State News

Recently enacted by the 86th Legislature, House Bill 29 permits some qualified physical therapists to treat patients without a referral from a doctor.  A therapist with a doctoral degree in physical therapy, or one who has been licensed for at least one year and has completed a minimum of thirty hours of specific continuing education, will be allowed to treat a patient for up to ten consecutive business days without a referral.  Those with a doctoral degree and a completed residency or fellowship may treat for up to fifteen consecutive business days. 

However, HB 29 does not apply to treatment rendered for a work comp injury.  A physical therapist does not meet the definition of a treating doctor under Section 401.011 of the Texas Workers’ Compensation Act, and Section 408.021(c) specifies that a work comp claimant’s health care must be approved by the injured worker’s treating doctor. 

Copyright 2019,Stone Loughlin & Swanson, LLP

In September 2019, the Legislature amended Section 504.019(b) and added Section 504.019(c) in House Bill 2143.  For injuries occurringbefore September 1, 2019, the former provisions remain applicable, but for any injury claimedon or after September 1, 2019, the new law will apply. 

Until recently, Section 504.019(b) of the Texas Labor Code stated that, “Post-traumatic stress disorder suffered by a first responder is a compensable injury…only if it is based on a diagnosis that: 1) the disorder is caused by an eventoccurring in the course and scope of the first responder’s employment; and, 2) the preponderance of the evidence indicates that the event was asubstantial contributing factor of the disorder.”

In other words, section (b)(1) required a first responder’s claim for PTSD to have derived from asingular incident, not multiple occurrences.  That meant that for a first responder’s PTSD to be compensable, it must have developed suddenly, not gradually or cumulatively, such as might be found in a repetitive mental trauma injury.  Likewise, section (b)(2)’s requirement that the work event be a “substantial contributing factor” leading to the emergence of PTSD raised the burden of proof placed upon a first responder seeking to establish compensability of the condition. 

As of September 1, 2019, however, Section 504.019(b) now states: “Post-traumatic stress disorder suffered by a first responder is a compensable injury…only if it is based on a diagnosis that:  1) the disorder is caused byone or more events occurring in the course and scope of the first responder’s employment; and, 2) the preponderance of the evidence indicates that the event or events werea producing cause of the disorder. 

HB 2143 also added a new provision to establish the date of injury for such a claim, echoing the language of Section 408.007 pertaining to occupational diseases.  Section 504.019 (c) states:

“For purposes of this subtitle, the date of injury for post-traumatic stress disorder suffered by a first responder is the date on which the first responder firstknew or should have known that the disorder may be related to the first responder’s employment.”

Taken together, the amendments to subsection (b) and the addition of subsection (c) drastically improve a first responder’s ability to claim PTSD as a compensable diagnosis successfully.  No longer must such a claim be predicated on a lone traumatic event with a precise date of origin.  Now, a claim for PTSD may be based on the cumulative impact that traumatic work events have on a first responder’s mental health, and the date of injury is whenever the injured worker had reason to believe that such a diagnosis might have been caused by his/her work duties. 

-  Copyright 2019, Stone Loughlin & Swanson, LLP

September 2019

Court Decisions of Note

Attorney Solicitation Ban/First Amendment

Ohio Workers’ Compensation Law has become a subject for Federal Court litigation withBevan & Associates, LPA, Inc. v. Yost, 6th Circuit Case No. 18-3262 (July 8, 2019). In 2006, Ohio had amended its Workers’ Compensation Law (R.C. 4123.88) to block the public release of the names and addresses of workers’ compensation claimants. Ohio law firm, Bevan & Associates, had historically used the public records process to craft and send written solicitations targeted at workers’ compensation claimants regardless of whether they were already represented.

After the statute was amended, the Bevan firm utilized an exception in the ban which allowed journalists to gain access, hiring a former client with journalism credentials to obtain the information which it used from 2007 to 2016 in marketing campaigns. After a grand jury subpoena in 2016 investigating possible violations of the ban, the Bevan firm filed suit in the U.S. District Court for the Southern District of Ohio seeking a declaratory judgment that the solicitation ban was unconstitutional. The District Court avoided the First Amendment question and interpreted the statute narrowly to only ban solicitation using unlawfully obtained information.

The 6th Circuit, however, took on the constitutional issue and reversed after a determination that the statutory text at issue was unambiguous. The statute, the Court stressed, barred both in-person and written solicitation, with or without the use of improperly obtained claimant information. Therefore, applying the doctrine set forth in Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557, 563 (1980), the Court analyzed the Ohio statute under the First Amendment and weighed protecting the privacy of the claimant being solicited against the blanket prohibition on the Bevan firm’s right to engage in commercial speech.  The 6th Circuit found that the statute completely barred solicitation, failed the doctrine set forth inCentral Hudson, and that the law firm’s right to engage in free speech outweighed the potential recipient’s privacy interest.

OSHA Impossibility Defense in Workers’ Compensation Safety Violation      

State ex rel. Jackson Tube Service, Inc. v. Industrial Commission, 154 Ohio St.3d 180 (2018), was a case of first impression in Ohio.  An injured worker receiving workers’ compensation may obtain additional compensation by showing the injury resulted from the employer’s violation of a specific safety requirement (VSSR).  In Jackson Tube a heavy flywheel fell on an employee working under it. The Industrial Commission found that the employer violated Ohio Admin. Code § 4123:1-5-15(D) which prohibits workers from working under suspended loads. The Commission based its decision on the employee’s testimony that it was his “understanding” that there was a device that would have allowed removal of the flywheel without placing him in danger. A court later held that the Commission had to consider evidence that no such device existed and it would have been impossible for the employer to comply with the requirement.

Federal decisions under OSHA have allowed an employer to avoid liability for violating a safety regulation if the employer could demonstrate that it was impossible to comply with the regulation and still have the work performed.  This novel defense had not been accepted in Ohio courts or before the Industrial Commission.  A four-to-three Ohio Supreme Court held that the “impossibility defense” to violation of an OSHA standard could be imported into Ohio Workers’ Compensation Law as an affirmative defense to an alleged VSSR where an employer shows: (1) it would have been impossible to comply with the specific safety requirement or that compliance would have precluded performance of the work; and (2) that no alternate means of employee protection existed or were available.

The Chief Justice and two other justices dissented, arguing that the Industrial Commission’s reliance on the employee’s “understanding” alone was sufficient to support the VSSR.  The employer had been given an improper procedural “second bite at the apple” by being allowed to present evidence for the impossibility defense in a Request for Rehearing.

Voluntary Abandonment of Employment

The Ohio Supreme Court overruled precedent in order to strengthen its “voluntary abandonment doctrine.”  InState ex rel. Klein v. Precision Excavating & Grading Co., 155 Ohio St. 3d 78 (2018), the Ohio Supreme Court held:“…(W)hen a workers’ compensation claimant voluntarily removes himself from his former position of employmentfor reasons unrelated to a workplace injury, he is no longer eligible for temporary-total-disability compensation, even if the claimant remains disabled at the time of his separation from employment.”  (Emphasis added.)

Klein had fractured his ribs on November 5, 2014.  His doctor completed papers stating he would not be able to return to work until January 5, 2015.  Prior to the injury, Klein had informed Precision management and coworkers that he was going to move to Florida on or about November 20, 2014.  The Industrial Commission awarded Temporary Total Disability Compensation (TT) for the closed period of November 6 through November 19, 2014, determining that Klein’s employment ended for reasons unrelated to his industrial injury. 

Klein asked the Franklin County Court of Appeals to issue a writ of mandamus finding that the Industrial Commission had abused its discretion by terminating his TT prior to the date when he was medically able to return to work.  The Court of Appeals issued a limited writ, returning the case to the Industrial Commission to determine if Klein remained medically unable to return to his former position of employment as of November 20, 2014.  If he was, then Klein was entitled to further TT.  The Industrial Commission appealed to the Ohio Supreme Court.

To reach its conclusion the Ohio Supreme Court overruled two recent precedents as “wrongly decided,”State ex rel. Reitter Stucco, Inc. v. Indus. Comm., 117 Ohio St.3d 71 (2008), andState ex rel. OmniSource Corp. v. Indus. Comm., 113 Ohio St.3d 303 (2007).  Both cases stood for the proposition that a claimant still medically eligible for TT could not voluntarily abandon employment even if the criteria which normally would constitute voluntary abandonment had been met.  In Reitter, the claimant had been recovering from a compensable back surgery.  He was fired for making disparaging remarks about the company’s president.  OmniSource involved a commercial truck driver who lost his driver’s license due to being convicted of driving while intoxicated.  Obviously unable to drive legally, he was discharged while still on TT.  According to the majority, Reitter and OmniSource had inadvertently created an illogical and unworkable distinction between claimants terminated for misconduct and those who voluntarily retired. 

As a side note, administrative litigation before the Ohio Industrial Commission is notoriously informal.  Klein’s Employer had been meticulous in documenting his intent to move to Florida.  This ultimately resulted in the Employer’s victory.

Fight in Company Parking Lot Not Compensable

Garner, who performed machinery maintenance for Fuyao, pulled into the driveway of the company parking lot ten (10) minutes before the start of his 6:00 a.m. shift.  Jackson, coming from the opposite direction, pulled into the driveway just before Garner.  Jackson’s wife worked for Fuyao but he did not.  The way the respective drivers were operating their vehicles produced a “road rage” incident resulting in the following testimony by Garner: “…He was like, what if I just hit you? I’m like, I definitely would not recommend that.  That’s when he slugged me and knocked me down…I said you are going to jail…”

In Garner v. Ohio Bureau of Workers’ Compensation, et al., 2018 Ohio 3398, Larson’s presumption that an employer’s parking lot is part of the premises was overcome where the motive for the assault had nothing to do with the workplace.  Although arguably Garner was in the course of employment having already arrived at work just before his shift, his injuries did not arise out of employment.  “Arising out of” contemplates a causal connection between the injury and the employment. Fisher v. Mayfield, 49 Ohio St. 3d 275 (1987). “A casual connection is determined by looking at the totality of the facts and circumstances surrounding the accident, including the proximity of the scene of the accident to the place of employment, the degree of control the employer had over the scene of the accident, and the benefit the employer received from the inured employee’s presence at the scene of the accident.”

Garner discussed Foster v. Cleveland Clinic Foundation, 8th Dist. Cuyahoga Nos. 84156, 84169 2004-Ohio-6863, which analyzed fights and assaults in the workplace as historically focusing on two main questions; (1) was the origin of the assault work-related? and (2) was the claimant not the instigator?  The injury is compensable only if the answer to both questions is “yes”. Foster was fatally shot by her ex-husband on her employment premises.  Her current husband’s claim was denied.

No compensation was awarded in Garner.  He was not performing his work duties when he suffered the injury.  The assault did not involve another employee and the dispute was not related to the Claimant’s work duties. The dispute was over an entirely personal matter.  The sole fact that the injuries occurred in the Employer’s parking lot did not mean that the injury was compensable.

Ohio Legislative Update

Clarity in Independent Contractor Test for Motor Carrier Industry

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.

PTSD Coverage for First Responders is Getting Closer

In September 2019 the Ohio Bureau of Workers’ Compensation (BWC) Board of Directors lowered its projected cost estimates of instituting such a policy to $44 million.  Although provisions in the pending bills differ, prior cost estimates had ranged from $98.4 million to $183 million.  The lowered cost estimate resulted from borrowing the actuarial analysis performed by the Washington Department of Labor and Industries.  Prior BWC analysis had assumed that 100% of First Responders would file a PTSD Claim.  The Washington actuarial analysis assumed the correct number would be 38%, a figure the BWC actuaries found “persuasive.” 

There are approximately 80,000 First Responders in Ohio.  BWC assumed expenses of $40,000.00 per claim.  BWC also made assumptions regarding the number of PTSD Claims filed in any given year.  The $44 million resulted from simple multiplication.  It surely is a more palatable figure in persuading the legislature to pass a First Responder PTSD Bill.  On July 22, 2019 Ohio Governor Mike DeWine had signed into law the BWC budget.  Missing from it had been a provision recognizing PTSD for public safety/first responders (police, fire, emergency medical technicians) without a physical injury.  Ohio historically has been a “physical-mental” jurisdiction.  The only recent exception was “psychiatric conditions (which) have arisen from sexual conduct in which the claimant was forced by threat of physical harm to engage or participate.”

Ohio is a one-party state with Republicans controlling the Governor’s Office, House, and Senate.  Yet a budget could not be agreed upon by a June 30, 2019 deadline.  This necessitated a one-month extension with various bills ending up in conference committees.  The House members of the conference committee were strongly supportive of the first responder PTSD coverage, but the Senate conferees were hesitant.  The Senate President promised a separate bill in the next legislative session. 

Police and fire unions were obviously disappointed.  Absent from the debate were the legal and constitutional issues that workers’ compensation practitioners would recognize.  What about non-public safety workers?  An over-the-road truck driver and/or Good Samaritan can just as easily come upon a horrible scene causing PTSD.  Although it is an issue for some future time, Ohio courts may get the opportunity to reconsider restrictive holdings that a physical injurycause (rather than merely accompany) a psychiatric/psychological condition.

“Calfee Corner” - - Calfee Cases before the Ohio Industrial Commission

Claim 18-163810 (“Fight in parking lot”).

On 6/29/18, Injured Worker (IW) was hurt in the parking lot of the facility where he was placed by his staffing company employer. The injury was a blow to the head caused by a punch from a co-worker. Upon investigation and several witness interviews, the following factual circumstances were uncovered:

Earlier that day, IW had been driving a forklift and ran that forklift into a pole, damaging it. IW was cited by the employer for failing to survey his surroundings before backing up the forklift. The employer took him off forklift duty for the remainder of the day and going forward. Subsequently, a female co-worker asked IW why he was upset and he responded to her angrily. The female co-worker reported this behavior to her boyfriend, also an employee at the facility, and the remainder of the shift was filled with angry stares and tension between IW and the two co-workers. At the end of the shift when the workforce gathered at the time clock, another female co-worker asked IW what was wrong, and he responded to the group “Let’s go outside.” Once in the parking lot, the other co-workers entered their vehicles, but IW made a “come on” motion to the male co-workers in their vehicles while still in the parking lot. One of the male co-workers (the aforementioned boyfriend) got out of his vehicle and struck IW with a punch to the face.

The aftermath of the fight was caught on cell phone video, and the operations manager began his investigation of the incident. All workers involved in the incident, including IW, were terminated. Witness statements were gathered.  IW went to the emergency room for treatment for his punch injury and an Ohio workers’ compensation claim was filed with the diagnosis of a “contusion to head.”

The staffing company employer appealed Ohio BWC’s allowance of the claim. At hearing, counsel and the employer’s operations manager presented the evidence and argued that the claim should be disallowed as it did not arise in the course of IW’s employment. Ohio workers’ compensation law authorizes the allowance of a claim for an injury resulting from a workplace fight as long as: (1) the origin of the assault/fight was work-related; and (2) the IW/claimant was not the instigator of the assault/fight. While the origin of the fight may well have been work-related (IW’s anger over forklift incident), and despite IW being the only one actually punched, it was argued that he was the instigator and therefore his claim should be disallowed. The Industrial Commission agreed and disallowed his claim. Thorough investigation with witness statements was crucial to the hearing presentation in establishing that IW was the instigator, and getting his claim denied.

Claim 15-859933 (“Paraplegia diagnosis not medically justified”). 

On 12/3/15 IW, a then 52-year-old experienced nurse’s aide in a facility providing care for the elderly, slipped and fell in the dining room. A week later she had surgery to her right elbow. While hospitalized she developed an infection to the surgically repaired elbow. Still in the hospital, the IW developed a lumbar epidural abscess which also necessitated surgery. The IW had a complicated hospital course and was not released to rehabilitation until some six (6) months after the initial elbow surgery.  Her claim was allowed for “Displaced Fracture Lateral Condyle Right Humerus; Lumbar Epidural Abscess.”

The IW remained physically unable to return to her former position of employment as a nurse’s aide and was restricted to sedentary/office work. She eventually came under the care of Dr. N, a Physical Medicine and Rehabilitation Specialist. Dr. N provided a causal relationship for the additional allowance of her claim for “L3 AIS D Paraplegia.”  The Employer obtained an independent medical examination which concluded the additional condition should not be allowed because: “Paraplegia is defined as paralysis characterized by motor or sensory loss in the lower limbs and trunk…The medical records support that she has good strength…”

In successfully arguing the case before the Industrial Commission, Calfee emphasized the “International Standards for Neurological Classification of Spinal Cord Injury.”  The “L3” was simply the nerve root level that was the source of the alleged Paraplegia. “D” stood for “Motor Incomplete.”  Motor Incomplete status is defined…“with at least half (half or more) of key muscle functions below the single Nerve Root Level having a muscle grade greater than or equal to 3.”  Dr. N’s extensive office notes all showed physical examination muscle function scores of “4” and “5” throughout the IW’s lumbar spine.  The additional allowance was denied.

Claim 14-864539 (“She fooled all the doctors, but not the camera”). 

IW suffered a left foot fracture at work on 12/7/14.  The claim later was additionally allowed for complex regional pain syndrome (CRPS – formerly known as RSD).  IW was paid TT from the DOI without interruption.  Two separate employer IMEs supported on-going TT status as this doctor and that doctor tried this treatment and that treatment (PT, blocks, etc.), all to no apparent avail as the years went by.

The Employer then had IW surveilled.  Surveillance revealed an active IW with no apparent left foot problems at all and an IW ambulating in complete contradiction to her professed clinical picture.  A somewhat indignant IME doctor (who previously found the CRPS condition to be on-going and requiring treatment) issued a supplemental report finding MMI and no need for additional treatment.  All of this led to a Commission order terminating TT, as well as all on-going and future treatment in the claim.

Industrial Commission Update

New Commissioner

Governor Mike DeWine appointed James (“Jim”) Hughes to be the new chairman of the Ohio Industrial Commission effective July 1, 2019. Hughes, of Upper Arlington, Ohio, was a Republican member of the Ohio Senate from 2008 to 2016, as well as a member of the Ohio House from 2000 to 2008.

Minor Rule Changes

Minor changes were made to Ohio Administrative Code Chapter 4121 to the sections dealing with notices, meetings, standards of practice before the Commission, claims procedures, procedures for confidential information, code of ethics and payments to health care providers.

Ohio BWC Update

Substance Abuse Recovery Workplace Safety Program (SUR-WSP)

Launched in October 2018 in three Ohio counties, this program supports employers who hire workers struggling to overcome addiction to opioids and other substances in partnership with the Alcohol, Drug Addiction and Mental Health (ADAMH) boards.

Presumption of Cancer for Fire Fighters

As of July, 2019, the BWC had made decisions in 139 state fund claims. The presumption was met in 98 of those 139 claims, 66 of which were then appealed. Excluding claims that were dismissed, suspended or remain in the appeal process or allowed as a traditional occupational disease claim, 77 claims have been allowed by final administrative order, amounting in more than $2.5 million in medical paid and $679,000 in compensation.

Medical Marijuana

Medical Marijuana has come to Ohio. Effective 9/8/16, HB 523 permits a patient, on the recommendation of a physician, to use medical marijuana to treat a qualifying medical condition. By statute, this should have been effective 9/8/18 but has been delayed due to the multi-jurisdictional authority in the governance of the program through the Department of Commerce, Board of Pharmacy and State Medical Board.  Marijuana is not an approved drug in Ohio for workers’ compensation purposes, however it may impact issues related to the rebuttable presumption of an employee under the influence, the drug free safety program for employers and the procedures of the BWC Drug Formulary.

Additional Ohio BWC Updates

Since our last update, the Ohio Bureau of Workers’ Compensation (BWC) has implemented additional changes affecting Ohio employers.  A summary of some of the more intriguing updates follows:

Motor Vehicle Accidents Not Chargeable – Updated Application In Process

As previously reported, the passage of House Bill 207 states that if a State Fund employer can establish that an employee’s claim is the result of a motor vehicle accident involving a third party in which the employee was not at fault, the cost of that claim will be excluded from the employer’s future premium rating calculations.  This law/policy is effective for accidents occurring on or after July 1, 2017.

The law, as originally written, required that to obtain the claim cost exemption, the third party at-fault driver must have active insurance coverage, or the employer must have active uninsured motorist’s insurance coverage,and the at-fault driver must have been issued a citation as a result of the accident.

Initial experiences with this new procedure revealed that the citation requirement was in many cases an unforeseen stumbling block in gaining BWC approval of the exemption, as issuance of a citation tends to be discretionary, and therefore is not always available.

This unintended consequence was brought to the attention of the Ohio legislature, and an amended law has been passed & signed by the Governor.  This revision removes the requirement for an actual citation, but fault on the part of the third party must still be shown.  The change is intended to be retroactive to the original July 1, 2017 effective date of the law, which will require the BWC to re-adjudicate previously denied applications for recovery.

BWC is currently finalizing their procedures to comply with the revised law.  We urge employers to re-visit any claims involving motor vehicle accidents occurring July 1, 2017 or after, to ensure that if applicable, this potential 100% recovery is obtained.

Failure to meet all the requirements of this new statute, however, does not prevent the BWC from pursuing their historical rights to subrogate against a responsible third party, and provide proportional relief to the employer’s rating experience based on the amount they recover.

Rating Experience Changes / Premium Credits for July 2019 Policy Year

BWC analyses suggest that premiums for individually rated State Fund employers (those who are not in group experience rating programs or involved with PEOs) may not be adequately aligned to their actual claims costs.  As a result, BWC has implemented a number of changes to the factors which govern BWC’s experience rating calculations, and the resulting premiums charged to many Ohio employers.

The most significant of these changes involves introducing a Premium Size Factor to reduce the premiums of non-group experience rated employers who pay in excess of $5,000 in annual premium.

 The reductions, which will be applied automatically to the employer’s premiums, are:

·                15% discount on premiums between $5,000 and $100,000

·                20% discount on premiums between $100,000 and $500,000

·                25% discount on premiums above $500,000

The impact of these changes suggest that long-standing rating program selections should be closely examined to determine if they still provide optimum results, especially for employers with larger premium and/or moderate loss ratios.

For instance, for a larger employer, if traditional group experience rating results in savings of less than ~25%, consideration may be given to the group retrospective rating option, which could provide downstream rebates dwarfing the traditional up-front group rating discounts.

Employers’ third party administrators or other resources should be consulted to determine how their premiums and alternative rating program options may be affected by these proposed changes.

Other changes for the July 2019 policy year include:

·         An experience modifier adjustment factor for individually rated employers

o    Experience modifier adjustment credit of 5% for EMRs 0.90 and lower

o    No adjustment factor for EMRs 0.91 to 1.99

o    Experience modifier adjustment penalty of 5% for EMRs 2.00 and higher

·         Revised group retrospective rating program basic premium factors to compensate for the premium size factor adjustments

·         Reduce the maximum chargeable claims losses for the smallest Ohio employers

July 2018 Policy Year Rates Reduced

The BWC reduced private employer premium rates by an average of 12% for the July 1, 2018 policy year.  BWC estimates this will save private employers $163.5 million during the policy year ending June 30, 2019.

Ohio Workers’ Compensation rates are at their lowest point in over 40 years, with no overall rate increases since 2007.

Employers should consult their third-party administrators or other resources to confirm the impact of these rate changes, as individual manuals’ base rate changes can range from +14% to -36%. 

Additionally, premium rate reductions often are accompanied by similar reductions to expected loss rates, which can result in higher experience modifiers that would at least partially offset base rate reductions.

BWC Wellness Initiative

Through their recently announced “Better You, Better Ohio” program, BWC is taking steps to introduce wellness resources and services to workers who work for small employers (50 or fewer workers).

At present, this program is limited to the following high-risk industries:  agriculture; automotive repair and service; construction; firefighters; health care; manufacturing; police and public safety; public employers; restaurant and food service; transportation and trucking; trash collection; wholesale and retail.

Upon being identified by Ohio’s WC Managed Care Organizations (MCOs), and by agreeing to participate, injured workers can qualify for free services such as:

·                Health and wellness awareness, education and training

·                Health assessments & biometric screenings to better understand their health and well-being

·                A website allowing them to develop health plans & track progress to achieve their health goals

·                A state-of-the art mobile app for creating weekly action plans and getting health tips

·                Digital coaching to help them on their journey to better health.

This program, still in its infancy, strives to extend the BWC’s existing Wellness Grants program, which offers up to $15,000 in refunds to employers (usually larger ones) who implement a comprehensive Wellness program including biometric measurements and coaching to address at risk health behaviors.

A number of Ohio-certified Wellness program developers, including Paramount Preferred Solutions, are available to assist employers to implement Wellness programs which qualify for the BWC Wellness Grant reimbursements.

About the Author

The Ohio BWC Update is authored by Michael Brown, ARM, an Account Executive with Paramount Preferred Solutions, a Third Party Administrator (TPA) recognized nationally for expertise in all aspects of Workers’ Compensation, Group Health, and Disability Management solutions.  Michael has over 38 years’ experience in the Workers’ Compensation and Risk Management business since obtaining his mathematics & statistics degree from Miami University in Oxford, Ohio.

In addition to experience as a claims examiner and hearing representative, Michael has consulted with employers on the development and maintenance of best in class strategies, including evaluating the wide array of risk financing options available to employers.  Michael has also served as a Workers’ Compensation and Employee Benefits Manager for a multi-facility self-insured employer, and is well versed in Integrated Disability Management programs and philosophies.  This experience and his certification as an Associate in Risk Management (ARM) affords him in-depth insight into creative and wide reaching solutions to the most complex Workers’ Compensation challenges.

With his extensive experience in the field of workers’ compensation and other employee benefit matters, Michael consults with employers in a number of ways to allow them to save time and money by reducing the risk and costs of illness and injury.

Please feel free to reach out to Michael at mike.brown@promedica.org, www.linkedin.com/in/michaelbrown5 or (844) 777-5867 ext. 301770.

[1] Please see also May 2018 Ohio Update athttp://www.nwcdn.com/news?whatstate=US-OH.

This update is intended as a supplement to our earlier 2018 update.

In State ex rel. Gallagher Bassett Services, Inc. v. Webster, No. 19-0043 WL 2494609 (W. Va. June 12, 2019), the West Virginia Supreme Court of Appeals held that the West Virginia workers’ compensation statute provides to third-party administrators (TPAs) statutory immunity from claims of workers’ compensation discrimination brought by employees. In granting third-party administrator Gallagher Bassett’s petition for a writ of prohibition and reversing the Circuit Court’s decision to deny the TPA’s motion to dismiss worker’s compensation discrimination and fraud claims brought against it, the Court determined that the TPA enjoyed immunity from the discrimination claim and that the fraud claim was barred by the relevant statute of limitations. Among the more notable parts of the Court’s opinion, however, is a discussion which appears to indicate that the Court may be amenable to relieving TPAs of liability for fraudulent denial of workers’ compensation benefits, a common law cause of action first recognized by the Court in Persinger v. Peabody Coal Co., 196 W. Va. 707, 474 S.E.2d 887 (1996). It appears possible the Court may extend the statutory immunity provided to TPAs by W. Va. Code § 23-2C-21(a) so as to cover fraud claims or alternatively to limit the reach of the Persinger cause of action.

The Persinger doctrine holds that the West Virginia workers’ compensation statute’s exclusive remedy provision does not preclude a civil fraud claim against employers that is separate and distinct from the employee’s original claim for benefits. That is, the Persinger action alleges damages stemming not from the workplace injury, but rather from denial of the employee’s claim based on fraudulent misrepresentation of information by the employer to some other person or body with authority to decide on the fate of the claim. Use of the fraudulent denial claim, however, has not been limited to actions against employers in West Virginia; TPAs have become liable under thePersinger doctrine as well.

For instance, in Barber v. Sedgwick Claims Management Services, Inc., No. CV 3:14-27349, 2016 WL 6211714 (S.D.W. Va. Oct. 24, 2016), plaintiff Jill Barber brought suit against Sedgwick, the TPA for her self-insured employer, Family Dollar, alleging fraudulent denial of benefits. Barber had been bitten by a brown recluse spider in the course of her employment and was initially approved for both wage loss and medical benefits following complications with the wound. However, Sedgwick later denied further treatment for Barber after a physician diagnosed her with an underlying auto-immune disease which was suggested to be responsible for the wound’s failure to heal. Barber alleged Sedgwick’s reviewing physician’s report was fraudulent and brought suit against the TPA for relying on the report in denying her benefits.

In an effort to dispose of Barber’s claims against it, Sedgwick moved for judgment on the pleadings, asserting—among other arguments—that thePersinger fraud claim was barred by W. Va. Code § 23-2C-21(a). That section provides that “[n]o civil action may be brought or maintained by an employee against a private carrier or a third-party administrator, or any employee or agent of a private carrier or third-party administrator, who violates any provision of this chapter or chapter thirty-three of this code.”

The District Court rejected that argument, finding that the Persinger cause of action’s source in common law—rather than Chapter 23 or 33 of the West Virginia State Code—precluded statutory immunity from covering the fraud claim. In denying Sedgwick’s motion and permitting the case to move forward, the Court indicated that TPAs fall within the scope of thePersinger doctrine and that they are not eligible for statutory immunity from the common law fraud claim. That state of affairs may change, however, in light of the West Virginia Supreme Court’s discussion ofPersinger claims in Gallagher Bassett.

Robin Lusk, the respondent in Gallagher Bassett, was employed as a long-haul truck driver by Old Dominion Freight Line, Inc., along with her husband, Kevin Lusk. In 2015, while in California for work, the Lusks drove into Old Dominion’s Los Angeles terminal to begin a haul. A computer system malfunction occurred while the Lusks’ truck was being connected with their new trailers that they were to haul, and Ms. Lusk received serious injuries. Some days later, an Old Dominion manager represented to Ms. Lusk that she and her husband had falsified entries in the Los Angeles terminal’s log book, and that both had been terminated from employment as a result. Upon returning home to West Virginia, the Lusks learned that their health insurance coverage had been terminated, and were informed by a representative of Gallagher Basset—Old Dominion’s third-party claims administrator—that Ms. Lusk’s claim for workers’ compensation benefits had been denied as the TPA had determined that her injury was not work-related.

Lusk protested the decision to deny her claim, and the West Virginia Workers’ Compensation Office of Judges (OOJ) ruled Ms. Lusk’s injury was in fact work-related, determining that her claim was compensable. The OOJ decision was affirmed by the Board of Review.

Following those decisions, Ms. Lusk sued Old Dominion and Gallagher Bassett in Kanawha County Circuit Court, alleging workers’ compensation discrimination and workers’ compensation fraud. Gallagher Bassett moved to dismiss all of Ms. Lusk’s claims against it, asserting that the claims were barred by the two-year statute of limitations and that it was not a proper defendant as it was not Ms. Lusk’s employer. Lusk responded that the statute of limitations had been tolled by the discovery rule, and that nothing in the state workers’ compensation statute precluded the application of the Persinger fraud cause of action to claims administrators. The Circuit Court denied the motion to dismiss, and Gallagher Basset subsequently filed a petition for a writ of prohibition with the West Virginia Supreme Court of Appeals, challenging the denial of its motion.

In granting the writ and ordering the Circuit Court to enter an order dismissing Ms. Lusk’s claims against Gallagher Bassett, the West Virginia Supreme Court first addressed questions of Gallagher Bassett’s statutory immunity to the discrimination claim pursuant to § 23-2C-21(a) of the state workers’ compensation statute. Again, that section provides that employees may not maintain any claims against TPAs growing out of Chapter 23 or Chapter 33 of the state code. The Court quickly noted that workers’ compensation discrimination is a statutory cause of action arising under Chapter 23 of the code, and held that the plain language of § 23-2C-21(a) necessitated the dismissal of the claim. Turning to Lusk’s fraud claim, the Court found that the discovery rule could not save the claim, rendering it barred by the two-year statute of limitations, again requiring its dismissal.

Perhaps just as relevant as the Court’s holding that TPAs are immune from discrimination claims, however, was its discussion of workers’ compensation fraud claims, shedding light on the possible direction the Court may take with thePersinger doctrine in future decisions. Prior to finding that Lusk’s fraud claim against Gallagher Bassett was barred by the statute of limitations, the Court entertained the possibility that the claim may have been improperly asserted against the TPA even in the absence of the statute of limitations.

First, the Court noted during its consideration of statutory immunity from the discrimination claim that the scope of the immunity supplied to TPAs by § 23-2C-21 might reasonably be interpreted as extending so far as to coverPersinger fraud claims. Subsection (c) of that section provides that attorney’s fees and costs must be awarded to a workers’ compensation claimant when the claimant’s self-insured employer or its TPA issues an “unreasonable” denial of benefits, which occurs when the employer or TPA is unable to demonstrate that it possessed sufficient probative evidence supporting the denial of the claim. The Court suggested conduct sufficient to constitute aPersinger claim—that is, knowingly and intentionally fraudulently misrepresenting facts in opposition to a claim for benefits—may constitute an “unreasonable” denial for purposes of subsection (c). If that were the case, subsection (a)’s prohibition on causes of action growing out of “any provision” of Chapter 23 would be invoked, shielding TPAs from the fraudulent denial claim. The Court ultimately declined to determine whether the scope of the immunity might be so broad, but by virtue of the discussion’s inclusion in the opinion, it would not be overly surprising to find the question answered in a future decision.

Separately, in discussing the scope of the Persinger cause of action itself, the Court pointed out that thePersinger opinion made repeated reference to civil claims against “an employer.” Nowhere in that opinion did thePersinger court describe a cause of action against self-insured employers’ TPAs for fraudulent denial of benefits. Although the doctrine has been interpreted by West Virginia courts to allow for TPA liability, a plain reading of thePersinger opinion does suggest that the claim for fraudulent denial of benefits was meant to be made against the partymaking the false representations, not the party relying on those representations. Again, the Court determined it did not need to make a determination on this point inGallagher Bassett, but the presence of the discussion seems to hint at an evolving understanding ofPersinger.

In sum, the current state of the law in West Virginia as it relates to liability for alleged fraudulent denial of benefits allows for claims of workers’ compensation discriminationand fraud against self-insured employers, while TPAs are liable solely for fraud. This state of affairs appears to be premised on the idea of TPAs and their employees acting as agents or servants of the self-insured employer so as to render the TPA liable as “an employer” under Persinger. In light of Gallagher Bassett, however, it does not seem outside the realm of possibility that the West Virginia Supreme Court may soon clarify the scope of the doctrine and relieve TPAs of liability for fraud.

Article by Dill Battle

If you have questions or need more information, please call or e-mail Dill Battle at 304.340.3823 ordbattle@spilmanlaw.com

H. Dill Battle III, Esq.

Spilman Thomas & Battle, PLLC
300 Kanawha Boulevard, East
Charleston, WV 25301
304.340.3823 - office
304.340.3801 - fax
dbattle@spilmanlaw.com

As we celebrate 100 years of Alabama Workers’ Compensation in 2019, the Alabama Workers' Comp Blawg celebrates its 12th year.  We would like to thank all of our readers who have helped to makehttp://www.alabamaworkerscompblawg.com a nationally recognized and award winning news source for Alabama workers' compensation! 

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.

The Following are summaries of 2019 West Virginia cases dealing with the issues of pre-existing conditions and mental health exposure claims.

1.         Comorbidities and the Dreaded Pre-Existing Condition

 In Bowles v. WV Office of the Insurance Commissioner and Pine Ridge Coal Co., LLC, No. 18-0797, 2019 WL4165292 (W. Va. Sept. 3, 2019), the Supreme Court of Appeals of West Virginia found that a claimant had not established that his carpal tunnel syndrome was work related and affirmed an order denying compensation. The claimant, Mr. Bowles, worked as a coal miner for many years and was eventually diagnosed with carpal tunnel syndrome which he alleged was the result of repetitive wrist motions required by his job.Id. at *1. An independent medical evaluation revealed that Mr. Bowles suffered from two non-occupational risk factors, diabetes mellitus and obesity, which could cause carpal tunnel.Id. Additionally, the independent examiner opined that Mr. Bowles' work activities were not of the type to cause carpal tunnel and emphasized the fact that Bowels had quit working in 2012 and was not diagnosed with carpal tunnel until three years later.Id. at *2. Ultimately, Bowles' pre-existing conditions were a significant factor in denying his request for workers' compensation benefits. The Court found the only opinion as to causation was the IME doctor, who opined that the carpal tunnel syndrome was not causally related to Mr. Bowles's occupational activities. Instead, the IME doctor found Mr. Bowles has two important and significant nonoccupational risk factors for the development of carpal tunnel syndrome, diabetes mellitus and obesity. The fact that Mr. Bowles ceased work in 2012 and experienced increased symptoms for three to four years before filing for benefits is consistent with the doctor's opinion.Id., at *2.

 In contrast, the court in Arcelormittal Weirton, LLC v. Prentice, No. 18-0723, 2019 WL 1828005 (W. Va. Apr. 25, 2019), held that a claim for carpal tunnel and ulnar neuropathy was compensable despite the fact that the claimant suffered from pre-existing conditions, including diabetes and obesity. In that case, Mr. Prentice, the claimant, alleged that he developed carpal tunnel as a result of carrying tools while working as a crane repairman.Id. at *1.

An EMG performed on July 27, 2016, showed bilateral ulnar sensory and motor neuropathies, severe on the right and moderate to severe on the left. Mr. Prentice reported to his treating physician on August 26, 2016, tingling in both of his ring and small fingers. The treating doctor reviewed the EMG and noted that carpal tunnel syndrome was not diagnosed. On examination, Mr. Prentice had positive Tinel's and Phalen's signs over the median nerves of the wrists and positive Tinel's sign over the ulnar nerves in the elbows. The treating doctor noted Prentice's history of rheumatoid arthritis, bilateral ulnar nerve neuropathy at the elbow, and an exam suggestive of carpal tunnel syndrome. He recommended a repeat EMG. The treating physician diagnosed rheumatoid arthritis, bilateral post-traumatic osteoarthritis, bilateral ulnar neuropathy, and bilateral carpal tunnel syndrome. A repeat EMG was performed on September 2, 2016, and showed marked bilateral ulnar neuropathy.Id., at *1. Prentice's doctor performed carpal tunnel release surgery on October 5, 2016, and his claim was rejected thereafter on October 25, 2016.Id. In a subsequent record review, a different doctor noted Prentice's diabetes and obesity and opined that there was no evidence of carpal tunnel.Id. at *2. Despite the record review findings and the pre-existing conditions, the court found no error in awarding Prentice compensation.Id. at *2-3. The court stated that it was acceptable to find Prentice's practicing physician more persuasive than a doctor performing a record review. Prentice also presented evidence that his job required repetitive heavy manual lifting, which pursuant to West Virginia Code of State Rules § 85-20-41.5, has been shown to contribute to the development of carpal tunnel syndrome.Id. at *2.

These two cases document the Court's view the causation determination for CTS is fact-specific. When evaluating allegations of CTS, it is imperative to investigate the preexisting medical conditions of each claimant and determine the impact on the claimant's medical condition. Additionally, a precise examination of the job duties and functions of a claimant is also important to analyze the compensability under the parameters of West Virginia Code of State Rules § 85-20-41.5.

2.         Mental Health Exposure Claims

In D'Amour v. Combined Ins Co. of Am. AT, No. 18-0677, 2019 WL 2404586 (W. Va. May 30, 2019), the West Virginia Supreme Court held that adjustment disorder with anxious mood and post-concussion syndrome were compensable claims, in part overturning a decision by the Board of Review. The claimant, D'Amour, sought to add compensable conditions to his claims including Post-concussion syndrome and post-traumatic brain injury.Id. at *1. D'Amour was a door-to-door salesman and was injured when he knocked on a door and was attacked by four dogs.Id. D'Amour reported a bite on the wrist and head injury after he fell back and struck the sidewalk, but an initial CT scan revealed no abnormalities.Id.

D'Amour stated that his head was not bothering him at the emergency room, but he was perplexed when it took him three hours to drive home despite the fact that he lives only thirty minutes away from the hospital.Id. D'Amour developed headaches and light sensitivity and reported problems with short term memory, focusing, and concentration.Id. Subsequent brain scans continued to show no abnormalities and D'Amour was diagnosed with post-concussive syndrome.Id. at *1-*2. Several months later, D'Amour's symptoms worsened and he began suffering from depression as a result of his inability to work.Id. at *2. D'Amour was eventually diagnosed with major depression and adjustment disorder with depressed mood.Id. at *2-3. In denying D'Amour's request to add post-concussion syndrome to his compensable claims, the Board of Review relied upon one physician who believed that D'Amour was not a valid reporter of his symptoms even though four other physicians had concluded that it was the proper diagnosis. Id. at *3-4. The West Virginia Supreme Court decided that such a finding was clearly wrong based upon the evidentiary record and determined that post-concussion syndrome and concussion were compensable.Id. at *4.

In Riley v. All. Coal, LLC, No. 18-0586, 2019 WL 2406701 (W. Va. May 30, 2019), a coal miner appealed a Board of Review decision denying the addition of post-traumatic stress disorder to his claim. Mr. Riley was injured on the job when rocks fell from the veiling and struck his helmeted head. Id. at *1. The claim was initially held compensable for concussion and bilateral upper extremity numbness.Id. Subsequently, Riley reported problems with behavior, sleep, memory, and anxiety and was found to have met the criteria for PTSD.Id. Riley was evaluated by three doctors and his PTSD was confirmed by two. The third doctor determined that Riley had reached maximum medical improvement, but deferred an opinion on Riley's psychological stated because he was not qualified in that area.Id. at *3. The West Virginia Supreme Court held that there was sufficient evidence linking Riley's PTSD to his compensable injury. However, the employer did not get an opportunity to evaluate Riley with their own physician so the court remanded the case for further evidence. Id. at *3-4.

By: Joe Unger and Dill Battle

What happens when an employee is treating for one injury and during the course of treatment he or she develops a brand new injury? There are precious few cases on this set of facts, and the latest decision in Robinson v. United Airlines is extremely important to practitioners in analyzing how to approach derivative injury cases.  Prudence Higbee, partner with Capehart Scatchard, won the case for United Airlines at trial and on appeal.

Priscilla Robinson, a flight attendant, suffered a work-related wrist fracture, requiring her to perform physical therapy.  She claimed that on the first day of PT, namely June 15, 2016, the physical therapist had her lift a bar approximately to eye level multiple times.  She said she did not feel well and experienced shortness of breath and heart palpitations while in therapy. Petitioner admitted that she did not complain of shoulder pain at therapy, but when she got home she said she felt shoulder pain.  She saw her family doctor the next day, who ordered an MRI on June 22, 2016, which showed a rotator cuff tear.  Petitioner eventually filed a claim petition contending that physical therapy for her wrist caused or aggravated the rotator cuff tear in her shoulder.

Respondent produced testimony from the physical therapist.  She contradicted the critical element of petitioner’s testimony about exercising with a bar.  She brought her contemporaneous notes to court, which made clear that all petitioner did on June 15, 2016 was stretching exercises. She said that she makes entries in notes covering all activities, and no bar movement occurred. The notes also made clear that petitioner never complained of shoulder pain, although she did report heart palpitations and a feeling of weight on her chest.  The therapist offered to call 9-1-1 and take petitioner’s vital signs, but petitioner declined.  Petitioner did return two days later saying she had shoulder pain.  The therapist modified activities, and petitioner did not complain of any pain that day.

Petitioner returned on June 20, 2016 and had no complaints at all.  She did several exercises that day, including a push-pull cart, which simulated pushing a beverage cart for 200 feet.  She did other exercises with her right hand only.

Petitioner relied on the testimony of Dr. Craig Rosen, a surgeon, who saw petitioner on January 11, 2018.  He recommended arthroscopic surgery to repair the torn rotator cuff.  He opined that it was hard to say whether the tear was old or new but he did not feel it was a “longstanding chronic tear.”  He felt it was caused by a lifting movement of a bar or doing some kind of swimming motion that petitioner mentioned.  Dr. Rosen was emphatic that petitioner reported lifting some type of bar and going through a swimming type of motion on day one.  He said that this movement could have caused a tear.

Respondent produced Dr. Kenneth Levitsky, also an orthopedic surgeon, who said that the most likely mechanism of injury for a rotator cuff tear would be an extension or abduction stretch-type injury with the arm overhead.  He said a very forceful twisting injury could also cause such a tear.  He examined the list of exercises that the therapist recorded.  Dr. Levitsky said none of these exercises would cause a rotator cuff tear because they were not forceful enough and did not fit the classic mechanism of injury.  He said, “There’s no exercise here that demonstrates or would cause a significant twisting force on the shoulder with the arm in an unusual position.”  He concluded that the tear was likely preexisting.  He had no evidence of petitioner having a prior rotator cuff tear, but he did note that petitioner had some degenerative changes that preexisted her PT.

The Judge of Compensation considered all the evidence and found in favor of United Airlines.  The Judge held that petitioner did not carry her burden of proof that her rotator cuff tear was caused or exacerbated by her physical therapy for the wrist. He credited the daily activity logs maintained by the physical therapist.  The Judge also noted that petitioner did not tell her own family doctor that she had suffered a traumatic accident on June 15, 2016.  Further, the Judge found Dr. Levitsky’s testimony to be more persuasive than that of Dr. Rosen.

On appeal petitioner contended that the Judge of Compensation should have shifted the burden of proof to respondent to show that petitioner’s accident was caused by a prior, personal condition.  Counsel for petitioner argued that respondent’s defense was that this incident was idiopathic, and that the burden shifts on idiopathic claims to the defense.  The Court said, “We disagree. In our view, petitioner confuses those cases in which an employee’s idiopathic condition causes a work accident or event that results in injury, with a work accident or event that aggravates a pre-existing condition or injury.”

The Appellate Division found that this was not a case in which respondent was contending that petitioner’s rotator cuff tear was preexisting and personal.  All respondent was saying was that petitioner never proved a work accident.  The Court said, “… the dispute focused on whether petitioner’s shoulder injury was occasioned or aggravated by her therapy, or whether it represented the progression of a pre-existing injury.  Stated differently, the dispute was whether any event had occurred at work and caused or aggravated petitioner’s injury.  Consequently, the burden of proof did not shift to the employer and the JOC did not err by finding petitioner did not sustain her burden.”

In affirming the denial of the petitioner’s claim for the shoulder, the Court made an important distinction.  When an employer is aware of a prior medical condition and believes that a new injury derives entirely from a personal condition, this triggers the idiopathic defense.  In such cases, it is the employer’s burden to prove the condition is from personal causes. On the other hand, when a worker is arguing that he or she suffered a work incident but there is no evidence of any preexisting condition, the burden of proof remains on the petitioner to establish that a work injury occurred.  The problem petitioner had in this case is that her doctor felt that the mechanism of injury was raising a bar to eye level; but petitioner could not show that she performed such a maneuver on the day of the injury.

This case can be found at Robinson v. United Airlines, A-5917-17T2 (App. Div. September 18, 2019).   The winning tactic in this case for United Airlines was bringing in the physical therapist to rebut the testimony of petitioner as to the mechanism of alleged injury.  That testimony, more than any other factor, led to victory for the employer.

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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. 

There are a large number of petitions for permanent partial disability benefits filed each year in New Jersey for scars and serious lacerations.  It is important for practitioners to understand that injuries due to scars are subject to completely different proofs from all other physical injury claims in New Jersey. 

The main difference between a scar case and every other physical injury case is that there is no requirement for a claimant to prove restriction of bodily function.  Even if the scar has absolutely no impact on the function of one’s hand, arm or body part, the petitioner can receive an award.  In fact, it is uncommon that a scar injury has an impact on bodily function.  The operative test is that a scar injury case must be substantially disfiguring to receive an award. What is or is not substantially disfiguring is in the eye of the beholder.  Certainly if one looks at the injury and no scar is visible at all, that injury would not meet the test of substantial disfigurement, and no award would be made. Yet all other kinds of injuries in New Jersey require proof by objective evidence of a restriction of the function of the body or its member organs.

Given that the test is essentially how disfiguring the scar looks, these kinds of cases may not even need an evaluation by a physician, although the practice statewide seems to favor getting IMEs.  In many instances, it is more helpful to ask the injured worker to come to court so that the lawyers, and sometimes the Judge of Compensation, can view the scar if it is on the face, hands or arms.  When the location of the scar is more private, or the claimant is uncomfortable having it viewed in person, a current photograph can be just as helpful or a description by a doctor in a medical report can suffice.

When it comes to viewing a scar and determining whether it is disfiguring, a Judge of Compensation, claim adjuster or a lawyer is equally qualified to make the same determination as a physician on whether the scar looks substantially disfiguring.  One does not need a medical degree to answer the following:  Is it a raised scar? Is it uneven or bumpy?  Is it discolored? Does the skin appear to be keloidal in nature? These are observations that anyone can make in assessing whether a scar is substantially disfiguring.  In fact, this practitioner has found that many doctors who do IMEs on scar injury cases mistakenly focus on assessing functional loss because they do not realize that in scar cases functional loss is not required under N.J.S.A. 34:15-36. 

Because scars take a long time to heal and because collagen breaks down slowly at the site of the wound, the scar may fade significantly over a long period time.  For this reason, it is not wise in serious scar injury cases for respondents to rush to get an IME soon after the injury.  Often scars improve markedly one year or more after the initial injury.   It is often startling to see how different the injury site looks at the time of the work incident versus how it looks one or two years later.

Practitioners often debate whether a scar should be compensated based on where it is located on the body or whether the injury is more psychological in nature and therefore should be compensated as a partial total injury.  For instance, should a very unsightly scar on one’s hand be compensated in terms of the hand (one percent equals 2.45 weeks) or should it be compensated under partial total (one percent equals six weeks)?  The answer is that this it depends on whether the petitioner is having psychiatric problems in relation to the appearance of the scar.  An IME with a psychiatrist would be necessary to make the argument that the injury should be compensated in whole or in part under partial total with more weeks.  The defense, in this instance, would need an IME with its own psychiatrist.

The best advice for employers in handling serious scar cases is not to try to settle the cases early on and to make sure that whenever possible, the defense counsel or court adjuster has an opportunity to view the scar at or near the time of settlement.  In a significant percentage of cases, the IME is really unnecessary because, as noted above, the test is simply whether the scar appears to be disfiguring.

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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. 

By: Tracey Jones and Melissa Woodard

There are two categories of workers’ compensation claims: injury by accident and occupational disease claims.  Occupational diseases are contracted over time based on the nature of the employee’s job.  Some of the most common examples are hearing loss, respiratory diseases from alleged exposure to harmful chemicals or dust, and carpal tunnel syndrome.

North Carolina has two types of occupational diseases: those enumerated, or specifically listed, in N.C.G.S. § 97-53 and those that fall into the catch-all provision of that statute.  The plaintiff must prove different criteria than when he or she alleges an injury by accident.  If an employee alleges an enumerated occupational disease, he must prove exposure to the harmful agent and causation.  Occupational diseases that fall under § 97-53(13), the catch-all provision, require proof of an additional element, increased risk.  The plaintiff must prove that the nature of his job put him at a risk greater than the general public of contracting the alleged occupational disease.  Briggs v. Debbie’s Staffing, Inc., 812 S.E.2d 706 (2018).

Occupational diseases also differ from injury by accident claims in their filing requirements.  In order to confer jurisdiction upon the Industrial Commission over an injury by accident claim, the plaintiff must file a Form 18 within two years of the date of injury or the last payment of medical bills, whichever is later.  For an occupational disease claim, however, the plaintiff has two years to file from the first date of disability or from the date a medical provider has provided an opinion causally linking the claimant’s disease and occupational exposure, whichever is later. N.C.G.S. § 97-58.  Frequently, this means the plaintiff will have long since left his or her employment with the insured employer and possibly retired altogether.

Another interesting distinction between injury by accident and occupational disease claims is found in N.C.G.S. § 97-57, which describes the employer and carrier liable for the claim.  The statute states the employer and carrier on the risk, or responsible for the claim, is the one where the employee was last injuriously exposed to the hazards of the occupational disease.  The Court has determined that injurious exposure, however slight, is enough to shift the liability to another carrier.  This issue creates a complexity to occupational disease claims that does not generally exist in injury by accident claims.  There are often multiple employers and usually many insurance carriers brought into occupational disease claims as defendants because it is difficult to prove where the last injurious exposure may have occurred.  As the result of the last injurious exposure standard being so low, often times the last employer and carrier in time ends up being liable despite evidence to the contrary.

Practice Tip: When dealing with an occupational disease claim, be sure to retain counsel as soon as possible and especially if discovery is served, because discovery in these cases can be very complicated and will require a detailed analysis regarding what is relevant and what should actually be produced.  Only in very rare cases would it be in the interest of the employer or carrier to accept an occupational disease claim due to the burden of proof on the plaintiff and the last injurious exposure defense outlined in from N.C.G.S. § 97-57.  The best practice is to allow defense counsel to take the lead on investigating the claim, in order to evaluate the strength of the last injurious exposure defense as well as answering discovery from the plaintiff.

On September 6, 2019, the Alabama Court of Civil Appeals released its opinion inEx parte Warrior Met Coal, Inc.  In Warrior, the employee continued to work for employer when he filed a complaint for hearing loss.  The employer moved for summary judgment because the employee was still working for them under the same noise conditions.  The argument being that the employee could not establish a date of last exposure which, in Alabama, is considered the date of injury for cumulative exposure claims.  The employer also argued that the employee could not establish a date of maximum medical improvement “MMI” since he continued to be exposed to the same noise conditions.  The trial court denied the employer’s motion.  The employer then petitioned the Alabama Court of Civil Appeals for a Writ of Mandamus directing the trial court to grant the summary judgment motion.   

The Court of Appeals denied the employer’s petition.  The court noted that nothing in the Act precluded employees from pursuing hearing loss claims simply because they would continue to be exposed.  The Court noted that date of last exposure did not mean the last time the employee would ever be exposed with that employer.  Rather, it means the most recent in time or latest.  To rule otherwise would mean the employee would have to wait until he/she would never be exposed again in order to pursue any benefits including medical.

Concerning the MMI issue, the Court noted that this only had to do with whether or not there was any further medical care or treatment that could reasonably be anticipated to lessen the extent of current disability.  It has nothing to do with whether or not the employee’s condition could worsen in the future.

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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.