New York Issues Permanent Telehealth Regulations

On 7/11/23, new telehealth regulations went into effect in New York State. These regulations outline the circumstances in which injured workers in New York may receive telehealth services from a health care provider and the types of providers authorized to provide telehealth services. Notably missing from the proposed regulations are details on the method and manner by which employers and carriers may object to an injured worker’s use of telehealth services in circumstances where it may not be warranted.

The new permanent telehealth regulations are in Section 325-1.26 of Title 12 of the NYCRR. Telehealth was at one time limited to rural or remote communities; however, since the COVID-19 pandemic, telehealth has been more widely embraced. The New York Workers’ Compensation Board adopted emergency regulations during the pandemic to allow for expanded use of telehealth. The new permanent regulations do not simply make the old emergency regulations permanent. The emergency regulations provided more latitude to providers in the use of telehealth services. The new regulations limit the use of telehealth depending on the type of provider and the phase of the claimant’s injury.

Certain providers may not provide telehealth services at all. These include: chiropractors, acupuncturists, physical therapists, and occupational therapists. This makes sense, as the treatment modalities offered by these providers are “hands-on” and, presently, the best clinical practice for these providers involve in-person visits.

Physicians, podiatrists, psychologists, nurse practitioners, physician assistants, and licensed clinical social workers are permitted to provide telehealth services to claimant via two-way audio or audio and visual communication subject to limitations depending on the care provided and the phase of injury. Additionally, those providers using telehealth must be able to meet the claimant at the provider's office within a reasonable travel time and distance from the claimant's residence.

The regulations divide the phases of a claimant’s injury into acute/sub-acute, chronic, and maximum medical improvement (“MMI”). The acute/sub-acute phase of injury is defined as within the first three months following the date of injury. Use of telehealth during the acute/sub-acute phase is at the clinical discretion of the treating provider, except that at least every third visit must be in person. 

After three months from the date of injury is considered the “chronic” phase of injury under these regulations. During the chronic phase of injury, the provider is permitted to use telehealth at their discretion except that there must be an in person visit at least every three months or until the provider feels that the claimant has reached maximum medical improvement.

Once the treating provider feels that the claimant has reached MMI, further telehealth visits may be at the provider’s clinical discretion except that there must be an in-person visit by the providers at least annually.

Telehealth treatment for mental health conditions by psychologists and licensed clinical social workers are treated differently under these regulations. For mental health treatment, the only limitation is that the telehealth treatment be medically appropriate and permitted under the Medical Treatment Guidelines. Mental health treatment is not subject to the phase of injury limitations noted above for physicians, podiatrists, nurse practitioners, and physician assistants. The regulations state that remote mental health treatment should be limited to those situations where there is "no benefit" to in-person services. Additionally, treating mental health professional needs to document the reason for the use of remote services for each telehealth visit. There is no indication in the regulations as to what constitutes an adequate reason for use of telehealth services for mental health treatment.

The regulations define “medically appropriate for telehealth” as where an in-person physical examination of the claimant is not needed to assess the claimant’s clinical status, need for further diagnostic testing, appropriate treatment, or to determine causal relationship of level of disability. This section of the regulations (12 NYCRR 325-1.26(c)(1) and (2)) goes on to provide factors or parameters where an in-person physical examination may or may not be necessary but note that such factors should not be used by carriers or employers as the basis for a denial of services. This implies that employers and carriers have no recourse if the provider is using telehealth in a situation where it is not warranted. Providers are not obligated to provide an analysis or refer to any one factor in support of using telehealth over an in-person exam.

Moreover, the factors that address where no in-person physical exam may be necessary, 12 NYCRR 325-1.26(c)(1)(i)–(viii), are vague. For example, 12 NYCRR 325-1.26(c)(1)(i), provides that telehealth could be appropriate for management of chronic conditions where the provider has previously conducted a medically appropriate and comprehensive in person assessment of the patient and condition and is fully familiar with the applicable medical history; however, factor (i) does not provide a timeframe for when this prior in person exam might have occurred or if the specific provider conducted this exam, i.e., another treatment provider in the same office conducted the in-person exam. Also, factor (viii) provides a catch-all scenario as prescribed in the Medical Treatment Guidelines or other related Board communications; however, it is unclear what this would mean in terms of supporting a telehealth visit over that of in person.

12 NYCRR 325-1.26(c)(2)(i)-(ix) provides for the factors that would indicate the necessity of a physical exam. Notably, factor (vi) focuses on an in-person exam to address degree of disability or range of motion. Degree of disability is a basic component of medical evidence submitted to the Board. Claimants in the temporary phase of disability are required to submit medical evidence regarding degree of disability every 90 days to maintain their entitlement to benefits. It is unclear how telehealth could be useful as factor (vi) acknowledges that degree of disability and range of motion should be addressed only in an in-person exam. Further, factor (ix) provides that although causal relationship should be addressed in an in-person exam, the provider could in theory ascribe causal relationship if the provider is able to articulate in the medical record why an in-person exam was not necessary to determine causal relationship. Causal relationship is routinely addressed in the acute phase of an injury. 12 NYCRR 325-1.26(c) provides that the absence or existence of these factors should not serve as a basis of a denial by carriers, self-insured employers, or third-party administrators, but causal relationship is a viable defense routinely raised by the carrier, self-insured employers, or third-party administrators. 12 NYCRR 325-1.26(c)(2)(ix) would seem indicate that the provider may now support causal relationship with a lesser burden of proof, i.e., not the physical exam findings, but some other factor in the medical record.

Nothing in the new regulations addresses when and how an employer or carrier might deny telehealth treatment that was rendered inappropriately. This would suggest that employers and carriers have no recourse if the provider is simply opting to use telehealth. Providers are not obligated to provide an analysis or refer to any one factor in support of using telehealth versus an in-person exam.

The Board acknowledged the lack of guidance in an email sent on 7/13/23. That email, entitled “Telehealth Guidance” addressed the proper method for payers to object to treatment via telehealth, in instances where the payer believes the use of telehealth was inappropriate and inconsistent with the regulation. The email provides little relief for employers and carriers who want to ensure that providers are providing telehealth services consistent with the new regulations because the email states that the fact that medical treatment was provided via telehealth cannot be the sole reason for an objection to a medical bill. Rather, the employer or carrier should instead file an RFA-2, check box “K” and request a direction for future in-person visit in accordance with the regulation, and state why the visit should not be performed via telehealth.

Even after filing the request for further action, employers and carriers should not expect much help from the Board. This is because the email also indicated that the Board would not entertain C-8.1 objections from employers and carriers who object to telehealth treatment by providers who were previously directed to provide in-person treatment. Rather, the Board stated that such providers would be subject to “administrative action.”

Only in cases where a chiropractor, acupuncturist, physical therapist, or occupational therapist provides telehealth services would the Board entertain a C-8.1 objection from an employer or carrier. We do not expect that there will be many situations where this comes up.

Finally, the regulations state that Independent Medical Examinations (“IMEs”) may be conducted via telehealth when all parties of interest consent to a telehealth examination and where the IME is not offering an opinion on permanent impairment. This may provide an opportunity for employers and carriers to secure an IME on mental health claims where it is difficult to find a psychiatrist or psychologist in the claimant's home community.

With the permanent implementation of these regulations, telehealth is here to stay. Despite the numerous requirements for providers, there is no enforcement mechanism for employers or carriers to ensure compliance with these regulations. They can only rely on the Board's promise of "administrative action." At a minimum, employers and carriers should update their processes to ensure that any telehealth visit by a chiropractor, acupuncturist, physical therapist, or occupational therapist is objected to with a C-8.1. For other providers who use telehealth inconsistent with the new regulations, employers and carriers can file an RFA-2 and request a direction that the provider provide in-person visits in the future.

Challenge to Qualification of Medical Panel Rejected

 Frank Horning v. Labor Commission, Aeroscape and American Liberty Insurance.  2023 Ut. App 30 (April 6, 2023). Mr. Horning lost consciousness at work when a weed trimmer fell off a shelf striking him in the head. He complained of continuing psychological issues long after the accident. When his carrier cut off benefits, he requested a hearing. The ALJ relying on a medical panel report denied ongoing benefits. Mr. Horning challenged the qualifications of the medical panel. The ALJ and the Labor Commission also denied benefits. Horning appealed and on Appeal, the Utah Court of Appeals rejected Horning’s claim that the panel was not qualified based on the record which clearly indicated that both panel members specialized in the treatment of the disease or condition involved in the claim.

Apportioning Benefits Requires Proof of Aggravation

 Dirk W. Barker v. Labor Commission, Burrell Mining Products, and Zurich American Insurance Company of Illinois, 2023 Ut.App.31 (April 6, 2023). Mr. Barker, a longtime cigarette smoker, was exposed to welding fumes, fly ash, cement and foam concentrate at work for approximately 25 years. He was diagnosed with a chronic breathing disorder which prevented him from working. The ALJ required him to undergo an insurer’s exam without recording. The ALJ approved his application seeking permanent total disability benefits but reduced those benefits by 75% based on its finding that disorder was 75% attributable to non-industrial causes (ie smoking.) The Utah Appeals Board upheld those determinations and Barker appealed to the Utah Court of Appeals. The Court of Appeals held that under Utah R.Civ.P.35(a) the ALJ erred in ordering Barker to undergo an insurer’s exam without a recording. The Court of Appeals also held the Board erred in apportioning benefits among causes of his disease rather than causes of his disability. The Court explained its decision by pointing out that Barker’s disability was caused by only one disease: COPD with emphysema and where there was no evidence that his disease was aggravated by any other disease or that any other disease contributed to Barker’s disability, apportionment was not appropriate under Utah Code Ann. §34A-3-110 (3) or (4) of Utah’s apportionment statute.

Need for Cognitive Behavioral Therapy Affirmed

 Suzi Poyfair v. CR England, Indemnity Insurance Company of North America. 2023 Ut.App.40 (April 20, 2023). Suzi Poyfair suffered a work-related injury. The administrative law judge referred the case to a medical panel. The Panel opined that she was limited in her ability to remain at work, had decreased degree of flexibility, strength, and endurance. The panel recommended treatment options including cognitive behavioral therapy which it stated, “may be beneficial.” The Appeal Board rejected the Employer’s objections to use of the word “may”, indicating its recommendation was not made based on the standard of medical probability. The Court of Appeals affirmed the Appeals Board finding that when the report is reviewed “as a whole”, it supports the recommendation of cognitive behavioral therapy to a reasonable medical probability.

© Copyright 2023 by Ford G. Scalley, Scalley Reading Bates Hansen & Rasmussen, P.C.

Many clients are asking whether the new COLA calculation for workers at the maximum compensation rate adopted by the Alaska Supreme Court in the Roberge case will apply retroactively to the inception of a claim, will only apply going forward (prospective application), or whether there will be some intermediate limit placed on past benefits that can be claimed and awarded based on fairness. The Court in Roberge did not address that issue. The Supreme Court has the authority to determine whether a new rule should be applied retroactively or prospectively, but it would take litigation to reach that result. The application of Roberge is therefore an issue that can be legally challenged, and we expect the issue to be litigated.

When the Supreme Court altered the calculation of disability benefits under the Act in the past, it applied four factors to determine whether a new rule should be applied retroactively or only prospectively:

1)            Whether the holding either overrules prior law or decides an issue of first impression whose resolution was not anticipated;

2)            Whether the purpose and intended effect of the new rule of law is best accomplished by a retroactive or a prospective application;

3)            The extent of reasonable reliance upon the old rule of law; and

4)            The effect on the administration of a retroactive application of the new rule of law.

Based on these factors as applied in other cases, we expect the Board and the Court to decide that Roberge will generally apply retroactively to any claims that are open to adjudication and/or preserved for appeal.

Still, each case is different and may present facts that support a limitation on retroactive application of Roberge. For example, if a compensation rate issue was raised and settled in a case, an adjustment will likely not be allowed. If a C&R covering indemnity benefits was done, claiming additional past disability benefits will also likely be prohibited. And if more than two years has passed since the last payment of benefits, the statute of limitations in section .105 of the Act might apply.

On the other hand, for workers or beneficiaries currently receiving undisputed PTD or death benefits, there is likely no statute of limitations running on a claim for increased weekly benefits and there is a significant risk that increased benefits will be awarded from the inception of those benefits. The Supreme Court would have to determine if it would be unfair to employers to impose increased liability going back many years and the Court could adopt a limit of some kind, but it would take litigation to reach that result.

We recommend a practical approach to the issue of retroactive application of Roberge: determine the exposure and assess if litigating the issue will be worthwhile. Settlement may be preferable, or voluntarily paying additional past benefits may be the best option in order to avoid legal cost exposures.

If you decide to challenge liability for retroactive benefits, the most conservative approach is a petition asking for a Board determination whether and how far back a compensation rate adjustment needs to be made. A more aggressive approach is to file a controversion notice on the basis that Roberge does not apply retroactively under the factors described above. Since the issue of retroactive application of the rule adopted in Roberge is a question of law, a controversion on that basis could be filed in good faith. The worker would have to decide whether to challenge the controversion. Ultimately the issue will have to be decided by the Alaska Supreme Court. 

In February, the Alaska Supreme Court issued a decision in Roberge v. ASRC in which it established a new method for applying the cost-of-living adjustment (COLA) under AS 23.30.175 for workers who are entitled to benefits at the maximum compensation rate. As a result, workers residing out-of-state who have been paid TTD benefits may be entitled to a higher compensation rate based on the new rule.

Prior to the Court’s decision, the rule as stated by the Appeals Commission was that employers and insurers would cap TTD/PTD benefits at the maximum compensation rate and then apply the applicable COLA adjustment to reduce the rate below the maximum. Using that method, a worker who was subject to COLA reductions would never receive the maximum Alaska rate where the cost of living was less than in Alaska.

However, in the Roberge case, the Supreme Court held that the Commission erred in its interpretation of the COLA statutes. The Court held that, for workers paid at the maximum compensation rate, employers and insurers must first apply the COLA adjustment to the “uncapped” TTD rate (the TTD rate that would apply if there was no maximum rate). If the COLA adjustment lowered the “uncapped” TTD rate below the maximum rate, that lower rate would apply. If the COLA adjustment did not lower the “uncapped” TTD rate below the maximum rate, the maximum rate would still apply, effectively eliminating the COLA.

This is best illustrated through an example:

A worker is injured on 9/20/21, is single with no dependents (S-1) and lives in Atlanta, Georgia after injury. The COLA rate for Atlanta is .6977. Gross weekly earnings equal $2,500.00. The board’s Benefit Calculator states that the spendable weekly wage (SWW) is $1,901.33 and the maximum TTD rate is $1,298.00. The Benefit Calculator does not state what the TTD rate would be if there was no maximum rate.

Prior formula: Based on GWE of $2,500.00, the maximum compensation rate of $1,298.00 applies per the board’s Benefit Calculator. The COLA for Atlanta of .6977 is applied to the maximum rate and reduces the TTD rate to $905.61 ($1,298 x .6977 = $905.61).

Revised formula under Roberge:

1)      For workers at the maximum TTD rate, determine the TTD rate as if there was no maximum rate (the “uncapped” TTD rate). In this example, based on a GWE of $2,500, the spendable weekly wage (SWW) would be $1,901.33 and the “uncapped” TTD rate would be $1,521.06 (80% of the SWW). The board’s Benefit Calculator provides the SWW but not the “uncapped” TTD rate. Multiply the SWW by .8 to get the “uncapped” TTD rate.

2)      Apply the COLA to the “uncapped” TTD rate. In this example, multiply $1,521.06 by .6977. The result is $1,061.24.

3)      Determine if the result from step 2 is above the maximum TTD rate for that year. If so, the maximum rate applies and no COLA is taken. If less than the maximum rate, the result from step 2 applies. In this example, the TTD rate of $1,061.24 from step 2 applies after the COLA.

In this example, the worker would receive $155.63 more per week in TTD benefits under the new formula compared to the prior COLA calculation method. The overall impact of this change is that a COLA might not apply in the case of a very high wage earner or may lead to a lower COLA adjustment than before. 

Be aware that this procedure is only necessary if the worker is at the maximum compensation rate prior to application of a COLA. If the board’s Benefit Calculator indicates that the TTD rate is less than the maximum before any COLA, this procedure need not be followed and the COLA should be calculated as usual.

ALSO BE AWARE THAT THIS NEW FORMULA WILL APPLY IN DEATH CASES WHERE THE MAXIMUM COMPENsATION RATE APPLIES.

In light of the Court’s ruling in Roberge, we recommend that you review all cases where the maximum TTD/PTD rate applies and where a COLA has been taken to determine if a rate adjustment is necessary. This will avoid unnecessary attorney’s fees and litigation costs. 

We issued a newsletter on 9/27/21 describing our view that a two-part causation test applies in Alaska to occupational diseases cases such as COVID-19 claims. We discussed that to be compensable, an occupational disease 1) must be caused by the conditions of the employment, and 2) the employment must create a risk of contracting the disease that is greater than that which generally prevails in employment and living conditions. Under this test, if work presents the same risk of contracting a disease as generally exists in employment and living conditions (e.g., co-worker spread of a common contagious disease), the disease is not an “occupational disease” for benefit purposes even if acquired at work.

Because this test was adopted in Alaska Supreme Court cases issued in 1966 and 1985 and has not been significantly discussed since then, it was unclear if the Board would follow that case law or strike out in a different direction. However, on January 13, 2023, the Board issued a decision adopting the above two-part legal test, denying compensability of a COVID-19 claim by an employee of Chugach Electric Company who alleged she contracted it from a co-worker. See, Cheryl Rapp v Chugach Electric Company, AWCB No 23-0004 (January 13, 2023).

In that case, Ms. Rapp and a co-worker were employed as customer service representatives and worked in proximity to each other in office cubicles. They did their work by telephone and did not have physical contact with the public. The co-worker, Jenny, exhibited signs of illness and on 8/4/21 tested positive for COVID. Ms. Rapp began to experience symptoms of COVID on 8/13/21, nine days after her last exposure to Jenny. She tested negative for COVID that day. Symptoms progressed and by 8/16, Ms. Rapp lost her sense of smell. She tested positive for COVID on 8/17. Ms. Rapp claimed about two weeks of TTD benefits and medical costs related to her bout of COVID. Medical care for her COVID infection was minimal, consisting of three visits to her regular doctor. Ms. Rapp has since fully recovered.

The Board denied the claim under both tests described above. Based on medical evidence from an IME physician, the Board concluded it was more probable than not that Ms. Rapp’s COVID was not contracted at work because of the delay between the last exposure and the onset of symptoms. The Board also found that even if contracted at work, the risk of contracting COVID was no greater for Ms. Rapp than the risk generally present in employment and living conditions at that time. That is, co-worker spread of diseases in that kind of employment setting is common, and there was nothing about Ms. Rapp’s work that elevated that risk above that experienced by workers in general.

We view this case as significant because of the Board’s recognition that the two-part causation test described above applies to communicable diseases such as COVID, especially the second test which requires that the risk of contracting the disease through work has to be “greater than that which generally prevails in employment and living conditions.” Under this test, a worker can contract a disease such as COVID from a co-worker, yet the disease would not be “occupational” for benefit purposes if the risk of contracting it was no greater than the risk that generally exists in similar employment settings and living conditions. Since COVID was a pandemic, the risk of contracting it generally existed in both employment settings and in living conditions.

Bear in mind that each case is different and must be evaluated based on the facts presented. COVID can be a compensable occupational disease for some workers and not others. Evaluating the risk in each employment setting will be important in order to determine the best course of action in a particular case.

Update On Requirement Of Kansas Work Comp Impairment Ratings Being Based On The AMA Guides To The Evaluation Of Permanent Impairment 6^th Ed. – Latest Word From Kansas Appellate Courts For 2023. This update follows the 2021 Kansas Supreme Court decision in Howard Johnson III vs. U.S. Food Service and American Zurich Insurance Co., 312 Kan. 597, 478 P.3d 776 (2021) and several Kansas Court of Appeals decisions following, interpreting, and applying Johnson.  On January 8, 2021, the Kansas Supreme Court issued a much-anticipated decision reversing an August 2018 decision of the Kansas Court of Appeals (56 Kan. App. 2d 232, 427 P.3^rd 996), that had struck down as unconstitutional the use of the 6th Edition of the AMA Guides to the Evaluation of Permanent Impairment, for measuring permanent impairment of function of injured workers with general body disabilities under the Kansas Workers Compensation Act.  The Kansas Supreme Court held the language of K.S.A. 2019 Supp. § 44-510e(a)(2)(B) referencing the use of the AMA Guides 6th Ed. could reasonably be interpreted as a "guideline" rather than a "mandate."  Therefore, the high court found the statutory provision requiring use of the 6^th Ed. constitutional under section 18 of the Kansas Constitution Bill of Rights. The court stressed the statutory reference to the 6th Ed. did not alter the additional statutory requirement that any impairment rating must also be "established by competent medical evidence" which rendered sufficient the constitutionality of the statute as worded by the legislature when referencing the use of the 6^th Ed. in Kansas workers compensation cases.

The court went on to indicate that use of the 6^th Ed. is the starting point for a determination of permanent impairment under the statutory language for general body disability work injuries.  With this language, the Court opened the door for administrative law judges to consider use of other editions of the AMA Guides and perhaps even no edition of the AMA Guides, as long as the 6^th Ed. is at minimum a starting point.

The initial application of the Supreme Court’s Johnson decision by administrative law judges appeared to adopt the approach that Justice Stegall, writing for the Supreme Court in Johnson, delivered something for everyone in the Supreme Court’s Johnson decision.  For the employer and carrier side, the 6^th Ed. language in the statute was deemed to be constitutional and therefore retained as at least a starting point for an impairment rating analysis.  For the injured worker side, the decision is being interpreted as opening the door for formulations of rating opinions outside of the four corners of the 6^th Ed. of the AMA Guides, if the rating opinions also qualify under part-two of the legal test as “competent medical evidence.”

The statutory context of the Johnson issue of whether use of the 6^th Ed. was constitutional in relation to determining impairment for general body disability injuries under K.S.A. 2019 Supp. § 44-510e(a)(2)(B).  In Kansas, general body disability injuries are considered the exception, and scheduled disabilities as listed in the statute are considered the general rule.  A follow up question after the Supreme Court’s Johnson decision was whether in the context of scheduled injuries and disabilities found in K.S.A. 44-510d(b)(23), the requirement of using the AMA Guides 6^th Ed. in determining permanent impairment of function is constitutional, and both the starting and ending point for the analysis.  The statutory language mandating the use of the AMA Guides in K.S.A. 44-510e(a)(B) for scheduled disabilities is different than the language of K.S.A. 44-510d(b)(23) for general body disabilities.  The scheduled disability statute requires impairment of function related to a scheduled injury shall be determined using the 6^th Ed. if the impairment is contained therein.  The scheduled disability statute, K.S.A. 44-510d(b)(23), does not contain the phrase by "competent medical evidence" that the Johnson court cited in the general body disability statute.  The plain language of K.S.A. 44-510d(b)(23), the scheduled disability statute, requires the functional impairment to be based upon the 6^th Ed. There is no explicit requirement in that statutory language that the impairment rating be based upon any other criteria, including substantial competent medical evidence.

In Butler v. The Goodyear Tire and Rubber Company, OSCAR CS-00-0285-928 (WCAB May 2021) the Kansas Workers Compensation Appeals Board addressed this issue in the context of whether the plain language of the scheduled disability statute mandates the use of the AMA Guides 6^th Ed. for a shoulder injury.  The Appeals Board affirmed the ruling of the administrative law judge that the plain language of the scheduled injury statute is different than the plain language of the general body disability statute relied upon by the Johnson court.  That difference in the plain language of the scheduled disability statue was held to leave no room for the court to consider or apply any other AMA Guide edition other than the 6^th Ed. as required by the plain language of the statute.

Several notable Kansas Court of Appeals decisions in late 2021, early 2022 and 2023 illustrate that the question of whether the Johnson Court’s pronouncement that the AMA Guides 6^th Ed. is “just the starting point” is still somewhat up in the air regarding whether general body claims can be awarded impairment of function compensation based on any version of the AMA Guides other than just the Sixth Edition.

On October 1, 2021, the Kansas Supreme Court granted publication of the Court of Appeals decision in Zimero v. Tyson Fresh Meats, 61 Kan. App. 2d 1, 490 P.3d 86 (2021).  Zimero held that for a general body disability compensation claim, “any reference to the 4^th Edition for injuries occurring after January 1, 2015, is irrelevant.  The Court of Appeals rejected claimant’s argument holding that “Parties and courts do not choose between the 4^th Edition or the 6^th Edition.  The 6^th Edition is statutorily required.”

Next, on December 3, 2021, a separate panel of the Kansas Court of Appeals issued an unpublished opinion in Morris v. Shilling Construction Co., Inc., No. 123,297, 2021 WL 5751704 (Kansas Court of Appeals unpublished opinion filed Dec. 3, 2021).  The Morris opinion which appeared to affirm the Zimero position that the Supreme Court decision in Johnson while requiring that the starting point being use of the 6^th Edition and then using competent medical evidence to determine the compensable impairment, does not leave room for use of the 4^th Edition which the legislature expressly removed and replaced with the now required AMA Guides 6^th Edition.

Then on January 28, 2022, yet another panel of the Kansas Court of Appeals issued its published opinion in Garcia v. Tyson Fresh Meats, Inc., 61 Kan. App. 2d 520, 506 P.3d 283 (2022) seeming to be critical of an Appeals Board decision that did not appear to consider medical evidence which was based on the AMA Guides 4^th Edition when awarding permanent impairment of function compensation.  Zimero clearly holds that the 4^th Edition can no longer be used to determine permanent impairment while Garcia appears to hold that not considering the 4^th Edition may be reversable error.

Th most recent Kansas Court of Appeals application of the Johnson court two-part test following the published Court of Appeals decision in Garcia is the unpublished decision issued by a three-judge panel of the Court of Appeals on February 24, 2023, in Ortega v. Encore Rehabilitation Services LLC, No. 124,824 (Kan App 2023) (unpublished opinion).  In Ortega, the Court of Appeals followed part-one of Justice Stegall’s two-part test and held that it must, under Johnson, “start with the AMA Guides 6^th Ed.”  Under part-two of the Johnson test, the Ortega majority held that other competent medical evidence supported that the 6^th Ed. rating should be more heavily weighted over the claimant’s expert 4^th Ed. rating opinion.  In short, the Ortega majority more closely followed the Zimero approach but without stating that the 4^th Ed. can no longer be considered, as Zimero held.  A dissenting opinion in Ortega articulated that the case should be remanded back for additional medical evidence for a re-evaluation of the “competent medical evidence” part of the two-part legal test.

The bottom line as of 2023 is that for general body disability claims Kansas law requires that Justice Stegall’s Johnson two-part test is still controlling and in effect, and all impairment rating opinions must: 1) start by using the AMA Guides 6^th Ed.; and 2) to the extent there is deviation from the AMA Guides 6^th Ed., the impairment rating opinion must satisfy part-two of the legal test that for any medical expert impairment rating opinion not using the AMA Guides 6^th Ed., that opinion must be explained under the “competent medical evidence” prong of the test.  As a practical matter for parties currently in disability compensation litigation in general body disability claims, this situation means that it is likely medical rating opinion evidence which uses other editions of the AMA Guides, other than the 6^th Edition, will not be automatically excluded (as Zimero seemed to hold), but can be attacked factually using the “competent medical evidence” prong of the two-part test.  The practical effect of this for parties in litigation is it will likely increase the cost and scope of workers’ compensation final award litigation in Kansas.

The bottom line as of 2023 for scheduled disability claims in Kansas, is that the rating opinions must be based upon the AMA Guides 6^th Ed. or the party risks that the rating opinions will not be considered by the court in issuing a disability compensation award.

2023 Kansas Work Comp Legislative Update.  There were no substantive Kansas work comp legislative changes of import in 2023 to the Kansas Workers Compensation Act.

2023 Rates Update.  The maximum weekly indemnity benefit rate increased to $804.00, effective for accidents occurring 7/1/2023 through 6/30/2024, based upon annual indexing to the state average weekly wage.  Likewise for the same period, the minimum weekly benefit rate for fatalities increased to $536.00.   Effective for medical travel after July 1, 2023, the medical mileage reimbursement rate increased from $.585 cents per mile to $.655 cents per mile.

© Copyright 2023 by Kim R Martens, MARTENS WORK COMP LAW LLC. All rights reserved. Reprinted with permission.

Jurisdiction of Injured Employee's Claim

Letcher County Board of Education v. Hall, (2022-SC-0313-WC, 6/15/23) not final
 
Teacher filed WC claim alleging he developed mesothelioma after being exposed to asbestos during his employment in county high school. County School Board argued that the Board of Claims, not Department of Workers’ Claims, had exclusive jurisdiction over the claim under KRS 49.070(16) which states that “any claim” against the school district for damages as a result of asbestos exposure shall be brought before Board of Claims. Rejecting this argument, the Supreme Court of Kentucky concluded that KRS 49.070(16) pertains to claims by third parties, not employees. The Court cited the purpose of the Workers’ Compensation Act to compensate injured workers for loss sustained as a result of work-related injury or disease as well as its exclusivity. Furthermore, the Court pointed out that KRS 49.020(5) requires the Board of Claims to find negligence while the Workers’ Compensation Statute requires no showing of fault.
 

Should you have any questions or wish to discuss any related matters, please contact us at your convenience.

H. Douglas Jones, Esq. – djones@jsbattorneys.com, 859.594.4200
Margo Menefee, Esq. – mmenefee@jsbattorneys.com, 859.594.4200 

CHI St. Vincent Infirmary v. McCauley, 2023 Ark.App. 126. 

• Claimant injured her hip and back after tripping on a sidewalk at work. The employer denied the claim as compensable on the grounds that she was not performing employment services at the time of the injury. Claimant was a nurse supervisor whose office was not equipped with basic office supplies, but she had the option of ordering supplies through the department secretary. Instead, because it was unclear when she would receive those supplies, she decided to purchase her own supplies and bring them to the office in her car. On her lunch break, she went to her car to retrieve the items and tripped on the sidewalk. The ALJ found that the Claimant was going to her car for her own sole benefit and convenience because she was retrieving nonessential, nonwork related items.

• The Full Commission reversed the ALJ, finding that the Claimant was performing duties which at least indirectly benefitted the employer. 

• On appeal from the employer, the Court of Appeals affirmed. The Court cited case law stating that an injury suffered by an employee while on break is compensable if the employer has imposed some duty or requirement on the employee to be fulfilled during a break. Moncus v. Billingsley Logging, 366 Ark. 383, 235 S.W.3d 877 (2006). The Court pointed to Claimant’s testimony that, as a nurse supervisor, she was still “technically on duty” and subject to being called back to work during her lunch break despite the employer noting it would be “very unusual.”

The rules for recording and taping IMEs in New Jersey became much clearer with the June 15, 2023, New Jersey Supreme Court ruling in DiFiore v. Pezic, (Nos. A-58/59/60-21) (087091). While the case involved three separate civil court defense exams, there is no reason that the principles set forth in this consolidated decision will not be applied to workers’ compensation cases.

The basic rule in this case is that if the examinee (petitioner) wishes to record or tape an examination, counsel for petitioner needs to make a request of respondent. Although the case does not discuss physician recording of examinations, it would seem that the same rule should apply to physicians.  The Supreme Court reviewed the three separate cases where objections were made by the defense to allowing third parties to attend an IME or to record an IME. The Court said, “We therefore hold that if a plaintiff seeks to bring a neutral third-party observer to a Rule 4:19 exam (defense medical examination), or to audio or video record the exam, plaintiff’s counsel should notify defendant. If defense counsel opposes the third-party observation or recording, the parties should meet and confer in an effort to reach agreement.  Failing an agreement, defendant can move for a protective order under Rule 4:10-3 to bar the observation or recording.”

In the three cases at issue in DiFiore, two involved objections to bringing a third party to the examination and one involved recording a psychological examination. One plaintiff had a cognitive disorder, and another had a language barrier. In the case involving a neuropsychological exam, the neuropsychologist refused to conduct the examination if it would be audio-recorded. A protective order was sought in that case. The Supreme Court said that the burden of seeking a protective order is on the defendant, not on the plaintiff.

The practice of seeking a protective order is not likely to spread to workers’ compensation given that there are about 100,000 active claim petitions in the Division and literally hundreds of thousands of IMEs done each year by a fairly limited number of physicians.  Judges are already handling enormous numbers of cases daily, so parties will simply work out the requests to record.   Many IME doctors already assume that recording is frequently being done without a request being made. There may also be IME doctors who are now recording examinations as well without a request being made. The rule of this case is that a request must be made to record; otherwise, the recording will not be evidentiary. This rule will almost certainly be applied to physicians as well as examinees.  The Supreme Court and the Appellate Division in DiFiore noted that the advent of smart phones makes it easy to unobtrusively record an examination.   

While some may long for the old days when recording examinations was unheard of, those days are long gone. There may be positives that emerge from the practice of seeking consent to record. The rumor mill is often busy with comments that a certain doctor only spent one minute conducting the medical examination, or a certain claimant told the IME doctor that he or she had no complaints whatsoever. Recorded exams done by consent will provide answers and slow down the rumor mill. The Division should consider some basic rules for all practitioners to follow in requesting consent to record either by the physician or examinee or both.

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John H. Geaney, Esq., is a Shareholder and Co-Chair in Capehart Scatchard's Workers’ Compensation Group.  Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at jgeaney@capehart.com.

Written by: Tracey Jones

Philip A. Baddour was confirmed by the General Assembly to serve a second term as a commissioner.

The 28th Annual North Carolina Industrial Commission Workers’ Compensation Educational Conference will be held October 4 through 6, 2023 at the Raleigh Convention Center.

New Mediation Rules Regarding Participation

The Supreme Court of North Carolina has approved amendments to the Rules for Mediated Settlement Conferences and Other Settlement Procedures in Superior Court Civil Actions, which went into effect May 1, 2023. Among the amended Superior Court mediation rules is Rule 4, which governs attendance at Superior Court mediations.

Attendance at Industrial Commission mediations is governed by Rule 104 of the Industrial Commission’s mediation rules (11 NCAC 23G .0104). Paragraph (b) of Rule 104 provides that the attendance method for Industrial Commission mediations shall be the same as the attendance method set forth in Rule 4 of the Rules for Mediated Settlement Conferences and Other Settlement Procedures in Superior Court Civil Actions. Therefore, the Rule 4 amendments affect the way the attendance method will be determined in Industrial Commission mediations beginning May 1, 2023.

Under the Rule 4 amendments, if all parties and the mediator agree on the mediation attendance method (which can be remote, in-person, or a hybrid of the two where some parties are participating remotely while others are together in-person), then the mediation will be held using the agreed-upon attendance method. If an agreement on the attendance method cannot be reached, then attendance will be in-person unless the mediator has designated in the Dispute Resolution Commission’s Mediator Information Directory that he or she will only conduct remote mediations. However, in all cases, a party who is required to attend the mediation may file a motion with the Industrial Commission Dispute Resolution Coordinator asking that a different method of attendance be ordered. For example, a party who wishes to participate remotely but does not object to others participating in-person may file a motion requesting an order allowing a hybrid of remote and in-person attendance at the mediation.

This is a change to the rules in that the previous default method of attendance when agreement could not be reached was remote. This new change makes the default attendance in person. It is too early to tell how the Industrial Commission will rule on Motions submitted from either side regarding remote attendance.