State News

 We are pleased to announce that our Blawg was named a Best Blog for 2016!  A complete list of the winners and the criteria used in the selection process can be found at http://www.workerscompensation.com/workers_comp_best_blogs.php.  We wish to thank the judges for their time and consideration as well as our readers who took time out of their day to submit nominations on our behalf. 

On April 29, 2016, the Alabama Court of Civil Appeals released its opinion in Leesburg Yarn Mills, Inc v. Thomas Hood.  In Hood, the trial judge found the claimed stenosing tenosynovitis (also known as “trigger finger”) to be compensable.  The employer had denied the claim presumably based on the opinion of the authorized treating physician.  The employee then proceeded to treat with his own physician, Dr. Glenn Wilson, and subsequently filed a Complaint for workers’ compensation benefits.  In finding in favor of the employee, the trial judge retained jurisdiction to later determine the extent of disability.  The employer appealed the decision. 

On appeal, the employer asserted that the employee failed to meet his burden of proving both legal and medical causation by clear and convincing evidence.  The employer argued that, in order for the employee to prove legal causation, it was necessary for him to establish that the repetitive nature of his job exposed him to his injury materially in excess of the risk to which people are exposed to in their everyday lives. 

In affirming the trial judge’s decision, the Court of Civil Appeals noted that the employee had worked for the employer for twenty-three years.  According to the employee, he was regularly exposed to repetitive pinching and grasping motions with his hands, multiple times per day.  He also testified that he regularly moved 306 lb cans, three or four times per day, on wheels that were in poor condition.

The Court also addressed medical causation.  At his deposition, Dr. Wilson testified that the employee’s exposure to job related overuse could be the cause of the trigger finger.  Although the employer offered the testimony of Dr. Howard Miller, who stated that the employee’s condition was age related, he was not able to rule out the possibility that the job activities were a contributing cause. 

Despite Dr. Wilson’s less than certain opinion as to medical causation, the Court of Civil Appeals affirmed the judgment because, considering the medical opinion along with the employee’s opinion and other evidence, the trial judge could reasonably have been clearly convinced that the employee met his burden of proof.

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About the Author

This blog submission was prepared by Mike Fish, an attorney with Fish Nelson & Holden, LLC, a law firm dedicated to representing self-insured employers, insurance carriers, and third party administrators in all matters related to workers’ compensation. Fish Nelson & Holden is a member of the National Workers’ Compensation Defense Network. If you have any questions about this submission or Alabama workers’ compensation in general, please contact Fish by e-mailing him at mfish@fishnelson.com or by calling him directly at 205-332-1448.

The CCH landscape is changing at a fairly rapid rate these days. The retirement of David Wagner
(Abilene), Carolyn Moore (Lubbock) and Cheryl Dean (Ft. Worth) ushers in a whole new crop of
judges. In Houston there are three new faces, Robin Burgess, Early Moye, and Francisca Okonkwo.
In Dallas/Fort Worth, DWC hired Amanda Barlow. Out West, Travis Dupree (Midland) and Teresa
Boone (Lubbock)joined the Hearings team. Finally, two traveling Hearing Officers, Mayson
Pearson and Dee Marlo Chico, will be filling in where needed. These changes should keep us on
our toes for several months to come.

The CCH landscape is changing at a fairly rapid rate these days. The retirement of David Wagner
(Abilene), Carolyn Moore (Lubbock) and Cheryl Dean (Ft. Worth) ushers in a whole new crop of
judges. In Houston there are three new faces, Robin Burgess, Early Moye, and Francisca Okonkwo.
In Dallas/Fort Worth, DWC hired Amanda Barlow. Out West, Travis Dupree (Midland) and Teresa
Boone (Lubbock)joined the Hearings team. Finally, two traveling Hearing Officers, Mayson
Pearson and Dee Marlo Chico, will be filling in where needed. These changes should keep us on
our toes for several months to come.

Three Appeals Panel cases of interest in the past couple of months include:
APD 160228 (decided 3/24/16) - the hearing officer erred in appointing a new designated doctor
after a CCH. The Appeals Panel noted the Rule 127.5(d) provision that a previously assigned
designated doctor is on the claim unless and until the DWC authorizes or requires the doctor to stop
providing services on a claim. The rules set out the reasons the DWC can authorize or require a
doctor to get off a claim, none of which applied in this case. The Appeals Panel looked at the DRIS
notes that the self-insured introduced during the CCH, and determined that those notes did not reveal
any exception to the requirement that the initially appointed designated doctor should remain on the
claim. The hearing officer appointed the second designated doctor because he exercised his
discretion in appointing a new designated doctor because he was concerned that the initial doctor
might “take umbrage in being instructed that his opinion of extent was rejected.” The Appeals panel
held that the hearing officer’s reason for appointing a new doctor was not one of those set out in the
rules and reversed the decision that the second designated doctor was properly appointed and held
that the doctor was not properly appointed.
APD 160074 (decided 3/21/16) - the hearing officer erred in admitting testimony of a doctor whose
identity was not timely exchanged and the decision on extent of injury, disability, MMI and IR was
reversed and remanded for the hearing officer to make a decision without consideration of that
doctor’s evidence. The Appeals Panel determined that the doctor’s name was received by the
claimant after the normal business hours (10:00 p.m.) on the 15th day following the BRC, it was not
timely exchanged (because it must be exchanged within 15 days of the BRC) and the hearing officer
did not discuss the reasons for the late exchange or make a determination of good cause to allow
the testimony despite the lack of timely exchange. The Appeals Panel excluded that doctor’s
testimony completely. The decision is silent on whether there was a report from that doctor in
evidence.
APD 160057 (decided 3/10/16) - Sure hope this is a trend ! The hearing officer erred in holding that
the claimant had not reached MMI per the treating doctor referral’s alternate certification, where that
doctor’s opinion was based on the fact that the claimant needed further treatment (injections) but
the compensable injury was limited to a lumbar sprain/strain (the other lumbar spine conditions
having been determined not to be compensable and not having been appealed). As the designated
doctor had rendered multiple certifications, one of which was for the lumbar sprain/strain only, the
Appeals Panel reversed and rendered an decision using the designated doctor’s certification that
claimant had reached MMI and assigned an impairment rating based on the DWC-determined
compensable injury. Of special significance to the Appeals Panel was the fact that there was no
evidence establishing that the recommended injections were treatment for the lumbar sprain/strain,
which was the only compensable condition.

On April 14, 2016, the DWC held its Quarterly Insurance Carrier Meeting. The Division reported
that the 484 pending air ambulance disputes have been abated pending resolution of litigation in
state and federal court regarding reimbursement for those services. The Division reported
approximately 30 new air ambulance cases are being filed each month, which will also be abated.
Martha Luevano, Director of Medical Fee Dispute Resolution (MFDR) at DWC, also reminded
Carriers of the requirement to respond timely to medical fee disputes. It was noted that 12% of the
time MFDR does not receive a response. Since a response is required by rule, failure to respond
may result in an administrative violation.

With the recent torrential rains, we expect a larger crop of mosquitos this spring and summer. The
US Centers for Disease Control (CDC) issued an alert about the spread of the Zika virus, and Texas
is included in the CDC’s estimate of the areas in the United States where the mosquitos more likely
to spread viruses like Zika, dengue, chikungunya and other viruses can be found. The National
Institute for Occupational Safety & Health (NIOSH) recommends employers protect workers and
workers protect themselves by using preventative measures including: protecting equipment in the
field, removing debris from ditches, filling in areas that collect standing water, removing tires,
buckets and items that collect standing water, and placing holes in containers that could collect
standing water where mosquitos may breed. The CDC and NIOSH have also provided a link for
insect repellant safety at
http://www.cdc.gov/niosh/topics/outdoor/mosquito-borne/default.html.
In Texas, insect bites and stings have been held not to be acts of God and are compensable when
causation is established. It is not enough to show that the injury occurred while in the course and
scope of employment. A claimant must also prove that the injury was of such kind and character as
had to do with and originated in the employer's work, trade, business or profession. Standard Fire
Ins. Co. v. Cuellar, 468 S.W.2d 880 (Tex. Civ. App.-San Antonio 1971, writ ref'd n.r.e.). To show
causation, the claimant must prove that the conditions and obligations of the employment placed him or her in harm's way. Texas Workers' Comp. Ins. Fund v. Simon, 980 S.W.2d 730 (Tex. App.-San
Antonio 1998, no writ.) Employers whose workplace presents an increased risk for exposure to
mosquitos should be especially cautious (agricultural, outdoor maintenance, road construction) and
look into extra preventive measures.

Casey Sutterfield was a derrick hand who claimed a workers’ compensation injury while working
in North Dakota for a Texas Company, Teravita. He says that after his injury, his employer made
misrepresentations about the availability of workers’ compensation benefits and created a hostile
work environment. He was either fired or resigned, depending on whom you believe. He returned
home to Texas and filed a workers’ compensation claim.
The carrier denied the claim, which was the subject of a contested case hearing in which the DWC
ruled in favor of Mr. Sutterfield. Mr. Sutterfield then sued the employer, the carrier and two
adjusters individually for discriminatory conduct, negligent misrepresentation, and conspiracy. The
employer filed a motion to dismiss the suit asserting that it was based on the employer’s constitutional right to associate with the carrier and to petition the DWC, protected by the Texas
Citizens Participation Act (TCPA). The Dallas Court of Appeals agreed and, on April 1, 2016, the
Texas Supreme Court refused to review the Dallas Court’s ruling.
The TCPA was enacted to “encourage and safeguard the constitutional rights of persons to petition,
speak freely, associate freely, and otherwise participate in government to the maximum extent
permitted by law and, at the same time, protect the rights of a person to file meritorious lawsuits for
demonstrable injury.” The Dallas Court said that participation in a workers’ compensation hearing
at the DWC was an exercise of the employer’s right to petition and that testimony at that hearing
was “an absolutely privileged communication.” Mr. Sutterfield argued that his claims against the
employer were exempt under the TCPA because that act expressly exempts actions brought “under
the Insurance Code or arising out of an insurance contract” from its protection. The Dallas Court
disagreed, holding that his lawsuit was not brought under the Insurance Code, rather it was brought
under the Texas Labor Code and common law and he sought damages, not under the insurance
contract between the employer and carrier, but under the provisions of the Labor Code.
The Dallas Court dismissed Mr. Sutterfield’s conspiracy claim and his claim for employment
discrimination by presenting false testimony during the claim process because the TCPA protected
the employer during the hearing process at the administrative level. The court refused to dismiss
the employment discrimination claims regarding the hostile work environment, representations that
he was not entitled to pursue benefits under the Workers’ Compensation Act and wrongful discharge
as well as the negligent misrepresentation claims, as those were based on statements made outside
the DWC proceedings, and were not protected by the TCPA. The entire opinion can be found at
Tervita, LLC v. Sutterfield, 482 S.W.3d 280 (Dallas App. - 2015, pet. ref’d).

In February, we told you about the Oklahoma Opt-Out statute being ruled unconstitutional by the
Oklahoma Workers’ Compensation Commission. The next move? An appeal to the Oklahoma
Supreme Court filed by Dillard’s, the employer in that case, alleging that the Commission did not
have jurisdiction to strike down the beleaguered statute.
The Oklahoma Supreme Court seems to have tipped its hand, however, on how it will decide the
issue. In another case, decided on April 19, 2016, the Oklahoma high court held that the state’s
Workers’ Compensation Commission had the power to determine whether a provision of the state’s
workers’ compensation law was being unconstitutionally applied to a party in a proceeding before
the Commission.
Many speculate that the Oklahoma Attorney General sees the writing on the wall and anticipates an
unfavorable ruling by the Supreme Court, as evidenced by a Motion for a Stay of the Proceedings
in the Oklahoma Supreme Court. The AG has asked for an additional two months to allow the
Oklahoma Legislature to consider amendments that would address some of the key issues. In other
words, they want time to see if the Legislature can fix the offending portions of the statute that
resulted in the Commission’s decision that the statute was unconstitutional. Of course, pending that
stay, all Opt Out case decisions are on hold at the Commission level pending the outcome of the
Dillard’s appeal.

Those who do not remember the past are doomed to repeat it, wrote George Santayana.  In workers’ compensation, those who do not know the past are doomed to pay for it.  Winning in workers’ compensation in almost every state comes down to developing past information about injuries, car accidents, chiropractic care, sports activities, second jobs, pain management and the like.   But New Jersey poses one overwhelming problem for employers and carriers:  there is next to no discovery sanctioned by the rules of the Division.  Once litigation occurs through the filing of a claim petition, it is generally too late for the employer to get the information it needs on causation and credits for prior disability.  Claimant’s counsel will only provide what the rules require, which is very little.

Here is what an employer does not get in litigation in the New Jersey’s workers’ compensation system:

1.      Depositions (except in exceptional cases)

2.      Interrogatories (except in occupational claims with pre-printed questions only)

3.      The right to demand prior family doctor records

4.      The right to demand prior chiropractic history

So how can an employer win or reduce costs if a claimant does not have to reveal anything at all about one’s past medical history during the course of litigation?  This is the essential question that all employers, carriers and third party administrators must answer.  After all, only a relatively small portion of accidents are clear-cut and witnessed.  Many are not witnessed and often involve mechanisms of injury that do not seem to correlate with the physical complaints. Without getting a detailed past medical history, employers time and again pay for prior non-work or age-related health conditions masquerading as workers’ compensation injuries.

The solution to this dilemma for employers in New Jersey and most states is to get detailed information about past history of injuries, past treatment, past pain management, prior hobbies and car accidents at the outset of the claim before the case goes to litigation. This can be accomplished by detailed incident or accident report forms filled out by the employee, or by recorded statements taken by insurance professionals.

When the employer, third party administrator or carrier refers the case to medical professionals for treatment, the medical office should also take its own detailed past medical history, and that information needs to be included in the medical reports that go to the third party administrator or carrier.  Causation is the overriding issue in most workers’ compensation cases because so many claimants have a prior history of back, neck, shoulder, knee and other conditions.  Occupational clinics which do not obtain or provide to the employer/carrier this sort of detailed past medical history are costing employers enormous sums of money.  Unfortunately, employers do not get the history forms that most of the occupational clinics use so they do not realize until too late how inadequate the past medical history really is in some of our occupational centers.

When it comes to litigation, less history is more beneficial for the injured worker.  The less past medical information provided to the employer or carrier, the better for the claimant because all present medical conditions can then be ascribed to the work injury, whether or not the condition is really work related or just age related.  For the employer the opposite is true:  the more past medical history is obtained, the less the employer will ultimately pay in workers’ compensation costs.  New Jersey allows a credit underN.J.S.A. 34:15-12(d) for previous disability.  But that presupposes that the employer can get the information about previous disability in the first place.

For example, if the injured employee had a prior herniated disc diagnosed in 2001 from a car accident, and now has a new injury to the same level, the credit for the 2001 condition could save the employer $25,000 to $30,000 – if the employer discovers it to begin with.   The best time to get that information is either by reviewing prior post-offer medical examinations at the time or hire or by reviewing initial accident history forms filled out by the employee at the time of the alleged work injury.   As mentioned above, when the case goes to litigation, the rules are not favorable to employers in terms of prior discovery.  There no bills pending in the Legislature to provide more discovery to employers. Meanwhile, rates are rising considerably with an award of 35% amounting to well over $85,000 at 2016 rates.  Just ten years ago, the same percentage award was worth $67,000.  The only thing that has not changed in this 10-year period is that employers have next to no discovery in the formal litigation process.

So self-help remains the best solution for employers.  Frankly, the choice of physicians and clinics that regularly obtain good past medical information is the single most important decision that a third party administrator or carrier can make.  You need physicians who are skilled and qualified, but you also need physicians who understand that past history bears directly on causation.  There are some physicians in the state who take a thorough past medical history and some occupational clinics as well, but they are in the minority.  Employers need to confer with counsel to identify those medical professionals who will ask about prior car accidents, prior chiropractic treatment, prior sports injuries, pain management and second jobs.  Otherwise when the case gets to court, the Judge of Compensation will have very little information to help assess causation.  It is true that running an ISO is helpful, but practitioners know that the ISO only captures reported insurance claims.  It will not capture the injury in the gym, the long-term back and neck problems treated by chiropractors, the secondary employment which may be linked to the physical symptomatology, and the history of prior pain medications.

If employers triage their workers’ compensation cases in the first 48 hours, and work on getting detailed past medical and recreational information at the outset, the savings will be enormous because the non-work and prior conditions will not be passed through the workers’ compensation system.

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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.