NWCDN Members regularly post articles and summary judgements in workers’ compensations law in your state.
Select a state from the dropdown menu below to scroll through the state specific archives for updates and opinions on various workers’ compensation laws in your state.
Contact information for NWCDN members is also located on the state specific links in the event you have additional questions or your company is seeking a workers’ compensation lawyer in your state.
Another long-time friend of this firm, Jacquelyn Coleman, recently retired from
the Division after serving for 16 years as an ALJ and has started her own
mediation practice. While she normally conducts mediations by Zoom, she can
perform in-person mediations with advance notice.
You can learn more about Ms. Coleman and her mediation services on her website
at jdcmediation.com.
We wish you well in your new endeavor, Jacquelyn!
Copyright 2023, Stone Loughlin & Swanson, LLP
The retail sale of psilocybin, better known as “magic mushrooms”, has recently received extensive media coverage. Employers across Canada are increasingly wondering how to address the use or simple possession of psilocybin in the workplace. This article answers five recurring questions.
Current situation
Long used by aficionados for their supposed mind-sharpening and other
properties, magic mushrooms seem to have sprung out of Canada’s back alleys in
recent years.
In Ontario, at least one storefront retailer has set up shop in Ottawa. In
Québec, a similar Montréal business received extensive media coverage when it
became the target of repeated police searches within hours of opening in
summer 2023. Online, the sale of psilocybin for recreational use or micro
dosing – low-dose self-medication – is reportedly surging.
While it is illegal to sell, buy or possess psilocybin in Canada, the substance appears to be gaining in popularity. It has even been spotted on billboards in some Canadian cities. As we’ve seen with cannabis, which was normalized before becoming legal, some employees may now wrongly believe that they can legally use or possess magic mushrooms – even in the workplace.
Employer questions about a mushrooming phenomenon
For Canadian employers, it can be difficult to get a good handle on the impact of rising magic mushroom use, let alone detect it. To help, we have compiled five questions to get you on the right track.
1. What are the effects of psilocybin use?
Magic mushrooms have a chemical composition similar to serotonin, one of our feel-good hormones. They also have hallucinogenic properties.
Health Canada lists a number of effects related to psilocybin use. In the short term, it can cause euphoria and uncontrollable laughter. But it can also cause hallucinations, fear and paranoia. Someone who has taken magic mushrooms may appear confused or disoriented or experience panic attacks.1
The effects generally appear within 15 to 45 minutes of ingestion and last for four to six hours.
Magic mushrooms are usually ingested in solid form (as a tablet or dried and ground up) or infused to make a tea. When in powder form, they can also be snorted. They should never be injected. Doing so can result in a serious medical emergency, since it can cause septic shock and multi-system organ failure.
2. What signs of psilocybin use can be detected in the workplace?
Along with the mood-altering and cognitive effects described above, the physical effects can include light-headedness, spasms or convulsions, sweating, numbness, pupil dilation, loss of coordination and even loss of urinary control. However, these signs are not necessarily specific to psilocybin use.
These effects mean that magic mushroom use is not readily compatible with many jobs, particularly high-risk trades that involve operating precision tools, working at heights or driving motorized vehicles.
No two doses are the same. There are different species of magic mushroom, and effects can even vary between two mushrooms of the same species. Consequently, users cannot easily anticipate the effects based on the dose ingested. Given its long-lasting effects, psilocybin could interfere with an employee’s performance even when taken outside work hours.
In addition, severe intoxication can result from accidentally consuming magic mushroom look-alikes.
No studies have evaluated the long-term effects of extended magic mushroom use. Currently, there is little evidence that consuming hallucinogenic mushrooms can cause physical dependence, but continued use could result in psychological dependence. Many users appear to develop a tolerance to the drug and ramp up consumption to achieve the desired effect.
In contrast, micro dosing involves taking small quantities (about 100 mg, or one tenth of a normal dose) every few days. According to micro dosing proponents, this is not enough to produce the common psychoactive effects, but it does help reduce symptoms of anxiety and depression.
3. How can employers recognize psilocybin products?
These products are typically sold as dried mushrooms. However, since they are consumed in different ways, possession may be hard to detect in the workplace. For example, they can be infused in honey, oil or tea or used as an ingredient in risotto.
4. Does psilocybin have therapeutic effects?
While psilocybin has long been consumed recreationally, its therapeutic use is currently being studied to properly evaluate its potential as a partial treatment for addiction, depression and post-traumatic stress. Clinical trials of such psychedelic-assisted psychotherapies have only been authorized in Canada for a few years and are carried out under strict supervision.
It is therefore not impossible for an employee to be consuming psilocybin as part of a research study into its medical uses.
5. How should employers react to psilocybin’s growing popularity?
To proactively manage the rise of magic mushrooms on the Canadian market, we strongly recommend that employers review their policies on drugs, alcohol and other substances to ensure that workplace possession, use and sale are clearly prohibited. This should apply so long as the substance remains illegal.
Currently, the cultivation, production, possession, purchase and sale of magic mushrooms are illegal. Employers must therefore ensure that employees do not bring such products into the workplace, even if they have no intention of consuming them there.
Employer policies should require any employee or self-employed worker with a medical prescription for psilocybin or cannabis to advise their human resources department as soon as possible. The employer should in turn seek the advice of a health professional to determine whether this substance use is compatible with the employee’s duties. As necessary, the employer could then work with the prescribing professional to prevent the dosage regimen from interfering with work. The employer should also make sure that it poses no risk to the health and safety of the employee or the people around them.
Contact us
If you have any questions regarding this article or how to manage psychoactive substances in the workplace, please do not hesitate to reach out to the author or any member of our Labor and Employment Group.
The Claimant/Appellant, Barry Mullins, was diagnosed with ocular melanoma in 2010 and passed away in 2021. Claimant was awarded a disability pension as a result. Claimant’s widow, Melissa Mullins, filed a Petition with the Industrial Accident Board on April 22, 2022, seeking workers’ compensation survivor benefits, based upon the City of Wilmington Pension Code. An Industrial Accident Board Hearing took place on December 8, 2022, where Employer argued benefits paid through the City of Wilmington Pension Code did not constitute or establish liability for Workers’ Compensation benefits relating to an occupational disease. The Board ultimately found the Claimant had failed to prove entitlement to workers’ compensation benefits in relation to his death from ocular melanoma.
The Claimant then appealed this Decision to the Superior Court. It was the Claimant’s position that the City “acknowledged” the claimant’s injury by paying a disability pension to the Claimant’s widow, claiming the presumption of a work-related condition was unrebutted as a result. It was the Employer’s position that the cause of the Claimant’s condition was not related to his employment with the City. The Employer further argued that payment to the Claimant’s widow through the Pension Code is independent from any payment under the Workers’ Compensation Act.
The Superior Court agreed with the Board Decision. Establishing causation of a work-related occupational disease requires evidence “the employer’s working conditions produced the ailment as a natural incident of the employee’s occupation in such a manner as to attach to that occupation a hazard distinct from and greater than the hazard attending employment in general.” The Superior Court ruled payments under the Pension Code do not in turn make the City liable for causation under the Workers’ Compensation Act, as a finding of causation requires claimants to meet the burden established in the Act. The Court noted this was consistent with comments made in a prior Board Decision (Armstead v. City of Wilmington, IAB No. 1485578, May 6, 2021), in which the Board noted the standard under the Pension Code does not translate to the causation standard in the Workers’ Compensation Act.
Should you have any questions regarding this decision, please contact Nick Bittner or any other attorney in our Workers’ Compensation Department.
BARRY MULLINS v. CITY OF WILMINGTON, N23A-01-004 CLS (August 18, 2023).
There are many sections of the Workers’ Compensation Act that may subject employers/carriers to fines, as follows:
· 19 Del. C. §2313 – Where an employer or insurance carrier fails within 10 days after knowledge of the occurrence of an accident resulting in personal injury to file a First Report of Injury, the employer may be fined between $100.00-$250.00. Reports made under this section are not admissible in evidence against the employer.
· 19 Del. C. §2320(8) – “Costs legally incurred may be taxed against either party or apportioned between the parties at the sound discretion of the Board, as the justice of the case may require.”
· 19 Del. C. §2322E(d) – Within 14 days of the issuance of an Agreement for any period of total disability, the employer shall provide to the health care provider/physician most responsible for the treatment of the employee’s work-related injury and to the employer’s insurance carrier, if applicable, a report of modified duty jobs which may be available to the employee. The insurance carrier for an insured employer shall send to such employer the aforementioned report for completion, and shall be independently responsible for providing a completed report of modified duty jobs to the health care provider/physician. 19 Del. C. 2322F(g) provides for fines of between $1,000.00-$5,000.00.
· 19 Del. C. §2322F(h) - An employer or insurance carrier shall be required to pay a health care invoice within 30 days of receipt of the invoice as long as the claim contains substantially all the required data elements necessary to adjudicate the invoice, unless the invoice is contested in good faith. If the contested invoice pertains to an acknowledged compensable claim and the denial is based upon compliance with the health care payment system and/or health care practice guidelines, it shall be referred to utilization review. Any such referral to utilization review shall be made within 15 days of denial. Unpaid invoices shall incur interest at a rate of 1% per month payable to the provider. 19 Del. C. §2322F(g) allows for fines of between $1,000.00-$5,000.00.
· 19 Del. C. §2346 – The Board may impose a fine not to exceed $500.00 for each use of the term “independent medical examination” or “IME”.
· 19 Del. C. §2362 – Requires payment of final Board Awards and settlement agreements within 14 days, and permits fines of between $500.00-$2,500.00 for non-compliance.
· Huffman – If a Board Award or Agreement between the parties is not paid within 30 days of a final Award or Agreement, claimant can assert a Huffman demand under the Wage Payment Collections Act. If not paid within 30 days of the demand, Huffman sanctions/penalties include a liquidated damage payment of 10% per day of the outstanding balance up to 100% liquidated damages, costs of any filing (Superior Court Complaint) and a claimant’s attorney’s fee (rate of whatever is reasonable -- could be +/- $300.00 per hour). This is in addition to any other penalties otherwise available under the Workers’ Compensation Act.
· 19 Del. C. §2365 retaliation – fines of between $500.00-$3,000.00.
· 19 Del. C. §2374 – minimum of $250.00 per day or $10.00 per employee, whichever is greater, for the time period no workers’ compensation insurance policy is in effect.
· 19 Del. C. §2386 – whenever an insurance company or self-insurer violates this chapter, neglects or refuses to comply with this chapter, or willfully makes any false or fraudulent statement of its business or condition or a false or fraudulent return, it shall be fined between $100.00-$1,000.00 per offense.
Should you have any questions, please contact any attorney in our Workers’ Compensation Department.
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Travis County District Court Judge Madeleine Connor signed a judgment in favor
of the insurance carriers in the PHI Air Medical Case on August 8, 2023.
PHI Air Medical had until September 7, 2023 to appeal Judge Connor’s
decision to the court of appeals but did not do so, making her decision final.
Judge Connor found that PHI Air Medical did not timely file its petition
for judicial review challenging SOAH’s decision awarding payment of 149% of the
Medicare rate and agreed with the carriers that 149% of the Medicare rate exceeds
the Workers’ Compensation Act’s fair and reasonable reimbursement standards for
the 33 fee disputes at issue in the case.
The PHI case began at the State Office of Administrative Hearings (SOAH) in
2015 when Administrative Law Judge Craig Bennett consolidated the 33 fee
disputes involving eight carriers consisting of Texas Mutual Insurance Company,
Hartford Underwriters Insurance Company, TASB Risk Management Fund,
Transportation Insurance Company, Truck Insurance Exchange, Twin City Fire
Insurance Company, Valley Forge Insurance Company, and Zenith Insurance
Company.
The PHI case went all the way to the Texas Supreme Court which ruled in favor
of the carriers. PHI petitioned the U.S. Supreme Court for review but it
declined to hear the case. The case then went back to the court of
appeals for a second decision before heading back down to the trial court where
the carriers filed a motion for summary judgment. Because PHI did not
appeal Judge Connor’s order granting summary judgment for the carriers, the PHI
case will now be remanded to SOAH for further proceedings consistent with Judge
Connor’s final judgment.
The rest of the air ambulance disputes at SOAH and DWC have been abated while
the PHI case proceeded. However, Air Evac, another air ambulance
provider, recently filed a motion to lift the abatement of its cases at SOAH so
that it could brief how a 2018 injunction that it obtained applies to its cases
at SOAH. The injunction states that DWC is “enjoined from enforcing Texas
Labor Code § 413.011 and 28 Texas Administrative Code against Plaintiff Air
Evac EMS, Inc.” The parties filed a proposed briefing schedule on
September 15, 2023 which the ALJ has not yet ruled upon.
As of August 2023, there are 2,414 air ambulance disputes pending at DWC.
This figure does not include the air ambulance fee disputes pending at
SOAH. The average amount sought by the air ambulance provider in each
case at DWC is estimated to be at least $50,000, which is the difference
between what the air ambulance provider was paid by the carrier and its
unregulated billed charges. This makes the total amount sought by the air
ambulance providers in the disputes at DWC over one hundred and twenty million
dollars plus interest.
There are five air ambulance providers that comprise the vast majority of the
air ambulance disputes. These providers are Air Evac EMS, Inc., EagleMed, LLC,
Med-Trans Corp., Rocky Mountain Holdings, and PHI Air Medical, LLC. These
five providers are owned by two private equity firms and a publicly traded
company. Air Evac EMS, Inc., EagleMed, LLC, and Med-Trans Corp. are
subsidiaries of Air Medical Group Holdings (AMGH) which is owned by private
equity firm KKR. Rocky Mountain Holdings (a subsidiary of Air Methods) is
owned by private equity firm American Securities, LLC. And PHI Air Medical, LLC
is a subsidiary of publicly-traded Petroleum Helicopter International, Inc. (PHIL).
The air ambulance providers continue to argue that the federal Airline
Deregulation Act (ADA) preempts Texas workers’ compensation laws that regulate
reimbursement to air ambulance carriers and therefore, DWC must order the
carriers to pay their grossly inflated billed charges. However, the Texas
Supreme Court already squarely rejected this argument in the PHI case:
“First, if ADA preemption applies, neither state nor federal law provides for full reimbursement of air carrier bills—or for any reimbursement at all. Second, the effect of federal preemption cannot be that States must provide full reimbursement, as that outcome would violate the Tenth Amendment. For these reasons, the result of ADA preemption here would not be full reimbursement—it would be no reimbursement.”
If the air ambulance providers were able to force DWC to order payment of its
billed charges, it would result in a massive wealth transfer to private equity
investors and reward the takeover of the air ambulance industry by private equity.
See The Air-Ambulance Vultures A search for why my flight
cost $86,184 led to a hidden culprit: private equity.
Copyright 2023, Stone Loughlin & Swanson, LLP
We advised you last month that long-time Division Administrative Law Judge,
Carol Fougerat, decided to hang up her gavel (ALJs don’t wear robes) last month
and is now pursuing her next big adventure in life. Judge Fougerat was a most
excellent ALJ and will be missed.
This month, we can further announce that another favorite ALJ, Britt Clark, has
also left Hearings. Judge Clark, an astute judge with a wealth of knowledge,
has accepted a position with General Counsel. We wish him well in his new
position.
Copyright 2023, Stone Loughlin & Swanson, LLP
The Workers’ Compensation Research and Evaluation Group this month released its
report on pharmacy utilization and cost in the Texas workers’ compensation
system between 2009 and 2022. The aim was to capture data before and after the
introduction of the pharmacy closed formula and the results are interesting:
To access the entire report, click here. For a quick overview, see the snapshot on the TDI website.
Copyright 2023, Stone Loughlin & Swanson, LLP
The vast majority of
enforcement actions are against insurance carriers for failure to timely pay
income benefits and medical bills. While these violations are certainly
worthy of enforcement action, they don’t usually make for very exciting
reading. Enforcement actions against providers, on the other hand, often
have unique facts which make them much more entertaining. To demonstrate
this point, here is a summary of the most recent consent orders against
providers.
On September 6, 2023, the Commissioner signed a consent order concerning disciplinary action
against Dan Mai Ung, D.C. The Commissioner found that Dr. Ung, in treating an
injured employee for work-related cervical and lumbar strains and right knee
pain, had referred the injured worker for two unnecessary MRIs. Not only did
the doctor fail to provide a rationale or document findings supporting MRI
testing pursuant to the Official Disability Guidelines, but he also failed to
disclose that the clinic to which the injured worker was referred for the MRIs,
Americana Injury Clinic, was, in fact, owned by Dr. Ung. (Note: Unlike federal
health care programs, it is not against the law to self-refer in Texas workers’
compensation; it is just a violation if you self-refer and don’t disclose your
financial interest.).
The Commissioner concluded that Dr. Ung had provided treatment or services
which were improper, unreasonable, or unnecessary; that he violated treatment
guidelines; that he failed to explain the basis for his return-to-work
determinations; and that he failed to disclose his financial interest in
Americana Injury Clinic.
Dr. Ung was ordered to pay an administrative penalty of $7,000.00 and ordered
to attend 6 hours of continuing medical education including 2 hours each in
evidence-based spinal evaluation, evidence-based knee evaluation, and
ethics.
On September 14, 2023, the Commissioner signed a consent order concerning disciplinary action
against Ray R. Trey Fulp III, D.O. The Commissioner found that Dr. Fulp failed
to provide treatment in accordance with the Official Disability Guidelines and
performed improper, unreasonable, or medically unnecessary spinal surgery. Dr.
Fulp was ordered to pay an administrative penalty of $10,000.00 and required to
attend 6 hours of continuing medical education in the topic of spine diagnosis
or treatment. Dr. Fulp was further required to attend and successfully complete
the Center for Personalized Education for Professionals Medical Record Keeping
Seminar and PROBE Ethics and Boundaries Program.
On August 31, 2023, the Commissioner signed a consent order concerning disciplinary action
against Anthony Owusu, Jr., M.D. under two DWC Enforcement files. In the first,
the Commissioner found that Dr. Owusu had completed a designated doctor
examination of injured employee No. 1 on April 17, 2021, but had failed to
complete the report or receive approval for additional time to complete the
report within 15 working days of the examination date. Dr. Owusu filed his
request for an extension of time on June 2, 2021, 26 calendar days late.
In the second Enforcement File, the Commissioner found Dr. Owusu, as a
designated doctor, had reported performing a physical examination of injured
employee No. 2 but failed to document a focused medical examination of the
injured body part in the record. Dr. Owusu was further found to have failed to
reference or follow the required MD Guidelines in his return-to-work evaluation
or to justify deviating from the guidelines using evidence-based medicine.
Finally, Dr. Owusu’s work restrictions and conclusions were inconsistent with
the clinical findings of the treating doctor, however, he failed to acknowledge
or differentiate these findings in his rationale supporting his determination
that injured employee No. 2 was incapable of returning to work.
Dr. Owusu was ordered to pay an administrative penalty of $8,500.00 and
required to attend and complete 6 hours of continuing medical education.
The Commissioner further ordered that Dr. Owusu shall not reapply for
designated doctor certification or participate as a designated doctor in the
Texas workers’ compensation system, and that any future applications for
certification will be denied.
Finally, the Commissioner ordered that Dr. Owusu shall not practice or receive
any remuneration from the Texas workers’ compensation system as a consulting
doctor, Required Medical Examination doctor, or as a peer reviewer.
Copyright 2023, Stone Loughlin & Swanson, LLP
The Division has announced the State AWW and maximum/minimum weekly benefits
for the period from October 1, 2023 through September 30, 2024 and it should
come as no surprise that the effects of inflation continue to impact the SAWW
and weekly benefits.
For the period from October 1, 2023 through September 30, 2024, the new SAWW
and weekly benefits were increased approximately 5.6% as follows:
State Average Weekly
Wage:
From $1,111.55 to $1,173.81
Maximum Temporary Income Benefits: From
$1,112.00 to $1,174.00
Minimum Temporary Income Benefits: From
$167.00 to $176.00
Maximum Impairment Income Benefits: From $778.00 to
$822.00
Minimum Impairment Income Benefits: From
$167.00 to $176.00
Maximum Supplemental Income Benefits: From $778.00 to $822.00
Maximum Lifetime Income Benefits:
From $1,112.00 to $1,174.00
Minimum Lifetime Income Benefits:
From $167.00 to $176.00
Maximum Death Benefits:
From $1,112.00 to $1,174.00
To access the SAWW and maximum/minimum weekly benefits for Fiscal years 1991
through 2024, click here.
Copyright 2023, Stone Loughlin & Swanson, LLP
