State News

On January 28, a Houston-based security guard company was convicted of fraud and ordered by a Travis County District Court judge to pay over $50K in restitution.  Between May 28, 2005 and April 1, 2013, HHDP Security made misrepresentations about the payroll and operations of its business and a related company, Houston Harris Division Patrol, Inc.  Workers’ compensation insurance premiums are based, in part, on a company’s payroll and the type of work the company performs, so an employer who misrepresents its payroll and operations may receive a lower premium, thus gaining an unfair and unwarranted advantage over its competitors.

The Division of Workers’ Compensation’s prosecution unit obtained the indictment.  The Division urges individuals suspecting workers’ compensation fraud to report it by calling 1-844-FRAUD99 (1-844-372-8399).

-  Copyright 2020,Erin Shanley, Stone Loughlin & Swanson, LLP

On January 21, the Texas Department of Insurance announced three staff changes within the DWC.

Kara Mace will serve as Deputy Commissioner of Legal Services.  The newly-created Legal Services program will handle rule development, open records, litigation, contracts, subpoenas, and other legal issues for the agency. Kara formerly served as deputy counsel for TDI’s Office of Public Insurance Counsel, and spent several years with TDI's Policy Development Counsel.  She has also served as both senior counsel for External Litigation and senior counsel for Enforcement for the New York City Department of Homeless Services.

Nicholas “Nick” Canaday, formerly general counsel for the DWC since March 2016, will now act as “Special Counsel,” focusing on litigation impacting the workers’ compensation system.  According to the DWC, he will also serve as a liaison to the Office of the Attorney General and provide counsel to executive management and staff on legal issues.  It’s unclear how Mace and Canaday will divide their legal duties within the department, but some have suggested Mace will manage the department, with Canaday focusing on litigation.

The DWC also added a new prosecutor with the Fraud Unit: Jessica “Jess” Bergeman.  Ms. Bergeman is a former prosecutor in Chicago, and joins Donna Crosby in the comp fraud division within the District Attorney’s Office.  Bergeman was most recently director of the Client-Attorney Assistance Program in the Attorney Compliance Division at the State Bar of Texas. 

Under 2017 legislation, the DA’s office is eligible for funding for up to four comp fraud prosecutors, but has not had more than one prior to the addition of Bergeman.  We are hopeful this means the DA will undertake more workers’ comp fraud cases.

-  Copyright 2020,Erin Shanley, Stone Loughlin & Swanson, LLP

On December 19, 2019 the Division developed the new PLN-14 (“Notice of Continuing Investigation (PLN-14)”).  The form was developed pursuant to Division rule 124.2 and Senate Bill 2551, which involve process changes for claims involving first responders (i.e., peace officers, paramedics, firefighters, or emergency medical attendants and technicians) who may qualify for a presumption of compensability of certain illnesses.  In the case of a first responder, the following diseases are presumed to be work-related under state law if certain conditions are met: smallpox, tuberculosis or other respiratory illnesses, certain cancers associated with firefighting, as well as heart attack or stroke.  

In the case of a first responder, Rule 124.2 provides that a Carrier must make one of three alternative actions no later than the 15th day from the notice of injury: pay the claim, deny it, or issue a Notice of Continuing Investigation.  Subsection (s) requires the Carrier to utilize the form developed by the Division (in this case, the PLN-14) to provide notice that the first responder’s condition may be subject to a presumption of compensability.  

The form is intended to act as a template for Carriers to use when communicating with a first responder whose claim may be subject to a presumption.  According to the form’s instructions, the notice is to be used by the Carrier to notify a Claimant or death benefits beneficiary and the Division that the Carrier still needs to investigate whether the claim qualifies for a “statutory presumption,” and whether the insurance carrier is going to pay income or medical benefits on the claim.  The form was developed because some of that information may be needed from the injured employee or beneficiary to determine if the statutory presumption applies.  

The new PLN-14 form is posted in the “forms” section of the Division’s website.  
 

On January 16, the Division announced that it adopted the Fiscal Year 2020 Research Agenda of the Workers’ Compensation Research and Evaluation Group (REG). Texas Labor Code §405.0026 requires REG to annually prepare a research agenda for the commissioner of workers’ compensation to review, approve, and publish in the Texas Register.  The REG is to conduct professional studies and research “related to the operational effectiveness of the workers’ compensation system”, and to publish that agenda annually.

The FY 2020 Research Agenda was adopted on January 15, and includes: (1) completion and publication of a 2020 Workers’ Compensation Health Care Network Report Card, (2) an update of the 2018 “Setting the Standard” biennial report on the impact of the 2005 legislative reforms to the Texas workers’ compensation system, which will report on the affordability and availability of workers’ comp insurance for employers and the impact of certified workers’ compensation health care networks on medical costs, quality of care issues, return-to work outcomes, and medical dispute resolution, and (3) an update on the 2018 biennial study to estimate employer participation in the Texas workers’ comp system.
 

The Division announced that it is reviewing rules relating to compensation procedures for employers and claimants, and on carriers’ required notices and payments (Texas Administrative Code Chapters 120, 122, and 124).  After hearing public comment, the Division will decide if the rules should be repealed, readopted, or readopted with amendments.  Public comments will be accepted through March 3 and can be e-mailed torulecomments@tdi.texas.gov. 
 

-  Copyright 2020, Erin Shanley, Stone Loughlin & Swanson, LLP

Our own James Loughlin has received the distinction of being elected a Fellow of the College of Workers’ Compensation Lawyers, class of 2020. The college honors attorneys in the field of workers’ compensation who have been practicing 20 years or longer.  Only individuals who possess the highest professional qualifications and ethical standards, character, integrity, professional expertise and leadership are considered for the distinction.  

The Annual Induction Dinner will be held at the Westin New Orleans Canal Place in New Orleans, LA on March 28, 2020 following the Workers’ Compensation Midwinter Meeting and the College of Worker’s Compensation Lawyers (CWCL) Symposium. Congratulations, James! 

-  Copyright 2020, Erin Shanley, Stone Loughlin & Swanson, LLP

WORKERS’ COMPENSATION IMES IN PENNSYLVANIA

By

Kevin L. Connors, Esquire

            Many of you have expressed some confusion, regret, and/or a pain associated with the selection of independent medical examiners, particularly in the context of workers’ compensation cases.

             No question, this is a difficult task in workers’ compensation cases, as it could well become a claim-defining examination, since under Section 304 of the Pennsylvania Workers’ Compensation Act, Independent Medical Examinations (IME) can only be requested on an every six (6) months basis, triggering brow-furrowing and head-scratching, as to when do I get the IME.

             No less true, the issue for one to secure an IME often comes into question when you are either administering a “medical only” claim, which sometimes drift into the “I am disabled” claim, resulting in a claim for indemnity compensation benefits, as well as claims that are administered a Notice of Temporary Compensation Payable, whether for both indemnity and medical compensation benefits and/or simply for “medical only” compensation benefits.

             As all of us know, the Notice of Temporary Compensation Payable (NTCP) permits the administration of a workers’ compensation claim for the first ninety (90) from issuance of the NTCP, to allow continuing investigation into the workers’ compensation claim, including terms of compensability, disability, injury description, etc., there may be many facets that play into whether a claim is accepted, denied, or administered under an NTCP, with the IME being one resource available to Employers and Insurance Carriers, as well as administrators, as the NTCP is approaching its end point, being that ninety (90) days from issuance, after which, absent the issuance of a Notice of Compensation Denial, as well as the issuance of Notice of Stopping Temporary Compensation, the NTCP becomes the claim-admitting document under which the Employer, Insurer and/or Administrator, becomes liable for the continuing payment of workers’ compensation benefits, being indemnity and medical, and/or only medical.

             Yes, it is a time-sensitive feature in workers’ compensation claims, with an accepted claim technically becoming a workers’ compensation claim with extensive exposure, in the absence of one of the following events occurring post-acceptance, i.e., the conversion of the NTCP into a Notice of Compensation Payable, to include the following possible claim occurrences:

 (1)            The Claimant dies, and compensation benefits terminate by operation of both death and loss;

(2)            The Claimant voluntarily returns to work in their pre-injury capacities, and there is no continuing wage loss post-return to work, such that the Claimant’s compensation benefits are suspended;

(3)            The Claimant returns to work in a modified-duty capacity, with some reduction in return-to-work wages, such that the Claimant’s compensation benefits are modified, and temporary partial disability benefits are paid, subject to the 500 week limitation;

(4)            The Claimant executes a Supplemental Agreement, perfecting either a termination, suspension, or modification of the Claimant’s workers’ compensation benefits;

(5)            The Claimant signs a Final Receipt (almost never used), under which the Claimant agrees that all compensation benefits have been paid;

(6)            The Claimant is deported by virtue of not being able to prove legal immigration status;

(7)            The claim is settled under a Compromise and Release Agreement, perfecting some type of compromise of the indemnity and medical compensation benefits liability associated with the claim; and,

(8)            The Claimant’s compensation benefits are terminated, modified, or suspended by order of a workers’ compensation judge, with the employer/insurer carrying the burden of proving the entitlement to a change in the Claimant’s benefit entitlement status.

             So, back to IMEs.

             To address client and contact confusion over who to choose for a respective IME, with it being necessary to differentiate IMEs based upon medical specialties, we have prepared a list of our preferred IME physicians to include the following:

            All of the physicians listed above, are physicians that we have utilized in defense of workers’ compensation, and most of the above-listed physicians have been physicians which have testified on behalf of our clients in litigated workers’ compensation cases, with our having respect for every physician listed above, in terms of their specialty, the thoroughness of their Independent Medical Examination function, to include the narrative medical reports that these physicians draft post-IME, as well as their preparation for any trial depositions that might become necessary in the course of a workers’ compensation claim being litigated, and their tenacity defending their respective opinions, both findings and conclusions, in the course of being subjected to cross-examination by counsel representing Claimants, with the focus of cross-examination often turning on the IME physician indicating that they only had one opportunity to examine the Claimant, particularly in the context of a Claim Petition being defended, and/or how could the IME physician possibly conclude that the injured employee has fully recovered from a work injury, when the IME physician has only examined the Claimant on one occasion, some doctors conducting the examination and in reliance upon the history elicited from the Claimant, and any medical records that we might be able to provide to the IME physician in preparation for their IMEs.

             Obviously, we encourage you to contact us with any question that you might have with regard to any particular physician listed above, as well as any questions that you might have regarding specific medical specialties, the sometimes incongruous nature of workers’ compensation claims, as well the unreasonable evaluation sometimes placed on non-catastrophic injuries by counsel representing workers’ compensation Claimants.

                                                                                ConnorsO’Dell LLC

            Trust us, we just get it!  It is trust well spent!

             We defend Employers, Self-Insureds, Insurance Carriers, and Third Party Administrators in Workers’ Compensation matters throughout Pennsylvania.  We have over 100 years of cumulative experience defending our clients against compensation-related liabilities, with no attorney in our firm having less than ten (10) years of specialized experience, empowering our Workers’ Compensation practice group attorneys to be more than mere claim denials, enabling us to create the factual and legal leverage to expeditiously resolve claims, in the course of limiting/reducing/extinguishing our clients’ liabilities under the Pennsylvania Workers’ Compensation Act.

             Every member of our Workers’ Compensation practice group is AV rated.  Our partnership with the NWCDN magnifies the lens for which our professional expertise imperiously demands that we always be dynamic and exacting advocates for our clients, navigating the frustrating and form-intensive minefield pervasive throughout Pennsylvania Workers’ Compensation practice and procedure.

In a decision marked as “significant,” the Appeals Panel reversed a CCH determination of non-compensability of specific diagnoses, and rendered a decision that the disputed diagnoses were compensable on the basis that the claimant’s impairment rating (IR) including those conditions had become final so that the conditions included in the IR were made compensable by waiver.

At CCH, the Administrative Law Judge (ALJ) found that the Claimant’s first certification of MMI/IR had become final and that his compensable injury did not include a right hip labral tear and hamstring tear.  The Appeals Panel reversed the ALJ’s decision that the right hip labral tear and hamstring tear were not compensable, finding these conditions part of the compensable injury.  In doing so, the Appeals Panel noted that “Dr. B” (a doctor selected by the treating doctor to certify MMI/IR) indicated in his report that the conditions he considered and rated were a right hip contusion/sprain and labral tear, lumbar strain, right hamstring tear, and right shoulder strain.   The Appeals Panel noted that Dr. B’s 6% IR, which had become final pursuant to Texas Labor Code Section 408.123 and Division Rule 130.12, included a rating for the diagnoses of right hip labral tear and right hamstring tear.  Therefore, the Appeals Panel held that the compensable injury extends to a right hip labral tear and right hamstring tear.  In addition, the Appeals Panel noted that the designated doctor provided a detailed causation analysis regarding the right hip labral tear and right hamstring tear.

The Appeals Panel went on to clarify that the rationale for its holding does not act to exclude diagnoses that were not included in that impairment rating certification: “Our holding should not be construed as limiting claimants from expanding on what is included in the compensable injury.  We acknowledge that injuries can evolve over time and that claimants may claim that additional injuries or conditions are compensable even after an IR becomes final.” (Citing APD 040150-s, decided March 8, 2004.)

In other words, if a first certification of MMI and impairment that includes a disputed medical condition is not timely disputed and becomes final, the disputed condition may be deemed to be compensable.  On the other hand, a Claimant is not prohibited from expanding his injury by adding additional diagnoses that were not included in a final assessment of MMI/IR.  Appeals Panel Decision 191874-s, decided December 5, 2019.
 

... but the issue of MMI/IR finality has to be a certified issue for adjudication in order to be a basis for Carrier's waiver of extent of injury

In a decision filed just six days later, the Appeals Panel declined to extend a similar extent of injury “waiver” theory in a case in which the issue of finality of the Claimant’s impairment rating had not been an issue certified for adjudication in the underlying CCH.

In Appeals Panel Decision No. 191919, decided December 11, 2019, the Appeals Panel reversed a decision from an ALJ that the Claimant’s compensable injury extends to include C5-6 and C6-7 central left side disc herniation.  The ALJ made several findings of fact, among them that that the Claimant’s 15% impairment rating (IR) assigned by “Dr. C” was an IR for the conditions of herniated disc status post anterior cervical discectomy and fusion at C5-6 and C6-7, and that there was no dispute of the MMI date or 15% IR before the expiration of the first quarter SIBs period.  In doing so, it appeared that the ALJ had determined that the 15% IR (and therefore, the disputed conditions that were included in the 15% IR)  had become final pursuant to Division Rule 130.102(h), which provides that if there is no pending dispute regarding the date of MMI or the IR prior to the expiration of the first quarter of supplemental income benefits (SIBs), the date of MMI and the IR are final and binding.  

The Appeals Panel observed that although the ALJ did not expressly add the issue in her decision and order, her extent of injury determination was premised on a determination that the 15% IR had become final pursuant to Rule 130.102(h) and that this certification considered and rated herniated disc status post anterior cervical discectomy and fusion at C5-6 and C6-7.  However, in this case there had been no finality issue before the ALJ to decide.  The BRC Report did not list an issue of finality pursuant to Rule 130.102(h), and neither party at the CCH requested the addition of an issue regarding Rule 130.102(h) finality.  The Appeals Panel further noted that the MMI/IR certification at issue was not in evidence, there were no SIBs applications in evidence, no testimony or documentary evidence regarding whether or not a dispute of the claimant’s MMI and IR occurred prior to the expiration of the first quarter of SIBs, and no stipulation or testimony regarding the date of MMI or the IR based on the claimant’s compensable injury, or as to the dates of the SIBs quarters applicable to the claimant.  In fact, neither party had even argued that the 15% IR certification had become final.  

On this basis, the Appeals Panel stuck the ALJ’s Findings of Fact related to finality, reversed the ALJ’s determination on extent of injury, and remanded the extent-of-injury issue to the ALJ with instructions to determine whether the evidence supports that the compensable injury extends to include the disputed conditions.

There was no indication as to whether the Appeals Panel in Decision Number 191919 would have found the disputed conditions compensable had the issue of finality of the claimant’s IR been certified for adjudication.  However, the decision issued just six days earlier in Decision Number 191874-s is an indication that it very well would have.  

Appeals Panel Decisions 191874-s and 191919 make way for additional avenues for Claimant attorneys to circumvent the medical causation standard set out by the Texas Supreme Court in Transcontinental Insurance Company v. Crump, 330 S. W. 3d 211(Tex. 2010); that is, that the work injury must be a “producing cause” of the injury or death, which is defined as “a substantial factor in bringing about an injury or death, and without which the injury or death would not have occurred.”  By allowing for adjudication of extent of injury via a determination of finality of an impairment rating that includes the condition or diagnosis, the Appeals Panel has paved the way for a new era of extent of injury “waiver.”  

We certainly have not seen the last of this, and urge our clients to closely scrutinize the diagnoses that are included in a Claimant’s IR. If the certified impairment rating includes any disputed (or questionable) conditions, best practice will be to dispute the certification to avoid the condition becoming compensable via MMI/IR finality under Rules 130.12 or 130.102(h), or some other avenue.
 

-  Copyright 2020, Erin Shanley, Stone Loughlin & Swanson, LLP

Happy New Year from Peddicord Wharton! Here is what’s new in Iowa:

• The Iowa Court of Appeals recently affirmed a favorable agency decision in Harrod v. Advance Services, Inc. and Ace American Insurance Company. The case was defended by Peddicord Wharton attorneys Tim Wegman and Alison Stewart. Claimant Leslie Harrod appealed a district court decision affirming a final Iowa Workers’ Compensation Commissioner decision to reduce Claimant’s industrial disability award from 40% to 25% industrial disability on the basis that it was supported by Substantial evidence. In addition, the Court of Appeals held that Claimant failed to prove entitlement to alternate medical care and penalty benefits. Deputy McElderry awarded 40% and Deputy Commissioner Fitch (upon delegation from Commissioner Cortese) reduced the award to 25%. The Court of Appeals reasoned the Commissioner decision was appropriate because consideration was given to the several industrial disability factors. Specifically, Claimant’s inability to complete a certified nursing assistant program she attended following high school caused the reviewing deputy to question the likelihood of her success in further training, despite Claimant’s statement during the hearing that she was interested in pursuing further education. The reviewing deputy also found that while Claimant could pass the pre-employment physical examination for working as an egg packager for Rembrandt, it was unclear whether she would have been physically capable of maintaining this position long-term. For these reasons, the Court of Appeals affirmed the decisions of the agency and district court.
  
  
• Attorneys Steve Spencer and Chris Spencer were successful in defending another case recently decided by the Iowa Court of Appeals. In Lewis v. Windsor Windows & Doors and Twin City Fire Insurance Company, the Court affirmed an agency decision appealed by the Claimant, in which it was determined the injury alleged did not arise out of and in the course of employment. The issue was Claimant’s credibility and the Commissioner specifically indicated that he gave considerable deference to the findings of fact which were impacted by the credibility findings. The Court was satisfied by the agency’s detailed analysis of the conflicting evidence and explanation of how its decision was reached. As a result, the Court indicated that the record as a whole contained substantial evidence to support the Commissioner’s findings.
  
  
• There are two new Workers’ Compensation Deputy Commissioners. Jessica Cleereman will start January 24, 2020. Deputy Cleereman is from Sioux Falls, South Dakota originally and has practiced at various insurance defense firms in the Des Moines area since graduating from Valparaiso University School of Law in 2005. Andrew Phillips will start March 6, 2020. Deputy Phillips will replace Deputy Michele McGovern, who will retire early this year. Deputy Phillips has worked in the insurance industry in the Des Moines area since graduating from Drake Law School in 2010.
  
  
• The mailing address for the Iowa Division of Workers’ Compensation (DWC) has changed. The new mailing address is 150 Des Moines Street, Des Moines, Iowa 50309. Carriers should update their forms requiring communication with injured workers accordingly. One example is the Auxier notice. If you have questions about this, please reach out to any of the workers’ compensation attorneys at Peddicord Wharton.
  
  
• The DWC recently provided additional information relating to vocational training and education available to employees who sustain a work injury to the shoulder (after July 1, 2017) and are unable to return to gainful employment due to the resulting permanent partial disability. If these qualifications are satisfied, Iowa Workforce Development (IWD), upon written application, will evaluate the employee and determine whether that employee would benefit from a vocational education and training program at a qualifying community college. If the employee qualifies, they must enroll in the community college program within six months of the IWD referral to the program. The employee is eligible for up to $15,000 support toward tuition, fees, and purchase of supplies required to participate in the program. More information about the process and qualifying fields can be found here.
  
  
• SF2003 was recently introduced in the legislature. The proposed change relates to Iowa Code section 85.27 as it specifically pertains to the furnishing of prosthetic devices. Currently, Iowa Code section 85.27(1) states that “the employer shall also furnish reasonable and necessary crutches, artificial members and appliances but shall not be required to furnish more than one set of permanent prosthetic devices.” The proposed change states “a person shall be entitled to replacement of a prosthetic device, including subsequent replacements, by the employer if the prosthetic device is needed as a result of a compensable injury, and the replacement of the prosthetic device would otherwise be considered reasonable medical care under this chapter.” If the proposal passes, an injured worker will be entitled to replacement of a prosthetic device so long as the device would otherwise be considered reasonable medical care. We will monitor this proposed change and provide updates accordingly.

Legal Update by Attorney Alison Stewart, an attorney with Peddicord Wharton. Peddicord Wharton is a member of the National Workers’ Compensation Defense Network. If you have any questions about this submission or Iowa workers’ compensation in general, please contact Alison by e-mailing her at alison@peddicord.law or by calling her directly at 515-243-2100.

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NOTICE TO THE PUBLIC

The determination of the need for legal services and the choice of a lawyer are extremely important decisions and should not be based solely upon advertisements or self-proclaimed expertise. This disclosure is required by rule of the Supreme Court of Iowa.

Peddicord Wharton Legal Updates are intended to provide information on current developments in legislation impacting our clients. Readers should not rely solely upon this information as legal advice. Peddicord Wharton attorneys would be pleased to answer any questions you may have about this update. ©2020 Peddicord Wharton. All Rights Reserved.

 The Dome Report - 2020 West Virginia Legislature Updates, Issue 3

 Dill Battle, Chair Workers' Compensation Practice Group

304.340.3823

dbattle@spilmanlaw.com