As we discussed in last week’s blog post, a claimant must satisfy five elements before becoming eligible to receive rehabilitation benefits. The first element is that a claimant is required to show they are unable to return to their usual and customary line of employment. In other words, the claimant must prove that they are unable to return to the type of work they were doing at the time of, or before, the work injury. For example, if the claimant previously worked as a truck driver, they must show that, because of the work injury and its accompanying restrictions, they will be unable to return to work as a truck driver. Often times, this element is satisfied when there is a claimant that has spent their entire life working in manual labor with job duties that require lifting and repetitive motion, and now they have permanent restrictions limiting them from doing ever again.

Often, this first element does not receive much attention or discussion because it is so closely tied to the premise underlying a claimant’s need for rehabilitation or retraining benefits. In fact, by the time retraining benefits are being disputed, the parties have likely already agreed whether or not the claimant can perform his usual and customary line of employment. Nonetheless, if there is some dispute regarding whether a claimant can return to their previous line of work, the claimant will need to show that the restrictions limit them from performing the previous work, often times through the testimony of a vocational expert. Please note that although this element is often undisputed and therefore not thoroughly discussed, insurers and self-insurers should remain vigilant to ensure that claimant’s satisfy this element before becoming eligible for retraining benefits.  It is important to remember that simply because a claimant states that they cannot return to their usual and customary line of employment, those statements alone are not sufficient to satisfy the first element of a claim for retraining benefits.

Look out for our upcoming blog posts over the following weeks for more detailed explanations of the remaining elements for proving entitlement to rehabilitation benefits. Of course, if you have any questions about a claimant’s eligibility for retraining benefits, we’re only a phone call away.

The South Dakota Claim for Retraining Benefits

A lot of buzz was recently created when a Circuit Court Judge in Jefferson County entered an interlocutory order declaring the Alabama Workers’ Compensation Act unconstitutional. The ruling put a bright spotlight on the fact that the Act has not seen substantial change since 1992. Over the years, there have been numerous bills introduced in the legislature that would amend the Act in regard to a variety of issues. However, with few exceptions, most of those bills died in committee because they were introduced by one interest group or the other, and not by a consensus of employers, insurers, and labor representatives.

In 1992, it took cooperation and input between all interested parties to bring about substantial, and much-needed change. Most people involved with the workers’ compensation system on a day-to-day basis agree that is what needs to happen again. However, nobody seems to be able to agree on what is necessary to get the ball rolling. When Utah was recently faced with similar issues, its state legislature created a "workgroup" aimed at bringing the parties together to institute change. A similar approach may be the best place to start, because it addresses each of the various concerns that proposed bills have attempted to address over the last few years. Here is a proposed Alabama version of the Utah statute which created the workgroup.

Workers’ Compensation Workgroup– Creation– Membership–Compensation–Duties–Report

(Proposed)

(1) There is created the Workers’ Compensation Workgroup within the Alabama Department of Labor, consisting of the following members:

(a) the Director of Workers’ Compensation, or the Director’s designee;

(b) one member of the Senate, appointed by the President or current presiding officer of the Senate, and one member of the House, appointed by the Speaker or current presiding officer of the House;

(c) four representatives of the worker’s compensation insurance industry:

(i) two of whom are practicing attorneys with significant experience with workers’ compensation claims in the state of Alabama; and,

(ii) two of whom represent a commercial insurer with significant experience in workers’ compensation claims in the state of Alabama or the self-insured industry; and

(d) four representatives of the labor side of workers’ compensation, appointed by the chair:

(i) at least two of whom are practicing attorneys with significant experience with Alabama workers’ compensation law.

(2) The chair may appoint one or more individuals with an interest in workers’ compensation to serve as ex officio, non-voting members of the Workgroup.

(3) The Director of the Workers’ Compensation Division or the Director’s designee shall be the Chair of the Workgroup.

(4) (a) A majority of the members of the Workgroup constitutes a quorum.

(b) The action of a majority of a quorum constitutes the action of the Workgroup.

(c) In the case of a tie vote, the Chair and the member of the Senate appointed under Subsection (1)(b) shall break the tie.

(5) (a) The salary and expenses of each member of the Workgroup who is a legislator shall be paid in accordance with proper Alabama legislative procedure outlining compensation for such.

(b) A member of the Workgroup who is not a legislator may not receive compensation, benefits, per diem, or travel expenses for the member’s service on the Workgroup.

(6) The Alabama Department of Labor shall provide staff support to the Workgroup.

(7) The Workgroup shall review and make recommendations on the following issues:

(a) the process for determining the amount of weekly payments in Permanent Partial Disability (PPD) cases, including but not limited to, the implementation of a weekly cap on payment of permanent partial disability (PPD) benefits to injured employees;

(b) the award of attorney fees in workers’ compensation cases, including but not limited to, the implementation of a cap on contingency fees;

(c) the totality of employer liability regarding all permanent disability payments, including but not limited to, the length of the period(s) in which payments must be paid, and any factors that would qualify the cessation of such payments;

(d) the totality of employer liability for medical payments to injured employees who have stopped receiving claim-relevant treatment for a fixed period of time;

(e) the outlines for determining criminality of worker’s compensation fraud, and appropriate procedure in achieving just and equitable remuneration for all victims of such fraud;

(f) the qualifying factors necessary to substantiate workers’ compensation claims for psychological injuries;

(g) the proper procedures for employee drug and alcohol testing and the consequences of failed drug and/or alcohol tests;

(h) any additional issues that the Workgroup:

(i) determines to be an important issue related to worker’s compensation; and,

(ii) decides to review.

(8). The Workgroup shall present a final report on the items described in Subsection (7), including any legislative recommendations, to an appropriate committee in the Alabama Senate within one hundred and eighty (180) calendar days of the formation of the Workgroup.

Our Two Cents

As it is in the other 49 states, the Alabama Workers’ Compensation Act has always been known as the great compromise or grand bargain between employers and employees. Therefore it is unreasonable to think that all concerned parties will get everything they want. However, the statutory creation of a workgroup would likely yield some positive changes that all concerned could live with.

About the Authors

This article was written by Mike Fish and Charley Drummond of Fish Nelson & Holden, LLC. Fish Nelson & Holden is a law firm located in Birmingham, Alabama dedicated to representing employers, self-insured employers, and insurance carriers in workers’ compensation cases and related liability matters. Drummond and his firm are members of The National Workers’ Compensation Defense Network (NWCDN). The NWCDN is a national and Canadian network of reputable law firms organized to provide employers and insurers access to the highest quality representation in workers’ compensation and related employer liability fields. If you have questions about this article or Alabama workers’ compensation issues in general, please feel free to contact the authors atmfish@fishnelson.com and cdrummond@fishnelson.com or (205) 332-3414.

Written by: Bruce Hamilton

On Friday, June 9, 2017, the North Carolina Supreme Court issued its eagerly anticipated decision in Wilkes v. City of Greenville, in significant part, unanimously affirming the Court of Appeals. Wilkes involves two primary issues. First, whether Johnnie Wilkes failed to meet his burden of establishing that his anxiety and depression were the result of a work-related accident and, more specifically, whether the “Parsons presumption” applied, giving Mr. Wilkes the benefit of a presumption that these conditions were related to his accident. The second issue is whether Mr. Wilkes was entitled to disability payments made after January 18, 2011. The Court’s decision on the Parsons presumption is potentially one of the most significant decisions involving North Carolina worker’s compensation claims in the last 30 years.

The Supreme Court agreed with the Court of Appeals that Mr. Wilkes was entitled to a presumption of compensability in regards to his continued medical treatment and affirmed that part of the decision. In addition, the Supreme Court concluded that the Commission failed to address the effects of Mr. Wilkes’ tinnitus in determining whether he had lost wage earning capacity.

Moving forward after Wilkes, we recommend that any decision regarding filing a Form 60 or a Form 63 and paying indemnity benefits beyond the applicable time period be very carefully considered. Defendants should not unreasonably deny claims, but must consider that by accepting a questionable claim, a rebuttable presumption is likely created that treatment for all other medical conditions or symptoms are related to that work accident.

We anticipate a significant potential increase in denial of questionable claims with this expansion of the Parsons presumption. Defendants will also need to be prepared to obtain independent medical evaluations quickly to evaluate whether any disputed condition is “directly related” to the compensable work injury.   In addition, defendants can expect to see an increase in expedited medical motions relying on the Parsons presumption when employees seek additional medical treatment for new conditions.  As the current expedited medical motion procedure provides a very short timeline with no ability for extensions, this will likely make obtaining independent medical evaluations to rebut the presumption extremely challenging for defendants.

*******

Mr. Wilkes was working as a landscaper on April 21, 2010, when he was involved in a motor vehicle accident. On April 29, 2010, the defendants filed a Form 60 with the North Carolina Industrial Commission and described the injury as “worker involved in MVA and had multiple injuries to ribs, neck, legs and entire left side.” The defendants began paying temporary total disability and provided medical compensation for Mr. Wilkes’ injuries, but never specifically accepted his anxiety and depression as compensable conditions.  Defendants subsequently disputed Mr. Wilkes’ need for medical treatment related to his work injury.

The case was eventually heard by a Deputy Commissioner who entered an opinion and award determining that Wilkes’ low back and leg pain, anxiety, depression, sleep disorder, tinnitus, headaches, and TMJ pain were causally related to the April 21, 2010 compensable injury.   The Deputy Commissioner also awarded Wilkes ongoing temporary total disability benefits, concluding that he had demonstrated that it would be futile for him to seek employment because of pre-existing conditions, including his age, IQ, education level reading capacity, previous work history and physical condition resulting from his work injury.

The defendants appealed to the Full Commission, which concluded that Mr. Wilkes suffered from tinnitus as a result of the April 21, 2010 accident, but determined that the evidence regarding his alleged anxiety and depression was conflicting. The Commission ultimately concluded that, based upon the preponderance of all of the evidence, Mr. Wilkes’ alleged anxiety and depression was not caused by his April 21, 2010 work-related accident.

On appeal, the Court of Appeals vacated the Commission’s opinion and award concerning Mr. Wilkes’ request for additional medical treatment for anxiety and depression. The Court of Appeals held that the Commission erred by not applying the rebuttable Parsons presumption to Mr. Wilkes’ anxiety and depression, and instead placing the burden on him to demonstrate the cause of those conditions.

The Supreme Court affirmed the Court of Appeals, holding that the Mr. Wilkes is entitled to a rebuttable presumption that additional medical treatment is related to his compensable conditions. The Court reaffirmed that a presumption of ongoing disability only arises in limited circumstances. The Court also reaffirmed that when an employer admits “compensability”, by filing a Form 60 or a Form 63, when the employer fails to contest compensability within the 90 day time limit, no presumption of “disability” arises in those circumstances.

Nonetheless, reviewing the plain language of N.C.G.S. §97-82(b), the Supreme Court concluded that when compensability and liability are admitted, that this shall constitute an award of the Commission on the question of compensability of and the insurer’s liability for the injury for which payment was made. Accordingly, an admission of “compensability” approved under §97-82(b) entitles an employee to a presumption that any additional medical treatment is causally related to his compensable injury. In reaching this conclusion, the Court cited the language in N.C.G.S. §97-25(a) which states that medical compensation “shall be provided by the employer.”

The Supreme Court specifically rejected the defendant’s argument that applying the Parsons presumption to a Form 60 will discourage direct payment, upset the framework of the Act, and convert the Act into a general health insurance program. According to the Court, applying the rebuttable Parsons presumption merely removes the burden from the employee to prove that each medical treatment sought is to the compensable condition. The employer may rebut this presumption with evidence that the condition or treatment is not “directly related” to the work injury.  The Court noted that medical issues can be complex and the extent of an employee’s injuries may be difficult to determine at the time of the accident.  The Court also noted that the Act provides the Form 63 procedure which allows employers to pay benefits without prejudice while they investigate such injuries without admitting liability and requires employees to submit to medical examinations by the employer’s authorized physician.

In addition, in a footnote the Court indicated that the presumption could have been applied during the expedited medical motion procedure. In other words, it appears that the Court wants parties and the Commission to quickly determine what medical conditions are and are not related to a compensable injury.

With respect to Mr. Wilkes’ medical conditions, the Supreme Court expressed no opinion on whether the evidence was sufficient to rebut the presumption that Mr. Wilkes’ current complaints are related to his initial compensable injury. Therefore, the claim was remanded back to the Commission for further review.

There are numerous issues unresolved by the Supreme Court’s decision in Wilkes. The first is whether defendants can file a Form 60 accepting a clearly compensable claim and body part, but simultaneously file a Form 61 with respect to a disputed medical condition. In the plainest reading of the Court’s decision, the filing of a Form 60 or a Form 63, without a denial within the applicable time periods, creates the rebuttable presumption. Therefore, even if a Form 61 is filed, it may have not have an impact and the employee may still enjoy the presumption of compensability despite a clear denial of disputed body part or condition.

The Supreme Court also does not appear to place any limitations on the scope of the presumption based upon the exact injury listed in the Form 60 or Form 63. Wilkes dealt with physical injuries that allegedly caused anxiety and depression. What is potentially left unresolved is whether a defendant accepting one undisputed body part on a Form 60 is also going to have to rebut a request for medical treatment for any other body part or symptom not specifically listed on the Form 60 or Form 63.

It is also unclear how conditions that develop after the initial injury by accident will be treated, such as an employee who has a compensable right knee injury and develops back pain allegedly related to the knee injury two years later.  In addition, the Court leaves open whether an employee is entitled to a presumption that a work-related injury aggravated or accelerated a pre-existing condition.  The Supreme Court’s decision states that the additional medical treatment being sought by the employee must be “directly related” to the compensable injury, but it is unclear how that term will be interpreted and how the presumption interacts with prior case law.

Finally, while the Supreme Court acknowledges that the filing of a Form 60 does not create a presumption of disability, Wilkes ignores the fact that many times, if not most times, the disability determination is driven by the medical conditions in a claim. Consider an employee who has a compensable right knee injury which does not cause any physical limitations and who also has back pain allegedly caused by the right knee injury, which is totally disabling. If treatment for the back pain is found compensable, as a result of the rebuttable presumption, because the right knee injury is accepted, then the medical presumption has morphed into a disability presumption as well.

Risk Handling Hint: Employers and carriers should carefully investigate and evaluate all claims before filing a Form 60 or 63.  As always, the Form 60 or 63 should specifically address exactly which body parts and injuries are being accepted. In appropriate cases, where the defendants have investigated the claim and determined that certain body parts are not related, they should file a Form 61 denying those body parts and conditions. However, employers and carriers need to realize that, following Wilkes, it is not clear that filing a Form 61 will provide protection. The employee may still be entitled to a presumption that any additional medical condition is related to the compensable injury and defendants will likely be required to litigate many of these claims and to present contrary evidence.

Jessica Barta was reappointed by Governor Greg Abbott as Public Counsel for The Office of Injured Employee Counsel (OIEC) for a term to expire in February 2019.  In that role, Barta has also accepted a position on the Board of Kids’ Chance of Texas, along with Jane Stone from the Firm, who has been on the Board since its inception. 
 
Kids’ Chance is a non-profit organization that creates and supports scholarship programs for children who have had a parent involved in a workplace accident that was fatal or left them severely injured.  Look for new upcoming Kids’ Chance events in Texas in the near future.  In the meantime, don’t forget that Kids’ Chance is also looking for eligible scholarship recipients.  Please visit Kids’ Chance of Texas’s website (www.kidschanceoftexas.org) for more details.       --Erin Shanley, Stone Loughlin & Swanson, LLP 

Senate Bill 1895 (Sen. Larry Taylor) was passed by the Texas Legislature and signed into law by Governor Abbot on May 26, 2017.  The bill amends the Texas Labor Code to require the commissioner of workers’ compensation in assessing an administrative penalty under the Texas Workers’ Compensation Act, to consider, in addition to other existing factors: (1) whether the administrative violation has a negative impact on the delivery of benefits to an injured employee, and (2) the history of compliance with electronic data interchange requirements.  The bill also requires the commissioner to adopt rules that require the Division, in the assessment of an administrative penalty against a person, to communicate to the person information about the penalty, including the relevant statute or rule violated, the conduct that gave rise to the violation, and the factors considered in determining the penalty.
 
The amended statute is effective on September 1, 2017.  --Erin Shanley, Stone Loughlin & Swanson, LLP  

We occasionally field questions about “EFA.”  This is a product that is being heavily marketed to Carriers, so we thought we’d address the procedure inThe Compendium. 
 
EFA (Electrodiagnostic Functional Assessment) is basically a surface (not needle) EMG done pre-employment and post-injury.  The stated goal of EFA is to age injuries and provide a potential defense to injury or aggravation claims.  
 
One vendor who aggressively markets this service claims that its technology is noted in ODG (the Division’s official treatment guideline)– the implication being that the ODG in some way endorses it.  However, EFA is not recommended by the ODG.  In fact, the ODG states, “surface electromyography, the primary technology used by this device, is not recommended for the diagnosis of neuromuscular disorders.”  Therefore, any claims made based on test results from the device could be very easily discredited.  Now you know.
 
As a substitute for “EFA”, the carrier or insured would be better-served by investing time and resources into clarifying a claimant’s diagnoses early on in a claim, before the horse is out of the barn and galloping away.   For example, in a motor vehicle accident, the adjuster should obtain crash photos, Texas Peace Officer’s crash reports, and ER notes, and conduct a full interview of the claimant immediately after the accident.  This strategy for claims management is well-known, economical, and time-proven.  --Erin Shanley, Stone Loughlin & Swanson, LLP

Gone are the days where a party can count on adding an issue to be adjudicated at a CCH at the last minute, without first raising the issue at the BRC or properly and timely requesting to add the issue after the BRC and before a CCH.  At least, maybe.  In a recent decision, the Appeals Panel found no abuse of discretion when the Hearing Officer found “no good cause” to add an extent of injury issue requested by the Claimant.  The issue was not raised at the BRC, the parties did not consent to adding the issue, and the Hearing Officer thus did not find good cause to add the issue.  Citing Downer v. Aquamarine Operations, Inc., 701 S.W.2d 238 (Tex. 1985) and Morrow v. H.E.B., Inc., 714 S.W.2d 297 (Tex. 1986), the Appeals Panel found no abuse of discretion on the part of the Hearing Officer in denying the request to add the issue. 
 
Hopefully this will prevent the all-to-often scenario in which a Claimant attorney or ombudsman will move for a continuance at the very last minute (after the Carrier representative has fully prepared for and traveled to the CCH), citing an extent of injury issue that he neglected to either raise at the BRC or timely request to be added after receipt of the Benefit Review Officer’s report. 
 
As always, whether a party will be allowed to raise an issue at the CCH (or request a continuance on the basis of raising a new issue) will remain a fact-specific, case-by-case matter.  Nevertheless, the Appeals Panel has given Hearing Officers a decision that supports their not having to automatically grant a continuance at the eleventh hour.  --Erin Shanley, Stone Loughlin & Swanson, LLP

A man has filed suit in Tarrant County district court, alleging that his former employer, a mortuary, discriminated against him because he filed a workers’ compensation claim.  He claims he developed asthma after performing mortuary services on a man who had died from ingesting paint fumes in November 2016. He says he had not been provided with personal protective equipment and began to suffer chronic asthma after being exposed to the fumes. 
 
The employee also alleges a trauma claim occurring the following month, after he had been assigned to handle the bodies of a mother and 3-month-old son who had been decapitated.  (The decedents’ husband and father had been arrested in their deaths.)  He is claiming a post-traumatic stress reaction from performing the services on the victims.
                                               
The former employee is seeking monetary relief of $100,000 to $1 million. The suit alleges loss of earnings and mental anguish because the mortuary did not pay for his medical expenses, and terminated the employee two days after they learned he had filed for workers’ compensation.
 
The mortuary has issued a prepared statement, stating that the claims are without merit, that the suit contains information that is “both misleading and inaccurate,” and that the former employee “is making claims that didn’t come up until after his termination.”  --Erin Shanley, Stone Loughlin & Swanson, LLP