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NWCDN is a network of law firms dedicated to protecting employers in workers’ compensation claims.


NWCDN Members regularly post articles and summary judgements in workers’ compensations law in your state.  


Select a state from the dropdown menu below to scroll through the state specific archives for updates and opinions on various workers’ compensation laws in your state.


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Or rather perhaps the Texas Side Step.  Chiropractor Robert Coolbaugh failed to refund money to an insurance company even after an ALJ with the State Office of Administrative Hearings ordered him to do so.  To avoid complying, he found a lawyer to file a lawsuit in Travis County in the guise of a declaratory judgment action, arguing that this was a penalty order that was “void and unconstitutional.”  The Austin Court of Appeals upheld the trial court’s ruling that it lacked jurisdiction to review the SOAH order because the order had become final over two years before the doctor filed suit.  The Court noted in particular the fact that Coolbaugh tried to get around the finality of the SOAH order by disguising his complaint as a suit for declaratory relief.

 -  Copyright 2019, Jane Lipscomb Stone, Stone Loughlin & Swanson, LLP

Wiggling around the exclusive remedy defense is still pretty hard to do. The Corpus Christi Court of Appeals held early this month in Barrett v. Berry Contracting, LP  that in the context of general contractor/subcontrator claims, if the claimant accepts workers’ compensation benefits where a general contractor purchased a policy of insurance that covered subcontractors, the claimant cannot escape and the comp bar applies.  It is not clear whether the Court’s analysis would have been different if the claimant hadn’t “accepted” the benefits.  

 -  Copyright 2019,Jane Lipscomb Stone, Stone Loughlin & Swanson, LLP

There has been a 97% decrease in the number of comp claims where the injured worker was receiving high levels of N-drug opioids between 2009 and 2015... the closed formulary went into effect in 2011.  As a further bonus, the average return-to-work rate for both network and non-network claims increased after the closed formulary went into effect.  Texas is becoming a standard bearer across the nation on this issue, and when we attended the National Workers’ Compensation Defense Conference last month in Chicago, we were frequently approached by national insurers and risk managers wanting more information about Texas’ success.  We, of course, are not surprised that Texas leads the nation in, well, everything good!  And some of you may remember when Jane Stone from the firm and Suzanne Novak, M.D. Ph.D. first raised the alarm when presenting at ICT and the State Bar about the opioid crisis in Texas comp. The lesson?  It pays to bring things to light, even if it takes time for regulations to be implemented to address the problem. https://www.tdi.texas.gov/wc/regulation/roc/formulary2019.html.

As a side note, William Rabb reports that medical disputes in Texas comp have “dropped like a rock.”  Very true, and good news for the system because the reason for the drop in disputes is effective, targeted regulation.
 

-  Copyright 2019, Jane Lipscomb Stone, Stone Loughlin & Swanson, LLP

“Andrew Michael Garrett, D.C. is hereby forever removed from the Texas workers’ compensation system’s designated doctor list [which] removal shall be permanent, of indefinite duration and without a right of reconsideration at any point in the future. . . .“ So, what did he do?  He performed 11 exams and never filed a report from the exams.  To top it off he refused to perform subsequent DD exams when appointed to do so.  The icing on the cake was his failure to respond to a Letter of Clarification.  And then there was the cherry on top of the icing on top of the cake – he is forever banned from providing treatment within the Texas workers’ compensation system and was ordered to pay a $2,500 fine.

-  Copyright 2019,Jane Lipscomb Stone, Stone Loughlin & Swanson, LLP


 

CMS Pricing for Generic Lyrica (Pregabalin) Now Under $1.00 per Pill

 

Pregabalin, the generic form of Lyrica, has dropped in price enough that its inclusion in a WCMSA is no longer a barrier to settlement. Our readers will recallthat we reported last year that CMS accepted the off-label use of Lyrica for pain or radiculopathy. At the time Lyrica was very expensive and a generic form of the drug was not available. That changed early this year with the availability of pregabalin, the generic form of Lyrica. However, at the time pregabalin became available, it cost nearly the same as Lyrica, and its inclusion in a WCMSA remained a barrier to settlement.

In the last month, the CMS pricing for pregabalin has dropped from over $8.00 per pill to under $1.00 per pill. In most cases, this means that inclusion of pregabalin should not be a barrier to settlement and we should be able to secure reasonable WCMSA approvals even when CMS includes this drug in the claimant’s WCMSA approval.

The Board’s new Drug Formulary permits use of Lyrica as a “Phase B” medication for use either upon acceptance or establishment of the claim or after 30 days from the date of injury. The Formulary lists Lyrica as a “second line” medication for injuries involving the back, CRPS, neck, or for treatment under the Non-Acute Pain Medical Treatment Guidelines. This means that the claimant must have an unsuccessful trial of a first line medication under the Medical Treatment Guidelines before trying Lyrica.

For any questions concerning the Drug Formulary, please contact our partner, Renee Heitger. For questions concerning the effect of pregabalin on a WCMSA please contact our partner Dan Bowers.

 

Some SLU Stipulations Require Additional Paperwork

 

Over the last year, practitioners have noted the Board’s resistance to stipulations concerning schedule loss of use where non-schedule body parts were also established on a claim, absent a provision in the stipulation that there were no residual deficits or further causally related disability connected with the non-schedule injury or condition. This marked a change in prior Board practice which generally allowed stipulations on schedule loss of use even where there were non-schedule body sites established on the claim.

In Subject Number 046-1211, the Board has outlined its expectations with respect to stipulations on schedule loss of use where a non-schedule site is established on the claim. The Subject Number describes a new form, the “SLU Stipulation Attachment,” which is to be used by parties stipulating to schedule loss of use where the claimant’s non-schedule injury may have residual permanent impairment or where the medical evidence says nothing about whether the claimant has a permanent disability of the non-schedule injury.

If the medical reports in the file say that the claimant does not have a permanent disability of the non-schedule injury, then the parties do not need to submit the SLU Stipulation Attachment with their stipulation.

In those cases where the medical evidence suggests a permanent disability of a non-schedule body part we expect the Board will carefully review the claimant’s answers to Question 5 on the SLU Stipulation Attachment, which asks the claimant to confirm that the claimant’s doctor doesn’t believe that the non-schedule injury affects the claimant’s ability to work, that there has been no surgery or post-surgical care involving the non-schedule body part(s) for the last 12 months, and that the claimant has not treated for the non-schedule body part(s) for the last six months. We suspect that the claimant’s answers to these questions will affect the Board’s decision to approve or deny the proposed stipulation.

The stipulation attachment also requires the claimant’s attorney to attest that he or she fully explained the impact of the proposed stipulation on the claimant’s non-schedule injuries, including the effect of the carrier’s credit on future indemnity related to the non-schedule injuries and any difficulties in reopening the claim to consider a worsening of non-schedule body parts.
Significantly, the SLU Stipulation Attachment states that if the Board approves the stipulation on schedule loss of use, that the Board will also enter a finding of “no further causally related disability at this time” with respect to the non-schedule sites or conditions. A finding of “no further causally related disability” is a powerful one for the carrier because it allows the carrier to force the claimant to provide proof of a change in condition before becoming liable for medical care or indemnity benefits.

We expect that the Board will deny stipulations for schedule loss of use in those cases where it feels that the claimant was not fully informed of the ramifications of agreeing to a SLU when that claimant also has non-schedule injuries.

Please do not hesitate to contact any of our attorneys with questions about the Board’s new SLU stipulation procedure.

 

Appellate Division Cases of Note

 

Volunteer Workers: Mauro v. American Red Cross

On 10/3/19, the Appellate Division, Third Department, decided Mauro v. American Red Cross. This decision holds that a person is not an employee of a charitable organization when he or she merely volunteers time working at that organization.

The claimant volunteered time for the American Red Cross as a “volunteer community ambassador.” The Red Cross is a non-profit charitable organization. After her injury, the claimant filed a claim, alleging she met the legal requirements to be considered an employee of the American Red Cross for workers’ compensation purposes. The claimant was an employee of another company, which encouraged volunteerism with charitable organizations. She received full salary from that employer while doing charitable work for the American Red Cross during work hours. The Court highlighted the fact that claimant received no monetary compensation or other form of financial or economic benefit from the American Red Cross in exchange for her volunteer activity. Based on these facts, the Court affirmed the Board’s finding that claimant was strictly a volunteer rather than an employee of the American Red Cross.

OD Claims: Barker v. New York City Police Department

On 10/3/19, the Appellate Division, Third Department, decided Barker v. New York City Police Department. This decision again shows that an occupational disease claim for repetitive use will not automatically be established simply because a treating doctor states the claimed injury is causally related to claimant’s work activities.

In this case, claimant alleged a repetitive overuse injury to her arms. The Board disallowed the claim, and the Court affirmed, stating “the record does not reflect that claimant’s medical providers had adequate knowledge of her work activities or medical history . . . consequently, neither claimant’s testimony nor the medical evidence was sufficient to establish a recognizable link between her shoulder injuries and a distinctive feature of her work, or that her shoulder injuries were attributable to repetitive movements associated with her work.”

This decision serves as a reminder that the defense of occupational disease claims merits special attention to confirm that claimant has met the legal requirements needed to establish an occupational disease, which include, among other things, proof of a “recognizable link” between the claimant’s alleged occupation disease and his or her employment. The claimant cannot establish this link if the evidence from the claimant’s medical providers fails to show adequate knowledge of the claimant’s job duties or medical history.

 

Contact Us

 

Hamberger & Weiss LLP - Buffalo Office
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350 Main Street
Buffalo, NY 14202
716-852-5200
buffalo@hwcomp.com

Hamberger & Weiss LLP - Rochester Office
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Rochester, NY 14614
585-262-6390
rochester@hwcomp.com


When individuals work for staffing agencies, interesting legal questions often arise.  In Uribe v. Quartz Master, A-4071-17T1 (App. Div. May 2, 2019), Alberto Uribe was injured working for On Target Staffing, LLC, a job placement agency.  On Target had a “Temporary Employee Work Agreement” with Quartz Master, where it placed Uribe.  That agreement provided that Uribe needed to discuss any work issues with On Target supervision only, would get his paychecks from On Target, and would notify On Target in the event of a work injury.

Uribe worked at Quartz Master for several years in the warehouse.  His Quartz Master supervisor, Mr. Patel, would tell Uribe what work to do.  Uribe was injured at Quartz Master while performing his job duties and received workers’ compensation benefits from On Target.  He then brought a civil law suit against Quartz Master.

The defense to the law suit filed against Quartz Master was simple:  Quartz Master argued that Uribe was equally its employee as well as the employee of On Target.  Uribe essentially had two employers.  The trial judge agreed with Quartz Master.  The Court analyzed the test for special employment and found that Quartz Master was by law a special employer:  1) Uribe had an implied contract to work for Quartz Master because he accepted work from them; 2) Uribe performed work duties under the direction of Quartz Master; 3) Mr. Patel, his supervisor at Quartz Master, directed his work; 4) Quartz Master essentially paid Uribe’s wage by payment to On Target; 5) Quartz Master had the right to advise On Target if it wanted to get rid of Uribe.

The Appellate Division agreed with the trial judge and affirmed the dismissal of Uribe’s civil suit under the exclusive remedy provision in workers’ compensation.  The Court was persuaded that Uribe was doing the work of Quartz Master for years.  He worked in their warehouse loading trucks with marble and granite slabs. Of equal importance to the Court was that Mr. Patel had the power to direct On Target not to send Uribe to Quartz Master.  The court said it did not matter that Quartz Master never exercised this right:  the company actually had the power to do so. 

When a client company of a temporary agency considers the benefits of working with a temporary agency, chief among them is that the client is not liable for workers’ compensation, as the staffing agency generally contracts to handle workers’ compensation.  Moreover, the client is immune from civil suit.   You could say that the client has the best of both worlds:  immunity from workers’ compensation and civil liability.

 

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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. 

In an important decision, the New Jersey Appellate Division decided on October 16, 2019 that a nurse who was walking from work premises to a parking lot following her shift at Jersey City Medical Center/ RWJBH was not in the course of employment when she was struck by a motor vehicle.  Christina Adinolfi Shea, partner with Capehart Scatchard, won the trial before the Honorable Lionel Simon, Judge of Compensation, and then argued and won the appeal. Caroline Yount, Esq., assisted on both briefs.

Emily Manuel worked as a nurse for Robert Wood Johnson Barnabas Health (RWJBH) and was seriously injured when struck by a motor vehicle using a public crosswalk.  She sustained hip and pelvic fractures, a concussion and other injuries.  She finished her shift at 7 p.m. and then walked across the street to the parking lot where she normally parked. She filed a workers’ compensation claim contending that her injury on Jersey Avenue was covered under workers’ compensation because she was walking from work premises to an alleged employer controlled parking lot. RWJBH denied the claim from the outset and argued that the case was governed by the Supreme Court decision in Hersh v. County of Morris, 217 N.J. 236 (2014). RWJBH denied that it controlled the parking area, nor maintained that area. The PIP carrier also joined in the case seeking reimbursement for approximately $150,000 of medical bills it paid to Ms. Manuel.

The factual background on the parking lot is critical to appreciate.  In 2010 RWJBH made on-site parking unavailable to non-essential employees and offered these employees parking in the Marina Lot located across the street from the hospital.  That lot was owned by Assured Resource Management, LLC. (hereinafter Assured). RWJBH rented 158 parking spots in the 450-space Marina Lot and paid Assured $13,000 monthly for these parking spots.  RWJBH made a biweekly payroll deduction from the employees who were authorized to park in the Marina Lot, such as Manuel, to cover the lease costs. Employees had to submit an application for permission to park in the lot.

RWJBH provided an optional shuttle service to transport hospital employees from the Marina Lot to the hospital’s entrance.  Those employees who did not use the shuttle could walk across Jersey Avenue by means of a public crosswalk.  RWJBH did not control the means of ingress and egress from the Marina Lot to the hospital.

Under the terms of the lease, RWJBH issued parking passes to employees who parked in the Marina Lot.  The hospital designated those employees who were permitted to park there.  The hospital reserved the right to provide an on-site traffic director during morning and evening rush hours, but the hospital never actually posted a traffic director on the site because it would have needed municipal approval.  RWJBH had no control over snow removal, repairs or maintenance of the Marina Lot.  Employees of RWJBH could park in the streets near the hospital, in another lot known as the ED lot (owned by RWJBH) or in the hospital’s visitors’ spots for a fee. 

The Hon. Lionel Simon heard the testimony of petitioner and a witness for RWJBH and found that the injury was not compensable for the following reasons:

*  While there was language in the lease agreement that allowed RWJBH to exercise limited control of the parking garage, the garage owners actually exercised daily control and maintenance of the garage.

*  Manuel was injured on a public street not under the control of RWJBH.

§  Manuel was not directed to park in the Marina Lot.

*  Manuel could have used the shuttle bus but chose not to do so.

Petitioner appealed as did the PIP carrier.  The Appellate Division found that this case was controlled by the decision in Hersh.  Both cases involved injuries on public streets, and both involved situations where the employer did not own the parking lots in question, nor control the lots.  Further, in neither case could the injured worker prove that that the employer derived a direct business benefit from facilitating employee parking in the garage.  In Hersh, the County paid for the parking lot but in this case, the employees ultimately paid for the parking by payroll deduction.  Both cases also involved no special hazard in crossing the street.  Many other employees crossed the street who parked elsewhere.  The Court said, “Here, there are sufficient credible facts to show that RWJBH lacked control over the crosswalk used by Manuel, and the Marina Lot, and therefore, her injuries are not compensable under the premises rule. Furthermore, Manuel’s injuries resulted from a vehicular accident that occurred on a public roadway over which RWJBH had no control.”

The Appellate Division specifically affirmed the reasoning of Judge Simon to the effect that the hospital did not require its employees to park in the Marina Lot, and in fact, petitioner declined to use the shuttle service and could have availed herself of other parking options.

The case is an important one in that it shows the strength of the decision in Hersh.  Further, the Court found that it did not ultimately matter that the lease agreement had some language about potential hospital control through a traffic director since the hospital never actually appointed a traffic director in the first place.

 

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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. 

 

On October 4, 2019 Alabama Court of Civil Appeals released its opinion in AMEC Foster Wheeler Camtech, Inc. v. Jimmy Chandler wherein it upheld the Trial Court’s finding that the employee suffered from a vocational disability as a result of his on the job back injury. 

 

The evidence at trial was that the employee was working on or about November 16, 2015 when he felt pain in his back while lifting a pipe.  This job, according to the plaintiff, involved welding and being able to get into awkward positions and perform precision welding.  The employee was ultimately diagnosed with a protrusion at C5-6, a protrusion at T7-8, and a protrusion at L4-5, along with degenerative changes in the spine.  The plaintiff was given lifting restrictions and his authorized treating physician performed conservative measures including epidural injections.  After missing several appointments the plaintiff was placed at MMI on or around June 14, 2016.  The employer had placed the employee at light duty and the employee left his employment with AMEC on January 11, 2016.  At that time he was not receiving any benefits because light duty was being provided.  The plaintiff did go back to treat with the authorized treating physician at a subsequent date and the doctor noted that he had improved significantly and should only need additional treatment once or twice a year.  Note the employee did work with other employers on and off after his employment with AMEC.  However, at the time of the trial he was not working.  These jobs included working as a supervisor of other welders that would inspect welds but did no perform welding himself mostly.  There was some work that he had do a little bit of mechanic work but again it was mostly supervising.  The employee testified that it was nothing like the precision and specialty welding that he had to perform that involved getting in unusual positions with AMEC. 

 

The employer appealed the decision asserting that the return to work provision should have applied because the employee had returned to work for another employer earning the same or greater wages.  The Trial Court ruled that the return to work statute did not apply because the employee was no longer working at the time of the initial disability determination by the Court and, therefore, had not returned to work as that term was used in the return to work statute.  The Court of Appeals went on to point out that for the purposes of this argument they did not really have to address it because the employer did not argue and/or calculate correctly the employee’s average weekly wage with the other employers so it can accurately be compared to his wages with AMEC.  The Court noted that the employment with the other employers was on and off and in order to determine the average weekly wage the employer on appeal had to secure the gross wages from the other employers and then divide that by the number of weeks worked.  The Court of Appeals pointed out that AMEC was required to do this and it was not the Court’s job to make that calculation for them in order to determine if the employee was earning the same or greater wages.  Therefore, the Court of Appeals ruled that AMEC failed to demonstrate the employee actually return to work making a higher average weekly wage and thus could not find the Trial Court in error.

 

AMEC also argued that the employee admitted that after long hours that his back felt worse and, therefore, that the last injurious exposure rule should apply which would preclude the employee from receiving workers’ compensation benefits from AMEC.  The Court of Appeals stated that the employee’s testimony that pain worsened by his subsequent employment activities supported the conclusion that the employee suffered a recurrence of the symptoms of his injury and not that he suffered a secondary injury to his back that contributed independently to the final disability.  As a result, the last injurious exposure rule would not apply because there was a recurrence, as opposed to a new injury.

AMEC also appealed arguing that the MMI date asserted by the Trial Court was not supported by the evidence.  The Court of Appeals noted that the Trial Court is not bound by a physician’s determination of an MMI date.  The Trial Court stated that MMI is the date in which the claimant reaches a plateau and there is no further medical care or treatment that could be anticipated to lessen the employee’s disability.  The Court noted that Dr. West testified at his deposition that he had improved since June of 2016 and in February of 2018 he had reached a point where he would only have to have epidural injections a couple of times a week.  Therefore, the Court of Appeals stated that the Trial Court’s conclusion that MMI was reached on February 2, 2018 was supported by the evidence.

 

ABOUT THE AUTHOR


This blog submission was prepared by Josh Holden, an attorney with Fish, Nelson, and Holden, LLC a law firm dedicated to representing self-insured employers, insurance carriers, and third party administrators and all matters related to Worker’s Compensation.  Fish, Nelson and Holden is a member of the National Worker’s Compensation Defense Network.  If you have any questions about this submission or Alabama Worker’s Compensation in general, please contact Holden by emailing him at jholden@fishnelson.com or calling him directly at (205) 332.1428.


On September 24-25, 2019, the National Workers' Compensation Defense Network (NWCDN) held its annual conference in Chicago, IL at the Intercontinental Hotel with an impressive mix of over 200 workers' compensation professionals from the U.S. and Canada. Attorneys attending from Peddicord Wharton were: Lee Hook, Steve Durick, Adam Bates, Nick Cooling, and Alison Stewart.

The program was filled with cutting-edge presentations and included topics such as “The Ethical Challenges of Anti-Engagement” addressing how interactions with the injured workers can promote improved outcomes. Also discussed was “Advocacy-Based Claims Management,” presented by a Senior Fellow at Sedgwick Institute, considered a champion of workers' compensation reform. Bob Wilson of workerscompensation.com was a keynote speaker and contributor on these topics.

A panel of 22 lawyers discussed state and local trends in workers' compensation. Another topic was an in-depth analysis of an SO-state survey on the status of marijuana in worker's compensation. There were several networking breaks throughout the event, ending with a presentation from Dr. Danzhu Guo of the Ovation Hand Institute on the medical advancements in the treatment of carpal tunnel syndrome.

About the National Workers' Compensation Defense Network

NWCDN is an organization comprised of workers' compensation attorneys from 45 states and Canada. Through its online network, member attorneys can be contacted individually or through a coordinated group response to address the latest trends in workers' compensation law. Through its comprehensive network, NWCDN takes a local approach to workers' compensation law and combines it into a national perspective. Annually, NWCDN sponsors an invitation-only national conference for business, risk and insurance professionals. In October 2020, NWCDN will hold its next national conference in Philadelphia, PA.

www.nwcdn.com

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