State News

Written by Tracey Jones 

Revised Guidelines for In-Person Industrial Commission Hearings

We are living through a period of sharp inflation in almost everything from food and gasoline to automobiles and airfare, but one area where costs are sharply declining in New Jersey pertains to the cost of getting copies of medical records.  Governor Phil Murphy signed S 2253 on September 22, 2022.  This legislation dramatically lowers the costs that hospitals and physicians can charge for providing copies of medical records.  

We begin first with a key definition.  The bill refers to a “Legally authorized representative.” That means the patient’s spouse, domestic partner, or civil union partner; the patient’s immediate next of kin; the patient’s legal guardian; the patient’s attorney; the patient’s automobile insurer; or the patient’s worker’s compensation carrier, if the carrier is authorized to access to the patient’s treatment or billing records by contract or law, provided that access by a worker’s compensation carrier shall be limited only to that portion of the treatment or billing record that is relevant to the specific work-related incident at issue in the worker’s compensation claim.

Here are the allowable fees for a legally authorized representative under the new law:

1. Medical records in paper, electronic format, microfilm or microfiche  – no more than $1 per page – capped at $50 per individual admission or patient record
2. No charge for copies of billing records
3. Reproduction of x-rays shall be no more than $15 per printed image or $30 per CD or DVD – plus an administrative fee of $10
4. Search fees can be no more than $20 per request
5. Certification fees can be no more than $10 per certification
6. Delivery fees are at cost, plus sales tax, if applicable

“Authorized third party” means a third party, who is not a legally authorized representative of the patient, with a valid authorization, subpoena, legal process, or court order granting access to a patient’s medical or billing records.

Here are the allowable fees for authorized third parties under the new law:

1. Medical and billing records not on microfilm/microfiche – no more than $1 per page – no cap
2. Records on microfilm/microfiche – $1.50 per image – no cap
3. Reproduction of x-rays shall be no more than $15 per printed image or $30 per CD or DVD – plus an administrative fee of $10
4. Search fees can be no more than $20 per request
5. Certification fees can be no more than $10 per certification
6. Delivery fees are at cost, plus sales tax, if applicable

Before passage of this new legislation, providers could charge $1 per page up to $125 for copies plus a search fee up to $25.  The new $50 cap represents a significant cost reduction.  Workers’ compensation practitioners need to know about this legislation because it has been routine to obtain requests for records that amount to hundreds of dollars. The law is so new that medical providers and hospitals may not even be aware of the changes. 

Our thanks to Francine Viden, our firm’s excellent librarian, for obtaining the information and organizing the salient changes in the law.

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John H. Geaney, Esq., is a Shareholder and Co-Chair in Capehart Scatchard's Workers’ Compensation Group.  Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at jgeaney@capehart.com.

Few readers of this blog may know that the New Jersey Division of Workers’ Compensation achieved a number of notable firsts this year with the appointment of the Honorable Maria Del Valle Koch as Director of the Division in June 2022.  Director Koch is the first woman Director and the first Hispanic Director in the history of the New Jersey Division of Workers’ Compensation.  This is particularly noteworthy right now because September 15, 2022 through October 15, 2022 is National Spanish Heritage Month, an annual observance established by President Lyndon B. Johnson in 1968 to celebrate the histories, culture and contributions of Hispanic Americans. I recently had the pleasure of meeting Director Koch for the first time, and she was kind enough to allow me to interview her for this blog regarding her Hispanic heritage and her aspirations as Director.

Director Koch grew up in Jersey City, N.J. with four sisters and two brothers.  She said education was stressed at home.  She attended James J. Ferris High School and received her B.A. in History from St. Peter’s University in Jersey City.  She graduated in 1987 from Seton Hall University School of Law in Newark, N.J. 

Her mother, who is now 94 years of age, was born in Cuba and came to the United States in 1955.   Her natural father and her step-father were both born in Puerto Rico.  The Director learned to speak, read and write Spanish.   “I’m very proud of my being Puerto Rican and Cuban.”  She added, “The hallmark of my family is this: my mom told us to be proud of our Hispanic culture and to be proud to be American.”  Both of her brothers were born in Cuba, and both served in Vietnam.  She added, “We all believe in serving our country and our community.”

Director Koch worked in general practice in Jersey City, then worked for the Middlesex Region of the Public Defender’s Office until 1996.  She established her own law practice in 1996.  She worked as a Public Defender from 2002 to 2008 in Perth Amboy, N.J. In 2014, she was appointed a Judge of Compensation.  In December 2020 she was appointed Administrative Supervising Judge while sitting in Plainfield vicinage.  Governor Phil Murphy nominated her as Director of the Division on June 9, 2022.

Director Koch had not practiced workers’ compensation law before becoming a Judge of Compensation.  She credited several former judges of compensation with helping her develop a deep appreciation for the New Jersey Workers’ Compensation Act, including former Judge of Compensation Nilda Hernandez, former Judge of Compensation Yolanda Adrianzen and former Judge of Compensation James Welch.  In regard to being the first woman Director of the Division, she said, “All of the women judges who came before me have set the standard very high.”

Director Koch describes her style of leadership as collaborative, professional and consensus building.  “What motivates me as Director is that I am part of a greater task to do right by people.”  She summed up her approach as “be kind and be collegial.”  In addition to running the Division of Workers’ Compensation, she handles seven lists in the Plainfield vicinage.  “As a workers’ compensation judge, I have to set the tone and example for the way that we treat injured workers, attorneys, and everyone who is part of the Division.”

Director Koch commented that one of the major challenges in recent years for the Division, as for all courts, has been the COVID pandemic. “We in the Division have had an uncanny ability to think outside the box.”  She added, “Like a good ballplayer, you have to adjust with each at bat and with each pitch.”  Utilizing Zoom and Teams effectively has made a big difference,” she added.  “My mission and my goal is to continue the high quality standard of excellence during the pandemic crisis that the Division has always demonstrated in New Jersey.”

The Director remains optimistic about the future of the Division.  “Our Division has stood out as a court that is second to none in its ability to produce for workers and for all stakeholders.”  She is hopeful that more judges will be nominated in the coming years.

The Director lives at the Jersey shore and when she is not working, she said she enjoys sailing and surf boarding.  She has three children who are a big part of her life. She also remains an ardent fan of the New York Yankees and the New York Giants.  She noted, “The Giants did not look so good in their most recent game and need to do a little better.”

Our thanks to the Director for allowing readers to learn more about her very interesting personal background and her goals for the Division in the coming years.

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John H. Geaney, Esq., is a Shareholder and Co-Chair in Capehart Scatchard's Workers’ Compensation Group.  Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at jgeaney@capehart.com.

SB 1403, effective 9/24/2022, adds a new reporting requirement in Section 23-1061(N) for insurance carriers. Upon the receipt of written notice of an injury from an employee who was injured and intends to file a claim for compensation, the carrier must forward the written notice to the Industrial Commission within seven business days and inform the employee of the employee’s requirement to file a claim with the Commission. The one-year claim filing deadline may be suspended from the date the carrier received written notification until the date the carrier forwards the written notification to the commission. The statute expressly applies to all existing claims that have not been legally filed by the injured worker with the ICA regardless of the date of injury.

The ICA has acknowledged that “intent to file for compensation” is not  defined by the statute. The ICA has taken the position in their educational materials that “it is reasonable to assume that if the worker is seeking or has received medical and/or lost time benefits compliance is required.” It is anticipated that what constitutes “written notice” or “intent to file” will need to be addressed further by ICA policy or case law clarification. For example, if an employee sends an email or text to their employer claiming that they were hurt and they need help, that may constitute “written notice” in the eyes of the ICA.

From a carrier compliance standpoint, it is recommend to err on the side of caution and consider any written communication from an injured worker regarding notice of an injury and a request for any form of benefit to be “written notice” with an “intention to file.” This is particularly important as the statute not only indicates that the one year filing statute of limitations may be tolled, but also provides that violation of the new requirements may result in any other applicable bad faith/unfair claims processing allegations.

Workers’ Compensation Emerging Issues – Kansas 2022

Constitutionality of Statute Requiring Use of AMA Guidelines 6^th Ed. – Follow up to the 2021 Johnson case decision issued by the Kansas Supreme Court.  Howard Johnson III vs. U.S. Food Service and American Zurich Insurance Co., 312 Kan. 597, 478 P.3d 776 (2021).  On January 8, 2021, the Kansas Supreme Court issued its much-anticipated decision reversing an August 2018 decision of the Kansas Court of Appeals (56 Kan. App. 2d 232, 427 P.3^rd 996), that had struck down as unconstitutional the use of the 6th Edition of the AMA Guides to the Evaluation of Permanent Impairment, for measuring permanent impairment of function of injured workers with general body disabilities under the Kansas Workers Compensation Act.  The Kansas Supreme Court held the language of K.S.A. 2019 Supp. § 44-510e(a)(2)(B) referencing the use of the AMA Guides 6th Ed. could reasonably be interpreted as a "guideline" rather than a "mandate."  Therefore, the high court found the statutory provision requiring use of the 6^th Ed. constitutional under section 18 of the Kansas Constitution Bill of Rights. The court stressed the statutory reference to the 6th Ed. did not alter the additional statutory requirement that any impairment rating must also be "established by competent medical evidence" which rendered sufficient the constitutionality of the statute as worded by the legislature when referencing the use of the 6^th Ed.

The court went on to indicate that use of the 6^th Ed. is the starting point for a determination of permanent impairment under the statutory language for general body disability work injuries.  With this language, the Court appeared to open the door for administrative law judges to consider use of other editions of the AMA Guides and perhaps even no edition of the AMA Guides, as long as the 6^th Ed. is at minimum a starting point.

The initial application of the Supreme Court’s Johnson decision by administrative law judges appeared to adopt the approach that Justice Stegall, writing for the Court, delivered something for everyone in the Supreme Court’s Johnson decision.  For the employer and carrier side, the 6^th Ed. language in the statute was deemed to be constitutional and therefore retained as at least a starting point.  For the injured worker side, the decision is being interpreted as opening the door for formulations of rating opinions outside of the four corners of the 6^th Ed. of the AMA Guides, as long as the rating opinions also qualify as “competent medical evidence.”

The statutory context of the Johnson issue of whether use of the 6^th Ed. was constitution, was in relation to general body disability injuries under K.S.A. 2019 Supp. § 44-510e(a)(2)(B).  The next question after Johnson is whether in the context of scheduled injuries and disabilities found in K.S.A. 44-510d(b)(23), the mandate to use the AMA Guides 6^th Ed. in determining permanent impairment of function is constitutional, and both the starting and ending point for the analysis.  The statutory language mandating the use of the AMA Guides in K.S.A. 44-510e(a)(B) for scheduled disabilities is different than the language of K.S.A. 44-510d(b)(23) for general body disabilities.  The scheduled disability statute requires impairment of function related to a scheduled injury shall be determined using the 6^th Ed., if the impairment is contained therein.  The scheduled disability statute, K.S.A. 44-510d(b)(23), does not contain the phrase by "competent medical evidence" that the Johnson court cited in the general body disability statute.  The plain language of K.S.A. 44-510d(b)(23), the scheduled disability statute requires the functional impairment to be based upon the 6^th Ed. There is no explicit requirement in the language that the impairment rating be based upon any other criteria, including substantial competent medical evidence.

In Butler v. The Goodyear Tire and Rubber Company, OSCAR CS-00-0285-928 (WCAB May 2021) the Kansas Workers Compensation Appeals Board addressed this issue in the context of whether the plain language of the scheduled disability statute mandates the use of the AMA Guides 6^th Ed. for a shoulder injury.  The Appeals Board affirmed the ruling of the administrative law judge that the plain language of the scheduled injury statute is different than the plain language of the general body disability statute relied upon by the Johnson court.  That difference in the plain language of the scheduled disability statue was held to leave no room for the court to consider or apply any other AMA Guide edition other than the 6^th Ed. as required by the plain language of the statute.

Several notable Kansas Court of Appeals decisions in late 2021 and early 2022 illustrate that the question of whether the Johnson Court’s pronouncement that the AMA Guides 6^th Ed. is “just the starting point” is still somewhat up in the air regarding whether general body claims can be awarded impairment of function compensation based on any version of the AMA Guides other than just the Sixth Edition.

On October 1, 2021, the Kansas Supreme Court granted publication of the Court of Appeals decision in Zimero v. Tyson Fresh Meats, 61 Kan. App. 2d 1, 490 P.3d 86 (2021).  Zimero held that for a general body disability compensation claim, “any reference to the 4^th Edition for injuries occurring after January 1, 2015, is irrelevant.  The Court of Appeals rejected claimant’s argument holding that “Parties and courts do not choose between the 4^th Edition or the 6^th Edition.  The 6^th Edition is statutorily required.”

Next, on December 3, 2021, a separate panel of the Kansas Court of Appeals issued an unpublished opinion in Morris v. Shilling Construction Co., Inc., No. 123,297, 2021 WL 5751704 (Kansas Court of Appeals unpublished opinion filed Dec. 3, 2021).  The Morris opinion which appeared to affirm the Zimero position that the Supreme Court decision in Johnson while requiring that the starting point being use of the 6^th Edition and then using competent medical evidence to determine the compensable impairment, does not leave room for use of the 4^th Edition which the legislature expressly removed and replaced with the now required AMA Guides 6^th Edition.

Then on January 28, 2022, yet another panel of the Kansas Court of Appeals issued its opinion in Garcia v. Tyson Fresh Meats, Inc., 61 Kan. App. 2d 520, 506 P.3d 283 (2022) seeming to be critical of an Appeals Board decision that did not appear to consider medical evidence which was based on the AMA Guides 4^th Edition when awarding permanent impairment of function compensation.  Zimero clearly holds that the 4^th Edition can no longer be used to determine permanent impairment while Garcia appears to hold that not considering the 4^th Edition may be reversable error.

The bottom line at present is that it is not clear whether the plain language of our current statute requiring use of the AMA Guides 6^th Edition should be interpreted, after Johnson, to mean that permanent impairment compensation in general body disability claims can be awarded using other AMA Guide Editions other than the Sixth Edition.  As a practical matter for parties currently in litigation in general body disability claims, this situation means that it is likely medical opinion evidence using other editions of the AMA Guides, other than the 6^th Edition, will be presented to the administrative law judges and either asserted or attacked by the parties, thereby increasing the cost and scope of workers’ compensation final award litigation.

2022 Kansas Work Comp Legislative Update.  There were no substantive Kansas work comp legislative changes of import in 2022.

2022 Rates Update.  The maximum weekly indemnity benefit rate increased to $765.00, effective 7/1/2022 through 6/30/2023, based upon annual indexing to the state average weekly wage.  Effective July 1, 2022, the medical mileage reimbursement rate increased from $.56 cents per mile to $.585 cents per mile.

© Copyright 2022 by Kim R Martens, MARTENS WORK COMP LAW LLC. All rights reserved. Reprinted with permission.

Hot Topics in Louisiana Workers’ Compensation Law

LaPoint vs Commerce & Industry Insurance Company 20-388 (La. App 3 Cir. 4/27/22) --So.3d --    (awaiting publication)

(OWC Judge Dianne Marie Mayo, District 03)

Summary: Judgment of Georgia state court barring Employer’s claim for reimbursement of benefits paid under Louisiana Workers’ Compensation scheme is not res judicata in claim for reimbursement made in Louisiana

The employer’s right to recover from a third party tortfeasor in out of state litigation was addressed by Louisiana Courts. Employee was hired in Louisiana to work in Louisiana. Later Employee moved to Georgia, continuing to work for the same Employer.

            While working in Georgia, Employee was crushed by a vehicle owned and operated by USCI, another contractor doing work at the site. Immediately after the accident, the Employer accepted the claim and paid medical and compensation benefits to the employee under Georgia law. Shortly after his accident, Claimant moved back to Louisiana. At this point, the employer began paying the benefits under Louisiana Law.

            Employee filed a negligence suit in Georgia state court against USCI. After USCI and the Claimant settled the case, a dispute remained as to the amount of reimbursement out of the settlement due the Employer for compensation and medical benefits made. The Employer and Employee reached an amicable resolution as to only the amount paid in the form of Georgia workers’ compensation benefits, with all parties reserving their rights as to reimbursement of the Louisiana compensation benefits.

            Employee filed for a summary judgment in the Georgia Court to preclude Employer from collecting on its claim for reimbursement for benefits paid the claimant under Louisiana law. The Georgia court (applying lex loci delicti) found that Employer was precluded from asserting its claim for reimbursement for Louisiana benefits in a Georgia Court.

            Employee filed suit to enforce the Georgia judgement in Louisiana. The suit was unopposed, and the Louisiana District Court ordered that the Georgia judgement was entitled to full faith and credit in Louisiana. This judgment was not appealed.[1]

            Employer filed a claim in the Louisiana Workers’ Compensation Office requesting a forfeiture of his benefits due to his failure to reimburse it from the proceeds of the third-party case.  The compensation judge overruled Claimant’s exception of lack of subject matter jurisdiction, and the parties proceeded to a formal hearing.  The Compensation Judge correctly applied the statute, ordering the employee to pay two thirds of the amount retained in his trust account, the remaining third being payable to the employee’s attorney under applicable statute.[2]

Employee appealed, for the first time urging the exception of res judicata. Employee argued that the Georgia state court judgment was a final decision as to the Employer’s right to reimbursement and credit even as to the benefits paid under Louisiana law. The Court of Appeals sustained the exception of res judicata, dismissing the Employer’s claim for reimbursement and credit.

Supreme Court granted the Employer’s writ taking up the exception of res judicata. The Georgia Court did not have subject matter jurisdiction over the recovery of benefits paid under Louisiana law.  The Georgia Court’s judgment, though valid, did not adjudicate the Employer’s rights to recover its lien falling under Louisiana law.  The Supreme Court overturned the decision and remanded the case to the Third Circuit. The Third Circuit then reinstated the original judgment of the Louisiana Workers’ Compensation Office awarding 2/3 of the settlement recovery to the employer.

Batiste vs Minerals Technology, Inc. 21-795 (La. App. 3 Cir. 6/8/2022) (unpublished opinion).

(OWC Judge Anthony Palermo, District 04)

Summary: Judgment awarding attorney fees of $5,000.00 was an abuse of discretion and increased to $46,800.00 based upon an hourly rate of $225.00.   

On remand from the Third Circuit, the workers’ compensation judge awarded the Claimant supplemental earnings benefits (SEB), penalties for failure to provide medical treatment, and attorney’s fees.

The Claimant appealed, urging the compensation judge erred in failing to award penalties for non-payment of indemnity benefits, failing to award a penalty of $8,000.00 for failure to provide treatment on many occasions and awarding an abusively low attorney fee.   

The judgment of Louisiana Workers’ Compensation Office awarded attorney’s fees of $5,000.00 to counsel for the Employee after a successful prosecution of the claim for supplemental earnings benefits (SEB). The Employee did not submit evidence of his attorney’s time spent or his hourly rate.

Claimant’s post trial brief “outlined his time” spent before the Louisiana Workers’ Compensation Office through trial. Claimant’s counsel spent a total of 208 hours through trial and two appeals. The Third Circuit found that $225.00 per hour was a reasonable hourly fee and increased the award of attorneys’ fees from $5,000.00 to $46,800.00. The Court found that the award of $5,000.00 was an abuse of discretion by the Workers’ Compensation Judge.

Howard vs Rio Sol Nursing Home 2021-824 (La. App. 3 Cir. 6/15/22) 344 So.3d 216

(OWC Judge James J. Braddock)

Summary: Judgment reducing benefits based on available jobs within 45 miles of Claimant’s rural home reversed because the jobs were not in the Claimant’s geographical region.

The Claimant injured her neck and back while working as an LPN for the Employer. The Employer instituted indemnity benefits. The Claimant’s physician released the Claimant to light duty and the vocational counselor assigned to the case identified 3 light duty jobs within 50 miles of the Claimant’s rural home.  The Employer reduced benefits based upon the vocational evidence.

The Claimant filed a Disputed Claim for Compensation alleging improper reduction of her benefits. The Claimant appealed, alleging the Workers’ Compensation Judge erred in not finding her entitled to temporary total disability benefits and in finding the reduction of benefits proper.

On Appeal, the Thid Circuit found that the Employer failed to carry its burden of proving the existence of actual jobs in the claimant’s geographical region that were available to the Claimant. Specifically, the Court rejected the three jobs because they were not in the Claimant’s geographical region.

The Claimant’s hometown of Mansura, a small rural area in Avoyelles Parish, Louisiana. The jobs identified for the Claimant were within 45 miles of her home in the City of Alexandria.  The Claimant went to Alexandria for her medical care. Louisiana Courts have not set a standard mileage radius to determine whether the job is within the Claimant’s geographic region. This is decided on a case-by-case basis.

The Employer argued that is reasonable to expect the Claimant to drive 45 miles to work in Alexandria because there are very few jobs in her immediate geographic region. The Court took judicial notice of the distance between the Claimant’s home/ Employer’s premises from Google Maps. The Court found the jobs were outside her geographic region. The Court reasoned that because she takes daily medication that makes her drowsy and driving causes her pain level to increase, it was unreasonable to expect her to drive 350 miles round trip to work every week for a $10.00 per hour job plus $150.00 per week in SEB. Accordingly, the Third Circuit found the jobs to be outside of her geographic region, reversing the trial Court’s finding of a proper reduction in benefits. The Court ordered SEB benefits reinstated to the date of reduction at the full TTD rate.

NWCDN Wisconsin Worker’s Compensation Legal Update:

This year, the Wisconsin Legislature made some significant changes to existing law that altered the Worker’s Compensation landscape in multiple ways.  The changes are discussed below:

The Wisconsin Legislature Increased the Weekly Permanent Partial Disability Rate for the first time since 2017.

On April 8, 2022, Wisconsin Governor Tony Evers signed into law 2021 Wisconsin Act 232 (the Act).  The Act, which was sponsored by the bipartisan House Labor and Integrated Employment Committee, increased the weekly permanent partial disability rate (PPD).  As stated above, Wisconsin had not raised the weekly PPD benefit rate since 2017.  The Act changed the benefit rate to $415 for injuries occurring on or after April 10, 2022.  The Act further increased the weekly PPD benefit to $430 for injuries occurring on or after January 1, 2023.

The Wisconsin Legislature also made changes to the Average Weekly Wage Calculation for Part-Time Employees.

Prior to April 8, 2022, a Claimant-Employee needed to meet four conditions to be considered “part of a class” under the Act to have their average weekly wage (AWW) calculated using less than 40 hours.  To be “part of a class” the Claimant-Employee had to meet the following conditions:

·         All class members needed to perform the same type of work at the same location;

·         The class of part-time employees needed to represent a minimum of 10% of all employees doing the same type of work;

·         The claimant needed to have a regular schedule that did not vary more than five hours from week to week, in the 13 weeks before the injury; and

·         At least one other employee needed to be in the same class as the Claimant-Employee.

If the Claimant-Employee met all of these conditions, their hours would reflect the hours actually worked or expanded to the statutory minimum of 24 hours.  If the Claimant-Employee did not meet all of the conditions demonstrating a regularly scheduled class of part-time employees, their hours would be expanded to reflect a full-time schedule of 40 hours.

Per the new law, Sections 102.11(1)(am) & (f)1., Wis. Stats., were repealed and § 102.11(1)(ap), Wis. Stats., was created to eliminate wage expansion for employees working part of a class.

Wages will be expanded only when the injured worker is employed by another employer or worked less than full-time for less than 12 months before the date of injury.

Wage expansion for those who worked less than full-time for less than 12 months may be rebutted when there is evidence to show an employee chose to restrict employment to part-time.  You can use a self-restricting statement or job application as evidence.

If wage expansion does not apply, you use the following to calculate the part-time wage.  The wage is the greater of the two:

(1)               Divide the total wages earned in the 52 weeks prior to the injury date by the actual number of weeks worked in that period; or

(2)        Multiply the employee’s hourly rate by the average number of hours worked per week in the 52 weeks prior to the injury date.

In each equation, the number of weeks worked in the 52 weeks prior to injury does not include weeks in which no work was done.

This applies to injuries occurring on and after April 10, 2022.

Observers are now allowed at independent medical examinations

Section 102.13(1)(b), Wis. Stats., was amended to allow an employee who appears at an examination directed by employers and worker's compensation insurance carriers to have an observer present at the examination.

The Wisconsin Legislature updated the definition of Employer

The definition of "employer" is amended to clarify that every person who at any time employs three (3) or more employees in Wisconsin is subject to Ch. 102, Wis. Stats., (Wisconsin Worker's Compensation Act) on the day on which the person employs three (3) or more employees in this state. §§ 102.04(1)(b)1. & 2., Wis. Stats.

Farmers will have the same statutory authority to withdraw from subjectivity to Ch. 102, Wis. Stats., as other employers who have had no employee in the previous two (2) years. § 102.05(3), Wis. Stats.

Public Safety Officers can now Bring a Claim for PTSD without having to Prove Extraordinary Stress.

Assembly Bill 11 was passed in the Senate on February 16, 2021, and presented to Governor Evers on April 22, 2021.  This bill, now known as 2021 Wisconsin Act 29 (Act), was signed by Governor Evers on April 27, 2021.  This bipartisan bill was passed to allow public safety officers – including law enforcement and firefighters – who have been diagnosed with post-traumatic stress disorder (PTSD) under certain conditions to receive worker’s compensation benefits without having to prove that the injury was caused by extraordinary stress.

Since the mid-1970s, Wisconsin has recognized non-traumatic mental injuries in worker’s compensation.  Specifically, in the School District No. 1 v. DILHR (215 N.W.2d 373) decision, the Wisconsin Supreme Court established the “extraordinary stress” standard for compensability.  This decision provided that a “mental injury non-traumatically caused must have resulted from a situation of greater dimensions than the day-to-day emotional strain and tension which all employees must experience.”  This standard was clarified in the Spink v. Farm Credit Services (WC Claim No. 87-32662 LIRC Dec. 11, 1989) decision, where the Labor and Industry Review Commission found “the amount of stress in the Claimant-Employee’s occupation and field … served as the benchmark for comparison with the stress that the Claimant-Employee claims entitles him or her to worker’s compensation.”  Later, in Jenson v. Employer’s Mutual (468 N.W.2d 1), the Court further clarified the test stating the stress was “measured not by its effects on the victim, but by the unusual nature of the occupational stress itself.”  These onerous standards often prevented Claimant-Employees in high-stress jobs, such as public safety officers, from prevailing on a claim for PTSD.

The Act itself makes a few important changes, most notably by relaxing the existing “extraordinary stress” standard discussed above, along with setting caps on liability.  These changes are discussed in detail below:

First, the Act allows payment of worker’s compensation benefits if a public safety officer, such as law enforcement or firefighter, is diagnosed with PTSD by a licensed psychologist or psychiatrist, and the mental injury is not accompanied by a physical injury, if proven by a preponderance of the evidence and the mental injury is not a result of a result of a good faith employment action by the employer. Wis. Stat §102.17(9)(b).

Second, the Act limits the liability for treatment of such injuries and claims to no more than 32 weeks after the injury is first reported. Wis. Stat §102.42(1p).

Third, it restricts the ability to claim compensation for such injuries and diagnoses to three times within an individual’s lifetime, regardless of a change in employment status. Wis. Stat §102.17(9)(c).

In short, this legislation eases the requirements for claiming and obtaining worker’s compensation benefits for a mental injury asserted by a public safety officer by altering the previous standards for compensable non-traumatic mental injuries, but also limits the employer’s liability for such injuries.

Wisconsin Supreme Court issued an important decision regarding the Exclusive Remedy Provision.

On May 20, 2021, the Wisconsin Supreme Court published its decision in Graef v. Continental Indemnity Company (959 N.W. 2d 628).  The issue before the Court was whether the Exclusive Remedy Provision of the Wisconsin Worker’s Compensation Act (the Act) barred a tort action for the Claimant-Employee's alleged injuries.  The Court found the Exclusive Remedy Provision did apply to the claimed scenario and remanded the matter to the Circuit Court to grant Summary Judgement.

By way of background, in a deal cut in 1911, Employers gave up the right to common law defenses (contributory negligence, co-employee negligence, assumption of risk, etc.,) and Employees gave up the right to sue their employer in tort (and recover tort like damages) in return for a fixed schedule of “guaranteed” benefits.  This portion of the original negotiations remains in place today and is referred to as the Exclusive Remedy Provision.  This is the basis of the litigation that led to the above-referenced Supreme Court decision.

In this matter, the Claimant-Employee sustained a compensable work injury in November 2021, which resulted in physical and psychological injuries.  He was prescribed an antidepressant as a result of these injuries.  On two different occasions, the Insurer denied the initial request for payment related to refills of the antidepressant.  The first denial occurred in May 2015, but the Insurer subsequently paid for the prescription after it was contacted by the Pharmacy.  Then, in June 2015, the Claimant-Employee again tried to refill his antidepressant prescription and encountered the same issue.  This time, he left before the Insurer could be contacted and the prescription was not filled.  Two months later, the Claimant-Employee attempted suicide and sustained a self-inflicted gunshot wound.  He survived and subsequently filed a tort action in Circuit Court against the Insurer.  The Claimant-Employee alleged the self-inflicted gunshot wound was the result of the Insurer’s negligence; specifically, that the Insurer was negligent for failing to approve the June 2015 refill, and as a result of the Insurer’s negligence, the Claimant-Employee attempted to take his own life.  The Insurer moved for Summary Judgement stating that the Act provided an exclusive remedy for the Claimant-Employee’s injuries.

Initially, the Circuit Court concluded that the Exclusive Remedy Provision did not bar the claim because the Insurer would not concede the Claimant-Employee’s claim would prevail if it was filed as a Worker’s Compensation Claim.  The Court of Appeals reversed this decision, and the matter was brought before the Supreme Court of the State of Wisconsin.

The Wisconsin Supreme Court found:

·         The Act provides an exclusive remedy for the alleged injuries, upholding the Exclusive Remedy Provision for work-related injuries.

·         The Court also said the allegations made by the Claimant-Employee, if proven, would satisfy the conditions of liability under the Act, further supporting the applicability of the Exclusive Remedy Provision.

The Court’s decision makes it clear that an Insurer’s reservation of its right to litigation in the proper forum (i.e. under the Act) and its dispute of underlying factual information surrounding a claim is not grounds for bypassing the Exclusive Remedy Provision.

Two Separate Statute of Limitations in One Claim – Medical and Indemnity SoLs Run Independently

Wynne v. Liberty Trailer & Death & Permanent Total Disability Tr. Fund, 2022 Ark. 65, 641 S.W.3d 621

The court held that under the plain reading of the statute, the statute of limitations on a request for additional benefits commences with the last payment, whether for disability or medical benefits, is made. The court then went on to overrule Kirk v. Cent. States Mfg. to the extent that the case held that the statute of limitations on a claim for additional benefits commences upon last payment of a specific type of benefits sought, rather than from the date of the last payment of compensation.

Cosner v. C&J Forms & Labels Co., 2021 Ark. App. 453 (Ct. App.)

In applying the decision in Wynne v. Liberty Trailer & Death & Permanent Total Disability Tr. Fund, the Arkansas Court of Appeals found the Worker's Compensation Commission incorrectly ruled that claim for additional PPD benefits was barred by the statute of limitations under Ark. Code Ann. § 11-9-702(b) because the claim was filed within one year of the last payment in the form of medical-treatment benefits. There was no requirement that the benefits that had been paid be the same type of benefits being sought.

Slaughter v. City of Fayetteville, 2022 Ark. App. 139, 643 S.W.3d 809 (Ct. App.)

The Arkansas Court of Appeals clarified that the applicable date for the purpose of the statute of limitations is the date of the furnishing of medical services, not the payment therefor, that constituted payment of compensation regarding a claimant's medical benefits. Additionally, the Court held voluntary payments do not revive a claim in which the statute of limitations has run.

In Nebraska, an employer is liable for all reasonable medical, surgical, and hospital services which are required by the nature of the injury, and which will relieve pain or promote and hasten the employee’s restoration to health and employment. Neb. Rev. Stat. § 48-120. This includes  plastic or reconstructive surgery and the furnishing of appliances, supplies, prosthetic devices, and medicines as needed. Simmons v. Precast Haulers, Inc., 288 Neb. 480, 849 N.W.2d 117 (2014). It also may include chiropractic care, home alternations, 24-hour in-home medical services, and moving expenses to a more accessible home. Simmons, supra; Rodgers v. Sparks, 228 Neb. 191, 421 N.W.2d 785 (1988); Hoffart v. Fleming Companies, 10 Neb. App. 524, 634 N.W.2d 37 (2001). Alternatively, an employer is not obligated to provide surgery, appliances, and devices for purely cosmetic reasons. Every year, the compensation court is asked to determine whether somewhat nontraditional “medical treatment” is compensable under the Act. This blog discusses some of those cases.

Pilates Sessions.  In 2020, Judge Hoffert was asked to determine whether Pilates sessions were compensable medical treatment. In that case, the employee’s treating physician opined that private Pilates sessions were “required to facilitate the [employee’s] medical rehabilitation” as it would “decrease the ongoing muscle tightness” from the work injury. The employer argued that such sessions were not reasonable and necessary, albeit they put forth no evidence from a medical provider regarding the same. Ultimately, largely due to the lack of evidence submitted by the employer, Judge Hoffert agreed that the employee had met her burden of proof to show that the Pilates sessions would relieve pain and hasten the employee’s restoration to health and employment, and the employer was required to pay for the medical treatment. Because of the Covid pandemic, Judge Hoffert further held that it was reasonable for the employee to have private sessions.

Massage Therapy. The issue presented to Judge Fitzgerald in December of 2020 centered on whether massages were “medical care” under § 48-120. The evidence offered at the hearing showed that the employee’s treating physician had previously said that the treatment that helped the employee most was “message therapy.” However, when the employee restarted message treatment at her own expense, the employer wrote to the treating physician and asked his opinion on whether that massage therapy was reasonable and necessary. To that, the doctor wrote, “She does have a chronic myofascial component to her pain. We are not in agreement with routine massage therapy but are happy to refer her to a trained physical therapist for myofascial techniques.” At trial, the employee testified that she attended physical therapy but received little benefit, nothing like the relief she received from massage therapy. Additionally, because the treating physician would not say that massages were medically necessary, the employee sought an opinion from her primary care provider. Without elaborating, the primary care provider opined that massages were necessary medical treatment. After citing the beneficent purpose of the Act and the fact that the treating doctor agreed that message treatment would help temporarily, Judge Fitzgerald held there is no requirement under § 48-120 that treatment provide a benefit that last a long period of time. The Court therefore awarded the message therapy treatment.

Brand New Home. In cases where employees suffer injuries requiring prosthetics or wheelchairs, the issue of home modifications frequently arise. The Nebraska Supreme Court has already stated that residential modifications fall within the purview of § 48-120. Simmons v. Precast Haulers, Inc., 288 Neb. 480, 849 N.W.2d 117 (2014).  However, in 2020, Judge Martin was asked to determine whether § 48-120 would require the employer to provide a custom-built accessible home for the employee if modifications to a current residence alone would not be sufficient. In Lewis v. MBC Construction Co., the employee’s work-related accident resulted in his leg being amputated. He required a wheelchair or prosthetic for most of his mobility. The parties did not disagree that the employee’s mobility challenges required him to have a “handicap accessible home.” However, after being evicted from his apartment (for reasons unrelated to his injury), the employee demanded that the employer build him a $400,000.00 home which included four bedrooms and a three-car garage. At trial, Judge Martin recognized that certain home accommodations would be necessary for the employee including wider doors, flooring without raised edges, and lower cabinet heights. Initially, Judge Martin ruled that the employer would have 45 days to find suitable housing that satisfied a number of requirements, or that it must alternatively build the employee an accessible home. That decision was ultimately appealed to the Nebraska Supreme Court which remanded the case back to Judge Martin for a more detailed order regarding the employer’s obligations to build or buy a new home. In the September of 2021 Order, Judge Martin changed her decision to say that Plaintiff had failed to meet his burden of proof that he was entitled to the $400,000.00 house and she therefore dismissed his Motion entirely (meaning she did not require the employer to do any home modifications). The issue has not yet been readdressed by the parties with a further hearing.

As medical treatment evolves and less traditional forms of treatment become more popular, disputes about what constitutes “medical treatment” under § 48-120 will continue to occur. The operative question in these cases is whether the treatment will “relieve pain or promote and hasten the employee’s restoration to health and employment.” Importantly, when disputes like these arise, the employer should seek contrary evidence via expert medical providers. The issue then becomes one of fact for the compensation court to determine.

If you have questions about a medical care issue, please contact any of the lawyers at CPW by phone or email. Want to ensure you don’t miss out on the next post in the CPW compendium series? Be sure to subscribe to our newsletter.

The Commonwealth Court of Pennsylvania revisited the voluntary withdrawal from the workforce argument in a recent decision, Hi Tech Flooring, Inc. v. WCAB (Santucci), issued on 08/09/22.  This case dealt with a work injury of 08/28/14, which was recognized as a right knee contusion.  A subsequent decision on a termination petition found the Claimant injury led to progressive degenerative changes of the knee.  In a 12/10/18 Decision, the workers’ compensation judge denied a subsequent petition to terminate compensation benefits but granted a suspension of benefits based upon a voluntary withdrawal from the workforce.  The WCAB reversed this decision via opinion circulated 12/03/19. 

The primary facts that led to the Judge’s decision were that the Claimant had been receiving a disability pension since 10/01/17 and social security disability benefits effective 10/07/15, was found capable of working and had not sought any work.  Accordingly, the Judge found the Claimant was withdrawn from the workforce. It should be noted that the Claimant receipt of these other benefits was for conditions beyond the work injury.  His pension application listed the conditions of right shoulder pain, neck pain and right facet arthropathy.  His SSD award was for herniated discs with constant pain – cervical; lumbar spine condition with constant pain; prior right knee surgery with remaining pain; left knee impingement undiagnosed; arthritis of both ankles; numbness of the left arm; carpal tunnel; gout; high blood pressure; and high cholesterol” as well as “lumbar and cervical disc disease, status post C5- 6 cervical discectomy and fusion; bilateral knee degenerative osteoarthritis, status post bilateral arthroscopic procedures; right hip degenerative joint disease; and status post total hip replacement.”

The Court applied the leading precent, City of Pittsburgh v. Workers’ Compensation Appeal Board (Robinson) (Robinson II), 67 A.3d 1194 (Pa. 2013), noting that an employer may seek a suspension of benefits if the employer can establish, by the totality of the circumstances, that the claimant has chosen to not return to the workforce, but that “[t]here is no presumption of retirement arising from the fact that a claimant seeks or accepts a pension[;] rather, the acceptance of a pension” only creates a permissive inference of such.  The Court found with the Board that these circumstance, with there being not Notice of Ability to Return to Work having been issued or job referrals made, did not arise to a voluntary withdraw under the totality of these circumstances. Simply receiving SSD and a disability pension and not looking for work, when those other benefits were based, in part, on the work injury, did not rise to a voluntary withdrawal from the workforce.  

While this decision seems to limit the voluntary withdrawal from the workforce argument, it also shows that this can be a viable means to get a case into litigation and to actually prevail, as was done before the Workers’ Compensation Judge.  This can create leverage to obtain a favorable resolution.  However, more is most likely needed than just evidence of retirement, ability to work and lack of following through on job offers. We typically recommend combining this argument with a labor market survey/earning power assessment as then the Claimant is provided with a Notice of Ability to Return to Work explaining he may have an obligation to look for work.  The EPA/LMS provides the Claimant with positions that are open and available within his/her physical and vocational capabilities, to which they typically do not apply.  Of course, should they apply, that may prove detrimental to the bringing of such an argument. However, combining such additional evidence hopefully will be found to demonstrate a voluntary withdrawal from the workforce under these totality of circumstances and may provide for a suspension of benefits rather than just a modification that could occur based upon the LMS/EPA, depending upon the amount of wages the located positions may pay.