State News

We have seen a few recent cases where Carriers are being charged for designated doctor appointments missed or rescheduled by Claimants. The DWC medical fee guidelines do not permit a designated doctor to bill a Carrier for a rescheduled or missed appointment. DWC Rule 134.204.  Bills that invoice Carriers for a fee for missed or rescheduled appointments should be denied.

The DWC recently circulated a memo reminding system participants that Rule 127.1 requires parties submitting Requests for Designated Doctor Exams (DWC 32s) to send a copy of the DWC 32 to the opposing party at the same time the document is filed with the DWC. The DWC reports that some system participants are not exchanging DWC 32s. As part of a new “customer service initiative” to address the issue, the DWC will begin automatically sending to the injured employee a copy of any DWC 32 filed by a Carrierprior to sending the order for the designated doctor exam. Curiously,

Claimants’ frequent failures to exchange DWC 32s with Carriers is not mentioned.

Industry news outlet Work Comp Central recently interviewedTom Atchison regarding the Supreme Court ruling inDykoff v. Xcel Energy.

The article discussed the Minnesota Supreme Court’s endorsement of the “increased risk” test as the standard for compensability.

The article also discussed how Minnesota courts have previously interpreted the statutory requirement that injuries “arise out of and in the course of” employment. According to Atchison, the interpretation has “varied from court to court and case to case” over the years and the recent ruling “clears up a point of uncertainty” for workers, employers, and carriers.

The full article is available from Work Comp Central here.

          Remi Beausejour had problems with his lower back dating back to 2006 when he injured his back at work.  He had pain in his back down his right leg.  An MRI showed degenerative disc disease and a disc herniation at L3-4 and L4-5 levels.  He also experienced radiculopathy at the time and was discharged from treatment four months post injury.

            Beausejour suffered a second low back injury in January 2008 and another one on September 17, 2009.  Both injuries required treatment to the lower back.  After the September 2009 incident, he was unable to sit due to the extreme pain. 

            An MRI was performed on September 28, 2009, showing a small right paracentral annular tear and disc herniation at L1-2, with bulging discs at L2-3 and L3-4, and a disc herniation at L4-5 with lumbar radiculopathy.  He required epidural injections at this time and was out of work for three weeks. The last injection occurred in November 2009.

            The accident which was the subject of this case occurred on December 2, 2009 when Beausejour fell 18 feet from a ladder and fractured his left ankle. Beausejour had an EMG in 2010 which revelaed acute L5-S1 radiculopathy.  He contended that this fall at work aggravated his preexisting lower back condition.  A new MRI was ordered on January 17, 2011.  That MRI showed much the same findings as the 2009 MRI. 

            At trial two orthopedic experts testified.  Dr. Lance Markbreiter compared the 2009 MRI with the 2011 MRI and said that there was no significant change and no traumatic findings.  He felt that the degenerative changes on the MRI were what one would have expected given the two-year gap in dates of the studies. Dr. Markbreiter felt that there would have been much more pathology on the 2011 MRI if the fall from the ladder had actually produced a back injury.  He felt that petitioner’s lower back complaints would have been the same regardless of the fall.

            Dr. Cary Skolnick testified for petitioner.  He said that the fall in 2009 aggravated and exacerbated petitioner’s preexisting lumbar degenerative disc disease. 

            The Honorable Watson Berich, Judge of Compensation, held that Dr. Markbreiter’s testimony was more persuasive, in part because he had been petitioner’s treating doctor after the 2009 fall.  In contrast, Dr. Skolnick had only seen petitioner on one occasion for an IME.  Judge Berich found that there was no demonstrable objective medical evidence of any aggravation of the petitioner’s preexisting condition and therefore dismissed the claim petition.

            Petitioner appealed to the Appellate Division, which noted that a petitioner in an aggravation case must provide proof of both legal and medical causation.  “Medical causation means the injury is a physical or emotional consequence of work exposure” and “that the disability was actually caused by the work-related event.”  (citations omitted).  The court added that generally an opinion of a treating doctor is entitled to greater weight than that of an evaluating doctor on causation.  For these reasons the Appellate Division affirmed the dismissal of petitioner’s claim petition for partial permanent disability. 

            This case provides guidance on the term “aggravation.”  The Judge of Compensation clearly appreciated that this term means more than just “more pain.”  Since the MRI findings were exactly the same after the fall as before the fall, it was very difficult for petitioner to prove aggravation.  The case also illustrates the advantage given generally to treating doctors over IME doctors. 

This case can be found at Beausejour v. Chamberlin Plumbing & Heating, Inc., A-1459-12T4, (App. Div. January 29, 2014).

The Annual Midwinter Conference will be held this year in Chicago from March 13 until March 15 at the Conrad Chicago Hotel. It is a jointly sponsored by the ABA Tort Trial & Insurance Practice Section and the Section of Labor an Employment Law.

The Seminar begins on Thursday afternoon to allow for morning travel and will finish up at mid-day on Saturday with a presentation on mediation and negotiation techniques presented by the National Association of Workers’ Compensation Judges and the College of Workers’ Compensation Lawyers.

New this year will be several sessions specifically designed for the Medical community such as back-to-back sessions on Thursday,The Litigators Guide to Understanding Medicine and Evaluating & Treating Back Painand Healthcare Reform’s Impact Nationally and on Workers Compensation, and a presentation on Friday,CMS Regulations and Medicare Legislation.

This not to be missed program is open to all. The stellar speakers will discuss rainmaking, social media and ethical considerations, MSAs, healthcare reform’s impact on workers’ compensation, insurance premium fraud, opioid use and abuse, best practices, negotiation and mediation techniques, and diagnostic medicine.

Following this blockbuster program, the College of Workers’ Compensation Lawyers

will hold their annual dinner on Saturday evening. This is an invitation only event and

tickets are required.

For more information, please feel free to contact Mike Fish or Josh Holden. Both are former ABA TIPS Committee Chairs and would be happy to assist you. Contact information below.

_______________________

Mike Fish and Josh Holden are both members of Fish Nelson 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 post, please feel free to contact Mike atmfish@fishnelson.com or 205-332-1448 or Josh atjholden@fishnelson.com or 205-332-1428.

Our Omaha office has a new address effective January 14, 2014.  The new address is 17330 West Center Road, Suite 110-355, Omaha, NE 68130.  All phone and fax numbers remain the same.  Please update your records!

             The premises rule in New Jersey states that employees are covered when they are on property owned or controlled by the employer.  How far can this be stretched?  When a car accident occurs on a public street with only part of the car touching the employer’s premises, is an injury still covered under the New Jersey Workers’ Compensation Act?

            This precise issue was posed in Burdette v. Harrah’s Atlantic City, A-4797-12T1 (App. Div. January 17, 2014).  A casino dealer, Carla Burdette finished her shift and proceeded to her Ford Explorer in the Harrah’s parking yard.  She then drove her vehicle along an internal Harrah’s driveway, passed through a Harrah’s security gate, and made a lawful left turn on MGM Mirage Boulevard, a three lane public highway. 

            At the very same time, another vehicle was proceeding northwest and collided with Burdette’s vehicle. The impact occurred on MGM Mirage Boulevard, but a portion of the rear of Burdette’s car was positioned over the Harrah’s driveway apron. 

            Burdette filed a claim petition seeking workers’ compensation benefits.  Harrah’s rejected the claim and asserted that the impact of the accident occurred on a public street, not on Harrah’s property.  The Judge of Compensation noted that about one foot of Burdette’s car was still in the area of the parking lot controlled by Harrah’s and therefore found the case to be compensable.  Harrah’s appealed.

            The Appellate Division reviewed the premises rule and observed that the key questions were where the accident occurred and did the employer control the location of the accident.  The court said that the workers’ compensation act must be liberally construed in favor of coverage for the protection of employees. 

The circumstances of the present case plainly reveal that Burdette never fully left her employer’s premises.  Although her vehicle was in the midst of navigating a left turn onto a public thoroughfare, the exact spot where Burdette suffered injuries was neither remote from, nor unconnected to, her work premises.  We reject Harrah’s ultra-rigid approach that focuses only on the colliding vehicles’ point of impact and the front seat location of Burdette in her Explorer. Instead, applying the common sense and the policies inherent in the Act, we subscribe to the judge of compensation’s viewpoint that the injuries suffered here were a result of Burdette’s firm attachment to her place of employment, albeit while on her way home.

            This case illustrates that any established rule can seem capricious at the margins.  When it comes to the premises rule, courts will interpret the rule liberally in favor of coverage given the social policy behind our workers’ compensation laws.

On January 24, 2014, the Supreme Court of Alabama affirmed the Circuit Court of Shelby County Alabama’s decision, without opinion, in the case ofVinson v. G & R Mineral Services, Inc. However, Chief Justice Roy Moore pinned an interesting dissent. The employee, David Vinson, Jr., sought employment with G & R, a contractor that provided services to Chemical Line Company of Alabama in Calera. G & R then directed Vinson to a temporary employment agency, Diversified Sourcing Solutions (DSS), to apply for the job. Vinson was then hired by DSS to work for G & R at the Chemical Lime baghouse, where his job involved changing out lime filters. On his second day of employment, Vinson allegedly inhaled lime dust, had to be hospitalized, and never returned to work. Vinson sought workers’ compensation benefits from DSS. However DSS’s workers’ compensation carrier later became insolvent, so the Alabama Insurance Guarantee Association (AIGA) assumed responsibility for paying for Vinson’s care. AIGA eventually discontinued the payment of benefits, and Vinson then filed a lawsuit against G & R seeking workers’ compensation benefits. However, G & R’s workers’ compensation carrier convinced Vinson to dismiss the action on the grounds that DSS, and not G & R, was Vinson’s employer.

Vinson then filed an action for negligence against G & R. G & R moved for summary judgment, asserting that it was a "special employer" of Vinson, and was therefore immune from tort liability. Vinson moved to strike G & R’s special employer defense. The trial court found that DSS was merely a temporary employment agency and that Vinson had an implied contract of special employment with G & R. Based on these findings, the trial Court entered summary judgment in favor of G & R. On appeal, Vinson argued that G & R’s insistence in the workers’ compensation case that it was not his employer, created a genuine issue of fact as to whether it should be considered Vinson’s employer in the negligence case. In support of that position, Vinson produced a letter to the Mine Safety and Health Administration (MSHA) from G & R’s safety officer stating that Vinson was an employee of DSS and not G & R, and that DSS was paying Vinson’s workers’ compensation benefits. Despite this evidence, the Supreme Court upheld the trial Court’s ruling.

In his dissent, Judge Moore stated that G & R’s opportunistic switch from non-employer to employer was sufficient to raise a factual question as to whether G & R was a special employer immune from tort liability under the exclusivity provisions of the Act. Judge Moore stated that since that question was not one purely of law, but of fact, reasonable persons might draw different conclusions as to whether G & R was a special employer. Based on that, Judge Moore stated that the issue of whether G&R was a special employer should have been one decided by the jury.

MY TWO CENTS

Although Judge Moore was the only judge that dissented, I believe that the principals of judicial estoppel support his opinion. A party is generally precluded from taking a position in a case which is contrary to a position they have taken in earlier legal proceedings. Employers need to be aware that if they deny that they are the employer, they may be estopped from seeking protection under the exclusivity provisions of The Alabama Workers’ Compensation Act in the event a tort claim is later brought by the employee. Therefore, it is critical that employers and their attorneys consider the pros and cons of pleading tort immunity at the outset of any case.

_______________________________

ABOUT THE AUTHOR

This article was written by Charley M. Drummond, Esq. of Fish Nelson, LLC. Fish Nelson 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.

Bryan Shirley worked for Wman-Gordon Forgings, L.P. (“W-G”) as an operator of the largest extrusion press in the world.  Company policy required that any employee who should develop a problem with drugs or alcohol may confidentially inform the HR manager in order to pursue treatment.  Failure to comply with treatment could subject the employee to discharge.

Shirley suffered a near overdose in November 2009.  He requested a medical leave to be treated for his addiction.  He entered a program in Houston, Texas, involving two steps:  first, cleansing the body of drugs, and second, undergoing treatment to curb the need for the drug. 

Shirley completed the detox portion of the program on December 5, 2009.  Against the recommendation of his treating doctor, Shirley sought to be discharged before completing the second portion of the program.  He saw his physician who gave him a return-to-work note on December 9, 2009.  The HR representative informed Shirley that his early departure from the program was grounds for termination under the company’s drug-free workplace policy.  The company allowed Shirley to reenter the program to complete the second phase. 

After the second admission to the program, Shirley tested positive for hydrocodone on readmission.  He admitted to taking Vicodin following his initial discharge.  After only one day of detox, he checked himself out again.  A few days later the company fired Shirley for twice failing to complete the program.  Shirley sued under the ADA and argued that as he should be protected from job termination because he was participating in a rehabilitation program.

The district court ruled against Shirley, and the Fifth Circuit Court of Appeals affirmed.  The court noted that current users of illegal drugs are not protected by the ADA.  It said that someone who had used illegal drugs in the weeks or even months preceding the adverse employment action may be considered a current user of illegal drugs. 

Shirley argued that he was participating in a supervised rehab program and was no longer engaging in illegal drug use when he was fired.  The court said that the mere fact that he was in a program did not mean he was automatically protected under the ADA.  The court said that a significant period of recovery is needed for an employee to be protected under the ADA. 

As the district court noted, Shirley’s refusal to complete an inpatient treatment program, his insistence that he remain on an opiate pain reliever, and his continued use of Vicodin following detox ‘supported a reasonable belief that continued drug use was still an on-going problem at the time W-G terminated his employment.’

This case may be found at Shirley v. Precision Castparts Corp., Wyman-Gordon Forgings,L.P., 726 F.3d 675 (5^th Cir. August 12, 2013).

New Deputy Commissioner Announced

Joseph L. Walsh has been hired as a Deputy Workers’ Compensation Commissioner with the Iowa Division of Workers’ Compensation.  He will commence his duties with the division on January 17, 2014.  Mr. Walsh has previously been in private practice as a workers’ compensation and employment law attorney in Des Moines, Iowa and has served as the Deputy Director of Iowa Workforce Development  from 2007 to 2010.  Mr. Walsh most recently held the position of Chief Administrative Law Judge for Iowa’s Division of Unemployment Insurance Appeals.  Mr. Walsh is a 1993 graduate of Drake University with Cum Laude Honors and a 1996 graduate with Honors of the Drake University School of Law.

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!