Here are the details of a new proposed bill out of the Iowa House that would change the way we handle alternate medical care, among other items:

House File 274

Bill Explanation:
This bill relates to the state's workers' compensation laws by modifying alternate care procedures for medical treatment, creating registries of physicians who treat and evaluate work=related injuries, providing for the retention of a medical director, creating a state workplace injury care providers registry fund, establishing a workers' compensation advisory council, providing for and appropriating fees, and providing effective dates.

MEDICAL AND ALTERNATE CARE. Code section 85.27(4), concerning the provision of medical services, requires an employer to provide written information about the state's workers' compensation laws to an employee upon receiving notification that the employee has suffered a work=related injury.

The employer has the right to predesignate a licensed physician to treat the injury and make necessary referrals and may predesignate a physician listed on the state registry of workplace injury care providers. If the employer does not predesignate a treating physician, the employee may designate a physician of the employee's choosing to provide the treatment. The physician predesignated by the employer or designated by the employee is required to provide ongoing written documentation of the physician's opinions, treatment recommendations, and care plan to the employee along with information about whether the opinions, recommendations, and care plan are in accord with either the official disability guidelines and treatment guidelines in workers' compensation published by the work loss data institute or the American college of occupational and environmental medicine practice guidelines (ACOEM), and if so, citation to the appropriate guidelines. The employee has the right to request and obtain a second opinion from another licensed physician of the employee's choosing at the employer's expense. If the employer or employee is dissatisfied with the care of a treating physician predesignated or designated by the other party or with any referral made by that physician, the employer and employee may mutually agree to alternate care. If they cannot agree on alternate care, either party may notify an insurance claims specialist within the division of workers' compensation, who shall, within five working days, schedule a conference between the parties to review the basis for dissatisfaction and provide an advisory opinion to resolve the dispute. If the parties still cannot agree on alternate care after this conference, the workers' compensation commissioner may, upon application and reasonable proof of the necessity, allow and order alternate care. The employee is responsible to make the application for alternate care and to provide such reasonable proof to the commissioner if the employer provided written information about the state's workers' compensation laws at the time of notification of the employee's injury, and predesignated a treating physician listed on the state registry of workplace injury care providers, and if the treating physician predesignated by the employer provided written documentation to the employee of the physician's opinions, treatment recommendations, and care plan along with citation to the appropriate treatment guidelines. The employer is responsible for making the application for alternate care and providing reasonable proof if the employer and predesignated treating physician did not act as described above or if the employee designated the treating physician to treat the work injury. The commissioner is not bound by the advisory opinion of the claims specialist and must conduct a hearing and issue a decision within 10 days of receipt of an application for alternate care. The employer has the right to request an employee to submit, as often as is reasonable and at a reasonable time and place to an examination by a licensed physician chosen by the employer for any purpose relevant to the employer's duties to provide benefits to the employee under the state's workers' compensation laws and at the employer's expense. If the employer makes the request in writing and pays all expenses, including transportation, the employee shall submit to the examination. Each time that the employer obtains an evaluation of an employee's permanent disability by a physician chosen by the employer, if the employee believes that the evaluation of disability is too low, the employee may obtain a subsequent examination and evaluation by a physician of the employee's choosing at the employer's expense, including transportation expenses to and from the place of the examination.

PROVIDER REGISTRIES ==== FEES ==== MEDICAL DIRECTOR. New Code section 85.73 requires the workers' compensation commissioner to establish and maintain a registry of licensed physicians that offer or provide treatment of work=related injuries. The commissioner shall, by administrative rule, establish requirements for a physician to be listed on the registry and establish a registration fee. The provision shall not be construed to require a physician to be listed on the registry in order to offer or provide treatment of work=related injuries or to prohibit an employer or employee from predesignating or designating a physician to provide treatment who is not listed on the registry.

New Code section 85.74 requires the commissioner to establish and maintain a separate registry of licensed physicians trained to perform independent medical evaluations and to issue impairment ratings of injured employees. The commissioner shall establish, by administrative rule, minimum training requirements for a physician to be listed on the registry and establish a fee. A physician must be listed on the registry in order to perform independent medical evaluations and issue impairment ratings of injured employees in this state. The commissioner may prohibit an employer or employee from using an independent medical evaluation or impairment rating of an injured employee from a physician who is not listed on the registry as evidence at a hearing to determine benefits under the state's workers' compensation laws.

New Code section 85.76 authorizes the commissioner to retain the services of a medical director to assist the division of workers' compensation in advancing the field of occupational health in Iowa and to advise the commissioner on how to successfully apply and administer the state's workers' compensation laws.
STATE WORKPLACE INJURY CARE PROVIDERS REGISTRY FUND. All registration fees collected pursuant to new Code sections 85.73 and 85.74 shall be credited to the state workplace injury care providers registry fund created in new Code section 85.77 and are appropriated to the division of workers' compensation by new Code section 85.75 to carry out the provisions of new Code sections 85.73, 85.74, 85.75, 85.76, and 85.78, including establishing and maintaining the two physician registries, retaining a medical director, and for the expenses of the workers' compensation advisory council created in new Code section 85.78.

WORKERS' COMPENSATION ADVISORY COUNCIL. New Code section 85.78 establishes a workers' compensation advisory council within the division of workers' compensation that is composed of six members, three representing employers and three representing organized labor. The governor appoints two of the members, the president and the minority leader of the senate jointly appoint two members, and the speaker and the minority leader of the house of representatives jointly appoint two members. The members serve six=year staggered terms, except that for the initial terms beginning on January 1, 2014, one member appointed by the governor, one member representing employers, and one member representing organized labor shall be appointed for three=year terms to ensure that members serve staggered terms. The purpose of the council is to assist the workers' compensation commissioner in the successful administration of the division of workers' compensation and to make recommendations to the governor and the general assembly regarding workplace safety and improvements to the state's workers' compensation system.

EFFECTIVE DATES. The sections of the bill creating the provider registry for treatment of work injuries, the provider registry fund, the position of medical director, and the advisory council, and appropriating fees, take effect January 1, 2014. The sections of the bill pertaining to alternate care procedures and required registration of physicians performing independent medical evaluations and impairment ratings take effect July 1, 2014.

If you have any questions on this, please feel free to call Mark Bosscher or Lee Hook at 515-243-2100. We'd be happy to help answer any questions you might have, big or small!

On February 15, 2013, the Alabama Court of Civil Appeals released its opinion in CVS/Caremark Corp. v. Gloria Washington wherein it addressed  the affirmative defense of judicial estoppel in the workers’ compensation context. Specifically, the Court noted the availability of the defense but only when properly pled. 

The Court of Appeals had previously addressed the issue in White Tiger, Inc. v. Paul Clemons (released January 13, 2012).  In that case, the Court ruled that a claimant’s assertion that he was available and able to do some work at his unemployment hearing, did not prevent him from being awarded permanent and total disability benefits in his workers’ compensation case.  The Court noted that being willing and able to do some work does not necessarily mean that you are able to secure employment that you are physically able and qualified to do. In the workers’ compensation case the plaintiff testified that he could not secure work because of his disability but he would give it a shot if someone hired him for a job he was qualified to do. For this reason the Court held that the two statements, in separate judicial proceedings, did not contradict one another in order to satisfy the necessary criteria for judicial estoppel to apply. 

In the more recently decided Washington case, the Court held that the employer waived its right to assert judicial estoppel as a defense by not affirmatively asserting or pleading it.  The Court further noted that the employee would have been judicially estopped from prevailing on a claim for permanent and total disability benefits based on the Court’s rationale in Clemons.  The Court distinguished the two cases because the employee in Washington testified in her workers’ compensation case that she could not work at all because of her pain and she had not sought employment.  The employee further admitted that she misrepresented her condition and ability to work in her claim for unemployment benefits. Unlike the Clemons case, in which the plaintiff testified he would give it a shot if he was hired in a position he was qualified for in the workers’ compensation case, the employee in Washington testified that she could not work and had not sought work because her injury/pain prevented her from working at all. Therefore, the two statements were in direct conflict of one another.  

Practice Pointer: Judicial estoppel is a viable defense in workers’ compensation cases but only if it is affirmatively pled.   

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ABOUT THE AUTHOR 

The article was written by Joshua G. Holden, Esq. of Fish Nelson, LLC, a law firm dedicated to representing employers, self-insured employers and insurance carriers in workers’ compensation matters. Fish Nelson is a member of The National Workers’ Compensation Defense Network (NWCDN). If you have questions about this article or Alabama workers’ compensation issues in general, please feel free to contact the author at jholden@fishnelson.com, 205-332-1428 or any firm member at 205-332-3430.

On February 8, 2013, the Alabama Court of Civil Appeals released its opinion in Ex Parte Johns & Kirksey, Inc. wherein it denied an employer’s petition for a writ of mandamus.  In its petition, the employer had sought relief from an interlocutory order finding that alleged cumulative trauma back and leg injuries were compensable.   

At trial, the employee presented evidence that he sustained a work related back injury and underwent surgery in November 1996. The employee returned to work, performing at full-duty after his recovery. In 2008, the employee began to have trouble with his back and right leg and claimed the new problems were the result of repetitive manual labor resulting in a cumulative-trauma injury. In particular, the employee presented evidence that he spent 60% to 80% of his time at work performing manual labor such as heavy lifting and installing roofs which required repetitive bending, stooping, squatting and kneeling. Additionally, a physician stated that the employee’s job duties were at least a contributing cause of his injuries.   

The employer offered testimony that the employee only spent 50% of his time performing manual labor, with half of that falling in the light or medium-duty range.  

In denying the employer’s petition, the Court of Appeals noted that the evidence presented at trial supported a finding that the employee proved both medical and legal causation by clear and convincing evidence. As such, the employer could not establish a clear legal right to the relief sought.   

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About the Author           

This blog post was written by Trey Cotney, Esq. of Fish Nelson LLC, a law firm dedicated to representing employers, self-insured employers and insurance carriers in workers’ compensation matters. Fish Nelson is a member of The National Workers’ Compensation Network (NWCDN). If you have any questions about this article or Alabama workers’ compensation issues in general, please feel free to contact the author at tcotney@fishnelson.com or any firm member at 205-332-3430.

In Alabama, an aggravation of a preexisting condition can be treated as a new injury if the claimant was working without restriction prior to the accident date or date of last exposure to cumulative trauma. This is similar to the law in Iowa. Recently, an Iowa workers’ compensation matter (McQuown v. Brecht Trucking, Inc.) was initially decided in favor of the employer based, in large part, on medical testimony distinguishing between aggravation and symptoms. According to the testifying doctor, an aggravation means that an underlying situation was made to be medically worse, which is different than merely experiencing symptoms of a preexisting condition while performing work duties.

Iowa Workers' Compensation cases can go through several levels of appeal. The above case was first tried before a Deputy Workers Compensation Commissioner who issued an arbitration decision in favor of the employer. The case was then appealed to the Iowa Workers Compensation Commissioner which reversed the arbitration decision. The employer now has the option of appealing the matter to the Iowa District Court.

My Two Cents: 

Although this is an Iowa case, it is a must read for anyone that handles Alabama workers’ compensation matters. It presents an interesting argument which employers and treating physicians should consider when presented with an aggravation claim.

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About the Author  

This article was written by Michael I. Fish, Esq. of Fish Nelson LLC, a law firm dedicated to representing employers, self-insured employers and insurance carriers in workers’ compensation matters. Fish Nelson is a member of The National Workers’ Compensation Network (NWCDN). If you have any questions about this article or Alabama workers’ compensation issues in general, please feel free to contact the author at mfish@fishnelson.com or any firm member at 205-332-3430.

NC Risk Handling Hint -N.C.G.S. § 97-6; Employment Relationship

In a startling departure fromestablished precedent, the North Carolina Court of Appeals has elevated the position of a written agreement with regard to the determination of whether an employment relationship exists for the purposes of workers’ compensation. InGregory v. Pearson, the Court held that, “[b]ecause the [Defendant] chose [by contract] not to establish an employment relationship with [Plaintiff], it eschews both the liabilities and protections of the Workers’ Compensation Act.” The Court in Gregory went on to explain the provisions of N.C.G.S. § 97-6, which provides that “[n]o contract…shall in any manner operate to relieve an employer…of any obligation created by this Article,” did not apply as the parties’ agreement had already explicitly rejected an employment relationship in contract. In other words, because Defendant agreed in a contract that no employment relationship existed, the Workers’ Compensation Act did not apply and Defendant could not avail itself of the exclusivity provision of the Act.

The decision inGregory was handed down on December 31, 2012. As such, the time-frame for pursuing additional review or rehearing hasnot yet run. For the time being, however, this decision looks to be a significant development in the body of case-law which defines an employment relationship for purposes of workers’ compensation. It may be North Carolina’s first step toward allowing employers to “opt out” of the workers’ compensation system.

TCDG will continue to monitor this development as its outcome and impact become more clear.

NC Risk Handling Hint -Estoppel; Insurance Coverage; Sanctions

Defendant insurance carrier, New York State Insurance Fund (NYSIF), contracted to provide workers’ compensation coverage for Defendant-Employer, DenRoss Contracting, with a policy rider which specifically excluded “bodily injury occurring outside the State of New York.” DenRoss was annually audited by NYSIF, after which the policy was automatically renewed and premiums paid. DenRoss provided maintenance service throughout the U.S. and contracted with Defendant Kapstone Kraft Paper to provide services, for which DenRoss hired James Arthur Smith and several others. Smith filed a workers’ compensation claim after suffering a work-related injury. DenRoss denied the claim, stating NYSIF had coverage and Kapstone was the principal contractor and statutory employer. Kapstone denied liability stating Smith was either an independent contractor or the employee of an independent contractor, DenRoss.

The Deputy Commissioner ordered DenRoss to begin making payments immediately or notify the Commission of its denial that day and further ordered DenRoss to submit the claim to NYSIF for immediate payment. The order was not appealed. After a hearing the Deputy Commissioner entered an Opinion and Award ordering NYSIF to pay Smith benefits, including past medical expenses, attendant care and a 10 percent penalty for unreasonable and untimely denial of benefits under N.C.G.S. § 97-18(j).

On Appeal by NYSIF, the Full Commission determined that allparties were bound by the Workers’ Compensation Act, that DenRoss was covered under NYSIF’s policy at the time of Smith’s injury, awarded a 10 percent penalty for untimely and unreasonable denial and ordered Defendants to pay Smith’s attorney’s fees under N.C.G.S. § 97-88.1 as a sanction.

On December 18, 2012, inSmith v. DenRoss Contracting, U.S., Inc., the Court of Appeals first dismissed NYSIF’s contention that it was not subject to the jurisdiction of the North Carolina Industrial Commission and noted that New York law specifically stated that the NYSIF was created by statute, but was “nevertheless treated by statutes as a separate insurance business… especially in litigations.”Commissioners of State Insurance Fund v. Low, 3 N.Y.2d 590, 595, 148 N.E.2d 136, 138 (1958). The Court agreed with the Commission that Smith sustained compensable injuries while working for DenRoss who paid premiums to NYSIF to maintain coverage and, as such, NYSIF was liable for Smith’s injuries.

The Court also held that the Commission did not err in concluding that Smith’s injury was covered by the insurance policy between NYSIF and DenRoss inasmuch as the Commission did not base its decision on the coverage provided in the policy which specifically excluded bodily injury occurring outside of New York State. Rather, the Court noted, the Commission had instead concluded that NYSIF was estopped from denying coverage because its representations to DenRoss were sufficient for DenRoss to believe it was covered for injuries outside New York State.

Although the Court declined to determine whether NYSIF misled DenRoss, it concluded that the Commission did not err in finding that NYSIF’s actions were sufficient to induce DenRoss into believing it had coverage because NYSIF accepted premiums knowing that DenRoss only had clerical staff in New York State, but performed work throughout the United States.

The Court, however, did find that the Commission erred in awarding a late payment penalty against NYSIF even though it responded more than thirty days after Smith’s Form 18 since it did respond within thirty days of receiving notice of the claim from the Commission, as required under N.C.G.S. § 97-18(j)(2). The Court also held that the Commission erred in concluding that NYSIF unreasonably defended the claim since NYSIF’s policy specifically excluded claims for bodily injury outside of New York State and the Full Commission’s award on estoppel grounds was affirmed.

Risk Handling Hint: Carriers need to be aware of the specific business of their insured. In North Carolina, coverage may be found despite any policy language which otherwise attempts to limit the geographic scope of coverage.

  PARTNER ANNOUNCEMENT 

NC Risk Handling Hint -Attendant Care Services; Home Modifications; Post Award Interest

Sheryl Boylan suffered a compensable back injury in 2003 and was awarded past and future attendant care services, at $8 per hour, for care provided by her daughter and her sister’s family in the past and her sister’s family in the future. This was affirmed by the Court of Appeals.Boylan v. Verizon Wireless, 201 N.C. App. 81, 685 S.E.2d 155 (2009).

Boylan’s daughter moved back into Boylan’s home in April 2009 and resumed providing attendant care. As the Commission had not provided for future changes in attendant care providers, Defendants did not pay her. Defendants also argued Boylan’s claim for attendant care had been rendered moot by Defendants’ modifications to Boylan’s home and Boylan’s own medical improvement. Both parties filed Form 33s and, after a hearing, both parties appealed to the Full Commission. The Full Commission awarded $8 per hour for all services provided by Boylan’s daughter from April 2009 to the date of its Opinion and Award and $10 per hour for ongoing attendant care provided by either Boylan’s daughter or her sister’s family or, if they were unable, professionals. The Full Commission also awarded Boylan costs for modifications to her home, but denied Boylan’s request for interest on attendant care between August 2004 and April 2009 because Boylan had not suffered any prejudice or out of pocket expenses.

On December 18, 2012, inBoylan v. Verizon Wireless, the Court of Appeals first found that the Full Commission did not err in awarding Boylan attendant care from April 2009 onward as there was competent evidence to support the Commission’s finding that such care was ‘medically beneficial’ to Boylan including testimony from a certified life care planner and registered nurse. Their testimony was that Boylan needed eight hours of care daily and was at risk of falling if she did not receive it. In finding attendant care medically beneficial, the Full Commission dismissed the idea that Boylan’s medical condition had improved to the point that such care was unnecessary.

The Court also affirmed the Full Commission’s determination that the cost of skilled nursing care was competent evidence to determine the rate for unskilled attendant care provided by family members. Judge Beasley, however, dissented in part on this issue, stating that evidence of the cost of skilled nursing care was not competent evidence which supported the hourly rate awarded by the Full Commission.

Although home modifications were not expressly recommended by Boylan’s physicians, the Court concluded that the Full Commission did not err in awarding Boylan home modifications since her occupational therapist, life care planner and occupational nurse all testified that she would benefit from further modifications, including wheelchair ramps and a handicapped accessible pantry. In addition, the Court found that the Full Commission did not err in preventing Defendants from choosing Boylan’s attendant care provider despite their right to direct medical treatment in this accepted claim because Defendants had not directed care to their chosen provider in a prompt and adequate manner and fought Boylan’s claims for attendant care at every step.

The Court also concluded that the Full Commission erred in failing to award Boylan interest on the portion of attendant care awarded from August 2004 until April 2009 because the Commission incorrectly required a show out of pocket expenses or prejudice. According to the Court, there is no discretion in the application of N.C.G.S. § 97-86.2 which requires interest be paid on the final award from the date of the initial hearing until the award is paid. The purpose of the statute is to compensate Plaintiffs for the lost time value of money, to prevent unjust enrichment to Defendants by delaying payment, and to promote settlement. There is no requirement that Plaintiffs show prejudice or out of pocket expense. 

Risk Handling Hint: Although N.C.G.S. § 97-2(19) has been revised to require a prescription by a health care provider or authorization by the employer or the Commission for attendant care services, the Boylan case still clarifies that the Commission can weigh evidence supporting an award of attendant care services. In addition, evidence of the value of skilled nursing services can be considered as evidence even though non-skilled services are actually rendered. Defendants should take care to control all medical treatment, including attendant care, in an accepted case in a prompt and timely manner, to avoid losing control of the treatment and creating further issues in the claim.

THE SMART ACT ENACTED

By Kevin L. Connors, Esquire

On January 10, 2013, theSmart Act was signed into Law by President Obama.

The Smart Act stands for “The Strengthening Medicare And Repaying Taxpayers Act”.

This legislation reforms several aspects of Medicare requirements for conditional payments.

Under Section 201 (Conditional Payment Final Demand and Use of Website), efficiencies have been approved in the conditional payment system, with the following reforms:

Under Section 202 (Thresholds for Reporting a Conditional Payment Reimbursement); by November 15^th of every year, the Secretary will have to publish a threshold, wherein reporting conditional payment reimbursements shall not apply.

This procedure will not take effect until 2014.

Under Section 203 (Discretionary Fines for Non-Compliance of Mandatory Insurance Reporting):

Fines for non-compliance with Mandatory Insurer Reporting will now be discretionary, rather than mandatory.

The guidelines surrounding discretionary application have yet to be created.

Within sixty (60) days of the passage of the Smart Act, being signed into law as of January 10, 2013, CMS will seek proposed comments on which action/practices should or should not be sactionable, with publication of the proposed comments in the Federal Register.

This section established an enactment date of March 10, 2013.

Under Section 204 (Social Security Numbers); Social Security numbers will no longer be required on health identification claim forms. CMS has been given eighteen (18) months after the enactment date of theSmart Actto publish rules surrounding this declaration.

Under Section 205 (Statute of Limitations for Conditional Payment Recovery):

The statute of limitations for conditional payment recoveries is three (3) years after the receipt of notice of a settlement, judgment, award, or other payment made.

Effective as of January 1, 2014, certain liability claims will be exempt from reporting and reimbursement, if the claim falls below the annual threshold as calculated by the Secretary of Health and Human Services.

Civil penalties for non-compliance with mandatory insurance reporting requirements will be discretionary, and can be up to $1,000.00 for each day of non-compliance, with respect to each Claimant.

The Smart Act can be accessed online through several links, to include CMS.gov.

Copies of the Smart Act are also available through our office.

This is long overdue reform, intended to simplify what has become a Sisphysian ordeal, more complicated than necessary, and fraught with both frustration and uncertainty.

ConnorsLaw LLP

Trust us, we just get it! It is trust well spent!

Defending workers’ compensation claims throughout Pennsylvania for employers, self-insureds, insurance carriers, and third party administrators, our 100+ years of cumulative experience defending our clients against compensation-related liabilities, empowers our workers’ compensation practice group attorneys to be more than mere claim denials, entrusting us to create the factual and legal leverage to expeditiously resolve claims, in the course of limiting/reducing/extinguishing our clients’ liabilities under the Pennsylvania’s Workers’ Compensation Act.

With every member of our workers’ compensation practice group being AV-rated, our partnership with the NWCDN magnifies the lens through which our professional expertise imperiously demands that we always be dynamic and exacting advocates for our clients, businesses, corporations, and insurance carriers, seeking our trial and compensation acumen, navigating the frustrating and form-intensive minefield pervasive throughout Pennsylvania workers’ compensation practice and procedure.