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There are few appellate division cases on the odd-lot doctrine in workers’ compensation, and there are next to none on lack of proficiency in English as a sole factor for odd-lot unemployability.  For this reason it is worth reviewing the recent decision in Avendano v. Target Corporation, A-1609-18T2 (App. Div. December 17, 2019).  

In this case, Avendano suffered serious injuries.  She received an award of 55% permanent partial disability credit 15% for previous loss of function and then reopened the case to obtain an award of 75% credit 55%.  About six months later she reopened the case a second time claiming that she was totally and permanently disabled under the odd-lot doctrine in part because she struggled with the English language and therefore could not find work.  The odd-lot doctrine may permit a judge to find total and permanent disability where an employee obtains an award of permanent partial disability of 75% or more but is unemployable due to factors like advanced age, language difficulties and limited job skills.

The trial consisted of testimony by petitioner as well as testimony by vocational experts on both sides, but there was no medical testimony for reasons not made entirely clear in the decision.  Petitioner stressed on direct examination that she does not speak or understand English.  She testified through an interpreter.  She said that it is very hard for her to read or write English.  She did admit on direct examination that she enrolled in college to learn English but stated that she did not complete the course.

The cross examination of petitioner won the case for Target.  Petitioner admitted that she told the IME doctors for Target that she had attained a level two proficiency in English as a second language classes.  She admitted that she was evaluated by the Target IME doctors without a Spanish interpreter.  She admitted that she passed the citizenship test in English test nine years prior to her testimony.  She also admitted receiving an accounting degree in her native Columbia before coming to the United States.

The Judge of Compensation observed that petitioner answered some questions before the court interpreter finished translation.  The Judge of Compensation did not find petitioner to be credible in her assertion that her lack of knowledge of English contributed to her total and permanent disability.  The judge was also unimpressed with petitioner’s vocational expert because the expert would not change his position on totality even when confronted with evidence that petitioner obtained an intermediate proficiency level in English.  The judge noted as well that the petitioner’s vocational expert failed to review petitioner’s testimony before testifying in court and failed to review certain medical reports.

For these reasons the Judge of Compensation rejected the application for total and permanent disability and left the award at 75%.  Avendano appealed, and the Appellate Division affirmed.  “In determining whether a petitioner is totally disabled under the odd-lot doctrine a judge of compensation may therefore consider the petitioner’s education, training, age, background and substantial ‘unlikelihood of finding employment, absent a charitable employer.’”   The court elaborated on the aspect of difficulty with the English language as a basis for application of the odd-lot doctrine.  “Relevant here, inability to understand the English language can provide the basis for application of the odd-lot doctrine.”

The case is worthy of review because the decision recognizes that inability to understand the English language can provide the basis for an award of total and permanent disability where the injured worker has an award of 75% or higher.  This may be the only modern appellate level case that has specifically focused on lack of proficiency in English as a basis for the odd-lot doctrine.  Unfortunately for petitioner, her testimony did not persuade the judge that she actually had a serious problem understanding the English language given the admissions she made on cross examination.

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John H. Geaney, Esq., is an Executive Committee Member and a Shareholder 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. 

Minnesota’s Health Commissioner recently authorized a significant expansion of medical cannabis usage in the state of Minnesota to include those with “chronic pain.” Currently, the most common qualifying condition to be eligible for medical cannabis is a diagnosis of “intractable pain.” Minn. Stat. 152.125 defines intractable pain as pain that “cannot be removed or otherwise treated” and that “no relief or cure of the cause of the pain is possible, or none has been found after reasonable efforts.” The narrow nature of this definition limits the number of patients who can become qualified for medical cannabis under this category.

On the other hand, chronic pain is a much broader category than intractable pain, which is more generally defined as intolerable pain that cannot be addressed with other remedies or medications. Chronic pain includes many more conditions that may be caused by work injuries than “intractable pain” does. The change will take effect in August 2020.

Minnesota is currently one of 33 states that has legalized medical cannabis. Patients are still required to become certified by medical providers to receive cannabis from one of two licensed manufacturers – Leafline Labs or Minnesota Medical Solutions. The Minnesota Legislature voted to increase the number of storefronts to 16 – with new locations of both manufacturers planned throughout the state of Minnesota. Medical cannabis in Minnesota is currently permissible in inhaled and pill forms. However, it will also soon become available in water-soluble powders and sprinkles as well as in dissolvable lozenges and mints.

To note, this expansion will also include those suffering from age-related macular degeneration for eyesight. However, the expansion still does not authorize medical cannabis usage for those with anxiety, insomnia, or a traumatic brain injury – as there is a lack of scientific evidence to support these. The full Minnesota Department of Health Press Release is found below.

https://www.health.state.mn.us/news/pressrel/2019/cannabis120219.html

In 2020 we will likely get a published Appellate Division decision that resolves whether a medical provider can bring a medical claim petition in New Jersey where virtually all contacts are in New York State except for where the surgery occurs and sometimes where the claimant lives.  One hint of how the Appellate Division may lean comes from a recent medical malpractice case entitled Pullen v. Dr. Aubrey Galloway, A-1373-18T2 (December 9, 2019). 

The case involved jurisdictional issues between New Jersey and New York in connection with a law suit filed by the widower of Jeanne Pullen, who underwent surgery in New York City to replace her aortic valve but died shortly thereafter.  Mr. Pullen, the widower, filed a medical malpractice case against Dr. Aubrey Galloway who performed the surgery at NYU Langone Medical Center in New York City.  Dr. Galloway practiced only in New York and saw patients only in New York.

The decedent lived in New Jersey and her widower filed the medical malpractice case in New Jersey.  The decedent was referred to Dr. Galloway by her New Jersey licensed physician, Dr. Edwin Blumberg. Dr. Galloway argued that there was no jurisdiction over him in New Jersey. He had been licensed to practice in New Jersey between 2004 and 2009 but he had never actually practiced in New Jersey.

Pullen countered that the New Jersey referring doctor, Dr. Blumberg, had a personal friendship with Dr. Galloway.  He also argued that Dr. Galloway solicited business through commercials and local television stations.

The trial court dismissed the lawsuit for lack of jurisdiction in New Jersey over Dr. Galloway.  The Appellate Division said, “General jurisdiction exists when the plaintiff’s claims arise out of the defendant’s continuous and systematic ‘contacts with the forum state.’”  The Court added, “Applying these well-established standards, Dr. Galloway is not subject to personal jurisdiction in New Jersey. Dr. Galloway does not have continuous and substantial contacts that would subject him to general jurisdiction in New Jersey.  Dr. Galloway lives and practices medicine in New York.  He certified that he had a New Jersey medical license only between 2004-2009 and never actually practiced medicine in New Jersey.”

The Court also rejected the allegation that Dr. Galloway should be subject to jurisdiction in New Jersey because he advertised on local television stations.  “Plaintiff did not identify any actual advertising on local television stations.  Instead, plaintiff merely asserted that Dr. Galloway had engaged in such advertisement.  That contention is not supported by any specific facts such as the nature of the advertising, when and where the advertising was actually aired, and whether the advertisement was directed at New Jersey residents.”

The Court added, “We have previously held that a doctor’s out-of-state treatment of a New Jersey resident does not, in and of itself, establish personal jurisdiction.  Bovino v. Brumbaugh, 221 N.J. super. 432,437 (App. Div. 1987).  In Bovino, we explained that when a patient seeks personal services from an out-of-state physicians those services are not directed towards a particular place; rather, they are directed at the needs of the patient.  In that regard, we noted that it is fundamentally unfair to subject an out-of-state physician to jurisdiction in New Jersey when treatment is provided exclusively in another state.”

The reason this case is important is that in there are many hundreds of MCP cases pending in New Jersey involving New York accidents to largely New York residents who work in New York.  The only contact with New Jersey occurs when the surgeon decides to schedule the main medical procedure in the State of New Jersey where there is no fee schedule —  unlike New York.  All the treatment up to surgery has occurred in New York State, the employment contacts are in New York, yet the surgical procedure is shifted to New Jersey solely to avoid the New York fee schedule. When the carrier and employer insist on paying the surgeon under the New York fee schedule, the medical provider hires a New Jersey law firm who files a Medical Claim Petition in the New Jersey Division of Workers’ Compensation to get paid the difference between the New York fee schedule and the bill for the procedure.

It would seem under the rationale in Pullen to be completely insufficient for the Division of Workers’ Compensation to accept jurisdiction over the fee dispute in a situation like this where all the contacts were in New York. There are no continuous or systematic contacts with New Jersey, to quote the decision in Pullen.

Thanks to David Lustbader, a prominent New Jersey practitioner, for sending this case to our attention.

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John H. Geaney, Esq., is an Executive Committee Member and a Shareholder 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. 

At least every other year, the Texas Department of Insurance, Division of Workers’ Compensation is required to evaluate the performance of healthcare providers in the workers’ compensation system. Healthcare providers were evaluated on three criteria: (1) DWC Form-069, Report of Medical Evaluation; (2) Completeness of the DWC Form-073, Work Status Report; and (3) Documentation supporting why the injured worker is prevented from returning to work as reported on the DWC Form-073. The majority of healthcare providers were identified as a “high tier performer.” If you are curious about how well any specific provider performed, you can review the Division resultshere.
 

System participants continue to pursue creative ways to exploit and defraud the workers’ compensation system in Texas. The efforts have not gone unnoticed – or unprosecuted – by the law enforcement authorities. Here’s a review of some recent convictions.
 

Husband of Truck Stop Employee Injured, Insured Fraudulently Claims He is an Employee 

Texas Carrier Fraudulently Billed for FCEs
 
Frequent, unnecessarily-ordered functional capacity exams (FCEs) tend to draw the ire of carriers in the Texas system, with some system participants questioning whether the FCEs are actually taking place. In at least one recent case, the FCEs were found not to have occurred as billed.

EME International, owned by Christine Caldwell, recently plead guilty to a third degree felony for fraudulently billing Texas Mutual for FCEs taking two to four hours. In fact, the FCEs did not take two to four hours to perform. The Company was ordered to pay $30,000 in restitution. The case was also prosecuted by the DWC’s prosecution unit embedded in the Travis County DA’s office.

The DWC press release is available here.

Copyright 2019, Dan Price, Stone Loughlin & Swanson, LLP
 
Federal Comp System Also the Target of Fraudulent Billing in Texas
 
In a grander scheme in dollars if not in design, Rafael Enrique Rodriguez, the owner of San Antonio and Salt Lake City physical therapy clinics, was convicted in federal court and sentenced to up to six years in prison for fraudulently billing -- to the tune of $7.5 million – the Federal Employees Compensation Act, Office of Workers’ Compensation Program. Rodriguez billed the program for PT services provided by a licensed professional when, in fact, such services were provided by unlicensed professionals. Further, the name of the licensed therapist used by Rodriguez in connection with the scheme was used without permission of that therapist. Prior to the fraud being identified, Rodriguez and Company collected over $6 million in fraudulent billings.

The Department of Justice press release is availablehere.

-  Copyright 2019, Dan Price, Stone Loughlin & Swanson, LLP

We recently faced an issue where a Claimant was scheduled to attend a post-DD RME exam to evaluate MMI/IR. The Claimant showed up but then refused to submit to the exam unless his wife was permitted to video record the exam on her phone. The post-DD RME doctor wisely refused this demand, and Claimant left without undergoing the RME. The Carrier then terminated based on failure to attend the RME. Both the RME doctor and the Carrier correctly handled the situation in accordance with long-standing policy of the Division of Workers’ Compensation.

The policy preventing claimants from bringing witnesses to RMEs or recording the exams was laid out by the Texas Workers’ Compensation Commission (now, the Division of Workers’ Compensation) way back in 1996. In APD 960367, an injured employee had presented himself for the post-DD RME with a cassette recorder and video camera. The RME doctor refused to examine the injured employee under these circumstances and sent him away. While the Hearing Officer did not address the issue of whether the claimant had the right to record the examination, the Appeals Panel did stating:
 

"The statute and rule provide a more direct, obvious and effective way to ensure the integrity of the examination by authorizing, at carrier’s expense, the presence of the claimant’s treating doctor at the examination."

 
The Appeals Panel went on to say that, while the treating doctor’s attendance may not necessarily be the only way to establish how a post-DD RME examination is conducted, it is “the only one a claimant is entitled to under the statute and rule.”  (AP 960367).
 
The Appeals Panel also citedTWCC-Advisory 96-01, which directly addressed situations that had arisen where injured employees failed to submit to an RME examination because the doctor would not allow a witness other than the employee’s doctor to attend the examination or allow the examination to be video or audio taped.
 
The Division again cited the Act and Rule provisions that allow the employee to have the treating doctor present at the examination.  The Division went on to advise that, if the claimant wants to have any other person in the examination room, the claimant must obtain prior authorization from the examining doctor:
 
"[V]ideo cameras or other recording equipment will not be allowed in the examination without prior authorization from the examining doctor."
 
Finally, the Advisory states that a doctor’s decision not to allow a witness other than the employee’s doctor to attend the examination or allow the examination to be recorded isnot good cause for failure to submit to the examination. (TWCC-Advisory 96-01 emphasis supplied).  The Division went on to reiterate that, under Section 408.004(f), failure to submit to an RME examination without good cause may result in anadministrative penalty against the claimant.

In short, based on APD 960367 and Advisory 96-01, an injured worker may not record an RME and may not bring a witness to the exam (except the treating doctor). When scheduling RMEs, we recommend reminding your doctors of this now-decades old Division policy.
 

We are deeply saddened to inform you that our dear friend and colleague Bill Nemeth passed away on December 28, 2019.  William “Bill” Nemeth, M.D. was truly a giant in workers’ compensation and occupational medicine.  Bill served numerous roles in the field of workers’ compensation over the course of his remarkable career.  During his tenure as Medical Advisor to the Division of Workers’ Compensation, Bill helped lead a much-needed transition to evidence-based medicine in workers’ compensation.  Bill’s emphasis on evidence-based medicine and his contributions to the ODG Treatment Guidelines improved care for all injured workers in Texas.  Bill recognized earlier than most the dangers of over-treatment with opioids.  He treated his patients’ pain and addiction issues with an empathy that came from personal experience.  Bill also had a gift for being able to explain the most difficult medical concepts in a way that everyone could understand.  We all relied heavily on Bill’s vast knowledge and expertise but it is his wit, humor, and compassion that will be most dearly missed.

-  Copyright 2019,James Loughlin, Stone Loughlin & Swanson, LLP

Effective January 1, 2020, the mileage reimbursement rate for Alabama is 57.5 cents per mile, a .5 cent decrease from 2019.

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About the Author

This blog submission was prepared by Mike Fish, an attorney with Fish Nelson & Holden, LLC, a law firm dedicated to representing self-insured employers, insurance carriers, and third party administrators in all matters related to workers’ compensation. Fish Nelson & Holden is a member of the National Workers’ Compensation Defense Network. If you have any questions about this submission or Alabama workers’ compensation in general, please contact Fish by e-mailing him at mfish@fishnelson.com or by calling him directly at 205-332-1448.

Today marks 100 years since the Alabama Workers’ Compensation Act went into effect.  Back then, it was known as the Alabama Workmen’s Compensation Act.  While it has been expanded in the last century, much of the original 33 page Act (now closer to 450 pages including annotations) has remained unchanged.

Although there has been some recent controversy as to the constitutionality of the Act, it remains a much better alternative to employees having to prove tort liability and tort liability exposure for employers. 

As the Honorable E.R. Mills so adeptly stated in Singletary v. Mangham Construction, 418 So.2d 1138 (Fla. 1st DCA, 1982), “Workers' compensation is a very important field of the law, if not the most important. It touches more lives than any other field of the law. It involves the payments of huge sums of money. The welfare of human beings, the success of business, and the pocketbooks of consumers are affected daily by it.”

About the Author

This blog submission was prepared by Mike Fish, an attorney with Fish Nelson & Holden, LLC, a law firm dedicated to representing self-insured employers, insurance carriers, and third party administrators in all matters related to workers’ compensation. Fish Nelson & Holden is a member of the National Workers’ Compensation Defense Network. If you have any questions about this submission or Alabama workers’ compensation in general, please contact Fish by e-mailing him at mfish@fishnelson.com or by calling him directly at 205-332-1448.