State News

eClaims:
The Exciting World of FROI & SROI

Presented by

David L. Snyder, Esq.

Melanie M. Wojcik, Esq.

Rebecca M. Guerra, Esq.

eClaims: Today’s Agenda I.Background II.New Claims ¡Accepting Claims ¡Denying Claims III.Ongoing Claim Management ¡SROIs ¡Legacy Claims ¡Acquired Claims IV.Conclusion ¡Summary of Changes ¡Practice Points

eClaims Background

Presented by David L. Snyder, Esq.

Background Spring of 2012: Board announces transition to electronic reporting system called “eClaims”

Objective: Provide timely, accurate, and credible electronic reporting which will reduce employer costs and make it easier for injured workers to receive timely benefits Adoption of IAIABC Electronic Data Interchange (EDI) standards What is eClaims? Electronic system for managing claims and reporting case events Keep paper filing for C-240, C-11, PH-16.2, reimbursement requests, attached documents and correspondence

Alphabet Soup Rolling Out eClaims Implementation deadlines 3/10/14: Implementation complete Training courses & materials New regulations N.Y. Comp. Codes R. & Regs. Tit. 12 § 300.22 (effective 4/23/14) Changes to existing regulations N.Y. Comp. Codes R. & Regs. Tit. 12 § § 300.23, 300.38 (effective 4/23/14) eCase Largely unchanged “Summary of benefits” tab captures all SROI submissions historically “Cumulative benefits” tab captures all benefits paid – medical and indemnity If two carriers involved, able to switch viewing screens to view different carriers’ FROI/SROI information Print FROI/SROIs directly from eCase eClaims Inquiry NEW! web application which provides the ability for Trading Partners (Senders), Vendors, Insurers and Third Party Administrators to view both accepted and rejected claim transactions submitted to the Board

Shows all transactions and status (accepted or rejected) and reason for rejections Use anticipated by “Flat filer” vendors: e.g. Mitchell: ¢“Eliminate manual data entry by exporting FROI/SROI data from your claims management system via SFTP (secure file transfer program).” 

New Claims

Presented by Melanie M. Wojcik, Esq.

New Claims 1.The FROI 2.Accepted claims 3.Denied claims 4.Accepting a claim without prejudice under 21-a 5.Partial denials – when medical liability may be accepted, but you are disputing indemnity 6.Practice Points ● ● ● The FROI FROI – First Report of Injury The FROI will replace the C-669 and the C-7 A FROI will always be the first form filed Accepting a Claim: Medical Only Claims FROI-00: for medical only claims where claimant will require medical treatment beyond ordinary first aid or more than two treatments by a person rendering first aid as defined by Section 110 (2), and there is no lost time beyond the working day or shift on which the accident occurred as defined by Section 110(2) and proposed amendment to NYCRR Section 300.22. Notification to be made within 18 days after the disability event or within ten days after the employer has knowledge of the disability event, whichever period is greater. Notification required for claims with more than two treatments. Accepting a Claim: Medical Only Claims (cont’d) This is the same rule that previously applied to the C-2. Difficult to ascertain within the deadlines. If lost time, then the FROI-00/SROI-IP should be filed if carrier is paying lost time or FROI-00/SROI-EP if the employer is paying wages.  Notification codes on FROI-00: “N” (notification only), “M” (medical), and “I” (indemnity) If in the future, claimant begins losing time, a SROI will be filed. Controverted Claims Before EDI, a C-7 would be filed, either by your office or by your counsel.  Your legal counsel would be required to certify the C-7. New procedure:  if claim is to be denied you will file either a FROI-00 then a SROI-04, or a FROI-04. Legal counsel cannot file these forms on your behalf. Deadlines for timely filing remain the same. FROI-04 to be filed within 18 days after the disability event or within ten days after the employer has knowledge of the disability event, whichever period is greater.  If not filed in accordance with these timeframes, may be subject to $300.00 penalty in accordance with Section 25-2(a).  Controverted Claims – Important! Counsel cannot “file” the form; however, counsel should still be involved to identify viable controversies. Need to immediately secure claimant and witness statements, HIPAA authorizations, OC-110a forms for investigation of prior treatment and pre-existing injuries. Counsel should continue to assist in identifying issues to be raised. We have new forms, but are still subject to Rocket Docket rules. Controverted Claims: Example One Emmett the construction worker is injured on 12/10/13.  He reports his injury on 1/15/14.  You want to controvert based on untimely notice.  FROI-04 must be filed by 1/25/14 (ten days after the employer had knowledge of the disability event). Controverted Claims: Example Two Joe Fibsalot alleges a right knee injury occurred on 12/5/13.  He tells his supervisor on 12/9/13, a Monday.  A co-worker tells the supervisor that Joe hurt his knee skiing over the weekend.  Joe is taken out of work by Dr. Believesanything on 12/12/13. When should your notice of controversy be filed?   As the employer wants to controvert from the outset, you can file the FROI-04, and it must be filed by 12/23/13 – 18 days after the disability event.  Note that ten days from the date the employer had knowledge was 12/19/13. Controverted Claims: Filing Deadlines FROI to be filed within 18 or 10 deadline. SROI-04 within 25 days from indexing or within 18/10 whichever is greater. For example, case is being controverted for date of accident 1/2/14.  You file FROI-00 on 1/12/14, but claimant does not file a C-3 or any medical indicating a work related injury.  The claimant files a medical report and C-3 on 1/31/14.  The WCB indexes claim on 2/5/14.  SROI-04 filed on 2/20/14 (within 25 days from indexing). Controverting a Claim: continued If a paper C-7 was filed before you went live with EDI, then a FROI-UR would be the appropriate first filing. In other words, if the claims administrator has not previously filed a paper C-7 or any other FROI, then the Board would expect a FROI-04 when controverting the claim.  If you have already filed a FROI, then a SROI-04 would be expected to controvert the claim. Controverting a Claim: Denial Codes Select the Right Denial Codes: Example Mr. Driver alleges a low back injury occurred while he was delivering packages on Christmas Eve, 12/24/13.  He reports the injury to his employer on 1/10/14.  Employer reports that the claimant was actually done with his shift and slipped in a parking lot while doing last minute Christmas shopping, as reported by his ex-wife who works for the same company.  Carrier promptly filed a FROI-04 on 1/18/14 (within ten days of when the employer was notified of the “disability event”) and raises “2E – no injury per statutory definition” but nothing else.  Select the Right Denial Codes, cont’d. The pre-hearing conference is scheduled for 2/16/14 and carrier sends the notice to its counsel on 2/1/14.  Counsel realizes that additional issues should have been raised including 1D (does not meet statutory definition of accident), 2D (no medical evidence of injury), 1E (deviation from employment) and 1I (presumption does not apply).  Counsel quickly files a SROI-02 and PH-16.2 raising the additional issues, but advises that the Judge may preclude carrier from pursuing the “accident” defenses as they were not timely raised. Select the Right Denial Codes, cont’d. Denials will have to be certified by legal counsel at the pre-hearing conference. If FROI-04 or SROI-04 filed, and additional issues need to be raised, then a SROI-02(change), can be filed to amend your notice of controversy.  However, deadlines for issues to be raised, (accident or employer/employee) relationship must still be considered. Some codes can be used to mean more than one thing. There are no specific occupational disease codes, so if you are raising no OD, clarify in the denial narrative. Denial Reason Narrative Denial reasons may be clarified using DN0197 (denial reason narrative).  This will be important to use, to clarify the issues being raised, as many of the denial codes have multiple meanings.  For example, denial code 3E means “no insurance policy in effect on date of accident,” which can be used to raise an issue of proper carrier, or cancellation of coverage. Accepting a Claim Without Prejudice Carriers may still accept claims without prejudice under 21-a, and are required to file a SROI, presumably a SROI-IP (initial payment) immediately upon beginning temporary payment of compensation or for treatment.  On the SROI form, there is an area indicating “agreement to compensate” with options of “with liability” or “without liability.”  If accepting under 21-a, use “Agreement to Compensate Code” (DN0075) with value of “W” (without liability).  You will then have a year from the date of filing in which to controvert the claim, although you will have to continue payments of medical and indemnity while performing further investigation.  If you controvert at some point within year: file a SROI-04. Partial Denials Denying indemnity in whole, but paying for medical. Use FROI-00 and SROI-PD.  Example would be a case where there is no medical evidence to support lost time, or a claim where the injury is not disputed but any claim for lost time is: for example, claimant is injured, and refused light duty offer from employer. Denying indemnity in part, not medical. Use FROI-00 and SROI-PD.  This would be a situation where there was medical evidence to support lost time for a short period, but then no further evidence and claimant remains out of work. New Claims: Practice Points Coordinate with employers to determine whether or not a claim should be controverted: ¡C2, Witnesses contacted for statements, HIPAA releases Involve counsel before filing FROI-04 or SROI-04 to review appropriate issues/investigation:  ¡If counsel assists you with the denial, then the file can be monitored so that the PH16.2 is timely filed. Practice Points, cont’d. Paper copies of FROI and SROI denials must be served on the claimant, claimant’s counsel and other parties: email/fax if accepted by claimant’s counsel and claimant Paper PH-16.2 statements are still required to be filed 10 days prior to pre-hearing conference. If you file the denial on the 25th day: ensure confirmation that it was received: direct filers will receive immediate notice; flat filers need to check for successful transmission. Practice Points, cont’d. If you use a flat filer, file a few days before the deadline to verify that it was accepted by the Board. If a file is rejected, it will because of technical defect not substantive reason. IMPORTANT:  FROI must always be filed on or before the 18th day after the disability event or within ten days from the date that the employer has knowledge of the disability event.  This applies to all claims!

ONGOING CLAIM MANAGEMENT

Presented by Rebecca M. Guerra, Esq.

Ongoing Claim Management 1.SROIs 2.Reporting benefit changes 3.Legacy claims 4.Sub-annual reports 5.Acquired claims 6.Practice points SROI Subsequent Report of Injury Replaces C-8/C-8.6 (reports change in indemnity/wages because of some event) MTC determines purpose of report: Board has provided “MTC Filing Instructions” SROI-04/SROI-PD used in denials; remainder of SROIs used on accepted/established claims On ongoing claims, generally required to be filed within 16 days after event occurred which led to change in benefits; on new claims where initial payment, file within 18/10.    SROIs, cont’d. Report all penalties, medical expenses, M+Ts, atty fees, interest; do not need to report defense fees presently Do not need to file a SROI every time you make a payment! Benefits broken down by type (total/partial) Uses “through” dates, not “to” dates Document overpayments, apportionment, third party offsets Indemnity Benefit Reporting SROI-CA: Reportchange in rate only ¡e.g. change to AWW SROI-CB: Report change in benefit type and benefit rate ¡e.g.  change from TT to TP SROI-PY (payment report) lump sum payments (32), payment of awards, penalties SROI-S_ (suspension) ¡ ¡ Other SROIs Reduced Earnings Resumption of benefits Wages resumed General Data Element Changes: FROI-02/SROI-02 Benefits exhausted: SLU/PPD benefits Legacy Claims Claims which were in Board database prior to eClaims and already have WCB Number (JCN) When reportable event occurs, administrator reviews “extract” file (FROI-UR if present; FROI-00/AU if not) FROI-UR: file with appropriate SROI(s) on legacy claim when some reportable event occurs SROI-UR: summarize historical information regarding the claim; only required if indemnity paid previously Sub-Annual Reports SROI-SA: two per year on open cases (not marked NFA or reopened after being marked NFA) or closed cases (NFA) with continuing indemnity payments Due on open “medical only” claims Each SROI-SA is a cumulative total of each benefit paid to date on the claim Due 180 days from date of accident or where no accident date/partial: from filing of first FROI While the regulations would not seem to impose this requirement on legacy claims, Board’s FAQs say otherwise Mailing to parties optional SROI-SA Deadlines Acquired Claims  Required to report in eClaims when a claim has been acquired from another administrator FROI-AQ (can be used if prior claim administrator): within 10 days of acquisition FROI-AU (if no FROI/SROI previously filed): within 30 days after the rejection of FROI-AQ SROI-AP (payments begun): within 16 days Need to report “unallocated prior indemnity benefits”: what prior claims administrator paid in lump sum SROI Practice Points Use the proper MTC. Pay attention to filing deadlines, which may vary by reason for filing. Use the narrative fields for explanations, e.g., SROI-SJ suspension – explain why suspending. Serve on claimant and claimant’s counsel. File attachments directly with the Board.

Conclusion

Presented by David L. Snyder, Esq.

Summary of Changes Elimination of C-2 filing Elimination of C7, C-669, and C-8/C-8.6 SROI-SA Sub-annual reports Denial codes FROI/SROI section in eCase Trading partners How Counsel Can Assist With eClaims Determine compensability of claim and legal defenses Assist with denial codes and narrative explanations Prepare PH-16.2 and advise on evidence needed to defend claim Advise on potential penalties and repercussions for filing deficiencies Practice Points Pay careful attention to ensure that the right MTC code is utilized based on the event being reported Use narrative fields to explain when necessary Make sure you receive “Transaction Accepted” acknowledgement of transaction; if rejected, redo C-2F paper form not to be filed, but still should be completed and retained by employer Separately submit any attachments to the Board via email, fax or mail Practice Points, cont’d. If either of the parties of interest (POI) have designated email for service, the carrier can serve the PDF via email for that POI, but if claimant does not à PDF must be served by mail on claimant Mail the printable report, when required, to the claimant and his or her counsel within one business day File reports well prior to 6:00 P.M. to ensure successful transmission (check Board FAQs for update – certain days extended to 8:00 P.M.) Additional Resources Email: eclaims@wcb.ny.gov

Telephone: 877-632-4996, Option #7; or call any of the Board’s District Office Numbers and select Option #5 Website: www.wcb.ny.gov à eClaims link Questions and Answers If a FROI-00 has no witness names would the employer be prevented from producing witnesses at a hearing? ¡The FROI-00 is the equivalent of what was included on the paper C-2 today so same rules would apply. However, if it is a controverted claim (FROI-04) it would be different since the PH-16.2 asks for this and all controverted rules will remain the same. How does the FROI-02 differ from the SROI-02? ¡They are only different in what you can change. The FROI and SROI have different data elements in some instances. For example, the Claimant's Address and Phone are FROI data elements only. A FROI-02 can be submitted anytime in the life of the claim, so submission of a SROI does not stop the carrier's opportunity to submit the FROI-02 if they found it necessary. Also, I just wanted to note that the FROI-02's are only "servable" on the parties if you are changing Full Denial reasons. So a carrier who is just changing a claimant's address is not required to mail a copy of the 02 to the parties like they would other certain FROI's and SROI's. Questions and Answers What do you do when a SROI is not “required” but you want to make parties aware of what has been done with payments?  For example, a client advised that they were unsure what MTC to file and contacted e-claims, and were told that they did not need to file anything.  In this situation, three periods were awarded by the Judge that were previously held in abeyance.  The carrier was allowed to credit an overpayment so no money was moving.  Optional – file SROI-PY.  Questions and Answers The state will provide an extract list of legacy claims that were reported prior to the ‘go live’ date.  FROI-URs will be generated on these.  We may have some claims in our system that pre-date the go live date that will not be included on the extract list.  Our system will automatically generate a FROI-OO, which is a first report.  Will these be considered late filings of first reports and will we be subject to penalties on these?    ¡No. If a case is not listed in the extract file, the Board specifically directs you to file a FROI-00 or FROI-AU.  As that is their explicit direction, you will not be penalized for complying with it. Are legacy claims that are already in payment exempt from the New York agreement to compensate code requirement? ¡Per the Element Requirements table available on the Board’s website, the Data Element of “Agreement to Compensate” is listed as “if applicable” for FROI-UR filings on legacy claims.  It is not mandatory.

On August, 8, 2014, the Alabama Court of Civil Appeals released its opinion inFab Arc Steel Supply, Inc. v. Timothy Dodd wherein it reversed a permanent and total disability award. Among the several issues on appeal, the Court considered whether there was enough evidence to support a finding that an L-1 herniation that was asymptomatic for more than a year following the accident was causally related to the accident. The Court also considered whether a determination of permanent disability could be made when the employee was not yet at maximum medical improvement (MMI). In addition, the Court considered whether a termination for misconduct could be considered a constructive refusal of suitable employment for purposes of denying temporary total disability (TTD) benefits.

L-1 Herniation

On appeal, the employer relied on the testimony of neurosurgeon, Dr. James White. At his deposition, Dr. White testified that he could not connect the herniation to the accident since the symptoms of lower back pain radiating into the lower extremities did not begin for over a year following the accident. In affirming the Trial Court on this issue, the Court of Appeals acknowledged that such a delay in symptoms certainly weakens the inference that a post-accident appearance of an injury is related to an accident. However, the Court relied on the fact that a herniation is the type of injury that results from trauma, that late symptoms did not rule out the accident as the cause, and that no doctor attributed the herniation to any other cause such as a degenerative condition.

MMI

Since the employer denied that the L-1 herniation was related to the accident, it refused to provide any of the recommended treatment associated with the injury. Dr. White testified that he recommended surgery and/or injections. At trial, the employee testified that he wanted to have the surgery. On appeal, the employer asserted that, if the herniation was determined to be related, then the employee could not be considered to be at MMI and, thus, any determination of permanent disability was premature. The Court of Appeals agreed and reversed the permanent and total disability award. The Court further ordered that the recommended treatment be provided and that the issue of permanent disability be readdressed once the employee was placed at MMI.

Constructive Refusal of Suitable Employment

At trial, the employer presented evidence that the employee was terminated due to insubordination and argued that his conduct amounted to a constructive refusal of suitable employment. The employer took the position that it should not be responsible for paying TTD benefits when it made a job available that fell within the physical limitations assigned by the treating physician but then the employee basically got himself fired. The Trial Court determined that the employer’s reasons for terminating the employee were without merit. The Court of Civil Appeals declined to reverse the Trial Court on that determination and, therefore, could not reverse the determination that TTD was owed.

My Two Cents:

Although the Court of Appeals refused to reverse the Trial Court on the TTD issue, it did not assert that the "constructive refusal of suitable employment" argument was improper. This leaves the door open in the future for this argument to be made whenever an employee is fired due to misconduct.

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About the Author

This article was written by Michael I. Fish, Esq. of Fish Nelson & Holden LLC, a law firm dedicated to representing employers, self-insured employers and insurance carriers in workers’ compensation matters. Fish Nelson & Holden is a member of The National Workers’ Compensation Network (NWCDN). If you have any questions about this article or Alabama workers’ compensation issues in general, please feel free to contact the author atmfish@fishnelson.com or any firm member at 205-332-1448.

Interim Commissioner Named
The Governor has named the senior Deputy, Michelle (Miki) McGovern, as the new acting Workers’ Compensation Commissioner effective immediately.  She will remain in this capacity until the Governor formally appoints a new Workers' Compensation Commissioner subject to confirmation by the Senate.

This should immediately address the backlog of decisions that has accrued over the several weeks since Commissioner Godfrey resigned.  During that time, Deputy Commissioners have not issued arbitration decisions based upon a concern that there would be no certainty as to whether or not those decisions would have reflected final agency action in the absence of a Commissioner, thereby causing problems with the handling of appeals.  Going forward, Acting Commissioner McGovern will handle or direct all inter-agency appeals, and it is anticipated that arbitration decisions will start issuing immediately.


Call Mark Bosscher or Lee Hook with any questions @ 515-243-2100.  We’d be happy to help, whether it be a quick or a complex issue!

Hooks v. Coastal Stone Works, Inc.

Released September 5, 2014

The Alabama Court of Civil Appeals ruled that an officer of a corporation must take action to revoke previous certification of exemption from workers’ compensation coverage pursuant to § 25-5-50(b).

On May 24, 2006, Hooks, along with two other officers of Coastal Stone Works, Inc., signed a certificate of exemption to be exempted from coverage under the Alabama Workers’ Compensation Act pursuant to § 25-5-60(b). On November 23, 2011, Hooks was injured and sought benefits under the Alabama Workers’ Compensation Act and filed suit. Coastal Stone Works, Inc. file a motion for summary judgment, which was ultimately granted the second time it was filed. It’s position was Hooks exempted himself in 2006 and never revoked the exemption. Hooks asserted that, if he did not file a certification of exemption each year, the exemption automatically revoked itself. There was no dispute that Hooks did not sign or file anything other than the certification of exemption submitted in May of 2006.

Hooks argued that § 25-5-60(b) states an officer of a corporation may elect annually to be exempt from coverage on the workers’ compensation act. Hooks interpreted this section to require him to annually elect to be exempted from coverage and if he did not the exemption was automatically revoked. Coast Stone Works, Inc. argued that this the provision goes on to state that the exemption may be revoked upon an officer filing a written certification electing to be covered. Coastal Stone Works, Inc. argued that this showed that the legislature intended the requested exemption to remain in effect until the officer revoked the exemption in writing.

The Court of Civil Appeals agreed with Coastal Stone Works, Inc. and stated that if the legislature had intended the exemption to revoke each year unless the officer requested the exemption again it would not have provided the method for revoking the exemption. The Court of Civil Appeals opined that § 25-5-60(b) required an officer to take action to revoke the previous certification of exemption as opposed to the revocation being automatic unless they file another certification of exemption.

MY TWO CENTS:

Any time you are dealing with an injury involving an officer of a corporation make sure to verify that they never submitted a written certification of exemption to the carrier and the Alabama Department of Labor.

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ABOUT THE AUTHOR

The article was written by Joshua G. Holden, Esq. a Member of Fish, Nelson & Holden, LLC, a law firm dedicated to representing employers, self-insured employers and insurance carriers in workers’ compensation and related liability matters. Mr. Holden is AV rated by Martindale-Hubbell, which is the highest rating an attorney can receive. Holden 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 author atjholden@fishnelson.com or 205-332-1428.

In an effort to reduce painkiller abuse and misuse, the Drug Enforcement Agency (DEA) announced last week that it is reclassifying hydrocodone as a Schedule II Controlled Substance. Under the new regulation, which will go into effect on October 5, 2014, doctors will no longer be able to call in prescriptions for drugs like Lortab and Vicodin. Additionally, patients will only be allowed one 90-day prescription per doctor visit, and will have to actually see their doctor in person before obtaining a refill. According to DEA Administrator Michele Leonhart, "Almost seven million Americans abuse controlled-substance prescription medications, including opioid painkillers, resulting in more deaths from prescription drug overdoses than auto accidents." The official DEA release can be found here.

My Two Cents

The effects of the new regulation on employers could be two-fold. Employers can most likely expect an increase in claims management costs associated with more frequent doctor visits for injured workers who are in long-term opiate therapy. However, the new regulation could also greatly reduce the financial burden placed on employers by "pill mills" that dole out drugs like candy after seeing a patient only once or twice. In either case, employers and claims managers need to be aware of the new regulation to ensure that the medical providers they select to care for injured workers comply with these guidelines.

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About the Author

This article was written by Charley M. Drummond, Esq. 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 author at cdrummond@fishnelson.com or (205) 332-3414.

Kevin Durnien worked as a tractor-trailer driver for United Parcel Service (UPS) from 1996 to 2008.  He was diagnosed with Parkinson’s disease in 2003 but continued to drive for UPS for several years. 

 

            On October 25, 2007, Durnien was injured when he fell on his elbow while making a warehouse pickup.  He injured his rotator cuff and underwent arthroscopic surgery on his shoulder.  The case was accepted and benefits were paid.

 

            Several weeks after his surgery, Durnien noticed that his Parkinson’s disease was getting worse:  he was experiencing tremors and his medication was increased. 

 

            Durnien filed a claim petition against UPS on December 5, 2007 for his shoulder injury.  On April 6, 2009, he applied for Second Injury Fund benefits claiming he was totally disabled as a result of a combination of a work injury and a preexisting Parkinson’s condition.  Durnien was separated from his employment in October 2008.

 

            The matter was tried before the Chief Judge of Compensation, the Honorable Peter J. Calderone.  Four experts testified in the case, two for each side.  The Chief Judge found that the work injury did not materially worsen petitioner’s Parkinson’s disease, nor was petitioner entitled to Second Injury Fund benefits.  However, he did award petitioner 20% permanent partial disability for the shoulder.  Petitioner appealed.

 

            The Appellate Division first focused on the issue of whether the work accident materially worsened petitioner’s Parkinson’s disease.  The Court noted that Judge Calderone rejected the testimony of petitioner’s neurologist, Dr. Bereanu, because she was “not a credible witness [and was] ill prepared for her testimony which was essentially a repetitive without foundation assertion that the work accident somehow aggravated petitioner’s Parkinson’s Disease in some non-measurable way.” 

 

            In respect to respondent’s neurologist, Dr. Steven Mandel, the Court observed that the Chief Judge found his testimony to be sound in stating that the Parkinson’s condition was not aggravated by the work accident.  The Chief Judge was impressed as well that Dr. Mandel actively treats patients with Parkinson’s disease.

 

            In regard to the entitlement to Second Injury Fund benefits, the Court again affirmed the Chief Judge because the claimant, following his separation from employment in 2008, actually applied for unemployment benefits.  As the Court said, one must be able to work and be available for work to obtain unemployment benefits underN.J.S.A. 43:21-4 (c) (1).  In essence, the petitioner’s application for unemployment benefits was inconsistent with his contention that he was totally disabled, which is a requirement for Second Injury Fund eligibility.

 

            The Court also agreed with the Chief Judge that an independent reason to reject the Second Injury Fund claim was that petitioner’s Parkinsons’s condition progressed AFTER the work injury.  The statute precludes Fund benefits“[i]f a person who is rendered permanently partially disabled by the last compensable injury subsequently becomes permanently totally disabled by reason of progressive physical deterioration or preexisting condition or disease.”  N.J.S.A. 34:15-95 (d).

 

            While it was true that the Parkinson’s condition preexisted the work injury, petitioner had been able to work and had been certified for a CDL license.  The condition apparently worsened after the work accident for reasons unconnected to the accident.  The Court said, “Although Durnien’s physician would not certify him for a CDL, Durnien testified that he was capable of continuing to work at UPS and sought a position that did not require a CDL.  He failed to obtain a lighter-duty job not because of a disability, but due to his lack of seniority.”

 

            This case illustrates several important points.  First and foremost, practitioners need to spend time choosing the right expert witness. In this case, UPS made a wise choice in selecting its expert because he was well qualified and treated patients with Parkinson’s disease.  Secondly, Second Injury Fund eligibility depends on preexisting conditions and will not be available to those whose prior condition worsens after the work injury and only then become totally disabled.  Lastly, the case illustrates that an expert’s testimony must contain more than just a bald assertion that a given condition is work related.  The Chief Judge rejected the expert opinion of the petitioner’s neurologist because there was no scientific foundation for it. 

Flanagan Lumbar Co., Inc. v. Tennison

Released August 22, 2014

The Alabama Court of Civil once again ruled that devices to be considered "other apparatus" set out in §25-5-77(a) of the Alabama Workers’ Compensation Act should be decided on a case by case basis. The Court of Civil Appeals pointed out that the Alabama Supreme Court has previously ruled in Ex parte Mitchell, 989 So. 2d 1083, 1092 (Ala. 2008) that the definition of "other apparatus" is an item that is "(a) reasonably necessary and (b) intended to improve the injured employee’s condition, to prevent the further deterioration of the employee’s condition, or to relieve the employee from the effect of his condition by restoring the employee to a basic level of appearance or functioning. The determination of what constitutes a reasonably necessary ‘other apparatus’ should be made on a case-by-case basis."

Tennison had settled his worker’s compensation claim for a back injury with Flanagan Lumbar and medical benefits were to be left open. Tennison’s authorized treating physician was Dr. John Roberts. At some point during treatment Dr. Roberts recommended pool therapy. However, Tennison indicated that this made his condition worse so he stopped going. Some time later Tennison presented to Dr. Robert’s and asked that he prescribe a walk-in bathtub for Tennison’s home. Tennison told Dr. Robert’s he had not had an actual bath in 3 years and was unsteady stepping in and out of the regular tub in his home. He also told Dr. Robert’s the water would benefit him and allow him to do his general strengthening exercises at home rather than go to water therapy. Based on this request Dr. Robert’s recommended that the walk-in tub be approved as reasonably necessary. Dr. Robert’s stated in his letter to the carrier that he felt the walk-in tub would help prevent falls getting in and out of the tub and that because of Tension’s disability and de-conditioned body the walk-in tub was reasonable. Flanagan Lumbar refused to approve the walk-in tub and Tennison sought relief from the Circuit Court of Limestone County. The trial court reviewed deposition testimony from Tennison as well as deposition testimony from Dr. Roberts and found that the walk-in tub met the definition of "other apparatus" and, therefore, should be paid for by Flanagan Lumbar. Flanagan Lumbar appealed the decision which the Alabama Court of Civil Appeals reviewed de novo, having to give no weight or deference to the trial court’s findings of fact based on the only evidence presented being via deposition and not live testimony.

On appeal the Alabama Court of Civil Appeals stated that the walk-in tub in this case did meet the definition of "other apparatus" because Dr. Robert’s testified that the walk-in tub was not solely to allow Tennison a access to the bath, unlike like the scooter lift in Ex parte Mitchell. In this case Dr. Robert’s testified that the walk-in tub was a method to prevent falling and water therapy could assist with back pain. Therefore, a walk-in tub could meet the definition of "other apparatus" and did in this case. However, the Court of Civil Appeals then turned to whether substantial evidence was presented to support that the tub was reasonably necessary to 1)improve Tennison’s condition, 2) to prevent the further deterioration of his condition, or 3) relieve him from the effect of his condition by restoring him to basic level of function and appearance.

The Court of Civil Appeals stated that the walk-in tub would not improve his condition based on Dr. Robert’s testimony that he did not believe anything would improve Tennison’s condition. Dr. Robert’s stated that the tub would be helpful to provide potential and temporary pain relief but the Court of Civil Appeals stated that this does not constitute improving someone’s condition. The Court of Civil Appeals also pointed out that reducing the fall risk would not meet the standard in order to establish improving one’s condition.

They then turned to whether it would prevent Tennison’s condition from deteriorating. Dr. Robert’s testified that if Tennison did not get the tub his condition would probably not deteriorate. While Dr. Robert’s testified that it would help prevent Tennison from falling, there was no evidence to support that presented at trial. In fact, the Court of Civil Appeals pointed out that Flanagan Lumbar had present an alternative transfer bench that costs much less than the $18,500.00 walk-in tub.

The Court of Civil Appeals went on to find that the potential temporary symptom relief would not rise to the level of restoring Tennison to the basic level of function and appearance. While Dr. Robert’s testified that it might be helpful from a hygienic standpoint, there was no testimony that Tennison’s showers were inadequate for this.

As a result, the Alabama Court of Civil Appeals ruled that a walk-in tub can meet the definition of "other apparatus" but in this case the evidence did not establish that the walk-in tub was reasonably necessary.

Judge Terry Moore wrote in concurrence to point out that he questioned whether the case should be reviewed de novo and whether the tub actually met the definition of "other apparatus." Judge Moore pointed out further evidence to support his concurring opinion which included Tennison testifying that pool therapy had made his back worse so he stopped going, as well as Dr. Robert’s testifying that the walk-in tub would not be big enough to perform the strengthening exercises, which Tennison claims was the reason for getting the walk-in tub. Judge Moore also pointed out the Dr. Robert’s recommendation for the walk-in tub was based solely on the employee’s request for the tub as opposed to medical reasons that would meet the requirements set out inEx parte Mitchell. Therefore, Judge Moore did not feel the walk-in tub in this case would meet the definition of "other apparatus" as the majority opinion stated. However, he did agree that if it did meet the definition sufficient evidence was not presented to establish it was reasonably necessary.

MY TWO CENTS:

When dealing with a recommendation for a medical device/aid requested pursuant to the "other apparatus" provision of §25-5-77(a) make sure the authorized treating physician gives a detailed explanation of his reason behind ordering the device and not just that he or she believes it is reasonably necessary.

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ABOUT THE AUTHOR

The article was written by Joshua G. Holden, Esq. a Member of Fish, Nelson & Holden, LLC, a law firm dedicated to representing employers, self-insured employers and insurance carriers in workers’ compensation and related liability matters. Mr. Holden is AV rated by Martindale-Hubbell, which is the highest rating an attorney can receive. Holden 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 author atjholden@fishnelson.com or 205-332-1428.

On August 22, 2014, the Alabama Supreme Court released an opinion wherein it considered whether an adult child can be considered a partial dependent for purposes of receiving death benefits. InDonna Banks v. Premier Service Company, Inc., it was stipulated by the parties that the 22 year old child received regular financial support from her father prior to his death. The Trial Court noted in its final order that the adult child was not working but pursuing a double major at college. Since there was no evidence that the adult child was physically or mentally handicapped, the Court held that she did not qualify as a partial dependent. The Court of Appeals agreed noting that the same would hold true even if the adult child was totally dependent upon a deceased worker for support.

Practice Pointer:

The Court noted that the Alabama Workers’ Compensation Act provides that a child is considered a dependent until the age of 18. This is different that the recognized age of majority in Alabama which is 19. When determining the dependency status of a teen, it is important that you apply the correct cut off age.

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About the Author

This article was written by Michael I. Fish, Esq. of Fish Nelson & Holden LLC, a law firm dedicated to representing employers, self-insured employers and insurance carriers in workers' compensation matters. Fish Nelson is a member of The National Workers' Compensation Network (NWCDN). If you have any questions about this article or Alabama workers' compensation issues in general, please feel free to contact the author at

mfish@fishnelson.com or any firm member at 205-332-1448.

On August 22, 2014, the Alabama Court of Civil Appeals released its opinion inTotal Fire Protection, Inc. v Jonathan Jean, affirming the Trial Court’s order denying Total Fire Protection’s Motion to Terminate Medical Benefits based on the Last Injurious Exposure Rule. Jean injured both of his wrists in April 2005 while working for Total Fire Protection (TFP). Jean’s authorized treating physician performed surgery on both of his wrists, including the placement of hardware in the right wrist. Five months later, the Trial Court approved a settlement of indemnity and vocational benefits, with future medical benefits remaining open. After the settlement, Jean went to work for another employer. In June of 2006, TFP filed a Motion to Terminate Medical Benefits, asserting that Jean had developed carpal tunnel syndrome as a result of his job with his subsequent employer, and that TFP was no longer responsible for Jean’s medical treatment under the Last Injurious Exposure Rule. The Trial Court granted TFP’s motion.

In April of 2008, Jean filed a Motion for Relief from the June 2006 Order terminating his medical benefits, seeking to hold TFP responsible for further treatment. The Trial Court granted Jean’s motion, and entered an order reinstating Jean’s medical benefits, and TFP appealed.

On November 13, 2008, the Court of Appeals dismissed TFP’s appeal because it determined that it had been taken from a non-final judgment, since the Trial Court had not adjudicated TFP’s liability for all of the employee’s medical issues, most specifically his alleged carpal tunnel syndrome, and that the Trial Court had not issued findings of fact and conclusions of law in its June 16, 2008 judgment as required under the Alabama Workers’ Compensation Act. After the appeal was dismissed, TFP moved the Trial Court to include findings of fact and conclusions of law in its judgment, which the Trial Court never ruled on. On May 30, 2012, TFP filed another motion to terminate Jean’s medical benefits, asserting identical grounds set out in the 2006 Motion. The parties then deposed the authorized treating physician and submitted his deposition transcript to the Trial Court. On August 9, 2013, the Trial Court entered a judgment finding that there was no conclusive evidence that Jean ever developed carpal tunnel syndrome and that the pain in his right wrist was directly related to the original injury with TFP. The Trial Court Ordered TFP to pay for Jean’s surgery to remove the hardware in his wrist and other treatment related to the original injury. TFP then appealed again, asserting that the Trial Court exceeded its discretion in granting Jean’s Motion for Relief from the June 2006 Order, and the Trial Court had no basis for setting aside that Order.

In its recent opinion, the Court of Appeals affirmed the Trial Court’s decision, stating that the September 2005 settlement became a binding judgment with the same affect as any other final judgment, and that the settlement preserved Jean’s right to future treatment for any injuries sustained in the April 2005 accident. The Court of Appeals further pointed out that those rights could only be extinguished through the procedures set out in the Alabama Workers’ Compensation Act. §25-5-56 of the Act allows a party to have a settlement vacated within six months after settlement only for fraud, undue influence, or coercion. A settlement may also be set aside on other grounds, as provided in the Alabama Rules of Civil Procedure. However, the Court of Appeals pointed out that TFP did not assert any of the procedural grounds outlined in the Rules of Civil Procedure nor did they assert fraud, undue influence or coercion. The Court noted that this case is the first attempt by an employer to use the Last Injurious Exposure Rule to terminate its agreed liability for future medical expenses via post judgment practice, and that TFP had not been able to cite any case in which such a procedure had been followed or approved. While the 2006 settlement explicitly left the issue of future medical benefits open so that the Court retained jurisdiction over any controversy that might arise as to further treatment, the Alabama Workers’ Compensation Act requires that an employer disputing its liability for an injury must file a Complaint so that the issue can be resolved by trial in which both parties have a chance to present evidence. Citing the holding inEx parte Publix Supermarkets, Inc., the Court noted that just as a trial court may not award an employee medical benefits based on an allegation and a motion, a trial court cannot terminate an employee’s right to medical benefits based on allegations in a motion. The Court of Appeals therefore held that the June 2006 Order terminating Jean’s medical benefits violated Jean’s due process, and was therefore, void.

Turning to TFP’s substantive argument that the Trial Court misapplied the Last Injurious Exposure Rule, the Court held that when an employee experiences expected ongoing symptoms from an original compensable injury as a result of routine physical activities in his subsequent employment, in the absence of evidence of some additional harmful change to the underlying anatomical condition of the employee, those expected ongoing symptoms will be treated as a recurrence of the symptoms from the original injury, and not an aggravation of the original injury. Under those circumstances, the Court found that while the repetitive gripping and grasping in Jean’s new employment increased his pain and swelling in his wrist on a temporary basis, the fact that it did not cause any permanent worsening of his baseline physical condition required a finding that he had experienced a recurrence of the 2006 injury, and not an aggravation or new injury with his subsequent employer.

My Two Cents

This decision provides guidance for employers when there is a dispute as to whether medical treatment continues to be owed. According to this holding, the employer needs to file a Complaint and ask for a trial on the merits rather than filing a motion. In any case where the Last Injurious Exposure Rule applies, the employer would also need to add the subsequent employer as a defendant in the lawsuit.

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About the Author

This article was written by Charley M. Drummond, Esq. 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 author at cdrummond@fishnelson.com or (205) 332-3414.

On August 22, 2014, the Alabama Court of Civil Appeals released its opinion inGoodyear Tire & Rubber Co. v. Stephen Bush. Bush alleged on February 11, 2011, he was walking down some stairs when he stumbled and fell onto his right knee. He then climbed back up the stairs and notified his supervisor of the accident, which both Bush and his supervisor reportedly laughed off. Bush did not report that he had injured his knee at that time, but he apparently told his supervisor that his knee was swollen and painful a few weeks later. Goodyear denied Bush’s workers’ compensation claim based on Bush’s alleged failure to provide timely and adequate notice of the injury, and Bush filed suit.

The parties proceeded to trial in May 2013. Following trial but before the trial court entered judgment, the parties reached a settlement agreement, which they presented to the trial court for approval in July. The trial court determined that the settlement was not in Bush’s best interest because it would have closed his medical benefits, and rejected the settlement. A few days later, the trial court entered judgment in favor of Bush. The trial court ultimately found that Bush’s testimony that he reported pain and swelling within 90 days of the accident more credible than his supervisor’s testimony that Bush never reported the injury. The court also found that Bush’s right knee injury had limited him to working light duty jobs which required no stooping, squatting, kneeling, climbing or lifting over twenty pounds, and that those restrictions prevented him from returning to work as an automobile mechanic, which was his primary occupation for over forty years. The trial court rejected Goodyear’s argument that Bush’s compensation should have been limited to that set out in the schedule for the leg, and concluded that Bush was permanently and totally disabled. Goodyear appealed, asserting that the trial court exceeded its discretion in refusing to approve the settlement. Goodyear also asserted that the trial court erred (1) in finding that Bush provided adequate notice of his injury, (2) in finding that Bush’s compensation was not limited to the schedule for the leg, and (3) in finding that Bush was permanently and totally disabled.

In regard to the Trial Court’s rejection of the settlement, the Court of Appeals stated that when a settlement is approved by an Alabama Department of Labor Ombudsman, it may only be set aside upon a showing of fraud, coercion or undue influence within 60 days of the settlement. However, when a settlement is presented to the circuit court for approval, it is the duty of the trial judge to ensure that the settlement is in the employee’s best interest. The Court of Appeals held that since the parties chose to submit the settlement to the court for approval, the trial judge had discretion to determine whether the settlement was in Bush’s best interest, and that the judge did not abuse his discretion by rejecting the settlement.

In regard to Goodyear’s notice defense, the Court of appeals stated that while the Act requires notice of an accident, case law indicates that the pertinent inquiry is whether the employer has received actual notice of the injury, such to enable the employer to provide immediate medical diagnosis and treatment in an effort to minimize the seriousness of the injury and facilitate the earliest possible investigation of the facts surrounding the injury. The appellate court noted that Goodyear did not argue that Bush’s alleged notice was insufficient to put Goodyear on inquiry notice. The Court of Appeals stated that since the trial judge had the opportunity to hear and observe the witnesses first hand, the fact that it found Bush’s testimony credible was sufficient to support a finding that Bush gave proper notice of his injury.

However, the Court of Appeals reversed the trial court’s finding that Bush was permanently and totally disabled, because the trial court failed to make a finding that the effects of Bush’s knee injury extended to and affected the use and efficiency of other parts of his body. Citing Advantage Sales of Alabama, Inc. v Clemons, the Court of Appeals reiterated that if the employee does not prove that the injury to the scheduled member prevents him from using the uninjured parts of his body, the injury shall be classified as a permanent partial disability as a matter of law, and no evidence of vocational disability is to be considered.

My Two Cents

The Court of Appeals’ reliance on Advantage Sales of Alabama, Inc. v Clemons is good news for employers, as it resolves what is somewhat of a chicken-egg argument. Employees’ attorneys have long argued that permanent total disability was effectively an exception allowing compensation outside of the schedule. However, as this ruling points out, an inquiry into the effects of the scheduled-member injury on the other parts of the body is necessary before a determination of whether evidence of vocational disability can even be considered. Assuming totally or virtually totally disabling pain or psych are not issues, even if an employee has a severe knee injury, his compensation is limited to 200 weeks unless the effects of his knee injury somehow extend beyond his leg and permanently affect the efficiency of other body parts.

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About the Author

This article was written by Charley M. Drummond, Esq. 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 author at cdrummond@fishnelson.com or (205) 332-3414.