Understanding the difference between “impairment” and “disability” is important in properly reserving files and in defending workers’ compensation cases. Many people use the terms synonymously, but there is an important legal distinction. An impairment refers to a problem with the structure or organ of the body. Disability focuses on the functional limitations that are caused by the impairment with regard to performing activities at work or outside work.

This may sound like a subtle distinction but it makes a difference in the value of workers’ compensation cases and the validity of certain IMEs. Two employees who are the same age can have the same injury, perhaps a medial meniscus tear requiring surgery, and both may file a workers’ compensation claim seeking an award of partial permanent disability for the leg.  Employee A has unsuccessful knee surgery and has had to give up her favorite passion of running.  Employee B has successful knee surgery and is able to pursue her favorite passion of running.  She has run several 5k races as fast as ever and even a few half marathons.  They each had the same impairment of the knee but would they receive the same award in court?  If you said no you are correct because they don’t have the same level of disability.

The New Jersey Supreme Court explained in Perez v. Pantasote that the employee must not only show an injury which restricts the function of the body or an organ (an impairment) but must also show either a lessening to a material degree of working ability or “a substantial interference with the other, non work-related aspects of petitioner’s life” (the disability).

What are the implications of this distinction for medical experts, adjusters, lawyers and judges? Let’s start first with medical experts.  If a medical expert is going to provide an opinion in an IME that an injured worker has a disability of a certain percentage, the expert has to consider how the injury affects the worker’s work life or non-work life.  Last week I read an IME from an often-used petitioner’s orthopedic expert who concluded that an employee had multiple disabilities from a significant accident.  When you added up the various disability estimates, they totaled over 100%.  There were several significant impairments – fractures and tears.  But on closer inspection of the report, it was noteworthy that the medical expert never asked whether the employee had ever returned to work (he had), whether the injury caused a reduction in hours (it had not), whether the individual had reduced non-work activities, whether the individual had given up hobbies or exercise, and indeed whether this accident had affected the worker’s function in any way whatsoever.  The expert’s disability estimates were in essence meaningless because he knew nothing about the man’s life before the accident and after he reached maximal medical improvement.

The problem with this particular IME was that the doctor focused only on impairment but not on disability.  He did observe that the accident caused daily pain and that cold and damp weather aggravated discomfort. But that is not enough.  Very often IME physicians evaluate medical records instead of the individual.  Examiners on both sides make this mistake from time to time. The IME physician may do a great physical examination, a splendid summary of the treating records but still neglect to ask questions about the effect of the work injury on the examinee’s work life or non-work activities compared to the level of function before the injury occurred.

What are the implications for adjusters and defense lawyers?  When new files come in, it is critical to reserve the case for likely exposure.  The medical records are reviewed, particularly objective studies like MRIs and operative reports, and a reserve is established based on medical impairment. That is all we have at the initial stage.   It is too early to know the effect that this accident will have on work or non-work life because no one really knows at the outset whether the worker will return to work, or even return to work and get a second job, or return to doing all his or her former non-work activities. So the initial focus is limited to impairment.  As the case progresses, the focus needs to shift to the level of function of the injured worker in all aspects of life, namely the overall disability.  That is why it is helpful to obtain prior medical records and to investigate through the employer what the employee’s activity level was before the accident. 

The New Jersey workers’ compensation system has a major flaw in allowing virtually no discovery, so often the only way to find out about level of function outside work is through social medial searches or field surveillance.  An IME performed after MMI has been reached is also helpful when the IME doctor asks the right questions.  Did the worker golf before the accident but now cannot golf any longer due to severe back pain?  Did the worker recover so well that she or he added a part-time construction job on top of the original job?  Is the worker now unable to do overtime work?  Once the lawyer or adjuster has this information, very accurate reserves for disability awards can be established.

For judges this distinction between impairment and disability is always important.  Every good Judge of Compensation understands that the award is not based on a diagnosis.  Judges don’t award disability based on operative reports or MRI results.  They try to get a sense of the effect of the injury on the injured worker’s work life and non-work life, and they factor that information into the value of the case.  A judge will have extensive knowledge and experience with workers who undergo surgery for complete rotator cuff tears, for example, but the judge wants to know what the impact of this injury and surgery was in this particular worker’s case.   Disability awards are case by case.

Take the hypothetical of an athlete like Cody Bellinger, for example, the Los Angeles Dodgers 2019 National League MVP. In the recent 2020 World Series, Bellinger hit a home run and after he touched home plate, he high fived a teammate, causing his shoulder to suddenly dislocate.  This had happened to him before, so he popped his shoulder back into place and stayed in the game.  Following the World Series, he had surgery to repair the shoulder.  If he were to file a workers’ compensation claim petition under New Jersey law, what would the Judge ask?  What would be relevant for an athlete?  The Judge of Compensation would consider whether he was able to recover the ability to throw a ball from center field to second base on the fly, hit home runs like he used to, and raise his arm overhead to catch a fly ball.  The judge would not base the award solely on the fact that he had a shoulder dislocation but on the impact of his impairment on his career and non-work activities.  If the injury turned out to have no impact on any of his life functions, the award could be as low as zero. 

This explains why it is ultimately insufficient for lawyers to say to clients that an operated rotator cuff tear is worth 25% permanent partial disability in New Jersey.  That statement tends to equate impairment with disability. The award in each case depends on the extent of recovery, the ability to restore pre-injury functions, and the ability to function at work and at home.  Some people with rotator cuff tears have minimal issues post-surgery, and their award may be far less than 25%.  For others the injury could end a career and be worth far more than 25%.   The lesson is that workers’ compensation practitioners need to focus heavily on the level of function both before the accident and after treatment has ended.  For practitioners and IME doctors, a thorough investigation of pre injury and post injury functions is essential in every case in order to accurately assess disability.

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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. 

November 2020

New Denial Form for Tennessee Workers’ Compensation Claims

Under prior regulations, Tennessee maintained two different forms for the denial of claims:

-  The C-23 Notice of Denial form was used when a claim was denied from the outset of the claim, with no benefits having been paid; and 

- The C-27 Notice of Controversy form was used when a claim was denied during the pendency of the claim, after some benefits had been paid.  

However, the C-27 Notice of Controversy form has now been eliminated. For all denials going forward, the adjusting entity should file the revised C-23 Notice of Denial form. This revised form will encompass denials for any claim, regardless of whether benefits have been paid. Likewise, this revised form will encompass partial denials, where only a particular aspect of the claim is being denied.

For any questions, or for a copy of the revised C-23 form, please contact:

Fredrick R. Baker, Member
Wimberly Lawson Wright Daves & Jones, PLLC
1420 Neal Street, Suite 201
P.O. Box 655
Cookeville, TN 38503-0655
Phone: 931-372-9123
Fax:  931-372-9181
fbaker@wimberlylawson.com
www.wimberlylawson.com

Earlier this year the new hand and foot bill became effective on January 21, 2020.  This bill marked a significant change in the New Jersey Workers’ Compensation Act.  The language was unambiguous in augmenting the number of weeks for injuries of the hand, foot and fingers.  However, the language was less than clear concerning its effective date. Did it apply only to cases filed after January 21, 2020?  Did it apply to all cases pending as of January 21, 2020?

On October 30, 2020, Governor Phil Murphy signed legislation amending L. 2019, c. 387 to clarify that the law was intended to apply to cases that were pending in the Division but not yet settled and cases that were filed on or after the date of enactment.  Now the question is what do practitioners and judges do in regard to orders that were entered over the past 10 months using the pre-2020 rates for a hand or foot injury?

Before addressing this issue, let’s recap how this law changes New Jersey Workers’ Compensation Act.  Until the passage of this law, under N.J.S.A. 34:15-12 an injured worker would receive 2.45 weeks for each percentage of compensation for hand injuries.  The law increased the weeks to 2.6 for each percentage of compensation until the level of 25%.  At that level and above, each percentage gets compensated at 3 weeks.

Similarly, the new law raised the long-standing compensation for foot injuries from 2.3 weeks per percentage to 2.5 weeks until the level of 25%. At that level and above, each percentage gets compensation at 2.85 weeks.   It should be noted that the hand and foot law does not apply to reopener claims. 

The law made some other minor changes such as raising the weeks for finger injuries and raising the death benefit to $5,000 from $3,500 for a person who died from any cause other than the accident or occupational disease during the period of payments of permanent injury.

When the law passed in January, judges and practitioners seemed to split fairly evenly around the state on whether the law should only apply to cases newly filed after January 21, 2020 as opposed to cases pending in the Division in January 2020 but filed before that date.  Given the lack of consensus, many pending cases were settled using pre-2020 rates.  That meant somewhat less money in permanency awards for petitioners.

In light of the recent legislation from the Governor clarifying the effective date of this law, employers and practitioners are now asking the following questions:

1.      Did the parties expressly agree to use the pre-2020 rates as part of negotiations and was this agreement made part of the court record?

2.      Did petitioner reserve rights to revisit the issue of the law’s effective date in the event of clarification from the Appellate Division or the Governor?

3.      Was the issue never discussed or addressed at all on the record when the case settled?

In the first situation, respondents will argue that the order should not now be amended.  In the second and third situations, applications to modify the award may be filed, or the parties may even consent in some cases to amend the prior order should they agree.  When there is a genuine dispute, it will become important to obtain a copy of the transcript at the time the order was entered to see what the parties stipulated to on the record and whether rights were reserved.  Correspondence between counsel before the date of settlement may also be relevant in determining the intent of the parties.  Given that hand and foot injuries comprise a large percentage of New Jersey claims, one can anticipate significant disputes over the ensuing months.

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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. 

Ohio House Bill 81 to Significantly Change Ohio Workers’ Compensation Law

Ohio House Bill 81 (H.B. 81) went into effect on September 15, 2020, but many of its significant changes to current Ohio Workers’ Compensation Law have been discussed by claimant’s counsel and employer's counsel throughout the workers’ compensation community for many months.

The first major change encompassed by H.B. 81 involves the shortening of the time for the filing of claims asserting a Violation of a Specific Safety Requirement (VSSR). The current time limit for the filing of a VSSR claim under Section 4121.47 of the Ohio Revised Code is 24 months from the date of the injury. Under H.B. 81, for all such claims arisingon or after September 15, 2020, that time limit has been reduced to one year. This change to the statute of limitations for VSSR claims appears to be an attempt to bring this section of the workers' compensation world into alignment with a previous amendment passed by the General Assembly in 2017 that reduced the statute of limitations for injury and death claims to one year for all claims arising on or after October 1, 2017. With the enactment of H.B. 81, only claims of an occupational disease brought pursuant to Ohio Revised Code 4123.85 continue to allow for a two-year statute of limitations.

The second major change encompassed by H.B. 81 pertains to the continuing jurisdiction of the Ohio Industrial Commission to make modifications or changes for a period of five years with respect to former findings or orders involving matters of disability, compensation, dependency or benefits. Under current Ohio law, that time period begins running from the last payment of compensation or lastpayment for medical services. For claims arising on or after July 1, 2020, H.B. 81 now permits a five-year continuing jurisdiction period to commence from the last payment of compensation or the lastrendering (providing) of medical services. This should serve to hasten the beginning of that five-year time period since payment for medical services usually occurs after those services are rendered.

The third major change set forth by H.B. 81 effectively legislates a "proximate cause" standard to Section 4123.56 as it relates to the awarding of temporary total benefits or wage loss compensation, while expressly setting forth the "intent of the general assembly to supersede any previous judicial decision that applied the doctrine of voluntary abandonment to a claim brought under this section." For claims pending or arising after September 15, 2020, "an employee who is unable to work or who suffers a wage loss as thedirect result of an impairment arising from an injury ... is entitled to receive compensation under this section ..." (emphasis added). If an employee is not working or has suffered a wage loss as a direct result of reasonsunrelated to the allowed injury or occupational disease the employee is not eligible to receive compensation.

There is a final major change included in H.B. 81 that may potentially affect a state-funded employer’s desire to settle claims under Section 4123.65. For claims arising on or after September 15, 2020, an employer will no longer be able to deny or withdraw consent to an application to settle a claim if both of the following apply to the claim: 1) the claim is no longer within the employer’s experience; and 2) the employee named in the claim is no longer employed by the employer. This change will serve to limit an employer's ability to object to the resolution of claims that do not have any impact on the employer.

Revisions to Ohio Law Provide Clarity and Consistency to Motor Carriers as to Test for Independent Contractors

Effective July 3, 2019, the Ohio General Assembly has enacted statutory changes to the definition of “employment” to provide clarity to motor carriers and those in the trucking industry as to how administrative agencies, including the Ohio Bureau of Workers’ Compensation (BWC), will view independent contractor drivers. H.B. 62, Ohio’s transportation budget bill which was signed into law by Governor DeWine on April 3, 2019 (the Bill), was supported by the Ohio Trucking Association in order to address the issue that different common law tests were used by the various Ohio agencies with a hand in regulating the trucking industry.

Prior to the enactment of H.B. 62, each agency used a slightly different test as developed under common law. For workers’ compensation, agencies and courts looked to whether the employer reserved the right to control the manner and means of performing the work. In unemployment compensation matters (as well as with construction industry-specific cases before the BWC), a 20-factor control test was utilized. Yet another test for purposes of minimum wage regulations required one to examine the economic realities in the nature of the relationship between the worker and the employer. The Bill now replaces all these tests and should provide clarity and consistent results for motor carriers operating in Ohio.

The Bill now exempts from coverage – under Ohio workers’ compensation law, unemployment compensation law, overtime law, and minimum wage law – individuals who meet all seven factors of the new statutory test to govern the definition of independent contractor across the agencies. Under the revised R.C. 4123.01 defining “employment” for the purposes of Ohio workers’ compensation (similarly with R.C. 4111.03, et seq. for minimum wage/overtime and R.C. 4141.01 for unemployment), an individual who operates a motor vehicle in the performance of services for or on behalf of a motor carrier will be designated as an independent contractor (and therefore exempt from coverage) if all these seven factors apply:

1.         The person owns the vehicle or vessel that is used in performing the services for or on behalf of the carrier, or the person leases the vehicle or vessel under a bona fide lease agreement that is not a temporary replacement lease agreement. For purposes of this division, a bona fide lease agreement does not include an agreement between the person and the motor carrier transporting property for which, or on whose behalf, the person provides services.

2.         The person is responsible for supplying the necessary personal services to operate the vehicle or vessel used to provide the service.

3.         The compensation paid to the person is based on factors related to work performed, including on a mileage-based rate or a percentage of any schedule of rates, and not solely on the basis of the hours or time expended.

4.         The person substantially controls the means and manner of performing the services, in conformance with regulatory requirements and specifications of the shipper.

5.         The person enters into a written contract with the carrier for whom the person is performing the services that describes the relationship between the person and the carrier to be that of an independent contractor and not that of an employee.

6.         The person is responsible for substantially all of the principal operating costs of the vehicle or vessel and equipment used to provide the services, including maintenance, fuel, repairs, supplies, vehicle or vessel insurance, and personal expenses, except that the person may be paid by the carrier the carrier's fuel surcharge and incidental costs, including tolls, permits, and lumper fees.

7.         The person is responsible for any economic loss or economic gain from the arrangement with the carrier.

See R.C. 4123.01(A)(1)(d). This industry-specific test is now a comprehensive way for motor carriers to properly interpret the nature of the relationship with independent contractors, as well as for Ohio administrative agencies to determine and adjudicate coverage disputes should they arise.

While some of the required factors which must apply to be deemed an independent contractor are common to tests in other jurisdictions – mileage-based compensation, supplying personal services, responsibility for operating costs – this new test expressly requires a bona fide, written agreement to be in place that specifies that the relationship is one of independent contractor. Such agreement must not be directly between the contractor and the motor carrier transporting company for whom the contractor provides the services.

Pursuant to the revised statute, administrative rules will be developed in the near future for implementation of the test for each agency. In the meantime, those in the trucking industry should review both their current written independent contractor agreements and the in-practice relationship with contractors to remain or come into compliance with Ohio’s clarified standard.

Ohio COVID-19 Immunity Bill

On September 15, Ohio Governor Mike DeWine signed into law House Bill 606, the COVID-19 Immunity Bill, which grants temporary qualified immunity to healthcare workers as well as general temporary qualified immunity to individuals, businesses, schools, governmental entities and religious entities from civil lawsuits arising from the COVID-19 pandemic. The much-anticipated law will go into effect on December 13, 2020, and provides the above-referenced immunity from potential causes of action that may arise from March 9, 2020 (the date of the Governor’s Executive Order declaring an emergency) through September 30, 2021.

In general, the new temporary law provides businesses, individuals, schools, governmental entities and religious entities with immunity from civil liability for injury, death or loss to a person or property when that loss is based in whole or in part upon exposure to, or the transmission or contraction of certain viruses, including the virus that causes COVID-19. This immunity does not apply if it can be established that the exposure or transmission was as a result of reckless conduct, intentional misconduct, or willful or wanton misconduct by the defendant. The law also is quite clear that governmental orders, recommendations or guidelines do not create a legal duty that could be used to establish liability in a civil lawsuit. The new statute also includes a presumption that any such government order, guideline or recommendation is not admissible as evidence in order to establish a legal duty or new cause of action.  

For healthcare workers, the new law grants temporary immunity from tort liability and professional discipline for services provided that result in injury, death or loss as a result of and in response to the Governor’s declared emergency. This immunity covers actions or omissions and decisions related to the provision of healthcare services as well as actions resulting from compliance with an executive order or director’s order. This immunity, however, does not cover conduct that constitutes a reckless disregard of the consequence or intentional or willful or wanton misconduct on the part of the healthcare workers. Moreover, for disciplinary actions, conduct that is considered to constitute gross negligence is not provided immunity.

The New Jersey Assembly Appropriations Committee passed A1708 on October 26, 2020, setting the stage for an eventual full Assembly vote on an important piece of legislation concerning the obligation of workers’ compensation carriers and automobile insurers to pay for costs of medical marijuana.  Strangely enough, this Bill is being advanced at the same time as the New Jersey Supreme Court is scheduled to hear oral arguments in the case of Hager v. M&K Construction, 462 N.J. Super. 146 (App. Div.), certif. granted, 241 N.J. 484 (2020).  This case deals directly with several issues addressed in A 1708.

The proposed Assembly Bill states: “Notwithstanding the provisions of subsection a. of this section, an employer or workers’ compensation carrier or private passenger automobile insurance carrier shall provide coverage for costs associated with the medical use of cannabis . . . “ provided that the insured or the employee is a qualifying patient authorized for the medical use of cannabis.

The Bill further provides, “c.  Notwithstanding any provision of the insurance policy to the contrary, if for any reason payment by the insurer to the medical cannabis dispensary is not feasible, the insurer shall remit directly to the insured the costs for any benefits associated with the medical use of cannabis upon proof of payment by the insured to the medical cannabis dispensary.”

A 1708 seems premature given that the New Jersey Supreme Court has taken certification in Hager.  In this January 13, 2020 published case, the Appellate Division ruled for petitioner that he should be reimbursed by the workers’ compensation carrier for his expenses in connection with the use of medical marijuana for chronic pain.  The Appellate Division addressed five separate arguments, some or all of which are likely to be addressed by the New Jersey Supreme Court.  The issues addressed by the Appellate Division in Hager are set forth below:

1) Does the Controlled Substance Act (CSA) which makes it a crime to manufacture, possess or distribute marijuana, preempt the New Jersey MMA?

2) Does the MMA violate the CSA by aiding and abetting in the commission of a crime?

3) Does compliance with the court order expose M&K to the threat of federal prosecution?

4) Should a workers’ compensation insurer be treated the same under the MMA as a private health insurer?

5) Can medical marijuana be considered reasonable and necessary under the New Jersey Workers’ Compensation Act?

It would seem to make more sense and to accord appropriate respect to the judicial process for the legislature to wait for a very significant decision from our highest state court, given potential constitutional issues have been raised in this appeal.

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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. 

Thomas Kieselbach is celebrating 40 years with Cousineau. Tom’s contributions to our firm, and the legal profession as a whole, are vast. He is the current President of the National Workers’ Compensation Defense Network, leading a national organization of law firms committed to the representation of employers and insurers in workers’ compensation claims. He is a charter member of the College of Workers’ Compensation Lawyers, serves on the Larson’s National Workers’ Compensation Advisory Board, listed in Best Lawyers in America, Super Lawyers and “Top 40 Workers’ Compensation Attorneys.”  Thank you, Tom for your continuing work and passion for this area of law!

Thomas Kieselbach is celebrating 40 years with Cousineau. Tom’s contributions to our firm, and the legal profession as a whole, are vast. He is the current President of the National Workers’ Compensation Defense Network, leading a national organization of law firms committed to the representation of employers and insurers in workers’ compensation claims. He is a charter member of the College of Workers’ Compensation Lawyers, serves on the Larson’s National Workers’ Compensation Advisory Board, listed in Best Lawyers in America, Super Lawyers and “Top 40 Workers’ Compensation Attorneys.”  Thank you, Tom for your continuing work and passion for this area of law!

Mark Kleinschmidt is celebrating his 35^th year with Cousineau. Mark’s calm, well-reasoned counsel is greatly appreciated by his colleagues and clients alike. As the current President of CWK, his leadership provides the platform for the firm’s continued success. Mark’s substantial litigation experience is a benefit to the employers and insurers he advises, and to the numerous attorneys he has, and continues, to mentor. Mark is a Fellow in the College of Workers’ Compensation Lawyers, listed in Best Lawyers in America, and frequent lecturer and author on workers’ compensation topics. Thank you, Mark, for your years of service, advice, and comradery!

Tom Coleman is marking his 30^th year at Cousineau. Tom’s extensive litigation experience, courtroom abilities, and trivia knowledge is legendary. Tom’s a frequent lecturer on workers’ compensation topics, spent over a decade as a professor at local law schools teaching workers’ compensation law, and written extensively in scholarly publications and practical training guides alike. His breadth of knowledge for this area of law is only surpassed by his encyclopedic memory of Gophers Football statistics from 1950-1965. For those wanting more on either subject, Tom keeps office hours at Tiffany Sport Lounge in Saint Paul most Saturdays. Thank you Tom!

Dick Schmidt also marked his 30^th year milestone at Cousineau. Dick Schmidt, while retiring from active defense practice in 2019, was unable to completely walk away from the world of workers’ compensation law and continues to mediate cases. Whether this is due to a deeply held passion for the law, or his inability to keep himself independently busy during retirement, we are greatly appreciative of his continued presence, and the humor he brings into our office. We are excited for Dick’s next adventure, where he will continue to grow his mediation practice through Schmidt Mediation LLC, Congrats Dick and thank you!