State News

Reconstruction of Wages is an issue in many New Jersey workers’ compensation matters.  In a case handled by Capehart Scatchard and successfully argued by Keith Nagy, Esq., the Appellate Division stressed that petitioner has to prove permanent impairment of full-time working capacity arising from a work injury before wages must be reconstructed. The case is Lawson v. New Jersey Sports and Exposition Authority, A-4058-17T1 (June 26, 2019).

Petitioner, Ms. Lawson, had two jobs in 2009: one for the NJSEA as a stadium usher earning about $14 per hour and the other for Wal-Mart in a full-time position.  She broke her femur at work on the part-time job with the NJSEA I 2009 and had metal rods inserted into her leg during surgery.  She worked very few hours for NJSEA, so her wage was only $103.36 per week giving rise to a rate of $72.35 per week for permanency purposes.  Because petitioner had a significant injury consisting of a femur fracture and other leg injuries, the parties ultimately agreed that the disability was thirty three and one third percent.  Where the parties disagreed was on whether to do wage reconstruction.  That issue was the one that was tried fully.

Without wage reconstruction, the one third award amounted to $14,469.  With wage reconstruction, the one third award would have amounted to $72,300 because the $14 per hour wage would be reconstructed on a 40-hour per week basis to $560 with a rate of $392.  So reconstruction in this case really mattered:  $14,469 versus $72,200.  The difference was $57,531.

Petitioner testified at trial that after her accident on August 14, 2009, she took medical leave from Wal-Mart until April 2010.  When she returned to Wal-Mart, she did so with medical restrictions limiting her to part-time work.  Petitioner refused the company’s offer of part-time work and was let go.  She later reapplied to Wal-Mart for a full-time position but the company did not rehire her.  After she recovered from her surgery, she was able to return to her part-time job as a stadium usher for the NJSEA.

Petitioner collected unemployment from July 2010 to December 2012, certifying that she was ready, willing and able to work.  At the time petitioner testified at trial, she said that she could not do stocking of shelves and so was unable to get a job in other large stores.  She also testified that she felt she could work full time in a store but only if she did not have to climb ladders. At the time of her testimony, she was working part-time at a supermarket.  She admitted to doing a lot of physical work at home, mowing the lawn, cutting wood with a small electric chainsaw, walking a mile and swimming.

Two experts testified in the case on the issue of reconstruction of wages.  Dr. Tiger for petitioner said that petitioner could not do full-time work as a consequence of her injury at NJSEA.  However, he did not know that she was climbing up and down stairs as a stadium usher, and he did not know that she was swimming, walking a mile and doing some strenuous home activities.

Dr. Mercurio for respondent testified that petitioner had minimal residual disability from her injuries.  He felt that she could work full duty without restrictions.  He noted that petitioner had a second surgery in 2014 to remove hardware from her leg and observed that petitioner told physicians that she was “better than she was before.”  When Dr. Tiger examined, the second surgery had not yet taken place, so he really could not comment on this issue.

The Judge of Compensation found Dr. Mercurio to be the more credible medical witness.  The Judge noted that Dr. Tiger was not aware of several key facts in the case that Dr. Mercurio had been aware of.  The Judge stated that “petitioner was a very sturdy woman with a high level of physical strength and endurance and energy.”  This conclusion was based in part on the many home activities petitioner engaged in.  The Judge cited to the leading case on reconstruction of wages, Katsoris v. South Jersey Publishing Company, commenting that petitioner failed to prove that “she lacked potential for full-time employment under the Katsoris decision.”

Petitioner appealed to the Appellate Division and argued that she had not been able to return to full-time employment, which was proof in and of itself that her wages should be reconstructed. The Appellate Division disagreed.  The Court said, “petitioner did not prove that her injuries from the 2009 accident diminished her capacity to perform full-time work.”  The Appellate Division credited the Judge of Compensation in making appropriate findings in the case.

This is a helpful decision to practitioners because it shows that it is not enough to prove wage reconstruction simply by stating that one has not returned to full-time work.  Physical capacity of the worker both in and outside work must be considered.  The Judge in this case found that the petitioner could in fact do full-time work based on the physical activities that she engaged in at home, and respondent’s expert made the point that she had no restrictions against doing full duty work.

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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:  Alfred Vitarelli, Esq., Shareholder, Stark & Stark

Yes, it’s me again with yet another nightmare-inducing minefield to trap the unwary practitioner. Well, perhaps that’s an extreme analogy. But since we are dealing with Department of Defense-based health coverage, I believe a military-themed introduction is a necessity. Ok, I’ve got it: think of these liens as submarines, lurking underwater, undetectable unless the destroyer above uses sonar to locate it. Hmmm…I think I’ll take a break and order up “The Hunt for Red October,” or that Burt Lancaster/Clark Gable classic, “Run Silent, Run Deep.” Ok Al, enough with the movies, get down to business…..”one ping only.” Sorry, just had to get a line from a movie in here. Sorry if it makes no sense. Watch one of the above movies!

Ok, why do I say a proactive approach is needed? Well, for one, many Petitioners are covered by VA health insurance or Tricare. Tricare, you say? Yes. Tricare is a Department of Defense health benefit plan for uniformed service members, retirees and their families. They are established under CHAMPUS, the Civilian Health and Medical Program of the Uniformed Services. Both VA health coverage and Tricare are secondary payers with respect to workers’ compensation treatment and both have rights of subrogation under federal law. The primary source of the right of recovery is found in the Federal Medical Care Recovery Act, 42 U.S.C 2651. However, both the VA and Tricare have additional statutory and Code provisions addressing recovery procedures, which will come up while researching these lien issues.

Both the Veterans Administration and Tricare have a right of recovery of any amounts paid for ineligible treatment. For purposes of this article, ineligible treatment is treatment provided for a work-related injury. Simply put, both entities have statutory rights to recover the cost of treatment provided for a work-related injury or condition to a covered beneficiary. Keep in mind, however, that while the VA covers veterans, Tricare covers service members, retirees and their families, so Tricare’s right to recovery of course extends to all such covered persons. This places an additional responsibility on the practitioner, which I’ll discuss later.

The VA collection rules are found in 38 CFR 17.106. It states in part:

“(a)(1) VA has the right to recover or collect reasonable charges from a third-party payer for a nonservice-connected disability in or through any VA facility to a veteran who is also a beneficiary under the third-party payer’s plan.” Later, this section defines a third-party payer as “…an entity, other than the person who received the medical care or services at issue…responsible for the payment of medical expenses on behalf of a person through insurance, agreement or contract.” A listing of third-party payers includes: “(F) workers’ compensation program or plan sponsor, underwriter, carrier or self-insurer.” Pretty comprehensive, no?

Tricare’s collection rules are found in 32 CFR 199.12. The General statement (a) states:

“This section deals with the right of the United States to recover from third-parties the costs of medical care furnished to or paid on behalf of TRICARE beneficiaries. These third-parties may be individuals or entities that are liable for tort damages to the injured TRICARE beneficiary or a liability insurance carrier covering the individual or entity. These third-parties may also include other entities who are primarily responsible to pay for the medical care provided to the injured.”

Please note the emphasis on reimbursements from third parties. This requires the respondent to also be actively involved in the handling of such liens, at least in my opinion.

The recovery provisions under the rules for both the VA and Tricare are very similar. Each allows suit to be filed in federal court against a third-party payer within six years of the last day of the provision of the medical care or services for which recovery or collection is sought. However, they are much too extensive to include them here. I therefore recommend they be read in full, as they also refer to other statutory and rule provisions which will also impact the handling of WC matters involving VA/Tricare payments. By way of example, I’ll just point to one:

VA/Tricare “reasonable charges,” determined in accordance with federal law and regulation, “shall be” judicially noticed. See: 44 U.S.C. 1507. The government is not required to litigate reasonableness of administrative fixed rates. Billing rates are not subject to challenge for unreasonableness or arbitrariness. There are many more which may impact any case at a given time, so when dealing with these liens, do the research!

Now it’s time for some practical ideas for handling claims involving the VA/Tricare. As I noted earlier, many people are covered by the VA or Tricare. For the petitioner’s attorney this will require asking a potential client at the first interview if he or she is covered by either program. In my prior article in this blog on Medicaid/NJ Family Care I pointed out that even people working for employers which provide excellent health care are covered by those programs due to the cost of the employee’s share of premiums, co-payments, etc. The same situation exists with Tricare. Just the other day I interviewed a woman working for a company with good employer-provided health care. However, she was covered by Tricare, since her husband was retired from the Navy.

Another issue I really need to address is whether there are requirements in these recovery Acts or Codes placing a direct responsibility on an attorney to place the VA/Tricare on notice of a WC claim filed by a beneficiary where some treatment has been provided by one of these programs. While I am unaware of any such written requirement, keep in mind that the beneficiary (your client) does have a duty to cooperate in recovery efforts. Further, the attorney has a duty to properly represent the client. So, my position is yes, notice should be given even if no inquiry from either program has been sent to the attorney or client.

I believe respondents need to be pro-active here. I previously quoted provisions of the VA and Tricare recovery Codes. Both clearly state recovery is against a third party payer, and define a third party payer as including workers compensation programs and carriers. In addition, I need to cite a further VA Code provision:

38 C.F.R. 17.106 (c): VA’s right to recover or collect is exclusive. The only way for a third party payer to satisfy its obligation under this section is to pay the VA facility or other authorized representative of the United States. Payment by a third party payer to the beneficiary does not satisfy the third-party’s obligation under this section. (Emphasis added.)

This section, referring to an obligation on the part of the third party payer, emphasizes the need for the respondent to be pro-active, in my opinion. On its face, this section prohibits a settlement whereby the respondent pays petitioner a sum of money to satisfy a VA/Tricare lien. Its import, however, emphasizes the respondent’s role in satisfying a lien. Respondents therefore need to act quickly in determining if a claimant is covered by VA/Tricare as early as possible following receipt of a First Report of Injury. In claims where the petition is the first notice of claim, respondent’s counsel should immediately determine this information.

In closing, I’ll first provide two websites to visit when faced with payments by the VA/Tricare. For the VA I found the VA’s Office of General Counsel’s website quite helpful. This is www.va.gov.ocg/collections.asp. For Tricare I suggest visiting their website at www.tricare.mil and go to Forms/Claims/ThirdPartyLiability.

I’d also like to state that of the various liens discussed in my articles, those from the VA and Tricare, seem to be less understood than others. It is hoped this article will alert practitioners to them. All parties must recognize the importance of identifying and addressing payments made by one of these Department of Defense health care programs. The statutes and rules are extensive and complex but do provide guidance in navigating the shoals of DoD liens. There, I closed with another naval reference!!

(Editor’s Note:  Many thanks to Alfred Vitarelli, Esq., a frequent contributor to this blog, for an incredibly helpful explanation on how to deal with VA and Tristar liens.  This is an area of law that employers, adjusters, and practitioners must understand, and the rules are not exactly the same as those with CMS and Medicare.  Keep this blog by your side because we will all be dealing with VA and Tristar liens on a fairly regular basis.)

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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. 

Sometimes tensions flare up between employees resulting in physical altercations with unexpected consequences.  A case in point is Bhut v. Aluminum Shapes, No. A-4652-17T1, 2019 N.J. Super. Unpub. LEXIS 1322 (App. Div. June 10, 2019).  The petitioner, Mr. Bhut, worked as a technician fixing manufacturing equipment.  He said that on May 21, 2017, he entered the employee locker room.  A co-worker, Mr. Stevens, had his feet up on a bench.  Bhut said he asked Stevens to move his legs but Stevens refused.   Bhut jumped over Stevens’s legs but his feet caught Stevens’s leg in the process.  According to Bhut Stevens threw a cup of soda at Bhut. 

Petitioner said he left the room but came back a few minutes later to wash his hands.  He ran into Stevens outside the locker room in a narrow walkway.  Stevens was holding a pizza box.  Bhut testified that Stevens pushed the pizza box at him as Bhut passed Stevens.  To keep the box away from him, Bhut swung his arm toward Stevens and hit a hat on Stevens’s head.  Stevens then threw petitioner to the floor.  Bhut maintained that he was not trying to strike Stevens when he swung at him.

A completely different version of facts was advanced by Stevens, who said that Bhut never asked him to remove his feet from the bench.  Stevens said Bhut pushed and kicked his legs off the bench. He claims that when he stood up, petitioner stepped in front of him and caused the Coke drink to fall on him.  Co-workers separated them.  Stevens said Bhut then returned a few minutes later and Bhut came at him.  Stevens side-stepped with the pizza box, and the next thing he knew Bhut struck him in the back of the head.  Stevens said he grabbed Bhut’s arm and the two men bounced off the locker and landed on the floor with Stevens on top of Bhut.  Stevens said he never pushed the pizza box onto Bhut.

There was no dispute that Bhut injured his shoulder in the fall.  Bhut filed a motion for medical and temporary disability benefits resulting in an order for benefits in the amount of $15,583.54.  The respondent appealed the decision of the Judge of Compensation.  Respondent argued that Bhut deliberately struck Stevens leading to the fall, which caused the shoulder injury.   As such, respondent argued that this was in the nature of a deliberate assault, disqualifying Bhut from recovery.

The Judge of Compensation found that the altercation between the two men arose during the fulfillment of work duties or doing something incidental to that, namely eating lunch on premises.  The Judge noted that there was no evidence of hostilities between the two men outside work.  Therefore there was no personal animus between the two men.  The Judge also rejected the argument that Bhut intentionally assaulted Stevens.  She said that neither man had any willful intent to injure the other.  She said, “The reactions of both Stevens and the petitioner were in response to what each felt was aggressive behavior.”  She found Mr. Bhut credible in his testimony that he did not intend to strike Stevens when he pushed the pizza box away from himself.

The Appellate Division affirmed the decision below.  The Appellate Division viewed this as an injury arising from work tensions.  The Court deferred to the Judge of Compensation on her findings of credibility of the witnesses and her finding that there was no intent by either man to deliberately hurt the other.  She found that each man was trying to protect himself from the other.

This decision illustrates a number of important rules.  First, the trial judge is in the best position to assess credibility of witnesses in factual disputes.  Secondly, when a series of escalating tensions occurs, it is very difficult to find that one party deliberately assaulted the other party.  This was not a case where an employee decided to assault a co-employee without prior provocation or tensions.  The Judge viewed these facts as a series of two separate events minutes apart where each party saw the other as the aggressor and tried to defend himself.  The decision of the Judge of Compensation made good sense, and the Appellate Division properly deferred to the Judge below on determination of credibility.  Perhaps the case could have been viewed as one involving “horseplay.”  That rule says that the victim of horseplay is always covered for injuries, and the aggressor may also be covered under certain circumstances.

Thanks to Rick Rubenstein, Esq. for bringing this case to our attention.

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John H. Geaney, Esq., is an Executive Committee Member and a Shareholder in Capehart Scatchard's Workers’ Compensation Group.  Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at jgeaney@capehart.com. 

Legal Update by Attorney Tyler Smith

Gumm v. Easter Seal Society of Iowa, File No. 18-1051 (Iowa, May 15, 2019)

The issue in this case involved whether a claimant, after sustaining a traumatic, acute injury, is allowed to bring a cumulative injury claim with regard to symptoms/injuries to that same body part. The Court of Appeals addressed the two Supreme Court of Iowa cases that have addressed acute-then-cumulative injury claims: Ellingson v. Fleetguard (requiring claimant to show a “distinct and discreet” disability/injury as a result of cumulative work duties) andFloyd v. Quaker Oats (allowing a cumulative injury claim in the certain circumstance where the claimant had not been compensated via an award, volunteered benefits, etc. and doing so was unavailable due to the statute of limitations). In this case, the Court of Appeals reversed and remanded the Commissioner’s finding that the claimant failed to establish a distinct and discreet disability/injury underEllingson. The Court of Appeals extended/expanded the Floyd case in holding that if a claim relating to the first injury is barred by the statute of limitations (regardless of whether benefits had been paid with regard to the initial acute injury), a cumulative injury claim can be made for the increase in disability brought on by subsequent work duties. Appellees have filed Applications for Further Review.

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NOTICE TO THE PUBLIC 

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

Peddicord Wharton Legislative Updates are intended to provide information on current developments in legislation impacting our clients. Readers should not rely solely upon this information as legal advice. Peddicord Wharton attorneys would be pleased to answer any questions you may have about this update. ©2019 Peddicord Wharton. All Rights Reserved.

Legal Update by Attorney Alison Stewart

Two recent Iowa Supreme Court decisions have addressed liability of workers’ compensation carriers and third-party administrators. In both cases, the Court declined to extend liability.

Clark, et al v. Ins. Co. of the State of Penn., File No. 17-2068 (Iowa, May 3, 2019)

Recently, the Iowa Supreme Court addressed whether Iowa Code section 517.5, which mandates that no inspection of any place of employment made by insurance inspectors shall be the basis for imposition of civil liability upon the inspector or insurance carrier, is constitutional. In Clark, the plaintiffs alleged employees of the insured were exposed to hazardous chemicals while manufacturing wind blades and that the workers’ compensation carrier’s failure to inspect the employer was the cause of plaintiffs’ injuries. These claims were brought in district court. The Iowa Supreme Court disagreed and outlined a detailed history of the policy behind the exclusive remedy doctrine which requires injury claims brought by employees against their employer must be brought before the workers’ compensation commissioner. This means that immunity remains for carriers who either fail to inspect or negligently inspect the premises of an insured.

De Bois v. Broadspire, File No. 18-1227 (Iowa, May 10, 2019)

The Iowa Supreme Court ruled an injured worker cannot sue a workers’ compensation third party administrator for civil bad faith. In Iowa, an injured worker can establish damages beyond those entitlements provided pursuant to the workers’ compensation chapter where benefits are denied without a reasonable basis and that the carrier knew or should have known its refusal or delay was without such a basis. The Court reasoned that the duties imposed upon a workers’ compensation insurer are non-delegable, and thus, the acts of a third-party administrator, are the acts of the insurer. The liability of third party administrators remains limited to the contractual obligation they have to their insurers.

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NOTICE TO THE PUBLIC

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

Peddicord Wharton Legislative Updates are intended to provide information on current developments in legislation impacting our clients. Readers should not rely solely upon this information as legal advice. Peddicord Wharton attorneys would be pleased to answer any questions you may have about this update. ©2018 Peddicord Wharton. All Rights Reserved.

Most doctors who take the Designated Doctor test fail.  At least, that is what data recently obtained from the Division via an open records request revealed.  For instance, in 2018 the failure rate was 56% on the first attempt, 64% on the second, and 61% on the third. 

The 2011 Legislature mandated more stringent testing requirements on designated doctors, with the goal of addressing the increasing discrepancy in the number of physicians versus chiropractors on the designated doctor list.  However, that doesn’t appear to have happened.  When broken out by provider type, data reveal that medical doctors (MDs) and doctors of osteopathy (DOs) have lower failure rates than chiropractors.  The percentage of chiropractor DDs rose from 20% to 49% between 2010 and 2015.  By contrast, the number of MDs and DOs dropped from 70% to 55% during the same timeframe.  And overall, the number of DDs continues to drop—in April 2017 there were 586, compared to 475 in March 2019.  Of those, just 133 are MDs.  Chiropractors take a different test containing more questions on musculoskeletal injuries.  (The Division maintains two lists of designated doctors—one for musculoskeletal conditions, and one for all other injuries; chiropractors fall into the first category, as they are only allowed to address musculoskeletal conditions.) 

The data and discouraging pass rates leave some doctors to conclude that the test is impassable.  Complaints run the gamut, including allegations that the test asks irrelevant questions, questions that have not been validated, and questions that have more than one correct answer.  An article from WorkCompCentral earlier this month provided an example of one such question said to have been on the DD test: “Who determines compensability?”  The choices, reportedly, were: (1) the Division, (2) the designated doctor, and (3) the insurance carrier.  The “correct” answer was both (1) and (2).  However, this isn’t entirely true, as the carrier could ultimately make the decision if it denies a claim and there has been no challenge to the denial.  The question is also confusing, as DDs are told when assessing MMI/IR to rate the carrier-accepted injury, which is noted in Box 37 of the DWC-32 Request for Designated Doctor form provided to the DD in advance of the exam.  If there is no dispute as to the compensability of any specific diagnoses, and the DD is not being asked to address extent of injury, then effectively the insurance carrier has determined which diagnoses are compensable.

Another case of good intentions gone bad?  We’ll plead the Fifth.
 

Speaking of the Appeals Panel, if you ever happen upon a written AP decision, it might behoove you to march right down to the local convenience store and buy yourself a lottery ticket.  An open records request regarding Appeals Panel decision outcomes in 2018 reveals that the overwhelming majority of CCH decisions become final by operation of law.  This will not come as a surprise to most, but some might find the actual percentage astounding.  In 2018, a total of 2,766 Requests for Review were submitted to the Appeals Panel.  Of those, the Appeals Panel reviewed and affirmed 18, reversed and rendered 6, remanded 31, and partially remanded 36.  (Thirty decisions were a mixture-- some issues being affirmed, some reversed and rendered.)  Of the 2,766 total Requests for Review of CCH decisions submitted, a staggering 2,744, or 99.2%, became final by operation of law. 

What does this mean?  The odds the Appeals Panel will write a decision in a case are 4.2%.  The odds the Appeals Panel will reverse and render or remand in a case are 3.5%.  

These odds not quite as bad as the lottery, but even if one happens upon an actual written decision from the Appeals Panel, the outcome might not be as favorable.  A lottery ticket at least provides one the momentary dream of owning his/her own private island.
 

The Appeals Court in El Paso held that the student worker provision required upward adjustment of the student’s calculated average weekly wages, but the statute capping benefits for UT System part-time employees capped his benefits at 60% of the adjusted average weekly wage.  UT argued that the student worker wage adjustment provision in Texas Labor Code §408.044 did not apply because §503.021(b) provisions applicable to part-time employees of the UT System cap any benefits recovery at 60%.  The court found that the two provisions were not in conflict, noting that Chapter 503 explicitly incorporated by reference nearly all provisions of Chapter 408, including the student worker adjustment provision. Ferrell v. The University of Texas System, No. 08-17-000065-CV, 2019 WL 2148089 (Tex. App.—El Paso, May 17, 2019). 

The Appeals Court in Beaumont held that an employer, AmeriGas, was covered by a workers’ compensation policy, and therefore, entitled to assert the exclusive-remedies defense.  The injured workers sued AmeriGas for damages sustained in a work-site explosion.  AmeriGas asserted a general denial and the exclusive remedy defense under the Texas Workers’ Compensation Act.  The injured workers argued that AmeriGas did not provide workers’ compensation insurance, noting that the insurance policy did not specifically list AmeriGas Propane, L.P. in the policy.  AmeriGas argued that it was due to an administrative error that its name was not included in the policy.  It provided an endorsement naming AmeriGas as a named insured under the policy as well as evidence showing that it paid premiums and that its payroll and employment information was used in determining the policy price.  Further, AmeriGas provided evidence that the policy paid workers’ compensation benefits to an employee who was injured in the explosion.  The court found that AmeriGas provided sufficient evidence to reflect that the parties’ true agreement was to cover AmeriGas as an insured, but that due to a mutual mistake, the policy document did not reflect the parties’ true intent.  Therefore, AmeriGas was entitled to the exclusive-remedies defense provided under the Texas Workers’ Compensation Act. AmeriGas Propane, L.P. v. Aboytes-Muñiz, No. 09-18-00122-CV, 2019 WL 2127750 (Tex. App.—Beaumont, May 16, 2019) (memorandum opinion). 

-  Copyright 2019,Erin Shanley, Stone Loughlin & Swanson, LLP.

On May 27, the Texas House and Senate signed the bipartisan Senate Bill 2551.  The bill provides that a firefighter or emergency medical technician suffering from cancer resulting in death or disability is presumed to have developed the cancer while in the course and scope of employment if the worker regularly responds to scenes involving the documented release of radiation or “known or suspected carcinogens.” Cancers that are presumed to be “occupational” are cancers that originate in the stomach, colon, rectum, skin, prostate, testes or brain, non-Hodgkin’s lymphoma, multiple myeloma, malignant melanoma, and renal cell carcinoma.  The bill additionally allows self-insureds to establish a pool for the payment of death benefits to first responders with compensable injuries.

The legislation awaits Governor Abbott’s signature.  If the bill is signed, it will take effect immediately.
 

-  Copyright 2019, Erin Shanley, Stone Loughlin & Swanson, LLP.

Senate Bill 1897, which would have expanded chiropractors’ scope of practice to allow them to go beyond the musculoskeletal system and to diagnose and treat disorder of the nervous system, failed to make it through committee.  The Senate Health and Human Services Committee heard testimony on the bill on April 29^th.  The chiropractors argued that because nerves are associated with the musculoskeletal system, one cannot treat one without affecting the other, so they needed to be permitted to treat the nervous system. The Texas Medical Association disagreed, arguing that this was akin to saying that treatment of the musculoskeletal system also requires treatment of the heart and circulatory system because the heart provides blood to the bone and muscles.  The Association also argued that treating neurological disorders was far beyond a chiropractor’s education and training, even for chiropractors designated as chiropractic neurologists by the American Chiropractic Neurology Board.  Sara Austin, MD, an Austin-based neurologist testifying in opposition to the bill, argued that adding neuro to chiropractors’ practice was not merely the addition of the nerves that may connect muscle tissue or bones.  Rather, “[i]t is the addition of the entire neurological system that includes the brain, spinal cord, and the regulation of many bodily functions beyond chiropractors’ education and training.”

-  Copyright 2019,Erin Shanley, Stone Loughlin & Swanson, LLP.