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.
Contact information for NWCDN members is also located on the state specific links in the event you have additional questions or your company is seeking a workers’ compensation lawyer in your state.
2019 Kansas Legislature: There were no substantive Kansas work comp legislative changes in 2019.
Constitutionality of Statute Requiring Use of AMA Guidelines 6th Ed. –Johnson case pending before the Kansas Supreme Court: As of August 1, 2019, the Kansas Supreme Court is considering an appeal from a decision by the Kansas Court of Appeals which issued a broad constitutional rejection of Kansas’ use of the AMA Guides to the Evaluation of Permanent Impairment 6th Edition to determine permanent partial functional impairment in Kansas work comp cases.
In Johnson v. U.S. Food Serv., 56 Kan. App. 2d 232, 427 P.3rd 996 (2018), the Kansas Court of Appeals ruled across the board striking down all 2013 Kansas act amendments which substituted the use of the AMA Guides 6th Ed. for the AMA Guides 4th Ed. to both scheduled and general body disabilities. The Court’s ruling broadly applies to all injured workers and all body part ratings. In colorful literary prose, theJohnson Court focused in on the question of whether the 2013 legislative substitution of the 6th Ed. for the 4th Ed. finally so tipped the scales that the Act’s workers compensation legislative remedy is no longer an adequate substitute for the loss of the injured employee’s original common law tort remedy. The Court held that the use of the 6th Ed. over the 4th Ed. so drastically cut the remedy and monetary recovery of Kansas’ injured workers, that there is no longer an adequate quid pro quo for injured workers suffering a permanent impairment of function for their work injury.
Approaching the issue from a historical perspective, the Court noted that multiple pro-employer legislative revisions to the Kansas Act over the years has resulted in injured workers seeing a gradual erosion of the fair exchange between rights granted under the Act verses the recovery rights lost under common law, equivalent to “death by a thousand paper cuts” for the permanently disabled worker in Kansas.
Note that Kansas never adopted the AMA Guides 5th Ed., going directly from use of the 4th Ed. to the required use of the 6th Ed. under the 2013 legislative paper cut. Thus, the ultimate outcome of this issue will likely be the binary choice between whether the law mandates use of the 4th Ed. or the 6th Ed. of the AMA Guides.
The Johnson decision by the Kansas Court of Appeals was timely appealed to the Kansas Supreme Court and on February 28, 2019 the Supreme Court accepted the Petition for Review of the Court of Appeals decision. As of August of 2019, the Court is towards the end of the briefing process and it is likely oral arguments will be scheduled for some time in late 2019 or early 2020. It is anticipated that a decision by the Kansas Supreme Court will be issued by spring 2020.
During the pendency of this appeal, most parties to active ongoing litigated KS work comp cases are procuring both AMA Guides 4th Ed. and 6th Ed. impairment rating opinions, not knowing which Edition will apply after the Supreme Court decides the issue. Employers, carriers and TPAs should consult with defense counsel when considering settling any Kansas work comp claim, particularly regarding what rating opinions would be needed to reliably accomplish a claim settlement before a Kansas settlement judge.
2019 Kansas Schedule of Medical Fees. The updated 2019 Kansas Medical Fee Schedule effective on and after March 29, 2019 and applicable to Kansas work comp claims can be found on the Kansas Division of Workers Compensation web site at the following link:
2019 Rates Update. The maximum weekly indemnity benefit rate was increased to $666.00, effective 7/1/2019 through 6/30/2020, based upon annual indexing to the state average weekly wage of $888.29. The minimum weekly benefit rate for fatalities for the same period, pursuant to K.S.A. 44-510b, is increased to $444.00. Medical mileage reimbursement rate for the same period increased to $.58 cents per mile.
By: Bruce Hamilton and Elizabeth Ligon
The North Carolina Court of Appeals recently released two decisions that impact the state’s exclusive remedy doctrine. Under N.C. Gen. Stat. § 97-10.1, the North Carolina Workers’ Compensation Act provides an exclusive remedy for unintentional work-related injuries. This provision affords North Carolina employers “limited” liability and allows employers to more accurately calculate their exposures, unlike in the civil liability arena. Injured workers, on the other hand, have certain guaranteed benefits for compensable work injuries, and claims are handled much more efficiently through the North Carolina Industrial Commission.
Historically, there have been few exceptions to the exclusive remedy doctrine. The most notable exception was outlined inWoodson v. Rowland, 329 N.C. 330, 407 S.E.2d 222 (1991), which permitted employees to pursue civil actions in cases where the employer intentionally engaged in misconduct knowing it was substantially certain to cause serious injury or death to an employee, and an employee was injured or killed by that misconduct.
In Seguro-Suarez v. Key Risk Insurance Co., ___ N.C. App. ___, 819 S.E.2d 741 (2018), the plaintiff fell from a significant height and suffered a traumatic brain injury. The claim was accepted as compensable by Key Risk. However, after a period of hospitalization and recovery, Key Risk denied the treating physician’s request for additional medical treatment, a neurological evaluation, and an occupational home therapy evaluation. Key Risk also obtained surveillance of the plaintiff and provided heavily edited footage (from nine hours over several months to 45 minutes) to the plaintiff’s neuropsychologist, which caused him to change his opinion and opine that the plaintiff was exaggerating his symptoms and did not need further treatment.
After several adverse court decisions, Key Risk obtained an independent medical evaluation, which confirmed the validity of the plaintiff’s current condition and ongoing disability. Key Risk then obtained additional surveillance, and Key Risk’s investigator showed local authorities edited footage and convinced them to bring criminal charges against the plaintiff for obtaining workers’ compensation benefits under false pretenses. The plaintiff was arrested, jailed, and ultimately indicted on numerous fraud charges. These charges were ultimately dismissed, and the plaintiff filed a civil suit against Key Risk, its Senior Vice President, two Vice Presidents, the handling adjuster, and the investigator. The Court of Appeals upheld the trial court’s denial of the defendants’ motion to dismiss the plaintiff’s malicious prosecution, abuse of process, and unfair and deceptive trade practices claims, finding that these claims were only “tangentially” associated with his workers’ compensation claim. The Court noted concern that, in the extreme, an insurer could “hire an assassin to kill an insured employee” and try to hide under the protection of the exclusivity provision.
In the second case, Jackson v. The Timken Co., ___ N.C. App. ___, ___ S.E.2d ___ (2019), the plaintiff suffered a stroke at work and was seen by the staff nurse, a licensed RN. The staff nurse took the plaintiff’s blood pressure, asked him to complete a drug screen authorization form numerous times, obtained hair samples for a drug screen test, and sent him home with instructions to follow up with his primary care provider. Shortly thereafter, the plaintiff collapsed in the parking lot of his primary care provider’s office, and was rushed to the hospital. He suffered permanent injuries.
The plaintiff initially filed a workers’ compensation claim with the Industrial Commission. He also filed a civil action in Superior Court while waiting for the Industrial Commission to issue a decision, alleging he was negligently diagnosed and treated by the staff nurse. The Superior Court asserted subject matter jurisdiction over the case, and denied the defendants’ motion to dismiss for lack of subject matter jurisdiction. The Deputy Commissioner at the Industrial Commission subsequently denied the plaintiff’s claims on the ground that the plaintiff did not suffer a compensable injury by accident. The plaintiff did not appeal the denial of his workers’ compensation claim.
The Court of Appeals upheld the Superior Court’s decision to assert subject matter jurisdiction, contradicting the North Carolina Supreme Court’s prior decision holding that the Act “provides the exclusive remedy when an employee is injured in the course of his employment by the ordinary negligence of co-employees.” Abernathy v. Consolidated Freightways Corp. of Delaware, 321 N.C. 236, 362 S.E.2d 559 (1987). The Court attempted to distinguish Abernathy on the basis that, in this case, the plaintiff was alleging that his co-worker had breached a special duty for medical professionals when she rendered care, and the plaintiff did not suffer a compensable injury by accident.
Taken together, these two cases appear to carve out additional exceptions to the exclusive remedy doctrine, and could potentially expose employers to additional civil liability.Segura-Suarez allowed a civil action when certain tort claims were only “tangentially” associated with a workers’ compensation claims, although it remains to be seen whether the decision will be limited to the case’s particularly egregious facts. Jackson not only appears to have created an exception in cases involving potential medical malpractice committed by an employer’s on-site medical staff, but could also be read to suggest a plaintiff may be able to successfully pursue a civil action if his claim is deemed not compensable under the Workers’ Compensation Act. The attorneys at Teague Campbell will continue to monitor the courts’ handling of the exclusive remedy doctrine. Please reach out to a member of ourworkers’ compensation team with any questions.
On July 17, 2019, the Minnesota Supreme Court issued its decision in Smith v. Carver County, A19-0199 (Minn. 2019). Smith claimed he sustained PTSD from numerous traumatic incidents he experienced while working as a deputy sheriff. Carver County denied liability. PTSD is a compensable workers’ compensation condition in Minnesota if it meets the specific criteria set forth Minn. Stat. § 176.011. For an employee to recover workers’ compensation benefits for PTSD, the employee must prove a psychiatrist or psychologist has diagnosed him or her with PTSD and the professional based the employee’s diagnosis on the latest version of the DSM (Diagnostic and Statistical Manual of Mental Disorders by the American Psychiatric Association).
At trial, Smith presented medical evidence of his PTSD diagnosis via report and deposition transcript of a psychiatrist (Dr. Keller). The County countered with an expert report and deposition transcript of their own, Dr. Arbisi (psychologist), who opined Smith did not have PTSD but did diagnose Smith with somatic symptom disorder and adjustment disorder (not compensable diagnoses).
The judge adopted the opinion of Dr. Arbisi, finding it persuasive and noting Dr. Keller was unpersuasive. The WCCA reversed, holding that the trial judge must confirm the expert’s reports are in line with the precise wording of the DSM. Effectively, the WCCA’s decision would require judges to “lay each expert’s report on the desk next to the DSM-5 and assess whether the medical professional’s opinion confirmed with the precise wording of the DSM-5 as the compensation judge interprets those words.”
The Minnesota Supreme Court disagreed with the WCCA, noting nothing in the PTSD statute “even remotely suggests that such an exercise is required.” Because Dr. Arbisi’s opinion had adequate factual foundation, the trial judge’s choice of experts is to be affirmed. Smith’s claim for PTSD related workers’ compensation benefits was denied.
https://mn.gov/law-library-stat/archive/supct/2019/OPA190199-071919.pdf
Summary prepared by Parker T. Olson
The Minnesota Legislature approved statutory changes to implement a modernized technology system, which will replace the aging system which has been in place since 1992. These changes are promised to bring a simplified and expediated interaction with the workers’ compensation system. The effective date is August 2020. These changes also clarify when first reports of injury and subsequent reports must be filed with the commissioner, adding that a first report of injury must be filed when a dispute is initiated, when a vocational rehabilitation form is filed and when permanent partial disability is ascertainable.
Minn. Stat. § 176.312 is amended to extend the time from 10 to 20 days for a party to petition for reassignment of a compensation judge. This change went into effect July 1, 2019.
Also, there are new SAWW, TTD maximum rates effective for October 2019: the statewide average weekly wage (SAWW) effective October 1, 2019, is $1,112.00, the maximum temporary total disability rate (TTD) will change to $1,134.24 and the minimum permanent total disability benefit rate (PTD) will be changed to $723.00.
Summary prepared by Whitney Teel
Written By: Scott Farwell and Latasia Fields
In the world of insurance, it is inevitable that policies will be cancelled. As you can imagine, there is nothing worse than receiving a claim on a policy well after the effective date of cancellation. What should be a simple, clear cut denial of liability can quickly spiral into an expensive defense effort resulting in payment on the cancelled claim. If this has never happened to you you’re probably wondering how something like this is even possible. The answer is simple failure to comply with statutory requirements for effective cancellation.
There are several statutes addressing the cancellation of insurance policies, and the controlling statute is determined by the type of policy being cancelled. For example, cancellation of a workers’ compensation insurance policy is governed by N.C.G.S. § 58-36-105, but cancellation of a homeowners’ insurance policy is governed by N.C.G.S. § 58-41-15. Regardless of the type of policy being cancelled, the North Carolina Supreme Court has long established the principle that failure to comply with the statutory requirements for cancelling an insurance policy renders the cancellation ineffective.Pearson v. Nationwide Mut. Ins. Co., 325 N.C. 246, 382 S.E.2d 745 (1989). Compliance with statutory requirements may seem straightforward but there are a few common pitfalls that prevent effective cancellation and create liability where there should be none. Some of these include failure to provide proof of mailing such as a green card from certified mail, actual notice and/or receipt of notice by the insured.
Recently, the North Carolina Court of Appeals addressed the requirement of actual notice and/or receipt of notice by the insured for effective cancellation of insurance coverage. InHa v. Nationwide Gen. Ins. Co., Nationwide issued Plaintiffs a homeowner’s insurance policy prior to an inspection of the home. During the inspection of the home, several hazards were discovered which led to Nationwide’s decision to cancel the policy. In keeping with company procedures, a letter was sent to the Plaintiffs outlining the hazards noted during the inspection and the steps necessary for the Plaintiffs to remedy these issues and reinstate their homeowner’s insurance policy. Plaintiffs took no steps to remedy the hazards and the policy was not reinstated. Nationwide refunded Plaintiffs’ pro-rata share of the premium paid and ceased deducting premium payment from the Plaintiffs’ bank account. Approximately six weeks after the cancellation, Plaintiffs’ home was destroyed by a fire. Plaintiffs filed a claim, which was denied by Nationwide who argued Plaintiffs’ home was not insured as the policy had been cancelled. The trial court agreed with Nationwide and dismissed Plaintiffs’ claims.
Ultimately, the Court of Appeals reversed the trial court decision, finding that N.C.G.S. § 58-41-15 required actual delivery to and/or receipt of the notice of cancellation by the insured. The Court reasoned that as Nationwide only provided “proof of mailing” which the Plaintiffs alleged they did not receive, Nationwide failed to provide Plaintiffs sufficient notice of cancellation in compliance with the statute. According to the Court, N.C.G.S. § 58-41-15(c) required Nationwide to furnish notice of cancellation which meant something more than proof of mailing.
Risk Handling Tips: This case creates in the insurer an obligation to not only send notice of cancellation to the insured, but also to prove the insured actually received that notice if the insurer intends to deny coverage on the grounds of cancellation of the policy. Here are some tips on how to ensure that your company is effectively cancelling policies. First, know the statute that governs cancellation of the type of policy you are seeking to cancel. Second, review your mailing procedures to determine how your cancellation notices are mailed. If you are using certified mail, be sure there is a system in place to receive and maintain the return receipts. If you are sending notices electronically, develop a system to maintain those communications as well. Although these additional precautions won’t guarantee success in litigation over denied coverage, you will be in a far better position having this information. Feel free to reach out to ourinsurance coverage team with any questions.
SAVE THE DATE
By
Kevin L. Connors, Esquire
To All Workers’ Compensation Practitioners and Clients:
The National Workers’ Compensation Defense Network is hosting its 2019 Fall Conference in Chicago, Illinois on September 26, 2019.
The NWCDN event is open to all NWCDN member firms and their invited guests.
The NWCDN never charges its guests for attendance at its Conferences.
The all-day Conference will be conducted on September 26, 2019 at the InterContinental Chicago Magnificent Mile in Chicago, Illinois located at 505 North Michigan Avenue, Chicago, Illinois.
Attaching a copy of the NWCDN’s Save The Date for its 2019 Conference, hotel reservations can be made by calling the hotel and mentioning the NWCDN Conference at 800-628-2112.
Registration for the event can be coordinated by contacting Carol Wright at Capehart Scatchard atcwright@capehart.com.
As always, NWCDN Conferences are intended to be educational, constructive, illuminating, and just plain good fun.
Also keep in mind that the NWCDN will be hosting a Cocktail Party on Wednesday, September 25, 2019.
The NWCDN would like to thank you for attending our Conference.
The NWCDN is a network of “Many Firms, One Purpose”, with all of our firms dedicated to defending workers’ compensation claims, for the protection of their clients, employers, insurers, and third-party administrators.
Join us in Chicago to meet our members and member firms!
ConnorsO’Dell LLC
Trust us, we just get it! It is trust well spent!
We defend Employers, Self-Insureds, Insurance Carriers, and Third Party Administrators in Workers’ Compensation matters throughout Pennsylvania. We have over 100 years of cumulative experience defending our clients against compensation-related liabilities, with no attorney in our firm having less than ten (10) years of specialized experience, empowering our Workers’ Compensation practice group attorneys to be more than mere claim denials, enabling us to create the factual and legal leverage to expeditiously resolve claims, in the course of limiting/reducing/extinguishing our clients’ liabilities under the Pennsylvania Workers’ Compensation Act.
Every member of our Workers’ Compensation practice group is AV rated. Our partnership with the NWCDN magnifies the lens for which our professional expertise imperiously demands that we always be dynamic and exacting advocates for our clients, navigating the frustrating and form-intensive minefield pervasive throughout Pennsylvania Workers’ Compensation practice and procedure.
In an important reported decision, and one of first impression at the Appellate level, the Court in Collas v. Raritan River Garage, A-3103-17T4, (App. Div. July 19, 2019), held that the Judge of Compensation was correct in basing the counsel fee of petitioner on petitioner’s life expectancy, not limited to 450 weeks, as has been the practice in the New Jersey Division.
For many decades, judges of compensation have awarded counsel fees in dependency cases on a 450-week period, even though dependent spouses receive benefits until their death, unless they should remarry. Counsel in Collas argued that basing the fee on the life expectancy of the dependent spouse makes more sense. The Judge of Compensation reviewed two places in the statute where 450 weeks is referenced. First N.J.S.A. 34:15-12(b) provides in total disability claims that compensation shall be for a period of 450 weeks, at which time compensation payments shall cease unless the employee shall have submitted to such physical or educational rehabilitation as may have been ordered by the rehabilitation commission, and can show that because of such disability it is impossible for the employee to obtain wages or earnings equal to those earned at the time of the accident.” Otherwise the statute makes clear that total disability benefits continue beyond 450 weeks.
The other statute that discusses 450 weeks appears in N.J.S.A. 34:15-13 pertaining to dependency claims. That section states that “This compensation shall be paid, in the case of the surviving spouse, during the entire period of survivorship or until such surviving spouse shall remarry and, in the case of other dependents, during 450 weeks …If a surviving spouse remarries before the total compensation is paid, he or she is entitled to a payment of 100 times the amount of the weekly compensation immediately preceding the remarriage, whichever is lesser. The statute makes clear that a dependent child may receive dependency benefits throughout attendance at a full-time college or university but no later than age 23. The so-called marriage penalty does not apply to the surviving spouse of a deceased member of the state police or member of a fire or police department or force who died in the line of duty.
Raritan River Garage argued that it has always been the accepted practice in the Division to base the counsel fee of the prevailing dependent on a 450-week period. Further, Garage argued that it is speculation to pay a counsel fee on an amount of years beyond 450 weeks because the spouse may remarry or die. The Judge of Compensation disagreed and asked the following rhetorical question: “Is a previously legislatively mandated 450-week period less speculative in terms of calculating [Collas’] true award than the life expectancy tables published in the court rules?”
The Appellate Division agreed that using life expectancy tables is no more speculative than using a 450-week period. The Court also observed that there is no link in Section 13 governing dependency awards to the section of the statute governing counsel fees in N.J.S.A. 34:15-64. That section authorizes the Judge of Compensation to award a counsel fee to a successful petitioner’s attorney “not exceeding twenty percent of the judgment.”
The Appellate Division also noted that the 450-week period does not distinguish whether a surviving spouse is 20 years old or 60 years old. In this case, Ms. Collas had a life expectancy of 12.7 years. The Court did not hold that the life expectancy calculation must always be used. “We determine only that the use of the table method was a reasonable option utilized by the judge. We recognize that using the table method will, in many cases, increase the potential size of a fee award. We thus caution against a reflexive application of a twenty-percent award without full analysis.”
Attorney Rick Rubenstein, who argued this case successfully in the Appellate Division, was interviewed following this decision. He addressed two issues that many practitioners are now considering in light of the Collas decision. One is whether acceleration of one-third payments when there is a very large third party recovery in a dependency case should also be based on the life expectancy of the dependent spouse. Mr. Rubenstein said that he believes that the logic of Collas would extend to this situation. He noted that payments of one third to a dependent where there is a large third party recovery are not technically payments of compensation but rather contribution to counsel fees. If the counsel fee to a dependent spouse is based on the life expectancy of the dependent, the argument would be that the return of the counsel fee to the dependent spouse would be analyzed in the same manner.
The other issue which Mr. Rubenstein addressed is whether the rule in Collas may be applied by future courts to total disability claims. He said it is possible but less likely than the decision in Collas. “Courts will likely see a distinction between the marriage penalty in Section 13, and the re-employment offset in Section 12, both on practical grounds and public policy grounds. There is no public policy promoting remarriage, or marriage, for that matter. There IS a public policy favoring rehabilitation and re-employment. That public policy is reflected in the base period of 450 weeks absent from the dependency statute, and also reflected in the “contingent” nature of 12(b) benefits. 12(b) is contingent upon no active income, qualification upon examination, and lack of rehabilitation which is an ‘aim’ of the Act.”
This decision is certainly a significant one for practitioners and will require employers, carriers and third party administrators to amend the traditional calculation of reserves for counsel fees in dependency cases.
--------------------------------
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.
Dear Client:
So, which “I” do you pick, do you check the IME box, or do you check the IRE box?
Starting over, if you are dealing with an open workers’ compensation claim, in which liability has been accepted by the Employer/Insurer/Administrator, with either the issuance of a Notice of Compensation Payable (“NCP”), or a Notice of Temporary Compensation Payable (“NTCP”), that has “converted” to a liability-accepting NCP, under which an obligation now exists for continuous payment of workers’ compensation benefits in the form of temporary total disability benefits, required to be paid to compensate for wage loss-producing disability, and medical compensation benefits, subject to reasonableness, necessity, and causal relationship to the accepted work injury benefits will have to be paid, absent one of the following claim-resolving events occurring:
(1) The Claimant dies, compensation benefits terminate by operation of both death and loss;
(2) The Claimant voluntarily returns to work in their pre-injury capacities, and there is no continuing wage loss post-return to work, such that the Claimant’s compensation benefits are suspended;
(3) The Claimant returns to work in a modified-duty capacity, with some reduction in return-to-work wages, such that the Claimant’s compensation benefits are modified, and temporary partial disability benefits are paid, subject to the 500 week limitation;
(4) The Claimant executes a Supplemental Agreement, perfecting either a termination, suspension, or modification of the Claimant’s workers’ compensation benefits;
(5) The Claimant signs a Final Receipt (almost never used), under which the Claimant agrees that all compensation benefits have been paid;
(6) The Claimant is deported by virtue of not being able to prove legal immigration status;
(7) The claim is settled under a Compromise and Release Agreement, perfecting some type of compromise of the indemnity and medical compensation benefits liability associated with the claim; and,
(8) The Claimant’s compensation benefits are terminated, modified, or suspended by order of a workers’ compensation judge, with the employer/insurer carrying the burden of proving the entitlement to a change in the Claimant’s benefit entitlement status.
Present tense, workers’ compensation benefits are now being paid on the claim, and if you are interested, as an Employer, or Administrator, or as a claims representative, to resolve the claim in avoidance of lifetime liabilities that might otherwise be imposed by the Pennsylvania Workers’ Compensation Act, 77 P.S. 1, et seq., what defensive resources are at your disposal?
Given the blatant humanitarian nature of workers’ compensation statutes, effectuating the “grand bargain”, where the employee has statutorily sacrificed the right to sue for personal injury damages, requiring proof of negligence and/or fault, in exchange for the guarantee of compensation schedules, as to wage loss benefits, and medical compensation benefits, etc., the Pennsylvania Workers’ Compensation Act, as in almost all other states in the United States, provides Employers and their Insurers and Administrators with limited resources to challenge ongoing liability for workers’ compensation benefits, typically limiting the resources to the following challenges:
· A claim denial, requiring the injured employee to prove compensability and disability;
· The utilization review process, to challenge the reasonableness and necessity of ongoing medical treatment for the alleged work injury;
· The independent medical examination, allowing the Employer/Insurer to request an IME of the Claimant, allowable every six months under Section 314 of the Act, typically focused on determining an injured employee’s recovery from the work injury, be it a full recovery, permitting a challenge to the ongoing entitlement to any workers’ compensation benefits being paid on the claimant, or to a recovery sufficient enough to allow an injured employee to return to work in some restricted-duty capacity, obviously subject to restricted-duty work either being available from the time of injury Employer, or alternative restricted-duty work being available, either through a Labor Market Survey (“LMS”) and/or Earning Power Assessment (“EPA”);
· A job offer in some capacity, offered by the time of injury Employer, after medical evidence establishes that the injured employee is capable of performing some level of work, be it pre-injury work, and/or restricted-duty work, typically regarded as modified duty work, or light-duty work;
· The unilateral right to suspend or modify compensation benefits, if the injured employee returns to work, with the time of injury Employer, or alternatively, the injured employee finds work on their own, such that the injured employee is again earning income/wages, whether at pre-injury wage rates, resulting in a suspension of compensation benefits, although medical remains open, or at wages less than pre-injury, resulting in a modification of the wage loss benefits, dependent upon wages actually earned, with compensation benefits converting to temporary partial disability benefits, subject to a 500 week cap, in the event of conversion of temporary total disability benefits to temporary partial disability benefits;
· The Impairment Rating Evaluation, utilizing AMA Guides to determine the whole person impairment rating, limited to the accepted work injury, of an injured employee who has received 104 weeks of temporary total disability benefits, often resulting in litigation over the “conversion” from temporary total to temporary partial disability benefits.
Historically, Pennsylvania has always been a form-intensive, wage-loss disability state, with the IRE concept first being introduced into the statute as a result of statutory reforms in 1996, initially establishing an impairment rating threshold, for conversion purposes, of any impairment less than 50% of the whole person, with that threshold reduced, in 2018, to a statutory threshold of 35%.
We know, what the heck?
So, when do you employ the IME versus the IRE?
Obviously, the IME is your initial resource in defending the claim, as it can be requested, either in defense of a claim or claimant-filed petition, and/or it can be requested in an accepted claim, where benefits are being paid, with IMEs being allowed every 6 months, for purposes of determining an injured employee’s ability to return to work, and recovery from the accepted work injury.
In the above context, the IME almost always occurs before the IRE, and the claim may likely be the beneficiary of multiple IMEs, before the IRE question even arises.
If there has been no change in benefit status, meaning that there is no IME evidence of a full recovery, to include no IME medical evidence of a claimant being able to return to available work, whether actual or fictional, excusing the linguistic license, as fictional is either the, LMS, or EPA, still requiring acceptance and adoption by mostly claimant-oriented Workers’ Compensation Judges, for purposes of suspending or modifying compensation benefits, then the IRE is a useful resource for determining if the Employer/Insurer/Administrator has a basis for seeking conversion of the injured employee’s compensation benefits from total to partial disability, potentially resulting in the partial disability benefits being capped at the 500 week statutory limit.
However, there are some claims where you, as claim-bending claims representative, have an IME of full recovery, or it establishes the basis for either actual or fictional work, and the issue of challenging the claimant’s compensation benefit status involves some form of defense petition, either a termination, predicated on a full recovery medical opinion, or a suspension or modification, based upon medical evidence of the ability to perform less than pre-injury work, and you have paid 104 weeks of temporary total disability benefits, potentially entitling you to request an IRE with the focused purpose of converting total disability to partial disability, then you have to ask yourself, “do I feel lucky, well do you?”
Before you throw all your claims muscle against the IRE box the question arises as to how Workers’ Compensation Judges balance an IME medical opinion of a full recovery against an IRE medical opinion establishing some percentage of impairment for an accepted work-related injury?
Since there are very few IREs that come back with a 0% impairment rating determination, essentially because it is extremely difficult to secure a 0% impairment rating in reliance upon the AMA Guides to impairment rating, absent an injured employee being in better physical shape and health than they were pre-injury, and that in 30 years of defending workers’ compensation claims, we have never witnessed such an occurrence, then the potential exists that the IRE establishing any impairment percentage, can potentially undermine a Workers’ Compensation Judge’s assessment as to the merits of medical evidence, through the IME medical report and IME’s doctor’s deposition that the injured employee has, in fact, fully recovered from the accepted work injury, the obvious footnote being that Termination Petitions, are rarely granted by Workers’ Compensation Judges, as the Termination Petition burden of proof is regarded as perhaps the highest burden of proof required for any petition under the Pennsylvania Workers’ Compensation Act, begging the question as to the next of requesting the IRE?
Prove us wrong?
So, back to that “do you feel lucky?” question the truth is, that it is probably a 100% guarantee that an IRE establishing any percentage of impairment while a defense petition is being litigated on an IME medical basis, will result in a denial and dismissal of the Employer-filed petition, as Workers’ Compensation Judges view the examination conflict, between an IME and an IRE, as a claim-defeating imbalance.
Keep in mind, given the humanitarian nature of workers’ compensation statutes, as well as general claimant-inflected orientation unanimously maintained by Workers’ Compensation Judges they, however noble or not, are looking for ways to find weaknesses in Employer-filed petitions, begging the question of why make it easy for them?
Perhaps the better recommendation, is to continue aggressively pursuing the termination, or other Employer-filed petition, while filing your Request for Designation of an IRE Physician, for purposes of being bound by the IRE physician designation requesting, for potential future conversion of the claimant’s compensation benefits from total to partial disability.
And the only reason why we did not say that at the outset of this missive, is that we really love commas, as well as conclusions.
ConnorsO’Dell LLC
Trust us, we just get it! It is trust well spent!
We defend Employers, Self-Insureds, Insurance Carriers, and Third Party Administrators in Workers’ Compensation matters throughout Pennsylvania. We have over 100 years of cumulative experience defending our clients against compensation-related liabilities, with no attorney in our firm having less than ten (10) years of specialized experience, empowering our Workers’ Compensation practice group attorneys to be more than mere claim denials, enabling us to create the factual and legal leverage to expeditiously resolve claims, in the course of limiting/reducing/extinguishing our clients’ liabilities under the Pennsylvania Workers’ Compensation Act.
Every member of our Workers’ Compensation practice group is AV rated. Our partnership with the NWCDN magnifies the lens for which our professional expertise imperiously demands that we always be dynamic and exacting advocates for our clients, navigating the frustrating and form-intensive minefield pervasive throughout Pennsylvania Workers’ Compensation practice and procedure.
So you are an Employer, by definition under most workers’ compensation statutes a “master”, with your employees, likewise being designated as “servants”, to fuel the pecuniary fiefdom that you propagate.
Yes, in business, for profit, with associated overhead for business expenses, to include payroll, benefits, yadda, yadda.
Of course, for your protection, or for that of whatever corporation you have designed and constructed, you have procured the necessary insurance coverages, to include coverage for general liability purposes, potentially meaning whatever, obviously subject to contractual interpretations, as well as, of course, workers’ compensation insurance coverage, in order that your company is not personally or corporately liable for injuries sustained by employees in the course and scope of their employment, in the course of which they are expected to be performing associated tasks commensurate with your business or your corporation.
You have to ask yourself is every allegedly employee-sustained injury covered by workers’ compensation statutes, and, by extension, workers’ compensation insurance coverage, requiring a threshold analysis as to whether the alleged injury has occurred within the four corners of what we consider the course and scope of employment.
And the answer is, sometimes yes, as well as sometimes no, beyond obviously working with your broker, your insurance carrier, and either in-house or extraneous counsel.
Let’s begin with some basics.
Workers’ compensation statutes have been in place since a horrific accident in New York in 1911, the Triangle Shirtwaist Fire, resulting in 146 workers dying when trapped in a burning factory, with Pennsylvania’s workers’ compensation statute being enacted in 1915, and then evolving over several structural and procedural reforms, the last of which were in the 1990s, reforming indemnity (wage loss) and medical compensation benefits.
Having survived reforms, both positive and negative for Employers and insurance carriers, the purpose of workers’ compensation statutes is obviously humanitarian, as well as to act both as a safety net for injured employees, and to serve as a “grand bargain”, for businesses, Employers, and by extension, insurance carriers, as the exchange is that employees surrender their right to sue for civil or personal injury damages, with Employers being given the certainty of scheduled losses for both wage loss and medical benefits.
So when does the analysis of “course and scope of employment” begin?
Well, typically, at the first report of injury, as the Employer, and its insurer gather information regarding the claim, with the following considerations being necessary to implicate the occurrence of a work-related injury, resulting in wage loss disabling injuries, to include:
· An employer/employee relationship;
· A work-related injury occurring within the course and scope of employment;
· That the work-related injury was not caused by non-work-related factors;
· That the work-related injury has resulted in the Claimant being disabled from being able to perform either pre-injury work, or available modified-duty work;
· That the Claimant is not impeachable on other grounds, to include fraud or dishonesty;
· That the Claimant has not refused or failed to return to work; and,
· That the Claimant is not fully recovered from the alleged work injury.
Sounds simple enough.
If it were that simple, no one would be reading this.
Case in point, being one recently defended by our firm, involving an employee showing up for work early, routinely doing so until one day when the employee claimed an injury, while not actually performing any work for the Employer, and not even being scheduled to work at that time.
From the Claimant perspective, the argument is, well, I was at work, so it must be work-related. If that were all that there was to it, with the self-insured or insured, somebody might be writing that employee a check, and paying medical bills.
It not only does not work like that, it is not supposed to work like that, and it should not work like that.
It should require an injury occurring while an employee is actually performing work or services for the Employer that causes or contributes to a physical, psychological, or occupational injury disabling the employee from being able to continue performing that work or service, at which point, logically, there should be mechanisms and procedures to protect both employee and Employer from the potential liability imposed.
Merely being present at a work location does not mean that you are actually working, and should not mean that you are, therefore, entitled to compensation for an accident resulting in injury.
The caveat to that storyline is that there might well be other liabilities that the Employer is sensitive to incurring, particularly potential liability for personal injury damages, not subject to a schedule, or to any dollar limitation, although obviously requiring evidence of negligence, fault, and cause.
So if the employee is injured when not scheduled to work, is not actually performing any work, is not scheduled to be paid when allegedly injured, does the employee have a right to workers’ compensation benefits, and/or is the Employer liable under comp law?
Well, it depends upon what the meaning of “work” is!
In our view, popular or not, although legally sound, is that, no, the employee is not working, and that the injury is, therefore, not compensable under workers’ compensation law, with there being zero guarantee that the allegedly injured employee will accept the logic of our analysis, particularly when counseled by representation vested in the contingent fee recovery that necessarily requires the employee to pursue and recover compensation benefits. Absent other considerations, we would recommend a vigorous defense calculated on denying and dismissing the injury claim.
Concern about liabilities not subject to a schedule or statute might actually result in Employers considering acceptance of an otherwise non-work related injury, in avoidance of potential personal injury liability.
We get it, that makes business sense, as hard as it is to swallow such a bitter pill.
Anyone actually following this?
The point being that the mere fact that someone is an employee, that you are an Employer, and that your employee is claiming injury, does not, in and of itself, mean that the alleged injury is either work-related, and/or has occurred within the course and scope of employment.
Seems logical, although logic is not always the predicate for making decisions regarding claim disposition and resolution.
And if looking for the easy answer, it is not within reach.
And so what do we do?
Well, we serve, we protect, we defend, and we seek out and expose claim-defying facts to insulate your company, your business, your commercial purpose from liability.
Trust us; we completely understand how important business continuity and risk management is to a successful company, corporation, place of employment, as well as the practical exercise in the power of work, and experience.
We do this with grace, dignity, respect, and the utmost professionalism.
And, no less importantly, we do it because it needs doing!
So if in need of defense counsel in Pennsylvania, you know who to call!
ConnorsO’Dell LLC
Trust us, we just get it! It is trust well spent!
We defend Employers, Self-Insureds, Insurance Carriers, and Third Party Administrators in Workers’ Compensation matters throughout Pennsylvania. We have over 100 years of cumulative experience defending our clients against compensation-related liabilities, with no attorney in our firm having less than ten (10) years of specialized experience, empowering our Workers’ Compensation practice group attorneys to be more than mere claim denials, enabling us to create the factual and legal leverage to expeditiously resolve claims, in the course of limiting/reducing/extinguishing our clients’ liabilities under the Pennsylvania Workers’ Compensation Act.
Every member of our Workers’ Compensation practice group is AV rated. Our partnership with the NWCDN magnifies the lens for which our professional expertise imperiously demands that we always be dynamic and exacting advocates for our clients, navigating the frustrating and form-intensive minefield pervasive throughout Pennsylvania Workers’ Compensation practice and procedure.