NWCDN Members regularly post articles and summary judgements in workers’ compensations law in your state.
Select a state from the dropdown menu below to scroll through the state specific archives for updates and opinions on various workers’ compensation laws in your state.
Contact information for NWCDN members is also located on the state specific links in the event you have additional questions or your company is seeking a workers’ compensation lawyer in your state.
Written by: Kyla Block
Prescription medications can be a stumbling block when it comes time to resolve a workers’ compensation claim. Insurance carriers often have preferred vendors they utilize to obtain favorable prescription costs or negotiated agreements with pharmacies, leading to less expensive medical exposure during the pendency of claims. However, claimants are often unable to benefit from these cost savings once their claim has been settled. This becomes a problem for both sides when trying to resolve a claim. The claimant is unsure of the price his/her medications will cost, causing them to demand a higher settlement value and making the overall process more expensive. It consequently costs defendants more to resolve the claim if they are able to do so.
Enter Mark Cuban CostPlus Drug Company. Co-founded by Dr. Alexander Oshmyansky and Mark Cuban in January 2022, Mark Cuban CostPlus Drug Company was created with the express purpose of providing patients with access to safe, affordable medicines regardless of whether they have insurance or a low deductible health care plan. Instead of negotiating prices through pharmacy benefit managers, the company directly negotiates with manufacturers to get generic drugs at wholesale prices. It then sells those drugs to consumers with prescriptions with a 15% markup, a $3 pharmacy labor charge, and $5 for shipping, according to the pharmacy’s website.
CostPlus Drugs aims to disrupt the traditional pharmaceutical supply chain and offer transparency, affordability, and accessibility to prescription medications. Eliminating the middleman and replacing him with a straightforward 15% price markup results in an astonishing difference in the cost of many medications. For example, a 20 mg, 90-tablet prescription of Escitalopram, which costs around $180.00 from a regular pharmacy, would only cost $12.50 from Mark Cuban CostPlus Drug Company according to the latest data. Lidocaine ointment (Generic for Xylocaine) is $5.44 for a tube, compared to its $243.61 retail price. The Lidocaine patch (Generic for Lidoderm) is $46.50, compared to $246.90 retail. Meloxicam (Generic for Mobic) is $3.60 versus $21.39 at a retail price.
Being able to suggest lower prescription costs (and support it with evidence) allows the parties in a workers’ compensation case to reach common ground on future medical treatment costs, which is often murky depending on whether the claimant has insurance or not and what that insurance plan covers. Mark Cuban CostPlus Drug Company provides transparency on prescription costs after the claim ends and allows claimants to obtain much needed prescriptions at a fraction of the price. Suggesting options like Mark Cuban CostPlus Drug Company allows defendants to provide a solution to a potential barrier to settlement, hopefully facilitating resolution of the claim.
For more information on Mark Cuban CostPlus, see this interesting article.
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On 5/2/21, Claimant was injured in a fall from a second story window during a training exercise as a volunteer firefighter. On 9/12/22, Claimant filed a Petition seeking pre-authorization of a single level lumbar fusion surgery recommended by Dr. Yalamanchili during his first visit with the claimant on 9/7/22. The Board found that the proposed surgery was not reasonable and necessary treatment at this time, accepting the opinion of defense medical expert, Dr. Close, over Dr. Yalamanchili. The Board agreed with Dr. Close that the claimant had not exhausted conservative care. Claimant had not received steroid injections, which could be both diagnostic and therapeutic. Further physical therapy could benefit the claimant, especially as she had experienced good relief with this particular modality in the past. Anti-neuropathy medications should be trialed. An EMG would be of diagnostic utility. Claimant should have a second opinion. The Board was also not comfortable with the risks associated with the surgery. Even Dr. Yalamanchili testified that claimant’s chances of success were 60-70% at best. Even with the surgery, the balance of patients do not improve and may even get worse. Dr. Close testified credibly that there were several factors that caused him to question Dr. Yalamanchili’s projections. Specifically, Claimant’s imaging findings were degenerative, common in patients in her age group, and showed no spinal instability. There was a bulge without any cord compromise. Fusion surgery is not effective for predominantly axial low back pain. Claimant conceded that she had predominantly low back pain and her leg pain was only intermittent. Fusion surgery would predispose Claimant to developing adjacent segment problems, especially as she already had pathology in at least one adjacent level. Should you have any questions regarding this decision, please contact Greg Skolnik or any other attorney in our Workers’ Compensation Department. Jesika Martin v. State of Delaware, IAB Hrg. No. 1511181 (Mar. 6, 2023). |
INDIANA
TTD AND PPI RATES
BEGIN JULY 1, 2023
The new statutory TTD and PPI rates for injuries occurring after July 1, 2023. Rates are reflected in this summary:
|
Date of Injury
|
Max AWW
|
Max TTD
|
Maximum
|
|
07/01/16- 06/30/23 |
$1,170 |
$780 |
$390,000 |
|
07/01/2023 |
$1,205 |
$804 |
$402,000 |
|
07/01/2024 |
$1,241 |
$828 |
$414,000 |
|
07/01/2025 |
$1,278 |
$852 |
$426,000 |
|
07/01/2026 |
$1,316 |
$878 |
$439,000 |
Minimum Weekly AWW, $75; Minimum TTD $75= Minimum Maximum Compensation of $37,500.00.
|
Body Part
|
Degrees
|
Body Part
|
Degrees
|
|
Upper Body
Thumb Index Finger Second Finger Third Finger Fourth Finger Hand below elbow Arm above elbow |
Degrees
12 8 7 6 4 40 50 |
Lower Body
Great toe Second toe Third toe Fourth toe Fifth toe Foot below knee Leg above knee |
Degrees
12 6 4 3 2 35 45 |
|
Vision/Hearing
Complete hearing loss, one ear
Complete hearing loss, both ears
Vision loss to 1/10 of normal vision
|
15
40
35
|
Other loss
One Testicle Both testicles
Both hands, both feet, total vision in both eyes or two such loss in same accident |
10 30
100 |
|
Whole Body |
100 |
|
|
|
Date of Injury on
|
Degrees
|
Dollars Per Degree
|
|
7/01/16-06/30/23 |
1-10 |
$1,750 |
|
|
11-35 |
$1,952 |
|
|
36-50 |
$3,186 |
|
|
51-100 |
$4,060 |
|
7/01/23 |
1-10 |
$1,803 |
|
|
11-35 |
$2,011 |
|
|
36-50 |
$3,282 |
|
|
51-100 |
$4,182 |
|
7/01/24 |
1-10 |
$1,857 |
|
|
11-35 |
$2,071 |
|
|
36-50 |
$3,380 |
|
|
51-100 |
$4,307 |
|
7/01/25 |
1-10 |
$1,913 |
|
|
11-35 |
$2,133 |
|
|
36-50 |
$3,481 |
|
|
51-100 |
$4,436 |
|
07/01/26 |
1-10 |
$1,970 |
|
|
11-35 |
$2,197 |
|
|
36-50 |
$3,585 |
|
|
51-100 |
$4,569 |
*Amputation: Calculated by doubling the dollar
amount of PPI rating. I.C. §22-3-3-10 (i)(1)
PART ONE: CHANGES EFFECTIVE AUGUST 1, 2023
ATTORNEY FEES & DISPUTE CERTIFICATION
Minn. Stat. § 176.081, subdivision 1c has been amended to state that fees under the chapter are “available to an attorney who procures a benefit on behalf of the employee” upon genuinely disputed claims or portions of claims. However, unless the employee is represented by an attorney in other litigation pending at the Office of Administrative Hearings, a fee may not be charged for services with respect to a medical or rehabilitation issue performed before the attorney has filed with the commissioner and served upon the employer/insurer (and their attorney, if any) “a request for certification of dispute containing the name of the employer and its insurer, the date of the injury, and a description of the benefits claimed” and the department certifies that there is a dispute and that it has tried to resolve the dispute.
If the department has not issued a determination of whether a dispute exists within 30 days of the filing of a request, the dispute shall be certified if all the following apply:
(1) the insurer has not approved the requested benefit;
(2) the employee, the employee's attorney, or the employee's treating provider has submitted any and all additional information requested by the insurer necessary to determine whether the requested benefit is disputed or approved; and
(3) the insurer has had at least seven calendar days to review any additional information submitted.
Non-Emergency Surgery Disputes
If an employer/insurer has requested a second opinion (pursuant to 176.135) or an examination (pursuant to 176.155), a dispute shall be certified if 45 days have passed following a written request for a second opinion or examination, if the three conditions enumerated above are met as well. Cross-reference the amendments to Minn. Stat. 176.135, subdivision 1a for further details on procedures for second opinions on requests for non-emergency surgeries, as discussed below.
CUSTOMIZED MEDICAL ITEMS ARE PROPERTY OF THE EMPLOYEE AND MUST BE REPLACED
Minn. Stat. § 176.135, Subdivision 1(d) was amended to specify that any “artificial members, glasses or spectacles, artificial eyes, podiatric orthotics, dental bridge work, dentures or artificial teeth, hearing aids, canes, crutches, or wheel chairs” that had been customized specifically for an injured worker are the property of the injured worker. If any of these items
were damaged by reason of an injury arising out of and in the course of the employment, the employer shall furnish their replacement or repair. An employer/insurer’s inability or refusal to timely provide these items, will make it liable for the reasonable expense incurred by or on behalf of the employee in providing them.
REQUESTS FOR NON-EMERGENCY SURGERY AND SECOND OPINIONS
Minn. Stat. 176.135, subdivision 1a(a) was amended to specify that if an employer or insurer requires an employee to get a second opinion before undergoing an non-emergency surgery, the expense of that second opinion shall be paid by the employer or the insurer (the previous language only mentioned the employer).
Language stating that “the failure to obtain a second surgical opinion shall not be reason for nonpayment of the charges for the surgery. The employer is required to pay the reasonable value of the surgery unless the commissioner or compensation judge determines that the surgery is not reasonably required” has now been removed from the statute. The new language states that if an employer or insurer receives a request for non-emergency surgery, it must respond in writing no later than seven calendar days after receiving the request from the health provider or the employee either: approving the request, asking for additional information, requesting a second opinion, or requesting an examination by a physician chosen by the employer (under 176.155).
Subdivision 1a(b) has now been added to the statute. It states that if the employer or insurer requests a second opinion, it must notify the employee and the health care provider of this request within seven calendar days of the request for non-emergency surgery. If the authorization of the non-emergency surgery is denied within seven calendar days of receiving the second opinion, the health care provider may elect to perform the surgery, subject to a determination of compensability by the commissioner or compensation judge.
Subdivision 1a(c) has also been added. It states that “failure to obtain a second surgical opinion is not reason for nonpayment of the charges for the surgery. The employer or insurer is required to pay the reasonable value of the surgery unless the commissioner or compensation judge determines that the surgery is not reasonably required.”
CHARGES FOR MEDICAL BILLS AND RECORDS
Minn. Stat. § 176.135, subdivision 7 has undergone significant amendments, mostly limiting the dollar amounts that health care providers can charge for their records.
Paragraph (a) has added language specifying that health care providers may charge for copies of their records or reports pursuant to Minnesota Rules, part 5219.0300, and directs the commissioner to adopt, by rule, a schedule of reasonable charges that will apply to charges not addressed by paragraphs (d) and (e) (see below).
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Paragraph (d) was added to the subdivision, it provides that:
(1) Health care providers must notify requestors of the estimated cost before sending copies of records. If the requestor approves the costs and record copies are provided, the payment due is the applicable fee under paragraph (e) (see below);
(2) Health care providers shall not require prepayment for the costs of copies unless there is an outstanding past-due invoice for the requestor for previous records requests;
(3) Health care providers shall provide copies of medical records in electronic format;
(4) The charges scheduled under paragraph (e) includes fees for retrieval, downloading, or other delivery of records;
Paragraph (e) then provides the following limits for how much a health care provider may charge for any records provided under paragraph (d):
1. No more than $10 if there are no records available;
2. No more than $30 for records of up to 25 pages;
3. No more than $50 for records of up to 100 pages;
4. No more than $50, plus and additional 20 cents per page for pages 101 and above; or
5. No more than $500 total for any request.
MEDICAL EXAMINATIONS
Minn. Stat. § 176.155, subdivision 1 was amended, largely to provide further parameters regarding requests for extension of time for file I.M.E. reports. Paragraph (a) added language allowing employees to have a “witness” present at any examinations performed that the request of the employer (previously the paragraph only allowed employees to have “a personal physician” present at their own expense).
Paragraph (b) removed language providing that IME reports must be made available to the employee or employee’s representative upon request, and now states that: regardless of whether litigation is pending, the report must be served upon the employee and employee’s attorney no later than 14 days within the issuance of the report or written statement.
Paragraph (d) states that “any request for a good cause extension pursuant to paragraph (e) must be made within 120 days of service of the claim petition” with the following exceptions:
1. There has been a change to the employee’s claim regarding the nature and extent of the injury;
2. There has been a change to the permanency benefits claimed by the employee, including a change in permanent partial disability percentage;
3. There is a new claim for indemnity benefits; or
4. The employment relationship is not admitted by an uninsured employer.
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SCOPE OF .239 CONFERENCES
176.239, subdivision 6 was amended to state that “only reasons specified on the notice of discontinuance shall provide a basis for a discontinuance, unless the parties agree otherwise,” striking the word “information” from that sentence. This appears to indicate that
.239 conferences will be decided much more on just the four corners of the reasons provided on Box 3 Notices of Intent to Discontinue, and that Employer/Insurers may not be able to rely on providing additional information or arguments not previously raise in the discontinuance notice at the time of the conference.
However, subdivision 7 adds the term “exhibits filed by the parties with the office” to “information provided by the parties at the administrative conference” as the information to be considered in issuing administrative decisions on .239 conferences.
CLAIM PETITION PROCEDURE AND REQUIREMENTS
176.291 has been amended, apparently to require greater specificity and documentary support in Claim Petitions, especially those asserting multiple claims. Under paragraph (b) the petition shall state and include: the extent and character of each injury; copies of medical records supporting each claim asserted; copies of other information in support of the claim, witness information for all known witnesses to be called in support of each injury and claim; the nature and extent of each claim.
Paragraph (c) now allows “incomplete” petitions to be stricken or dismissed from the calendar pursuant to 176.305, subd. 4. Further, an employee who has filed a claim petition shall provide a list of their physicians and health care providers who have provided treatment for same/similar conditions as well as authorizations for relevant information, data, and records within 14 days to any requester (previously it was 30 days).
CASES WITH DEFICIENT PETITIONS MAY STRICKEN FROM THE CALENDAR AND DISMISSED IF NOT CORRECTED IN 180 DAYS
176.305, subdivision 4 now allows a compensation judge, upon a properly served motion, to strike a case from the active trial calendar after the employee has been given 30 days to correct a deficient petition if the information on the petition was incomplete (see the amendments to 176.291 above). If a case has been stricken from the calendar for 180 days (previously, it was 1 year) or more and no corrective action has been taken, the judge may dismiss the case (sua sponte, or upon the motion of a party). The petitioner must be given 30 days notice of the proposed dismissal before the dismissal is effective.
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PROCEEDINGS WHEN ANSWER NOT FILED (.331 HEARINGS)
In an apparent move to provide a bit of a “speedbump” for a full-blown hearing on a short turn-around time, 176.331 was amended to have OAH set the matter for an immediate pretrial conference and hearing when an adverse party fails to file and serve an answer or obtain an extension to answer. The adverse party that failed to file and answer or appear at a pretrial conference may appear at the hearing, but will not be granted a continuance except for good cause.
CESSATION OF DEPENDENT BENEFITS NOTICE REQUIREMENTS
Minn. Stat. § 176.111, subdivision 16 added language stating that the cessation of dependent benefits (due to the death or marriage of any dependent) requires notice pursuant to subdivision 23.
Subdivision 23, in turn, is a new subdivision stating the procedural requirements of notice of cessation of dependency benefits. An employer seeking to discontinue dependency benefits must file with the commissioner and serve upon the dependent written notice within 14 days of the discontinuance. The notice must state the date the benefits will be discontinued and provide a statement of facts clearly indicating the reason the individual will no longer receive dependency benefits and is no longer considered a dependent under § 176.111. Any document relied upon for the discontinuance must be attached to the notice. Failure to file the notice as required may result in a penalty under § 176.231, subdivision 10.
PART TWO: CHANGES EFFECTIVE OCTOBER 1, 2023
CHANGES TO THE PERMANENT PARTIAL DISABILITY SCHEDULE: EFFECTIVE FOR INJURIES ON OR AFTER OCTOBER 1, 202
176.101, subdivision 2a, has been significantly amended. Paragraph (a) now contains a provision stating that “during the 2026 regular legislative session, and every even-year legislative session thereafter, the Workers' Compensation Advisory Council must consider whether the permanent partial disability schedule in paragraph (b) represents adequate compensation for permanent impairment.”
Paragraph (b), in turn, provides significantly higher base dollar amounts by which the impairment rating percentages are derived. This appears to be an approximately 31% increase for lower-end percentages, and it tapers to an approximate 5% for the high ratings. For example, the amount for impairment ratings of less than 5.5% is going to $114,260 (from $78,800), whereas ratings of 95.5% and higher only go up to $567,840 from $540,800.
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HOSPITAL OUTPATIENT FEE SCHEDULE
Minn. Stat. §176.1364, subdivision 3, which addresses the Hospital Outpatient Fee Schedule (HOFS) was amended to included a new paragraph (g), which directs the commissioner, beginning October 1, 2023 to October 1, 2025, to adjust the conversion factors provided in the subdivision to result in an overall reduction in total payments of hospital outpatient service by 3% for services effective October 1, 2023, a further 3% overall reduction starting October 1, 2024, and then a 4% overall reduction for services effective October 1, 2025.
Minn. Stat. §176.1364, subdivision 6 is repealed.
PART THREE: POST-TRAUMATIC STRESS DISORDER STUDY
This new legislation directs the commission of labor and industry to “conduct a study to identify systemic or regulatory changes to improve the experience and outcomes of employees with work-related post-traumatic stress disorder.” This study must:
(1) identify evidence-based methods and best practices for early detection and treatment of post-traumatic stress disorder;
(2) review models, including those used in other jurisdictions and systems, for delivering mental health wellness training or employee assistance programs, treatment for post- traumatic stress disorder, and benefits related to post-traumatic stress disorder. Review must include outcomes and cost considerations;
(3) identify any programs in other jurisdictions with effective prevention, timely and effective medical intervention, or high return-to-work rates for employees with work- related post-traumatic stress disorder;
(4) review the definition of post-traumatic stress disorder provided in Minnesota Statutes, section 176.011, subdivision 15, paragraph (d), and compare to definitions in other jurisdictions; and
(5) consider the list of occupations subject to the rebuttable presumption in Minnesota Statutes, section 176.011, subdivision 15, paragraph (e).
Any relevant state agency, and specifically the Public Employees Retirement Association, Minnesota State Retirement System, and Minnesota Workers’ Compensation Insurers Association are directed to cooperate with the commissioner in conducting this study. The commissioner must report the results of this study to the Workers’ Compensation Advisory Council and the chairs and ranking minority members of the house of representatives and senate committees with jurisdiction over workers’ compensation by August 1, 2025.
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PART FOUR: CHANGES EFFECTIVE “THE DAY AFTER FINAL ENACTMENT”
“RELATIVE VALUE FEE SCHEDULE” DEFINED
Minn. Stat. § 176.011 was amended to include Subdivision 17b which provides the statutory definition of “relative value fee schedule” as “the medical fee schedule adopted by rule under section 176.136, subdivision 1a, using the Physician Fee Schedule tables adopted for the
federal Medicare program.”
CONNECTICUT WORKERS’ COMP UPDATE
The law firm of Strunk Dodge Aiken Zovas (SDAZ) provides you with our SPRING 2023 WORKERS’ COMPENSATION LAW UPDATE. Please feel free to share this update with your colleagues. If someone inadvertently has been left off our email list and would like to receive future updates they can contact Jason Dodge at jdodge@ctworkcomp.com or 860-785-4503.
STRUNK DODGE AIKEN ZOVAS NEWS
On May 6, 2023 Attorney Richard Aiken of SDAZ was inducted to the College of Workers' Compensation Lawyers at a ceremony held at the Marriot Marquis Hotel in New York City. The College of Workers’ Compensation Lawyers is a national organization established to honor those attorneys who have distinguished themselves in their practice in the field of workers’ compensation. Attorneys Lucas Strunk and Jason Dodge are also Fellows in the College and they attended the induction ceremony to honor Attorney Aiken. Only fifteen attorneys in Connecticut have ever received this honor.
The Joseph J. Cassidy Memorial 5K Run/Family Walk stepped off on Saturday May 13 at the MDC reservoir in West Hartford and was a great success! Attorneys Anne Zovas and Phil Markuszka of SDAZ helped organize the annual event which raises funds for the Hartford County Bar Foundation, the charity arm of the HCBA. #HCBF #Charity #RoadRace2023
Attorneys Rick Aiken, Colette Griffin and Jason Dodge of SDAZ attended the CBA workers’ compensation section seminar in Nashville, Tennessee on May 7-9. Dr. Tamer Ghaly provided an interesting presentation regarding interventional pain management. Judge Mlynarczyk discussed settlements and mediation in the workers’ compensation system. Kudos to Attorney Jeremy Brown for putting the seminar together.
Attorney Jason Dodge of SDAZ has been named by Best Lawyers as the 2023 “Lawyer of the Year” for workers’ compensation law-employers in the Hartford region.
Attorneys Lucas Strunk, Richard Aiken, Heather Porto and Courtney Stabnick of SDAZ have been selected by their peers for recognition of their professional excellence in the 29th edition of The Best Lawyers in America.
Super Lawyers have issued their rankings for 2022. Attorney Jason Dodge of SDAZ was named to the “Top 50” lawyers for Connecticut in all fields of law in the 2022 Connecticut Super Lawyers nomination, research and Blue Ribbon process. Attorney Richard Aiken was also named a Super Lawyer in the field of workers’ compensation law. Attorneys Christopher D’Angelo, Ariel MacPherson and Philip Markuszka of SDAZ were named “Rising Stars” in workers’ compensation law.
Attorneys Lucas Strunk, Richard Aiken and Jason Dodge at the College of Workers’ Compensation Lawyers induction ceremony in New York City.
Strunk Dodge Aiken Zovas has been named by Best Lawyers as a 2023 Tier 1 “Best Law Firm.” Best Lawyers is the oldest and most respected lawyer ranking service in the world. The U.S. News – Best Lawyers® "Best Law Firms" rankings are based on a rigorous evaluation process that includes the collection of client and lawyer evaluations, peer review from leading attorneys in the field, and review of additional information provided by law firms as part of the formal submission process.
Strunk Dodge Aiken Zovas has been named the Connecticut representative of the National Workers’ compensation Defense Network. The NWCDN is a nationwide network of workers’ compensation defense law firms that partner with other attorneys to provide clients with expertise, education, and guidance in the field of workers’ compensation. Only one firm per state is selected for this prestigious organization. If representation is needed in a state outside of Connecticut, the NWCDN network provides a vetted list of law firms that can provide excellent legal assistance to clients of SDAZ. Attorneys Anne Zovas and Lucas Strunk of SDAZ attended the NWCDN regional conference on May 4-5 in Charlotte, North Carolina.
Attorneys Anne Zovas, Richard Aiken, Lucas Strunk, Jason Dodge and Richard Stabnick of SDAZ have received an AV rating by Martindale-Hubbell. Martindale-Hubbell states that the AV rating is “The highest peer rating standard. This is given to attorneys who are ranked at the highest level of professional excellence for their legal expertise, communication skills, and ethical standards by their peers.”
Attorney Philip Markuszka of SDAZ was approved on October 25, 2022 unanimously by the Glastonbury Town Council to serve on the Town Plan and Zoning Commission.
Attorneys Jason Dodge and Philip Markuszka of SDAZ are Board members of Kids’ Chance of Connecticut. The mission of Kids’ Chance of Connecticut is to provide educational scholarships to the children of Connecticut workers who have been seriously or fatally injured in work-related accidents. If you or your organization wish to become involved in this worthy charity please contact Jason or Phil. If you are aware of a child who may qualify for a scholarship to a college or technical school please go to the following website for an application www.kidschanceofct.org.
The 2022-2023 supplement to the Connecticut workers’ compensation treatise “Connecticut Workers' Compensation Law” published by Thomson Reuters was issued in December 2022. This two-volume treatise co-authored by Attorneys Jason Dodge and Lucas Strunk of SDAZ, and Attorneys James Pomeranz, Robert Carter and Donna Civitello provides a broad and historical view of Connecticut Workers' Compensation Law and discusses current issues, both in decisional law and in legislative trends. Topics addressed in the treatise include: arising out of and in the course of employment, causation, statue of non-claim, filing notices to contest liability, Motions to Preclude, third party lien rights, and Medicare and Social Security interplay with Connecticut Workers’ Compensation claims. The treatise can be purchased online at:
https://store.legal.thomsonreuters.com/law-products/Treatises/Connecticut-WorkersCompensation-Law-Vols-19-and-19A-Connecticut-Practice-Series/p/100006513
You can now follow us on Facebook at https://www.facebook.com/Strunk-Dodge-Aiken-Zovas-709895565750751/
SDAZ can provide your company with seminars regarding Connecticut Workers’ Compensation issues. Please contact us about tailoring a seminar to address your particular needs.
We do appreciate referrals for workers’ compensation defense legal work. When referring new files to SDAZ for workers’ compensation defense please send them to one of the attorneys’ email: azovas@ctworkcomp.com, raiken@ctworkcomp.com, lstrunk@ctworkcomp.com, jdodge@ctworkcomp.com, HPorto@ctworkcomp.com, cgriffin@ctworkcomp.com, nberdon@ctworkcomp.com, cstabnick@ctworkcomp.com, cbuccini@ctworkcomp.com, pmarkuszka@ctworkcomp.com, cdangelo@ctworkcomp.com, amacpherson@ctworkcomp.com, rstabnick@ctworkcomp.com, mbailey@ctworkcomp.com or by regular mail. We will respond acknowledging receipt of the file and provide you with our recommendations for defense strategy.
Please contact us if you would like a copy of our laminated “Connecticut Workers’ Compensation at a glance” that gives a good summary of Connecticut Workers’ Compensation law to keep at your desk.
OUR ATTORNEYS:
Lucas D. Strunk, Esq. 860-785-4502 Courtney C. Stabnick, Esq. 860-785-4501
Jason M. Dodge, Esq. 860-785-4503 Christopher Buccini, Esq. 860-785-4500 x4520
Richard L. Aiken, Jr., Esq. 860-785-4506 Philip T. Markuszka, Esq. 860-785-4500 x4510
Anne Kelly Zovas, Esq. 860-785-4505 Christopher J. D’Angelo, Esq. 860-785-4504
Heather K. Porto, Esq. 860-785-4500 x4514 Ariel R. MacPherson, Esq. 860-785-4500 x4528
Colette S. Griffin, Esq. 860-785-4500 x4525 Melissa R. Bailey, Esq. 860-785-4500 x4527
Nancy E. Berdon, Esq. 860-785-4507 Richard T. Stabnick, Esq., Of Counsel 860-785-4500 x4550
LEGISLATIVE UPDATE
2022 LEGISLATIVE REPORT
Our 2022 legislative report can be found in the link below:
https://www.ctworkcomp.com/wp-content/uploads/2022/08/Summer-2022-work-comp-update.pdf
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CONNECTICUT WORKERS’ COMPENSATION COMMISSION NEWS
NEW ADMINISTRATIVE LAW JUDGE APPOINTMENTS:
Shanique Fenlator and Benjamin Blake have been confirmed as Administrative Law Judges in the Connecticut Workers’ Compensation Commission. Also the re-appointments of Chief Administrative Law Judge Stephen M. Morelli, Hon. Carolyn M. Colangelo, Hon. Daniel E. Dilzer, Hon. Maureen E. Driscoll, Hon. Jodi Murray Gregg, Hon. David W. Schoolcraft, and Hon. William J. Watson, III have been confirmed.
MEMORANDUM 2022-09:
Memorandum 2022-09 has been issued by Chief Administrative Law Judge Morelli regarding maximum compensation rates. The Chairman has ordered that the maximum total disability rate for injuries occurring after October 1, 2022 is $1,509 (based on the estimated average weekly wage of all employees in Connecticut). The maximum temporary partial/permanent partial disability rate for accidents after October 1, 2022 is $1,108 (based on the average weekly earnings of production and related workers in manufacturing in Connecticut).
Please note that the TP/PPD maximum rate went down from $1,140 in 2021 to $1,108 in 2022.
MEMORANDUM 2022-12
The Workers’ Compensation Commission has developed an online filing Form 6B for officers of a corporation or a member of a limited liability company who wishes to be excluded from workers’ compensation coverage.
https://portal.ct.gov/WCC/Workers-Compensation-News/Commission-Memorandums/2022-Memos/Memorandum-No-2022-12
MILEAGE RATES:
On January 1, 2023 the mileage rate increased to 65.5 cents per mile. The rate had been at 62.5 cents per mile since July 1, 2022
REVISIONS TO FORMS 30C AND 30D:
MEMORANDUM 2022-04 has been issued which states:
Pursuant to Public Act 22-139, the Workers’ Compensation Commission (WCC) is required to maintain and report a record of all workers’ compensation cancer claims made by firefighters. In order to accurately collect and record this data, WCC Form 30C “Notice of Claim for Compensation” and Form 30D “Dependents’ Notice of Claim” have been revised. The revision of WCC Form 30C also includes a change to reflect post-traumatic stress injuries made pursuant to C.G.S. Section 31-294k. Please use the most recent revisions of Forms 30C and 30D and check the appropriate box(es) when filing new claims.
BURIAL FEES:
As of January 1, 2023, the burial fee for deaths covered under the Workers’ Compensation Act is $13,454.70 based on the overall 2022 CPI-W increase for the northeast of 4.3%. Connecticut General Statutes Section 31-306 was amended in 2021 to reflect that the compensation for burial benefits will be adjusted by the percentage increase in the consumer price index for urban wage earners and clerical workers in the Northeast as defined in the United States Department of Labor’s Bureau of Labor
Statistics.
CRB APPOINTMENTS:
Chief Administrative Law Judge Morelli has appointed Administrative Law Judges Toni M. Fatone and Soline M. Oslena to sit as panel members on appeals before the Compensation Review Board for the calendar year beginning January 1, 2023.
The Commission does have a website where you can look up such information as to whether a hearing is assigned, list of all claims for an employee, status of a Form 36, and interested parties. This is quite a useful site and is a different website than the Commission’s main site. It can be found at:
http://stg-pars.wcc.ct.gov/Default.aspx
CASE LAW
AJDINI V. FRANK LILL & SON, INC., 6474 CRB-4-22-4 (March 17, 2023)
The claimant alleged two separate injuries on different dates of accident with same employer. He filed two timely notices of claim regarding the accidents; both were received on May 3, 2019. The respondents issued two Form 43’s in response to the claims and mailed them on May 29, 2019. The Form 43’s were received by the Commission on June 3, 2019 and by the claimant on June 6, 2019. A Motion to Preclude was filed regarding both claims; the preclusion was granted by the Administrative Law Judge. On appeal the respondents contended that the disclaimers were timely issued and that the mailing of the Form 43’s on May 29, 2019 was within the twenty-eight day time period required by Connecticut General Statutes Section 31-294c(b). The respondents contended that the “Mail Box Rule” applied and that the preclusion should not be granted. The respondents asserted that the mailing of the documents on May 29, 2019 met the requirement of the statute to “file with the commissioner.” The CRB affirmed the granting of the Motion to Preclude and pointed out that the “Mail Box Rule” only assumes that the document is received if it is properly mailed and does not go to the issue of the timing of receipt of the mailing. The Board held that the statute required actual receipt of the Form 43 before the twenty-eight day period and that mailing the notice to contest within the twenty-eight day period was not sufficient to avoid a preclusion.
RIGGINS V. STATE OF CONNECTICUT/DEPARTMENT OF CORRECTION, 6452 CRB-6-21-11 (April 4, 2023)
The claimant alleged neck and knee injuries in a motor vehicle accident. There was a video of the motor vehicle accident. The treating doctor testified that the video of the motor vehicle accident was inconsistent with claimant’s history of injury. The Trial Judge dismissed the claim because “the video evidence was inconsistent with the claimant’s narrative and that the claimant’s testimony was not persuasive or credible.” The claimant was represented by counsel at the formal hearing and counsel filed an appeal but thereafter the claimant pursued the appeal on his own. The claimant did not file any appellate pleadings such as reasons of appeal or a motion to correct. At argument the claimant did not dispute the Judge’s findings but contended he had problems with the evidence that his attorney presented. The CRB granted a Motion to Dismiss that was filed by the respondents on appeal pursuant to Practice Book 85-1 since the claimant had not filed any appellate documents. The Board in granting the Motion to Dismiss also stated that if they reached the merits of the appeal they would have affirmed the Finding of the Judge since there was sufficient evidence in the record to support the dismissal.
RIGGINS V. STATE OF CONNECTICUT/DEPARTMENT OF CORRECTION, 6452 CRB-6-21-11 (April 4, 2023)
The claimant was pro se regarding this appeal which may explain the result in this case. Prior to the formal hearing the claimant alleged that she had been underpaid for a permanent partial disability award for the ankle that was owed to her. The claimant had sustained several different injuries as a result of a number of work-accidents with permanent impairment ratings covering many body parts including the back, left hand, arm and feet. Some voluntary agreements for permanency had been approved. At the start of the formal hearing which was sought by the claimant the stated issue was “31–295 (c) penalty for late payment of PPD benefits.” The claimant testified at formal hearing as well as an adjuster for the respondent, State of Connecticut. Ultimately, the Trial Judge found the testimony of the claimant not credible or persuasive and determined that the adjuster’s testimony was credible and convincing. The Judge determined that the claimant had failed in her burden to prove that any amount due for permanency had been paid in an untimely manner; in fact, the Trial Judge also found that some permanency had been paid at a rate higher than the correct rate and held there was an overpayment of $2,808.50. On appeal, the Compensation Review Board concluded that the Trial Judge had gone beyond the stated issue for the formal hearing when he determined that there was overpayment. Citing due process issues, the CRB vacated the Trial Judge’s Finding and ordered a trial de novo. The Board noted that prior to the formal hearing there was no indication that the respondent alerted the claimant that they were seeking to establish an overpayment. The Board stated “if the commission is to be asked to engage in an effort to redress prior errors made in the payment of benefits to the claimant, we believe that it would be fundamentally unfair to allow the respondent to cherry pick which mistakes it would like to rectify.” Interestingly, there does not appear to be any determination by the Board that the Trial Judge’s findings regarding the overpayment were in error. Essentially the claimant’s request for the formal hearing was for an audit of the payments to determine if they were delayed or underpaid; a potential consequence of such an audit is the discovery of an overpayment. The Board in this case did not seem to be satisfied with that result.
WHITE v. CITY OF WATERBURY, 218 Conn. App. 711 (April 11, 2023)
The Appellate Court affirmed the finding and dismissal of this claim involving a fireman’s injury at home while preparing to get ready for his shift. The claimant had been asked to do a shift at Station 5 at 8 p.m. on March 22, 2020. The claimant’s normal Fire House was Station 2. The claimant brought home with him his gear bag which resembled a hockey bag and weighed about 50 pounds. He brought the bag home with him so that he would not have to stop at Station 2 to pick it up before going to Station 5 for his shift; the claimant was not directed by the employer to bring the bag home. The claimant testified that the reason he brought the bag home was to shorten his commute. The claimant hurt his leg at home at 6:30 p.m. carrying the bag downstairs while getting ready for his shift. The Administrative Law Judge concluded that the claimant’s injury occurred at home and not during his commute; therefore, the claimant was not covered by the so-called “portal-to-portal” provisions of General Statutes Section 31-275(1)(A)(i). The Judge also concluded that the claimant bringing the bag home was not a mutual benefit to both him and the employer; rather, he determined that bringing the bag home was for the “sole benefit and convenience of the claimant.” The Appellate Court agreed with the ALJ’s conclusion and affirmed the dismissal noting that just because the employer knew of the practice of employees to bring their gear home does not make it for the benefit of the employer.
GEORGE KELLY, M.D. v. STATE OF CONNECTICUT/DEPARTMENT OF MENTAL HEALTH & ADDICTION SERVICES, 218 Conn. App. 445 (April 4, 2023)
The Appellate Court affirmed the CRB ruling that the claimant was entitled to workers’ compensation benefits due to injuries sustained while he was working as a staff psychiatrist and assaulted by a patient, however, the Appellate Court also affirmed the dismissal of a claim for full salary under General Statutes Section 5-142(a). Section 5-142(a) provides full salary to certain Department of Mental Health and Addiction Services employees if they are assaulted in the course of their work. The claimant was hired as a psychiatrist in 2013 to work at Connecticut Valley Hospital, a State-run mental health institution. The claimant was employed as a “per diem” psychiatrist meaning that he would be paid a higher wage but not entitled to “retirement benefits, health insurance, life insurance, paid leave, longevity or other economic benefits.” In 2017 the claimant was assaulted by a patient and was totally disabled. The administrator for the State initially began paying the claimant 100% of his average weekly wage which was $7,039.63; the claimant also received voluntary agreements for a claim under Section 5-142(a). Eventually the State changed its position and contended that due to the claimant’s “per diem” status he was not entitled to benefits under Section 5-142(a) and was not due any workers’ compensation benefits at all. The Judge concluded that the claimant was an employee at the time of the assault and was due workers’ compensation benefits; the Judge determined, however, that given the claimant’s “per diem” status he was not entitled to Section 5-142(a) benefits. In reaching his decision the Judge had to consider the terms of the union contract and had to interpret changes made for the addition of “per diem” clinical staff. The Appellate Court stated: “we conclude that the commissioner reasonably concluded, on the basis of his findings, that § 5-142 had been superseded by the 1989 memorandum of agreement between the state and the plaintiff’s union.” The regular temporary total rate was $1,292 compared to the $7,039.63 he would have been entitled to under Section 5-142(a).
HOLBROOK V. STATE OF CONNECTICUT/DEPARTMENT OF ECONOMIC AND COMMUNITY DEVELOPMENT, 6455 CRB-1-21-12 (April 6, 2023)
The claimant fell at work on August 1, 2018 and sustained an injury to her right knee. The claimant testified that she could not recall why she fell but did note that her hair was wet after falling on the floor; the claimant stated that she had seen other employees lose their footing in the same area previously. The claimant apparently testified that it had rained earlier in the day and the Trial Judge found this credible. The respondents contended that the claimant’s fall did not arise out of her employment and was due to a pre-existing pituitary adenoma that they asserted caused dizziness and unsteady gait; there was mention of the condition in the medical records post the fall. The respondents did not submit any expert testimony that the claimant’s condition was due to the pre-existing condition. The respondents contended that the case of Clements v. Aramark, 339 Conn. 402 (2021), (fall at work due to cardiogenic condition found not compensable) applied and that the claim should be dismissed since the injury was due to a personal infirmity and not due to anything incidental to the employment. This case was the subject of a prior CRB decision where the Board had remanded the case for further findings, HOLBROOK v. STATE OF CONNECTICUT/ DEPARTMENT OF ECONOMIC AND COMMUNITY DEVELOPMENT, 6398 CRB-1-20-8 (AUGUST 9, 2021); in the earlier decision the Board had stated the “Commissioner still must identify the factual basis wherein this injury arose out of her employment…such evaluation must include a determination as to how the subordinate facts link the injury to a condition of her workplace and support the legal conclusion of compensability.” On remand the Trial Judge ruled that the injury was not due to a pre-existing personal condition of the claimant but was caused by a “defect in the premises.” The respondents appealed contending that the medical evidence supported that the fall was secondary to an underlying personal condition and there was no evidence in the record to support that the fall was due to a defect on the premises. The Board affirmed the Finding and concluded that there was sufficient evidence in the record to support the Judge’s ruling.
DESIMONE V. GRIFFIN HEALTH SERVICES, 6479 CRB-4-22-7 (April 13, 2023)
The claimant filed a Motion to Preclude the respondents regarding a March 8, 2018 date of injury for which a Form 30C was filed on October 10,2018 alleging repetitive trauma to both knees. The trial judge concluded that the respondents were precluded because no Form 43 was filed within 28 days of the Form 30C. The respondents appealed asserting that the initial Form 43 filed on April 9, 2018 was sufficient to advise the claimant that her bilateral knee claim was being denied. The trial judge found that the April 9, 2018 Form 43 cited an earlier date of injury involving a prior compensable left knee injury claim and therefore the date on the Form 43 was incorrect. The trial judge also found that the respondent did not check the occupational disease/repetitive trauma box. The respondents maintained that the claimant had sufficient information to make it clear to her that the bilateral knee claim was being denied. The respondents cited the language in the Form 43 as well as the letter that accompanied the Form 43 in which it was clear that the bilateral knees were being contested.
The CRB determined that the central issue was the sufficiency of the preemptive disclaimer filed on April 11,2028 and whether it properly advised the claimant that the respondents intended to contest the liability for a repetitive trauma injury to her knees.
The CRB reversed the trial judge and found that the Form 43 was sufficient to apprise the claimant that the claim was being disputed and therefore the respondents were not precluded.
The Review Board stated that “In reviewing the record in its totality, we simply cannot conclude that a reasonable person would not have determined that the respondents, as of their April 11, 2018 disclaimer, were contesting compensability of an injury to either knee under whatever theory of recovery the claimant advanced. “
The CRB also relied on the lack of any finding of prejudice to the claimant in furtherance of their ruling. Attorney Colette Griffin of SDAZ successfully defended this claim.
WICKSON V. A.C. MOORE, 6478 CRB-2-22-6 (May 1, 2023)
The claimant had a prior hearing loss and TBI before being hired by the employer. Initially the job was light duty but the claimant contended that the work over time became more difficult including stacking merchandise and unloading pallets. She worked with the employer sixteen years. On September 17, 2015 she alleged an injury to her left shoulder at work; she reported it to her supervisor but he did not fill out a report of injury for her. When she initially sought medical treatment there was no specific history provided regarding a work injury. She came under the care of an orthopedic surgeon, Dr. Anbari, who recommended reverse left shoulder arthroplasty. The claimant also began to develop right shoulder problems; she underwent a reverse right shoulder arthroplasty. The claimant sought workers’ compensation benefits both on a theory that she had a specific injury at work and repetitive trauma. Dr. Anbari supported compensability both due to the specific accident in 2015 and repetitive trauma during the course of her work. A RME, Dr. Jambor, questioned causation of the bilateral shoulder injury to work. A CME, Dr. Barnett, suggested that the 2015 incident was not well-documented; while he stated the cause of the shoulder claim was multi-factorial he could not state with any certainty the degree of contribution due to the work. The ALJ concluded that the claim was compensable based on a repetitive trauma theory and found that Dr. Anbari’s opinion credible in that regard. The ALJ concluded that while the claimant did have a 2015 incident at work it was not the cause of her bilateral shoulder injury; rather, the Judge determined that her shoulder injuries were due to the repetitive nature of her work. The CRB affirmed the decision on appeal pointing out that there was sufficient evidence in the record to support the Finding. The Board noted that the Judge could choose to accept all or a portion of an opinion by the doctors.
NAPOLITANO V. ACE AMERICAN INSURANCE CO., 219 Conn. App 110 (May 2023)
This decision from the Appellate Court dealt with the issue of cancellation of a workers’ compensation policy and whether it complied with the terms of General Statutes Section 31-348; that statute indicates that cancellation of a policy is not effective until fifteen (15) days after the cancellation has been filed. In this case the employer had a series of three workers’ compensation policies with the employer. Notice on March 28, 2018 was issued to the employer regarding an audit noncompliance charge. On April 5, 2018 two notices were sent to the employer stating that the employer had not complied with requests for payroll information; the second notice on April 5, 2018 indicated that the coverage would terminate on April 25, 2018. On April 10. 2018 the employer’s agent advised the employer that they were compliant. An employee was injured on May 29, 2018; the carrier denied coverage and claimed that the policy had been cancelled. At a formal hearing a ALJ found that there was no coverage based on the information NCCI reported; the ALJ did not address contractual claims at the formal hearing. The employer and the second injury fund settled the compensation case with the claimant for $225,000. The employer brought a civil action against the carrier asserting claims of breach of contract, bad faith, negligent misrepresentation and promissory estoppell. At the trial level, a Judge granted a summary judgment motion filed by the plaintiff employer concluding that the notice of cancellation was not unambiguous and unequivocal as required to be effective. Additionally, the carrier’s motion to strike a bad faith claim was granted. On appeal, the Appellate Court reversed and concluded that the notice was unambiguous that the policy was going to be cancelled. It determined that the notice was certain and unequivocal. The Court also determined that the motion to strike the bad faith claim was error. The Court remanded the case for further proceedings and noted that the counts regarding negligent misrepresentation and promissory estoppel were revived on remand by the ruling.
Simon Law Group, P.C.
720 Olive Street, Suite 1720, St. Louis, MO 63101
314-621-2828
MISSOURI WORKERS’ COMPENSATION CASE LAW UPDATE
April 2023 – June 2023
Claimant Must Meet Burden to Show Job Duties, and Not Repetitive Activities at Home, are the Prevailing Factor in Causing Occupational Disease
Steinbach v. Maxion Wheels, Sedalia, LLC, Case No. WD85697 (Mo. App. 2023)
FACTS: On November 13, 2018, the claimant filed a Claim for Compensation asserting that she suffered an occupational disease to her bilateral upper extremities. The claimant worked as a rework coordinator. Employer kept production records for the work performed by the rework coordinators. The production report showed the maximum number of wheels reworked on the shift in one day was 265 wheels, but the average number of wheels reworked in a day was 48 and averaged less than 60 seconds.
In December 2017, Dr. Ellefsen sent a letter to Employer opining that the claimant’s condition could not be attributed to her work. He reviewed the production records for rework coordinators. He was also concerned about the welding she was doing at home.
Evidence of the claimant’s non work-related welding activities was also presented at the Hearing. She began welding in her basement in 2017 and purchased 4,154 pounds of scrap steel from Employer. She testified that she intended to start her own business, but that her plan did not work out.
The claimant built furniture, medieval-style weapons, toys, and other small items. A witness testified that her husband and some neighbors worked in the basement of her house along with her almost every night making items with the scrap metal.
In his report, Dr. Stuckmeyer noted that the claimant told him that “she would continuously grind wheels, up to 1,000 wheels per night.” He also noted that she had told Dr. Ellefsen that she used a large grinder at work and was exposed to vibratory and torquing tools eight hours a day, five to seven days a week, and did some welding at home but on a very occasional basis, describing it as “craft welding.” He opined that although the claimant did do outside welding at home, the intense repetitive nature of the occupational duties was prevailing factor” causing her bilateral carpal tunnel.
At the Hearing, the ALJ denied the case. The Judge found that the claimant’s testimony about her work activity and her welding activity at home was not credible, that Dr. Stuckmeyer’s opinion was not credible because she provided an inaccurate work history, and that Dr. Ellefsen’s opinions were more credible because they were based on a more accurate description of her work activities.
HOLDING: The claimant appealed to the Commission, which affirmed the ALJ’s opinion. She then appealed again. The Court noted that the claimant had the burden to show her injury was compensable. While she met her burden of production by introducing Dr. Stuckmeyer’s report, she failed to meet the burden of persuasion. The Commission rejected Dr. Stuckmeyer’s opinion and the Court affirmed the Commission’s decision.
Benefits Denied When Claimant Did Not Sustain an Accident or Fall but Instead Incurred Heat Exhaustion Which is a Risk He Would be Equally Exposed to Outside of Work
Baty v. Dairy Farmers of America, Injury No. 18-029696
FACTS: On July 9, 2019, the claimant was working at Employer’s warehouse. While performing very light duty work that mostly consisted of observing automated machinery and products moving through the machinery, the claimant began to feel ill, including sweating, hot, shortness of breath, and some chest pain. When the claimant could not cool down, he was transported in a supervisor’s personal vehicle to the emergency room.
On July 11, 2019, once again, even though the claimant indicated he was still not feeling well, he showed up for work for his afternoon shift, starting at 3:00 p.m. on a day where the reported high temperature was cooler at 86 degrees. After beginning his light duty work in the warehouse, within a few minutes, he indicated he was again feeling much worse and he was hot and sweaty. Subsequently, he was sitting on a ledge of a piece of machinery when coworkers noticed him slumping down to the floor. None of the witnesses observed the claimant fall or strike his head or sustain any trauma. In fact, it was the testimony of the claimant that no one witnessed the accident, and that no one knew how he ended up on the floor.
It was noted in the medical records, that several physicians, inaccurately, concluded that the claimant fell at work, hit his head, and was knocked unconscious.
At hearing, the ALJ denied benefits, finding that the claimant did not sustain an accidental injury or occupational disease which arose out of his employment. The claimant appealed.
HOLDING: The Commission noted that the burden of establishing entitlement to compensation is entirely upon the claimant. The Commission noted that the claimant was not performing strenuous work activity and was working in a warehouse on a day of normal summertime weather. It further noted that there was not any testimony that the heat inside the warehouse on either day was abnormally hot or significantly hotter or warmer than the outside temperature, meaning the claimant would have been equally exposed to the heat outside of the plant as he was inside the plant.
The claimant testified to a pre-existing issue involving heat related conditions in his 20’s. The claimant’s own medical expert, Dr. Schuman testified that because of a prior heat exhaustion or heat stroke, that it would make an individual more prone to having a lower threshold to sustain another heat related injury. However, Dr. Schuman was not aware that the claimant had in fact sustained a pre-existing heat related condition or possibly heat stroke.
The Commission found that the testimony of Dr. Lennard and Dr. Farrar was more credible than Dr. Schuman and therefore the decision of the ALJ was affirmed.
Section 287.780 Does Not Prohibit an Employer from Discriminating Against a Former Employee for Exercising Their Workers’ Compensation Rights
Lisle v. Meyer Electric Co., Inc., Case No. SC99670 (Mo. S. Ct. 2023)
FACTS: In May 2017, Meyer Electric hired the claimant, a commercial electrical contractor, to work on a construction project. On May 2, 2018, the claimant advised Mr. Mehrhoff, his foreman, that he was suffering from work related carpal tunnel syndrome and asked to complete an injury report. Mr. Mehrhoff allegedly replied, “If you ask for an injury report, they will lay you off.” Subsequently, Meyer Electric’s president, Leon Keller, became aware that the claimant wanted to file an injury report and a workers’ compensation claim, and therefore terminated the claimant’s employment. After his termination, the claimant filed a workers’ compensation claim and a lawsuit against Meyer Electric, alleging wrongful discharge under Section 287.780.
In June 2019, more than a year after Meyer Electric terminated the claimant’s employment, the claimant saw Meyer Electric’s job posting for a journeyman electrician. The claimant who was unemployed and pursuing his wrongful discharge claim against Meyer Electric at the time, applied for the job. Mr. Mehrhoff said he “would probably hire [the claimant] back.” The claimant received a union referral notice, a union-issued document that a member takes to the work site to begin work. After receiving the referral, however, his foreman texted the claimant that the president had instructed him not to hire the claimant.
In November 2019, the claimant filed this pending lawsuit against Meyer Electric. He alleged Meyer Electric violated Section 287.780 when it did not hire him in June 2019 in retaliation for exercising his workers’ compensation rights in May 2018. Meyer Electric filed a Motion for Summary Judgement in which it asserted the uncontroverted material facts affirmatively negated an element of the claimant’s claim because he was not an employee in June when Meyer Electric chose not to hire him. The Circuit Court sustained the Motion and entered summary judgment in Meyer Electric’s favor.
HOLDING: The claimant appealed arguing that the Circuit Court erred in sustaining Meyer Electric’s Motion for Summary Judgment because Section 287.780 prohibits employers from discriminating against former employees for exercising their workers’ compensation rights. He also claimed the Circuit Court erred in entering summary judgment because the evidence was sufficient to allow a jury to find Meyer Electric refused to hire him in retaliation for exercising his rights under Chapter 287 during their prior employment relationship.
Section 287.780 provides: “No employer or agent shall discharge or discriminate against any employee for exercising any of his or her rights under this chapter when the exercising of such rights is the motivating factor in the discharge or discrimination…”
However, the Court held that under strict construction, “Employer” and “Employee” are defined narrowly so that the protections and sanctions in Section 278.780 apply only to employers and employees in a current employment relationship. Because the claimant was not an employee of Meyer Electric when it refused to hire him in June 2019, Meyer Electric established its right to judgment, as a matter of law. Therefore, the Circuit Court’s judgment was affirmed.
Claimant Properly Awarded Benefits for PTSD When Evidence Demonstrated Actual Events Experienced Caused Extraordinary and Usual Stress
City of Clinton v. Dahman, Case No. WD85780 (Mo. App. 2023)
FACTS: Dahman worked as a patrol officer for the City of Clinton’s police department. On August 6, 2017, he was working an overnight shift. Officer Michael was a good friend of Dahman’s. Dahman heard Officer Michael report over the radio, “Shots fired. Officer hit.” Dahman responded to the scene. On his way, he heard over his radio that the suspect vehicle had fled. When he arrived, Dahman found Officer Michael unconscious on the ground. Dahman testified that he was in shock that Officer Michael had been shot, and later died. He was one of Officer Michael’s pallbearers.
Later, Dahman watched security camera video footage which showed Officer Michael conducting the traffic stop of the suspect’s vehicle. The manhunt for the suspect took several days. After the suspect was apprehended, Dahman was scheduled to be a witness at his trial.
Starting immediately after the August 2017 incident, Dahman began to experience adverse symptoms including fatigue, anxiety, tightness in the chest, insomnia, lack of motivation, and a sense of helplessness. He resigned from the police department in October 2017 since he felt he could not do his job due to his fear of being shot.
The City of Clinton had the claimant examined by a second psychiatrist, Dr. Khalid who diagnosed Dahman with PTSD. Dr. Khalid agreed that the prevailing factor causing Dahman’s PTSD was the August 2017 incident, and that the stress he experienced in connection with that incident was extraordinary and unusual. However, by June 2021, in light of the improvement in Dahman’s condition, Dr. Khalid concluded that he did not have a permanent partial disability associated with his PTSD and was not in need of further psychiatric treatment for that condition.
The ALJ issued a final Award finding that Dahman’s PTSD was a compensable occupational disease caused by the August 2017 incident. The Judge found that Dahman had 10% PPD. The ALJ’s Award specifically found by objective standards that Dahman’s work related stress was both extraordinary and unusual and met the requirements of Section 287.120.8. The City appealed the Judge’s award. The Commission affirmed the award.
HOLDING: The City of Clinton again appealed. The Court noted that three mental health experts, and the City’s Chief of Police, uniformly testified that the circumstances to which Dahman was exposed in August 2017 were extraordinary and unusual. To establish his right to compensation, the claimant need not show the subjective experiences of his fellow workers were not as severe as his experiences, but rather, he must demonstrate the actual events he experienced were such that a reasonable police officer would experience extraordinary and unusual stress. It was also noted that while Dr. Halfaker testified that some measure of danger and exposure to crime scenes is common in police work, he also testified that the particular stresses to which the claimant was exposed in August 2017 were extraordinary and unusual.
Therefore, the Court concluded that the Commission’s decision was supported by sufficient competent evidence that the claimant’s PTSD was caused by work related stress which was extraordinary and unusual, measured by objective standards and actual events.
Employer/Insurer Must Have Authorized the Treatment for Medical Provider to Have Standing in Medical Fee Dispute
Henry v. LZB Manufacturing, Inc., Injury No. 18-029696
FACTS: The claimant reported a minor incident to his left shoulder occurring in July of 2014. Employer denied any medical treatment. Instead of providing or directing the claimant for medical treatment, he was told by a supervisor, that he could utilize a massage therapist being paid for and provided by the employer. In Fall of 2017, the claimant testified the pain in his left shoulder and neck got so bad that he once again went and directly requested medical treatment from the employer.
Thereafter, the claimant went to the emergency room at Freeman Health System on his own. He had an injection to the left shoulder and an MRI which showed tears. In March 2018, Dr. Sweaney performed a two-level cervical fusion.
Dr. Koprivica opined that employee had 25% to 30% PPD of the body for the cervical spine and 15% for the left shoulder. Dr. Lennard did not believe his condition was work related.
Based on the evidence, the ALJ found Dr. Koprivica’s report and opinions more persuasive and credible. The Judge found that the claimant’s work injury was compensable and his treatment was related back to the work injury.
On the issue of the Medical Fee Dispute filed on behalf of Freeman Health System, the ALJ found that the medical care and treatment received by the claimant regarding the left shoulder and cervical spine, including the surgery, represented reasonable, usual and customary treatment necessary in an attempt to cure and relieve the effects of the work injuries based on the medical opinion of Dr. Koprivica. Therefore, the ALJ found the Employer liable for the Medical Fee Disputes for treatment provided by Freeman Health System, respectively $94,378.59 and $29,398.00.
HOLDING: The Employer/Insurer appealed the ALJ’s award to the Commission, in part, stating that the ALJ erred in awarding Freeman direct payment of $94,328.59 and $29,398.00 pursuant to the Medical Fee Disputes, because the Employer/Insurer did not authorize the treatment.
With respect to Medical Fee Disputes, it was noted that under Section 287.140.13(6) that a medical provider may file a Medical Fee Dispute regarding services that have been authorized in advance by the Employer or Insurer.
It was noted that no party disputed that the employer refused to authorize medical treatment. It was also noted that the Division has the power to reject an Application for Direct Payment if the Application does not pertain to a dispute relating to services that were authorized in advance by the Employer or Insurer.
Therefore, the Commission affirmed the ALJ’s finding, based on Dr. Koprivica’s opinion, that the charges of Freeman Health System represented reasonable, usual and customary treatment necessary to cure and relieve the effects of the claimant’s compensable claim. However, the Commission modified the Award finding that the Employer/Insurer was directly responsible for these charges and that the Medical Fee Disputes were dismissed without standing. The remaining portions of the ALJ’s award were affirmed.
For SIF PTD Liability, Claimant Must Meet 50 Week Threshold for Each Separate Body Part for Pre-existing Disability to Qualify
Casey v. Second Injury Fund., Injury No. 16-050548
FACTS: The claimant’s primary injury involved bilateral carpal tunnel releases and bilateral ulnar nerve transposition surgeries. The claimant settled his primary claim for 15% of each wrist, 15% of each elbow, a 10% loading factor, and eight weeks of disfigurement.
The claimant had sustained pre-existing disabilities prior to the primary injury. In 2006, he injured his right knee while working and settled this claim for 10% of the right knee in 2007.
In 2012, the claimant sustained an injury at work to his left wrist, left knee and left ankle. The claimant settled this claim for 10% of the left wrist, 20% of the left knee, and 22.5% of the left ankle.
The claimant obtained an IME from Dr. Volarich. Regarding the 2016 primary injury, Dr. Volarich provided PPD ratings of 35% of each wrist and 35% of each elbow. Regarding the pre-existing conditions, he provided PPD ratings of 15% of each wrist, 60% of the right knee, 35% of the left knee, and 40% of the left ankle. He opined that the claimant was PTD as a result of the 2016 primary injury in combination with his pre-existing medical conditions.
The claimant sought a vocational assessment from Ms. Shea. She opined that the claimant was not employable and his inability to be employed was the result of the primary work related injury and his pre-existing injuries and conditions.
The ALJ determined that the SIF was liable for PTD.
HOLDING: The SIF appealed the ALJ’s award for PTD benefits against the Fund.
The Commission disagreed with the Fund’s allegation that the ALJ erred in finding the claimant’s pre-existing 2006 right knee was equal to or greater than 50 weeks of PPD. The Commission explained that they must determine the extent of PPD that the claimant had in his right knee at the time of the June 2016 primary injury. They noted that the 2007 settlement may be evidence of PPD in the knee at the time of the settlement but it is not determinative of the PPD present nine years later in 2016. They found credible, persuasive evidence demonstrated that the claimant had 32.5% PPD of the right knee (52 weeks) pre-existing the 2016 primary injury.
However, the Commission did agree with the Fund that the ALJ erred in adding together three separate and distinct disabilities to different parts of the body as a result of one injury to reach the required threshold amount under Section 287.220.3. They did not find any authority to allow combining disabilities occurring to different parts of the body in order to reach the 50 week threshold in Section 287.220.3(2)(a).
Also, the Commission agreed with the Fund that the ALJ erred in awarding PTD benefits because the claimant’s total disability resulted from the combination of the primary injury and non-qualifying pre-existing disabilities. It was noted that the claimant’s experts, Dr. Volarich and Ms. Shea opined that the PTD was a result of a combination of the prior injury and the pre-existing conditions. The experts included the claimant’s non-qualifying pre-existing disabilities in arriving at their PTD opinions. As such, the Commission concluded that the claimant failed to meet the requirements of Section 287.220.3 to make a compensable PTD claim against the Fund.
Therefore, the Commission reversed the Award of the ALJ. The claimant’s claim against the Fund was denied because his evidence failed to satisfy the standard set forth under Section 287.220.3.
The April 2023 edition of The
Compendium outlined recent changes to the designated doctor rules,
which were presumably designed to incentivize those already on the DD list to
maintain their status while increasing the number of new applicants.
However, as we pointed out, the amendments omitted any updates to the
reimbursement rates for DD exams, perhaps the component most to blame for the
dwindling number of available designated doctors overall and certainly a reason
for the dearth of M.D.s and D.O.s currently on the list.
That oversight seems poised to change, as the DWC announced on June 26, 2023, a
new set of proposed amendments to Rules 133 (General Medical Provisions) and
134 (Guidelines for Medical Services, Charges, and Payments). Key
modifications would include adjusting fees via the Medicare Economic Index
(MEI) percentage adjustment factor for the period of 2009 through 2024, then
annually thereafter every January 1. Fees would be rounded to the nearest
whole dollar, and a $100.00 missed appointment fee would also be permitted when
injured workers neglect to attend their exams. (More on that in a
moment.) These provisions can be found in the new Rule 134.210(b)(4).
The DWC released a table of fee adjustment estimates (estimated because the MEI
percentage adjustment factor for 2024 is not yet set) for Designated Doctor
Exams, Required Medical Examinations, and treating/referral doctor impairment
rating certifications. Fees for extent of injury, disability, return to
work, return to work for SIBs, appropriateness of care (RMEs only), and “other
similar issues” jump from $500.00 to $640.00 per issue (again, estimated).
Maximum medical improvement issues would invite an increase from
$350.00 to $448.00, while the first musculoskeletal impairment rating
assessment rises from a range of between $150.00 and $300.00 to $384.00.
Fees for subsequent impairment rating areas would also increase from
$150.00 to $192.00, approximately.
New additions to some designated doctor bills will include a “Specialist Fee”
of $300.00. Specialist fees pertain to designated doctors (though not
RMEs) asked to evaluate injuries itemized in Rule 127.130(b)(9)(B-I): traumatic
brain injuries, spinal cord injuries, severe burns, complex regional pain
syndrome, multiple fractures, complicated infectious diseases, chemical
exposure, and heart/cardiovascular conditions.
Comments on the proposed changes can be sent via email to RuleComments@tdi.texas.gov.
The DWC advises that “Chapters 133 and 134 Informal Posting” should be
included in the subject line. Comments must be received in writing by
5:00 p.m. on the still-not-random-in-the-least date of July 26, 2023.
Now, about that “Missed Appointment Fee”…
Copyright 2023, Stone Loughlin & Swanson, LLP
While we’re on the
topic of proper Plain Language Notice protocol, the Appeals Panel issued
Decision No. 230503 on June 12, 2023. The case involved an injured worker
who initially reported to his employer—in writing—that his injury occurred in
June 2022. The employer dutifully alerted its work comp carrier to the
injury once it was reported. The carrier, in turn, filed a PLN-1 denying
the claim in full within sixty days following notice.
Thereafter, the claimant asserted that he had been mistaken about the date of
his injury, that it was not June
28 but rather July
28. The Division, operating under the assumption that this was an entirely
different injury, generated a new DWC number for the ersatz second claim.
Claimant and his attorney argued that the carrier waived into accepting the
July 2022 injury because no PLN-1 had been filed to combat it. The
Administrative Law Judge agreed that the carrier accepted the claim via waiver,
even after Claimant testified that he never sustained an injury in June, that
he had mistakenly reported the incorrect date to his employer, and that the two
dates of injury were actually one and the same.
The Appeals Panel reversed, reasoning that the carrier had disputed the claim
when first alerted to it. “Under these facts, to require the carrier in
this case to again dispute the injury it had previously disputed simply because
the claimant alleged a different date of injury due to a typographical error
would represent an elevation of form over substance.”
Copyright 2023, Stone Loughlin & Swanson, LLP