Richard Helmrich worked as an Assistant Director of Food and Beverage at Mountain Creek Resort.  He was a large man, six-feet-tall with a body mass index between 40.27 and 47.53, above the threshold for obesity.  During his employment with the Resort he informed his boss of his weight and heart conditions.  His doctor diagnosed him as medically obese.  He provided his boss with a note that his cardiologist prepared for him, restricting the amount of weight that he was medically permitted to lift.

Helmrich testified that several individual defendants at the Resort regularly made observations about his weight, some of them by the owner himself within earshot of other employees.  One comment was that Helmrich needed to lose weight; another was that he needed to work harder at the gym to lose weight.  Yet another comment was that he was still fat.  Some of the comments were made in front of others, who would laugh at Helmrich’s expense.

On one occasion Helmrich notified his supervisor of one of these incidents in accordance with the Resort’s harassment policy.  A chef at the Resort said that Helmrich was “too large” and not “attractive” enough to approach customers’ tables in the restaurant.  Notwithstanding these kinds of comments, Helmrich never filed a formal complaint with Human Resources.

Helmrich did receive a written warning in July 2014 for poor performance.  He believed that his boss, Mr. Polchinksi, was delegating additional duties to him beyond the scope of his job and holding him to a higher standard than his subordinates.  He did not, however, tell anyone in supervision that he was being treated differently because of his weight.

Matters came to a head in December 2014 when his boss was promoted, thereby opening up the position of Director of Food and Beverage.  Helmrich was not told about the vacancy or encouraged to apply.  An employee who used to work under Helmrich by the name of Heaps was chosen for the position.  When that occurred, Helmrich met with supervision to ask why he was not considered for the position of Director of Food and Beverage.  He argued that he had the qualifications, holding an associate’s degree in hospitality management from Art Institute of New York.

Helmrich did not allege that he was denied the position due to his weight.  The company advised Helmrich that he was not chosen for the promotion because he failed to improve his work performance after the July 2014 written warning. The company told Helmrich that he was a good asset and a “great second man in command.” He was assured that he would be trained for future growth.

Helmrich resigned from his position on December 29, 2014 due to his perception of a hostile work environment.  He sued under both the ADA and New Jersey Law Against Discrimination.  The District Court noted that the United States Third Circuit has not expressly adopted obesity as a disability that substantially limits a major life activity.  The Court said, “Without excluding the possibility that obesity may under other circumstances constitute a disability under the ADA, the Court finds that it does not here.”  The Court observed that Helmrich never claimed that his obesity “substantially limits one or more major life activities.”  The Court added that although Helmrich had a weight lifting restriction, he did not dispute that his weight does not make it more difficult for him to stand, walk, bend or complete other movements necessary for him to work.

The Court next considered whether the Resort regarded Helmrich as being disabled.  “There is no question, therefore, that Defendants ‘regarded’ Plaintiff as obese.” The Court said that is not enough because there was no evidence that the Resort perceived him as having an impairment.  “Plaintiff does not argue that his weight limited his ability to stand, walk, bend, or complete other movements necessary for him to work.” The Court said that none of the defendants perceived Helmrich’s weight as physically interfering with his ability to do his job.  The Court found that there was insufficient evidence to prove the Resort regarded Helmrich as having a disability under the ADA.

The case is instructive.  It may be found at Helmrich v. Mountain Creek Resort Inc.,(D.N.J. October 15, 2018).  It shows that unfortunate remarks like those directed at the plaintiff may not be actionable in court if the plaintiff never tells anyone about them in HR or supervision of files a formal complaint.

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

In September 2018, the National Workers’ Compensation Defense Network (NWCDN) held it’s annual national conference and seminar in Minneapolis. It was a great success. Industry leaders and attorneys from 45 states attended. The seminar was headlined by Bob Lund, CEO of SFM, Dr. Uzma Samadani, Dr. Richard Migliori, Dr. Teresa Bartlett and Steve Perroots, Vice President of Marriott International. CWK was the host law firm. Tom Kieselbach moderated the seminar. Mark Kleinschmidt and Natalie Lund participated in the substantive program.

Annually, US News and World Report/Best Law Firms honors the top law firms in the United States.  The selection process is rigorous.Cousineau, Waldhauser & Kieselbach, P.A. has been selected as a Tier 1 law firm for Workers Compensation-Employers, 2019. We are proud of the honor and thank our peers for selecting us.  We have been selected every year as a Tier 1 law firm/practice group since the inception of the award.

A woman who visited a chiropractor for neck manipulation intended to treat her headaches wound up with damage to her right eye. Immediately after the visit she began seeing spots which were symptoms of ruptures in the eye’s blood vessels known as preretinal hemorrhages.

The technique used by the chiropractor, known as high-velocity, low-amplitude spinal manipulation, involves the application of short, quick thrusts to the back of the patient’s neck. Those manipulations caused the woman’s retinal hemorrhages According to findings published in the September issue of theAmerican Journal of Ophthalmology Case Reports.

-  Copyright 2018,David L. Swanson, Stone Loughlin & Swanson, LLP

The Texas Supreme Court announced this month that it has set a workers’ compensation death benefits case for oral argument.  InChicas v. Texas Mutual Insurance Company, the issue is whether a court lacks jurisdiction to review the DWC’s decision in a death benefits case if the claimant files the appeal in a probate court and does not file it in a district court until after expiration of the 45-day deadline in Labor Code section 410.252(a).

Santiago Chicas was cleaning rain gutters at the home of his employer’s president when he fell from a ladder and died. His widow, Bertilla, filed a claim for death benefits and, when Texas Mutual denied the claim, she initiated a proceeding at the DWC to resolve the issue. She also filed a wrongful death action in Harris County Probate Court Number 2.

An Administrative Law Judge at DWC found that Santiago was not in the course and scope of his employment and denied Bertilla’s claim for benefits and the DWC Appeals Panel allowed the decision to become final. Within the 45-day time limit for filing a petition for judicial review, Bertilla amended her petition in the probate court to include her claim for judicial review of the DWC’s decision. Five months later, Texas Mutual filed a plea to the jurisdiction which the probate court granted. Bertilla then filed a petition for judicial review in the Harris County District Court. Texas Mutual filed a plea to the jurisdiction which the district court granted. The Houston Court of Appeals (1^st. Dist.) reversed the trial court judgment and Texas Mutual appealed to the Texas Supreme Court.

The outcome of the case turns on whether the 45-day deadline in section 410.252(a) is jurisdictional or merely mandatory. The courts of appeal are divided on this issue – at least one court has said that it is jurisdictional while others have said that it is not. Hopefully the Texas Supreme Court will resolve the conflict.

Oral argument is set for January 22, 2019.

-  Copyright 2018,David L. Swanson, Stone Loughlin & Swanson, LLP.

Two office administrators at medical clinics in Ft. Worth, Waco and Temple that treated workers’ compensation patients were arrested this month and charged with federal healthcare fraud. Melissa Sumerour and Latosha Morgan are alleged to have submitted more than $5.9 million in claims from 2011 to 2017 for services, including physical therapy, that were never performed.

For example, Sumerour is alleged to have billed for physical therapy sessions that were not provided – always billing five units of therapeutic activities, five units of therapeutic exercises, and four units of manual therapy.  This became known as the “5-5-4” rule of billing.

By maximizing billing amounts, Sumerour and Morgan allegedly received more money for themselves in monthly bonuses from the physician that operated the clinics. The complaint does not identify the physician, but media outlets identify him as Leslie Benson, M.D. Dr. Benson, who played football for the Dallas Cowboys in the 1970s, was indicted for healthcare fraud in 2017 and has relinquished his license to practice medicine in Texas.

-  Copyright 2018,David L. Swanson, Stone Loughlin & Swanson, LLP

Neal Wade Barker, M.D., a prominent bariatric surgeon in Dallas, is the seventh defendant to admit his role in an alleged $200 million scheme of health insurance fraud involving the former Forest Park Medical Center. Barker was one of 21 defendants indicted in late 2016 for what prosecutors described as a massive bribery and kickback scheme to steer business to Forest Park’s luxury hospitals at insurers’ expense. He is the seventh defendant to enter a plea of guilty. The remaining fourteen defendants await trial, currently scheduled for early 2019.

According to the indictment, Forest Park executives paid surgeons, primary care doctors, lawyers and others to refer patients to their high-end hospitals. The hospitals were designed as out-of-network facilities, enabling Forest Park to set its own prices instead of agreeing to payment rates negotiated with insurers.

While patients who treat in out-of-network facilities typically pay a higher portion of a procedure’s cost, Forest Park did not attempt to collect money from patients for those higher costs. Instead, it allegedly wrote off those payments as bad debt and made up for them by collecting exorbitant reimbursement rates from insurers. “Thousands of patients chose to have the exact same procedure performed by the exact same doctor at a facility where, absent the scheme, the costs likely would have been financially prohibitive,” the indictment said.

Federal officials have said that Barker faces five to seven years in prison. A sentencing date has not been set.

Until his indictment, Barker apparently was doing very well. Property tax records show that his home in Highland Park has an appraised value of $12,487,540.

-  Copyright 2018, David L. Swanson, Stone Loughlin & Swanson, LLP.

All work hardening and work conditioning services now require preauthorization.

The DWC has amended Rule 134.600, the preauthorization rule, to require preauthorization for all work hardening and work conditioning services, regardless of the facility where they are performed. The amendment was adopted on October 11 and became effective that date.

Prior to the amendment the preauthorization rule exempted work hardening and work conditioning services from the preauthorization requirement if they were performed at facilities accredited by the Commission on Accreditation for Rehabilitation Facilities (CARF) for which the DWC had granted an exemption. The amendment to the rule eliminates exemptions for such facilities.  The change was prompted by the results of a study by the Workers’ Compensation Research and Evaluation Group (REG) which concluded that there is no statistically significant difference between accredited and non-accredited programs in disability duration outcomes. 

-  Copyright 2018, David L. Swanson, Stone Loughlin & Swanson, LLP.

Speaking of hats, our hat is off to the DWC for revamping its much-maligned Designated Doctor program. This month it amended rules in chapter 127 and promulgated a newRequest for Designated Doctor Examination (Form DWC-32) and a new Designated Doctor Examination Data Report (Form DWC-68). The changes become effective December 6, 2018.

One goal of the changes is to increase participation of medical doctors and doctors of osteopathy. To that end, the DWC has changed the manner in which it assigns examinations. It will maintain two independent lists for each county from which the next designated doctor will be selected. One list will consist of doctors qualified to perform examinations under Rule 127.130(b)(1) –(4). These examinations involve musculoskeletal injuries for which medical doctors, doctors of osteopathy, and chiropractors are qualified to perform an exam. The other list will consist of doctors qualified to perform examinations under Rule 127.130(b)(5) – (9). These examinations involve specialized injuries for which medical doctors, doctors of osteopathy, doctor of optometry, and doctors of dental surgery  are qualified to perform an exam.  Those injuries include, but are not limited to, mental and behavioral disorders and injuries of the feet, teeth, eyes and internal systems. A qualified doctor can be on both lists. The DWC hopes that this change will result in more opportunities for medical doctors and doctors of osteopathy to receive assignments for multiple examinations in the same location on the same day, thereby making the examinations more profitable for the doctors.

These changes are sorely needed. Data released by the DWC this month shows that of the 509 available DDs, 345 are chiropractors and only 163 are medical doctors or doctors of osteopathy.

The rule amendments also will give the DWC more tools to weed out DDs that are just plain bad. Specifically, the Division now will be able to deny certification as a DD for a number of newly-specified reasons including, but not limited to, (1) the quality of the doctor’s past DD reports, (2) demonstrated lack of ability to properly apply the  Guides to the Evaluation of Permanent Impairment, and (3) a pattern of reports overturned by the DWC.

-  Copyright 2018,David L. Swanson, Stone Loughlin & Swanson, LLP.