing disabilities on primary injury is more than incidental; they must clearly exacerbate the primary injury in a meaningful way.”

Claimant’s Medical Evidence Must Show Pre-existing Disability Significantly and Directly Aggravated the Primary Injury

Swafford v. Second Injury Fund, Case No. SC99563 (Mo. S. Ct. 2023)

FACTS:  Claimant’s primary injury occurred in October 2017 when he slipped at work while getting out of a truck. He was diagnosed with a moderately large rotator cuff and labrum tear. After settling his worker’s compensation claim with his employer, he went to a hearing against the Fund, alleging his pre-existing disabilities combined with his primary injury, rendering him PTD.

The claimant had multiple pre-existing disabilities including ankylosing spondylitis, various cardiac conditions for which he had undergone multiple procedures, and right shoulder pain since 2012. In 2016, prior his work injury, he was diagnosed with bursitis in his right shoulder, which required steroid injections every three to four months.

Following the hearing, the ALJ denied the claim, concluding that the claimant failed to demonstrate he suffered from a “qualifying” pre-existing disability under Section 287.220.3. The Commission agreed with the ALJ’s determination that the claimant failed to show his pre-existing disabilities “directly and significantly aggravated or accelerated” his primary injury pursuant to Section 287.220.3. Claimant appealed the Commission’s decision.

HOLDING:  On appeal, the claimant challenged the Commission’s decision for allegedly disregarding the expert testimony he offered to establish a causal relationship between his pre-existing disabilities and his primary injury. The Court found that the claimant failed to establish that his pre-existing disabilities “directly and significantly aggravated or accelerated” his primary injury.

While the claimant’s medical reports establish that his pre-existing disabilities had some worsening effect on his primary injury, they were insufficient to show that the worsening effects rose to the level of significant and direct aggravation or acceleration. First, Dr. Lingenfelter’s “vaguely worded report” failed to establish “as a factual matter that claimant’s pre-existing disabilities ‘significantly and directly’ aggravated his primary injury.” He did not clearly articulate the extent to which any of those disabilities exacerbated that injury.

Second, Dr. Koprivica also provided “no medical evidence” that any of claimant’s pre-existing disabilities “directly and significantly aggravated or accelerated” his primary injury. While Dr. Koprivica stated that there was a “significant synergistic effect” between the pre-existing disabilities and the primary injury, that specific language relates to the standard for SIF liability prior to the 2013 amendments. Although medical experts need not use “magic words” (“synergistic effect”) associated with the less stringent standard (“combined with”) that qualifies for SIF liability under the pre-amended Section 287.220.2. Such language is insufficient under Section 287.220.3. Therefore the Fund was not liable for benefits.

Claimant Must Present Evidence Required to Meet All Statutory Requirements to Show PTD.

Weibrecht v. Second Injury Fund, Case No. SC99493 (Mo. S. Ct. 2023)

FACTS: Claimant’s primary injury was a low back injury he sustained at work in July 2016. After settling his claim with his employer, went to a hearing against the Fund alleging that he was PTD due to his pre-existing injuries to his low back in 2005 and 2009 and right shoulder in 2014 combined with his primary injury.

A hearing was held before the ALJ in May 2019. Before the ALJ issued her final Award, the Court handed down its opinion in Cosby finding that Section 287.220.2 applies when all injuries occurred prior to January 1, 2014 and Section 287.220.3 applies when any injury occurred after January 1, 2014.

After the hearing, but before the ALJ’s final Award, the claimant filed a motion to reopen the record for a supplemental hearing, contending that Cosby changed the law. He contended the Court’s decision in Cosby changed his burden of proof, which constituted “good cause” to reopen the record. The SIF argued that while the ALJ has authority to reopen the record in certain circumstances, doing so was not warranted under the facts of this case.

The ALJ denied claimant’s post-hearing motion and denied his claim for benefits from the SIF. The Commission affirmed the ALJ’s decision.

HOLDING:  The Court affirmed the earlier decisions finding that  the Commission did not abuse its discretion in affirming the ALJ’s denial of claimant’s post-hearing motions to reopen the record and submit additional evidence.

The Court pointed out that workers’ compensation law is entirely a creature of statute. Nothing prohibited the claimant from presenting evidence under both Sections 287.220.2 and 287.220.3 at his hearing. It was not against the logic of the circumstances and so unreasonable to indicate a lack of careful consideration for the ALJ to conclude there was no good cause to reopen the record when the Court had not previously interpreted Sections 287.220.2 and 287.220.3 and nothing precluded the claimant at from making alternative arguments. Accordingly, the ALJ did not abuse her discretion. Claimant should have been aware of what evidence was required to make a submissible case for PTD and the plain language of Sections 287.220.2 and 287.220.3 set forth the necessary evidence to make a submissible claim.

Upon Reaching MMI, Claimant Can Be Found PTD

LME, Inc. v. Robert Powell and Second Injury Fund, Case No. WD85427 (Mo. App. 2023)

FACTS:  The claimant suffered a work injury to his back while operating a pallet jack. He underwent a lumbar decompression fusion by Dr. Bailey. He determined the claimant reached MMI and provided a 12.5% rating of the lumbar spine. Prior to the work injury, claimant had suffered disability to the back due to two prior motor vehicle accidents.

After he was released at MMI for the back, the claimant began treatment on his own for major depressive disorder. Prior to the work injury, he had been diagnosed as bipolar and had experienced depression and suicidal ideation since he was a teen. Furthermore, he had only a ninth grade education, no GED and a history of learning and behavioral problems.

Dr. Stuckmeyer determined that as a result of the work injury, the claimant sustained 35% PPD to the body in addition to a pre-existing 15% for lumbar and pelvis injuries from his previous car accident. In a subsequent report, he determined the claimant was permanently totally disabled as a result of the work injury after reviewing the vocational report of Mr. Cordray and psychiatric report of Dr. Hill who opined that the work accident was the prevailing factor for the claimant’s development of major depressive disorder and somatic symptom disorder, and he assigned 40% and 15% PPD for each disorder, respectively.

The ALJ found the claimant PTD and that the employer was responsible for benefits. The Commission affirmed the Award.

The employer appealed, arguing that the Judge and Commission erred by determining the claimant PTD by misstating the agreement reached by the parties regarding the claimant’s MMI date, because the employer only agreed that the employee reached MMI for his physical injuries, because the employer never accepted or admitted a psychological injury and therefore the employee cannot be determined to be PTD until he has reached MMI for all conditions.

HOLDING: The Court disagreed with the employer’s argument and affirmed the Award.

At the final hearing, both the claimant and employer stipulated on the record to the MMI date of April 12, 2018, the date Dr. Bailey released the claimant. There was no discussion or delineation between the physical and psychological injuries regarding MMI in the stipulated facts. By arguing that the employer accepted the back injury but not the alleged mental injury misconstrues that one of the purposes of the final hearing was to resolve whether the employee suffered any disability.

The Court also noted that the ALJ relied on the opinion of Dr. Hill regarding the psychiatric injury. He stated that the recommended treatments are not curative by any means, but may help improve the claimant’s daily life. Thus, contrary to employer’s position, such evidence supports that the psychiatric injury has reached the point where no further progress is expected or maximum medical improvement.

Objective Symptoms at Time of Accident Include Indications of Injury Perceptible to Others

Harper v. Springfield Rehab & Healthcare Center, Case No. SD37268 (Mo. App. 2023)

FACTS: The Commission stated in its rulings: “Claimant suffered an ‘unusual strain’ in her lower back when she pushed the heavy medicine cart…which produced objective symptoms of injury” based on claimant’s testimony that she “felt a ‘pull’ in her lower back” and “shortly thereafter (during the same work shift)…had difficulty walking.”

The employer appealed the Commission’s decision. They argued that the claimant had not sustained an accident under the law because the Commission “failed to establish objective symptoms of an injury at the time and place of occurrence.”

HOLDING:  The Court stated that although the definition of “accident” in the statute has always included the phrase “producing at the time objective symptoms of an injury,” the changes to the statute in 2005 abrogated earlier case law interpreting the definition of “accident.”

They found that the adjective “objective” when used in combination with “symptom” means “perceptible to persons other than the affected individual.” They concluded that the statutory phrase, an unusual strain “producing at the time objective symptoms of an injury” should be interpreted to mean an unusual strain producing at (i.e. near) the time objective symptoms (i.e. indications perceptible by persons other than the claimant of the existence) of an injury (i.e. violence to the physical structure of claimant’s body).

The Court noted that the Commission found that the claimant “had difficulty walking” later in the same shift during which she suffered an unusual strain. Claimant’s difficulty walking would be perceptible to persons other than the claimant, indicated the existence of violence to the physical structure of claimant’s body, and was produced near the time of the unusual strain.

Therefore, the Court affirmed the Commission’s decision.

Claimant Not entitled to Additional TTD Benefits After MMI Because Refusal to Look For Work is Not Inability to Work.

Thompson v. CSI Commercial Services, Inc. and Second Injury Fund, Injury No. 10-087819

FACTS:  The claimant testified at injured her low back on July 20, 2010. She underwent a fusion at L2-L3 with Dr. Robson on March 7, 2011. She testified the surgery did not relieve her symptoms. Dr. Robson opined in his reports that claimant’s continuing complaints following the March 7, 2011 surgery were related to chronic changes at L4-5 and L5-S1 level which were degenerative in nature and were not acutely injured during the work-related injury. Dr. Robson found her at MMI referable to the work injury on August 18, 2011 and released her from care with work restrictions.

Thereafter, the claimant agreed with her employer that she would not be able to continue working for the employer due to the work restrictions. TTD benefits were terminated as of August 30, 2011, due in part to the MMI report of Dr. Robson. The claimant testified she applied for and began receiving unemployment benefits upon termination of her TTD benefits and received unemployment benefits from September 2011 through December 2012. She also testified that since she left the employer, she has been unable to find a job and has not worked to date.

Claimant testified that when her unemployment benefits terminated in December 2012, she, at the urging of a few individuals, including her primary care physician, Dr. Maebe, applied for Social Security Disability benefits due to her back pain, surgery pain, anxiety, and depression. She was awarded SSD benefits as of January 8, 2013.

The employer sent the claimant back to see Dr. Coyle in 2016. She underwent a surgical fusion at L5-S1 May 22, 2017. Dr. Coyle released her to return to work on November 30, 2017 with restrictions of 30 pound lifting occasionally and 20 pounds frequently. The claimant testified that she had not conducted a job search since Dr. Coyle released her on November 30, 2017. She testified she cannot work due to back pain and lower extremity radicular pain and numbness. She also testified that she cannot drive a car very far from her home, and she is very limited in her daily life activities. She denied her vocational specialist, Mr. Kaver’s, testimony that she told him she had to rest in a reclining position for most of the day.

HOLDING:  The Judge found that the claimant was entitled to 42.5% PPD as a result of the July 20, 2010 work injury and was not PTD. He also did not find any liability against the Second Injury Fund.

With respect to the issue of past TTD benefits, the Judge noted that Dr. Robson found claimant at MMI as of August 18, 2011. He further noted that the claimant received unemployment benefits through November 14, 2012 and in order to receive the same, the claimant needed to certify each week that she met the basic requirements such as being able to work and being available for full time work. Therefore, he found that the claimant was not entitled to TTD benefits from September 2011 through November 14, 2012 while she was receiving unemployment benefits.

The Judge noted that the purpose of TTD benefits is to cover claimant’s healing process. TTD benefits are owed until claimant can find employment or his condition has reached MMI. When further medical procedures are not expected, temporary benefits are not owed and a temporary award for additional TTD benefits is not warranted.

For the period of time of November 14, 2012 through November 8, 2016, the Judge found that the claimant was not entitled to TTD benefits from the time of her termination of unemployment benefits on November 14, 2012 through Dr. Coyle’s reexamination of her on December 8, 2016. Evidence from vocational specialist, Ms. Gonzales, indicated the claimant was capable of obtaining employment in the open labor market as well as medical evidence of MMI status from Dr. Robson and Dr. Coyle.

For the period of time of November 8, 2016 through November 30, 2017, the Judge found that the claimant was entitled to receive TTD benefits for a second period of time from Dr. Coyle’s December 8, 2016 reexamination of claimant and during her treatment by Dr. Coyle, including the May 27, 2017 surgery and post-surgical care until Dr. Coyle released claimant at MMI as of November 30, 2017. The right to TTD during the second period of time terminated based on Dr. Coyle’s MMI finding on November 30, 2017.

With regard to the period of time of November 30, 2017 to the present, the Judge noted that the evidence demonstrated that the claimant was capable of looking for work as of the date of MMI on November 30, 2017 but did not. He stated that in this case, a refusal to look for work demonstrates an unwillingness to return to work, not an inability to return to work. He found that the claimant is not entitled to any additional TTD benefits from Dr. Coyle’s release of the claimant on November 30, 2017 to the present.

The Commission affirmed the Award of the ALJ.

Awarding of Attorney’s Fees is in the Discretion of ALJ

Roe v. Darden Restaurants, Inc., Injury No. 18-074813

FACTS: Claimant attorney asserted a 25% lien on the gross proceeds paid in the case including payment of medical bills regarding claimant’s treatment for her September 13, 2018 injury. Initially, claimant’s attorney requested a list and accounting from the employer of all of the medical bills which had already been paid. Furthermore, the evidence shows that the employer notified claimant’s attorney in January 2020 that they intended to pay the remaining bills. Proof of such payment was forwarded in April 2020 to claimant’s attorney. Despite the foregoing, claimant’s attorney never advised his client the bills had been paid and proceeded to prolong the case for an additional two years, including a request for a deposition of a corporate representative to confirm payment of the bills.

Interestingly, at the hearing in March 2022, the employee testified she had never received a bill from any healthcare provider in connection with her injury.

Following the hearing, the Administrative Law Judge awarded compensation but limited the claimant’s attorney’s fees to 25% of the PPD awarded.

HOLDING: The ALJ noted that the determination of attorney’s fees is at the discretion of the Court. She noted that the efforts of claimant’s attorney after the bills were paid in 2020 were unnecessary. Although the claimant’s attorney did review the bills and send the employer’s attorney a couple of letters prior to the payment of the bills, the services provided were no more than the average workers’ compensation case might require. The majority of the claimed hours of work were after the bills had already been paid.

The Commission affirmed the ALJ’s award finding that the limitation of attorney’s fees to 25% of the PPD awarded was fair and reasonable.

Under Strict Construction, There are No Exceptions for the Late Filing of an Application for Review.

Gray v. Hawthorn Children’s Psychiatric Hospital and Second Injury Fund, Case No. ED110400 (Mo. App. 2023).

FACTS:  On June 10, 2019, the Administrative Law Judge held a final hearing. On September 12, 2019, the ALJ issued the final Award denying benefits. The parties had 20 days from the date of the final Award to file an Application for Review with the Commission. The claimant attempted to mail her Application for Review on September 30, 2019, within the 20 day period, however, the mailing was returned to her by the USPS due to insufficient postage.

On December 3, 2020, the ALJ conducted an Evidentiary Hearing where the claimant offered testimony about the mailing. After considering the evidence from the remand Hearing, the Commission accepted the claimant’s Application for Review as timely. Thereafter, contrary to the ALJ’s decision, the Commission ordered employer to pay PPD benefits. The employer appealed.

HOLDING:  The Court reversed the Commission and set aside the Final Award. It found that the Commission acted in excess of its powers when it accepted the claimant’s Application for Review. The claimant’s Application was untimely and the statute, under strict construction, does not provide a good cause exception to the 20-day deadline.

The Court explained that even if they accepted the claimant’s argument that the postage was sufficient (which they do not) and the USPS erred in returning the mailing for insufficient postage, the workers’ compensation statute does not provide exceptions for late filings so the Commission did not have jurisdiction to review the claimant’s Application.

California workers’ compensation is off to an interesting start for the year.

The Last Of The Board’s En Banc Emergency COVID Orders Has Been Rescinded

The Appeals Board issued several En Banc decisions in response to the state of emergency brought on by COVID-19.  These decisions temporarily suspended specific WCAB Rules of Practice and Procedure.  As we began to come out of the pandemic, the Board began rescinding those rules suspensions.  On February 28, 2023, California Governor Newsom terminated the COVID-19 state of emergency.  In response, the Board issued a new En Banc decision on March 22, 2023, Misc. No. 268.  This decision rescinded all remaining provisions of prior Misc. Orders in numbers 260, 261, and 266.  As the Board noted in footnote 3, “By this order, the Appeals Board rescinds all remaining rule suspensions.”

So, what does this mean for workers’ compensation practitioners?  This means that we are back to pre-pandemic rules and procedure, though there are hopefully a few changes that will remain with us.  The Misc. No. 268 dealt with three specific areas where rules and procedure were temporarily suspended; witness signatures on C & R’s, electronic filing of documents, and walk through assignment hours.  Let’s look at the impact of Misc. No. 268 in each of these areas.

Misc. No. 260, witness signatures

This is the area that may have the most day-to-day impact on practitioners.  Misc. No. 260 temporarily suspended WCAB Rule 10500(b)(6) regarding witness signatures and specifically noted the suspension of the requirement in the Compromise and Release agreements for signatures from two witnesses. Further, signatures on the forms from all parties may be electronic.  This Misc. Order issued March 18, 2020, in the very early days of the state of emergency. 

Whether parties will once again have to obtain actual non-electronic signatures is still up in the air with some judges requiring this while at least one has said “If DocuSign is good enough for my mortgage, it is good enough for a C & R”.  What we do know is that we once again require two witness signatures or completion of the notary form.

Electronic unwitnessed signatures on the Compromise and Release was an incredible time saver for both applicants and defendants and was very convenient.  The parties could simply email documents and obtain quick electronic documents.  There was no need for anyone to actually meet in person for signatures, scan signed documents, or mail them.  There is now.

Misc. No. 261, electronic filing

This area will also remove a major convenience for the workers’ compensation practitioner.  Misc. No. 261 temporarily suspended WCAB Rule 10940(b) regarding sending documents directly to the Appeals Board by fax or email for filing.  This Misc. Order issued March 19, 2020, the day after Misc. No. 260.

Misc. No. 261 noted that Rule 10940(b) “prohibits sending documents directly to the Appeals Board by email, we order that documents may be emailed directly to the Appeals Board.”  This was an incredible convenience that many took full advantage of.  Email with the Board was quick and easy and a major time saver.  That is no longer allowable and we are back to Rule 10205.7(c), which provides:

“No document shall be sent by electronic mail or by fax directly to the district office or the appeals board. If a document is sent by electronic mail or fax directly to the district office, it shall not be accepted for filing or deemed filed, shall not be acknowledged, and may be discarded unless otherwise ordered by the workers' compensation administrative law judge or the appeals board.”

Misc. No. 266, walk through assignment hours

Walk-through hearings area quick and easy way to move along a dispute or to obtain approval of a settlement.  Misc. No. 266 temporarily suspended WCAB Rule 20789(c) requiring that each district office have a designee of the presiding judge available to assign walk-through cases from 8:00 am to 11:00 am and 1:00 pm – 4:00 pm on court days.  This Misc. Order issued April 6, 2020, a few weeks after the other two Orders.

Rescinding this rule suspension should not have much practical effect as this has already been the case since the all DWC district offices except Eureka started again accepting in-person walk-through documents beginning September 6, 2022.  Concurrently, effective September 6, 2022, the DWC stopped  accepting virtual walk-throughs in the Lifesize platform.

Other Pandemic Changes

The Appeals Board instituted other changes during the pandemic that will hopefully remain with us. Possibly the most convenient and time saving of these changes is remote conferences, either by phone or Lifesize. 

There is most definitely something to be said for in person appearances.  This allows the parties to meet face to face and iron out conflicts not only in the case on calendar but in other matters as well.  It also allows for the practitioners to build a sense of community. 

However, the convenience of remote hearings and depositions is unmatched.  There is also a major cost savings for travel and wait times.  This also benefits witnesses who will not be as inconvenienced in appearing.  It is still unclear whether wet signatures will once again be required.

A Board Panel Decided that "High-Velocity Eye Injury" Does Not Actually Require A Direct Injury to Eye In Order to Apply LC § 4656(c)(3(F) Exception to 104-Week TD Cap

A unanimous panel of Commissioners issued a decision in the case of Glick v. Knight Transportation Holdings, Inc. upholding an Award of up to 240 weeks of Temporary Disability indemnity benefits to an applicant based on CA Labor Code § 4656 (c)(3)(F), based on an extremely broad interpretation of the phrase "high-velocity eye injury".

The applicant was employed as a truck driver. On November 26, 2018, he was struck by a motor vehicle while crossing a street. The vehicle was traveling at approximately 30 miles per hour at the time of impact, and the applicant was thrown approximately 10 feet. Among the numerous injuries sustained were fractures to the right and left temporal bones. 

The parties utilized a QME in Physical Medicine and Rehabilitation who determined that the applicant's "number one problem" was vision difficulty. A QME in ophthalmology also diagnosed vision issues including double vision which required eye muscle surgery. 

Defendant ceased payment of Temporary Disability indemnity benefits on 11/24/2020 (based on the 104-week cap in LC § 4656 (c)(2). Applicant requested an Expedited Hearing on the issue, arguing that he had sustained a "high-velocity injury" to the eyes which entitled him to an extended period of benefits pursuant to LC § 4656 (c)(3)(F).  

On December 21, 2020, the Workers' Compensation Judge issued a Findings & Award, finding that the applicant had sustained an injury to the "ophthalmology/vision/eye" caused by a "high-velocity impact", and that the applicant was entitled to ongoing temporary disability pursuant to LC § 4656 (c)(3)(F). 

Defendant filed a Petition for Reconsideration, arguing that the "plain language or common meaning" of the term "high-velocity eye injuries" requires "at least some impact with the eye". The defendant cited the WCAB's "common sense" interpretation of "amputation" in its analysis of LC § 4656 (c)(2)(C) [Cruz v. Mercedes-Benz of San Francisco (2007) 72 CCC 1281]. The petition was denied. 

In their decision, the Commissioners cited Glover v. ACCU Construction (2009) 2009 Cal. Wrk. Comp. P.D. Lexis 301, noting that in that case the applicant was awarded additional Temporary Disability benefits as a result of being struck by a metal fragment that was thrown by a mulching mower. The metal fragment entered the applicant's nostril and fractured the eye socket, but did not directly impact the eye ball. 

In reaching their decision in this case, the Commissioners apply a very broad interpretation of the phrase "high-velocity eye injuries" to include an injury caused by "quickness of motion, rapidity of movement or speed imparted to something" that results in medical treatment to the eye. It does not require injury to the organ of the eye. 

Apparently realizing the impact this decision might have, the Commissioners' opinion is careful to note that their analysis "is limited to the facts of this case". 

Newly Enacted SB 1127 Changed the Landscape in Deciding Whether to Deny Certain Claims

SB 1127 became effective as of 1/01/2023.  This changes the California workers’ compensation landscape in three ways:

1. Reduces the decision period from 90 days to 75 days for injuries and illness defined under sections 3212 to 3212.85, and 3212.9 to 3213.2 (i.e., presumptive injuries for specified safety officers);

2. Increases the maximum number of weeks of disability benefit entitlement from 104 weeks to 240 weeks for presumptive cancer claims for specified firefighters and peace officers as defined in LC 3212.1; and  

3. Increases the penalty - up to five times the amount of benefits up to $50,000 - for claims of injury or illness as defined in sections 3212 to 3213.2 (i.e., presumptive injuries for specified safety officers and COVID-19 presumptive claims) that are unreasonably denied. (LC 5414.3)  

While all three of the above-mentioned provisions have an effective dated of 1/01/2023, the increased penalty provision of newly created LC 5414.3 applies retroactively, regardless of whether the injury occurs before, on, or after the effective date. 

The reduced decision period provision affects fewer injuries and illnesses when compared to the increased penalty provision. However, both provisions apply to specified safety officer claims for hernias, heart trouble, pneumonia, cancer, PTSD, tuberculosis, MRSA, biochemical substances, meningitis, skin cancer, Lyme disease and to the low back under the duty belt presumption. 

By contrast, the penalty provision covers the three COVID-19 presumptions – 3212.86, 3212.87 and 3212.88 – whereas the reduced decision period provision does not. Thus, the timelines for decision-making specified for COVID presumption claims under SB 1159 still apply: 30 days under LC 3212.86 (essential workers with dates of injury before 7/05/2020); and, for qualified employees with a date of injury after 7/05/2020, LC 3212.87 (certain peace officers, firefighters and specified health care workers) allows for 30 days, whereas a decision must be made within 45 days for COVID claims arising under LC 3212.88 during a period of outbreak (for employees not covered by 3212.87).

Now more than ever, the defense community, and in particular claim examiners, should be cautious when determining if an employee has a qualifying job and qualifying injury.  

Written by: Kyla Block

Amended Full Commission Decision Provides Updated Guidance on Navigating Requests for Second Opinions and Clarifies the Issue of Payment Under the Fee Schedule 

A long-standing issue under the Workers’ Compensation Act has been second opinions on treatment options under N.C. Gen. Stat. § 97-25(b). The parties have frequently been at odds over whether defendants must 1) issue a prepayment for that visit and 2) pay beyond the NCIC fee schedule amount for the visit. Many administrative motions on the issue have ensued over the years. In May of 2202, the Full Commission issued a non-binding decision, Wyatt v. The Golden Mint, Inc., I.C. No. 20-038523 (May 2022), holding that:  

• Defendants did not need to pay any kind of prepayment for a second opinion under N.C. Gen. Stat. 97-25(b);
• Defendants did not need to pay beyond the fee schedule for that visit; and
• The fee schedule amount for a N.C. Gen. Stat. 97-25(b) second opinion is $301.23, based on CPT code 99456. 

You can find my partner Matt Marriott’s more extensive write up on that decision here. Following the Wyatt decision, Plaintiff filed Plaintiff’s Motion to Reconsider the Opinion and Award Issued on May 12, 2022 and Request for Additional Findings. While Plaintiff’s Motion was pending, the Commission, during its annual publishing of the Medical Fee Schedule Tables for 2022, identified inaccuracies in the fee schedule tables and corrected the inaccuracies in line with the requirements of N.C. Gen. Stat. § 97-26 and Subchapter J of the Industrial Commission’s rules. These changes removed the CPT Cod 99456 for second opinions and replaced it with UCR or Pay Per Agreement. UCR stands for usual, customary, and reasonable. Thereafter Plaintiff filed Plaintiff’s Supplement to Plaintiff’s Motion to Reconsider the Opinion and Award Issued on May 12, 2022 and Request for Additional Findings and pointed to the changes to the second opinion code to reflect “UCR or Pay Per Agreement” and noted that it no longer had a specific monetary amount. Plaintiff asserted that per the updated fee schedule, the second opinion fee would now be what was usual and customary. 

The Full Commission, in amending its Opinion and Award to find that the Medical Fee Schedule sets the maximum fee allowable by a physician conducting a 97-25(b) second opinion examination at “UCR or Pay Per Agreement”, found that Plaintiff was entitled to have Defendants pay his selected 97-25(b) expert or any other provider the usual, customary, and reasonable charge for such a provider in such a circumstance or a rate agreed upon by the physician and the parties. The Full Commission also noted that Defendants did not need to make prepayment, but that any motions or requests for a specific prior approval to charge “shall” be submitted to the Commission for each charge. Based on the facts in Wyatt, the Full Commission declined to grant Plaintiff’s request for approval of his specific physician’s fee, indicating there was insufficient evidence to show that plaintiff’s provider’s fee was reasonable; the Act specified that providers not be paid for services prior to the rending of services and said report; that the Commission had the responsibility of assuring medical and related expenses be kept within reasonable and appropriate limits; and the routine nature of the request for a 97-25(b) second opinion examination.  

Practice Pointers and Takeaways 

As we have noted, a Full Commission decision is not binding case law like a decision from the North Carolina Court of Appeals or Supreme Court would be. However, it does set the tone for how the Commission will likely be deciding these matters going forward. Thus, given the change to the Medical Fee Schedule, carriers and employers should assume they will be ordered to pay the usual, customary, and reasonable charges associated with second opinions under N.C. Gen. Stat. §97-25(b). However, since Defendants will be paying the usual, customary, and reasonable charges going forward, and the parties are encouraged to agree on the provider per the statute, there may be an argument that all else being equal, the provider with the lowest charge should be the provider chosen, in line with the responsibility of the Commission to keep medical and related expenses within reasonable and appropriate limits.  

Additionally, Employers and Carriers should expect to see more administrative motions on the issue of prepayment under N.C. Gen. Stat. §97-90(a). In responding to these motions, evidence regarding the usual, customary, and reasonable charges will likely be key, and a failure to provide the same by one side, may result in an adverse decision. A reasonable alternative to motions on the prepayment issue may be suggesting that Plaintiff pay the prepayment upfront with Defendants issuing the full charge upon receipt of the report.

Written by: Tracey Jones

Starting February 20, 2023, the Industrial Commission will begin emailing Report of Mediator fee invoices at the time the mediator is appointed. This new procedure will not impact the fee’s due date but is being introduced in an effort to allow additional time for processing and payment. The $200 fee can be paid either online via credit card or e-Check (a link for payment will be provided in the email) or by mailed paper check. With this new procedure, the Industrial Commission hopes to encourage early payment so employers and carriers can manage cases more efficiently while also being able to avoid the risk of past due invoices, penalties, and interest. 

Note: Payment of the $200 Report of Mediator fee is due no later than seven (7) days from the deadline for completing mediation or seven (7) days from the date mediation is completed, whichever is earlier. The Commission is issuing penalties when they receive late payments, so timely processing these invoices is important.