State News

2B or Not 2B?

That may soon be the question.  Ever since reporting back in February 2022 that changes to TDI’s Plain Language Notice forms were on the horizon, eager system participants have been dying to know when they will be able to use the new versions.  The wait is almost over!  The new PLNs become effective on the not-at-all-random date of July 26, 2023.
 
The new PLN-2B (Notice of First Payment of Income Benefits on an Acquired Claim) distinguishes itself from the rechristened PLN-2A (Notice of First Temporary Income Benefit Payment) by apprising its recipient that his/her claim administrator has changed and will be sending its first payment.  Astute readers will notice that 2A is limited to Temporary Income Benefits, while 2B pertains to the first Income Benefit of any type paid by the new administrator and omits any reference to the injured workers’ average weekly wage.  Form 2B should only be used to report the first payment on an acquired claim.
 
Not to be outdone, the PLN-10 (Reinstatement of Indemnity Benefits) shall henceforth be known as PLN-10A, while the sleek new PLN-10B alerts injured workers or beneficiaries to expect a lump sum payment of workers’ compensation benefits, with the type, amount, and reason for the benefit explained therein.  System participants will be seeing a lot of the PLN-10B, as it is to be used whenever lump sum payments are issued pursuant to a DWC-24 agreement, a Decision and Order, an interlocutory order, an Appeals Panel Decision, an advance/acceleration/commutation of benefits, or when past due benefits are paid with interest.  
 
The time-honored PLN-11 Notice of Disputed Issues and Refusal to Pay Benefits comes with a new admonition in its instructions.  If disability is in dispute, the Carrier must file the requisite Electronic Data Interchange (EDI) transaction before the notice of refusal to pay benefits will be considered complete. 
 
Other changes to the revised forms, including the PLN-8, PLN-10A, PLN-11, and PLN-14 are more subtle, mostly involving the insertion of the word “Insurance” before “Carrier” throughout each.  This serves as a helpful reminder that it is Insurance Carriers who should be using these forms, not any of the following groups:

• Aircraft Carriers

• Carrier HVAC Units

• Mail Carriers

• Pet Carriers

• Recessive Gene Carriers

• Carrier Pigeons    

Copyright 2023, Stone Loughlin & Swanson, LLP

Distant Dentist
 

Yet more changes to the Administrative Code.  This one involves Rule 133.30, pertaining to billing for Telemedicine and Telehealth Services.   The proposed modification adds “Teledentistry” to the list of reimbursable remote health care and incorporates the (somewhat redundant) definition from the Texas Occupations Code, Section 111.001: “ ‘Teledentistry dental service’ means a health care service delivered by a dentist, or a health professional acting under the delegation and supervision of a dentist, acting within the scope of the dentist's or health professional's license or certification to a patient at a different physical location than the dentist or health professional using telecommunications or information technology.” Billing for teledentistry services would follow applicable Medicaid payment policies.  The DWC invites feedback, again via RuleComments@tdi.texas.gov, this time by July 24, 2023.  

We were all set to mock the very concept of “Teledentistry” until we happened upon Marathon Man on Turner Classic Movies last night.  

https://youtu.be/GZayydR4DPs

If nothing else, at least teledentists can’t torture their patients remotely.  Congratulations, Teledentistry.  You win.  

Copyright 2023, Stone Loughlin & Swanson, LLP

A Philanthropic Topic
 

SLS partner Jane Stone will be the faculty member providing training in Texas law for WorkCompCollege.com, which recently initiated a scholarship program for Kids’ Chance recipients, a cause dear to our hearts.  Bob Wilson, a long-time supporter of Kids’ Chance chapters, and Don Abrams and Mark Pew, all of whom founded the College, have generously committed to providing the scholarships.  More information about that in the link below:  

https://urldefense.com/v3/__https://workcompcollege.com/workcompcollege-com-opens-scholarship-program-for-kids-chance-recipients/__;!!Dsthdr1F7A!GuhY24LgRy20lccPSJCHHRbdrSDrdQxZe2xF8o2jTBISh-46psashw6h59YxHt1DYycv5-daXQQ6rA2W8VkoT-rhjUI$

It always amazes us what a small and supportive community workers’ compensation system participants have established, not just in Texas, but all over the country.  We wish WorkCompCollege.com the best!  

Copyright 2023, Stone Loughlin & Swanson, LLP

Circuit Judge
 

The DWC’s new Austin-based Administrative Law Judge, Hsin-Wei Luang, started on June 26.  Judge Luang received a degree in engineering from the University of Illinois, then her law degree from St. Mary’s School of Law in 1997. She combined her legal acumen and engineering background for a career in technology, business, and intellectual property.  

Among her prior employment, Judge Luang served as senior counsel for Honda and vice-president of IP at Lone Star Circle of Care.  She owns a business & technical writing service, and since May 2021 she has used her expertise in technological and legal writing to produce a blog helping entrepreneurs start and run small businesses.  We congratulate her on accepting the position with the DWC and certainly look forward to reading her decisions.

Copyright 2023, Stone Loughlin & Swanson, LLP

Paper Cut
 

Further changes to the Administrative Code were announced on June 21, 2023. Section 55.15(6), pertaining to requirements for Compromise Settlement Agreements in old law claims, contains the following instructions, held over from the Old Law days: “all compromise settlement agreements submitted to the board must be submitted in four parts--the original must be white, the second copy pink, the third copy yellow, and fourth copy white. The forms must either be on NCR [no carbon required] paper or be submitted with carbon left intact.”  

For all future “old law” CSAs (of which there are likely to be few), system participants have finally—finally—been relieved of these onerous multichromatic paper specifications, which have been cut from the rule, allowing for submission of settlement agreements “in the form and manner prescribed by the DWC.”  All further paper-related queries can be directed here: https://youtu.be/6OlEEfvwXnA

Copyright 2023, Stone Loughlin & Swanson, LLP

Seriously, WTF? (What's This Fee?)
 

As previously mentioned, House Bill 2702 would have revised portions of the Labor Code by tagging insurance carriers with an additional expense: a fee for a missed medical examination.  The bill failed to pass the Senate in May 2023, but its most dubious component has found new life in the DWC’s proposed Rule 134.240(b).  

Under the newly drafted rule, an injured worker who fails to attend an examination by a designated doctor would endure the eternal ignominy of subjecting his or her workers’ compensation carrier to an additional $100.00 fee. That’ll show ‘em!

You read that correctly—the insurance carrier would be subjected to what amounts to a fine for an AWOL claimant’s missed DD exam.  (And in case you were wondering, no, the rule does not permit an insurance carrier to take a credit for that fee from later benefits.)

This change to DD exam billing is intended, one assumes, to offset the lost time from patients and the general inconvenience experienced by doctors whose examinees are M.I.A.  However, imposing an additional fee on the insurance carrier for the injured worker’s truancy may invite challenges over the perceived fairness of the measure, especially in instances where the missed exam was requested by the Claimant or Claimant’s attorney; the proposed rule does not take into consideration the party that sought the exam.

Copyright 2023, Stone Loughlin & Swanson, LLP

Tennessee Enacts Workers’ Compensation Statutory Changes Addressing Penalties, Attorney’s Fees, Death Benefits, and PTSD for Firefighters

June 2023

On April 13, 2023, Tennessee Governor Bill Lee Signed Public Chapter 145, which brought about changes impacting several different areas of the Tennessee Workers’ Compensation Law.

I.                     Penalties for Failure to Pay Medical Expenses Pursuant to Court Order

Under current law, Tenn. Code. Ann. § 50-6-118(d)(1) provides that if an employer or workers’ compensation insurance carrier “wrongfully” fails to reimburse an employee for medical expenses paid by the employee within 60 days of a settlement or court order, or if an employer or workers’ compensation insurance carrier fails to provide medical treatment pursuant to a settlement or court order, then a penalty can be assessed in an amount up to 25% of the medical expenses. Before this penalty is applicable, the employer or carrier must have acted “in bad faith.” Public Chapter 145 will lower the standard necessary for the imposition of this penalty. First, it changes the standard from “wrongfully” to “unreasonably.” Second, it removes the requirement of “in bad faith.” These changes should lower the standard for employers and carriers to be penalized for these infractions. However, Public Chapter 145 did add additional language relieving employers and carriers from liability for this penalty if the medical expense/treatment is paid/authorized within 60 days after receiving information and documentation reasonably necessary to determine compensability and to issue payment.

II.                   Court Approval of Attorney’s Fees

Under current law, the reasonableness of employee’s attorney’s fees is subject to approval of the workers’ compensation judge. However, the current statute also removes the judge’s discretion to reject an attorneys’ fee if the fee does not exceed 20% of the award to the employee. This was confirmed by the Workers’ Compensation Appeals Board and Special Workers’ Compensation Appeals Panel in Henderson v. Pee Dee Country Enterprises. Public Chapter 145 is clearly a response to the Henderson ruling, since it removes the requirement that the workers’ compensation judge must approve an employee’s attorney fee as long as it does not exceed 20% of the award. This effectively restores the judge’s discretion to approve or reject an attorney’s fee, even if the fee is less than 20% of the employee’s award.

III.                 Attorney’s Fees for Failure to Provide Workers’ Compensation Benefits

Under current law, a workers’ compensation judge has the authority to award reasonable attorney’s fees and reasonable costs when the employer “wrongfully” denies a claim, or “wrongfully” fails to timely provide medical benefits, temporary or partial disability benefits, or death benefits, if the judge makes a finding that the benefits were owed at an expedited hearing or compensation hearing. Public Chapter 145 retains this provision but changes the applicable standard from “wrongfully” to “unreasonably.” Also, the applicability of this authority is extended to dates of injury through June 30, 2025.

IV.                Admissibility of C-32 Medical Reports 

Current Law requires that C-32 medical reports must bear the doctor’s original signature to be admissible. A reproduced report is not admissible unless accompanied by an originally signed affidavit from the doctor verifying its contents. Public Chapter 145 will relax that standard by allowing the report to bear either an original signature or electronic signature of the doctor. It will also allow a reproduced copy to the same extent as the original report unless a genuine question is raised as to its authenticity.

V.                  Written Mediated Settlement Agreement 

Under current law, if the parties reach a full and final settlement through mediation, then the mediator must reduce the settlement to writing. Public Chapter 145 will allow either the mediator, or one party’s legal representative to draft a written settlement agreement.

VI.                Death Benefits Payable from the Uninsured Employers Fund 

Current law provides that the Uninsured Employers Fund may be used to pay temporary disability benefits and medical benefits to any eligible employee who suffered a compensable injury while working for an employer who failed to properly secure workers’ compensation insurance coverage. Public Chapter 145 will expand the scope of that fund to also allow the payment of death benefits, when applicable, and the maximum cap is raised from $40,000.00 to $60,000.00.

VII.               Certified Physician Program 

Public Chapter 145 authorized the creation of a voluntary physician education program that provides an additional reimbursement under the medical fee schedule for Bureau-certified physicians. The two main goals of the program are increasing access for injured workers to trained physicians and reducing the number of days that injured workers are out of work.

VIII.             Effective Dates 

The changes discussed above in section III, pertaining to Attorney’s Fees for Failure to Provide Workers’ Compensation Benefits, went into effect when Governor Lee signed the Public Chapter 145 on April 13, 2023.  All other changes will go into effect on July 1, 2023.

On April 17, 2023, Tennessee Governor Bill Lee Signed Public Chapter 158, which brought about changes impacting death benefits.

I.                     Remarriage of Surviving Spouse 

Under current law, upon the remarriage of a surviving spouse, if there is no child of the deceased employee, then periodic death benefits terminate. However, Public Chapter 158 provides that in this scenario, the periodic benefits will still terminate but the surviving spouse is entitled to a lump sum payment equal to 100 weeks based on 25% of the deceased employee’s average weekly wages.

 II.                Increased Percentage of Death Benefits 

Under current law, there are certain scenarios where the qualifying dependent is entitled to death benefits based on 50% of the deceased employee’s average weekly wages – such as where there is a surviving spouse with no dependent children, or a single dependent orphan.  Public Chapter 158 increases benefits in each of those scenarios to 66 2/3% of the deceased employee’s average weekly wage.

III.                 Educational Requirements for Continued Periodic Death Benefits to Orphans 

Generally, periodic death benefits to dependent orphans will terminate when the orphan reaches the age of 18. However, under current law, benefits can continue until age 22 if the child is attending a recognized educational institution. Public Chapter 158 clarifies that this includes completing secondary education or a program leading to an equivalent credential, or enrolled in a recognized institution that provides postsecondary career or technical education.

IV.                Certification of Continued Eligibility 

Public Chapter 158 creates a new right for employers/carriers who are paying periodic death benefits, in that they can now periodically require a dependent to provide information about whether the dependent continues to qualify for benefits. Benefits may be suspended if the dependent fails to provide the requested information within 15 days after receipt of the request.

V.                  Effective Date 

Public Chapter 158 takes effect July 1, 2023.

On May 17, 2023, Tennessee Governor Bill Lee Signed Public Chapter 465, which creates a statutory causation presumption for firefighters with PTSD.

I.                     Name of the Act 

This law is known as the James “Dustin” Samples Act.

II.                   Definition of “Firefighter”

For purposes of this act, “firefighter” means a regular or full-time, paid employee of the fire department of a municipality, county, municipal form of government, or other political subdivision of the state. It includes employees whose previous duties required the employee to respond to and be actively engaged in fire suppression, rescue services, or other emergency response tasks.

III.                 Presumption 

If a firefighter is diagnosed with post-traumatic stress disorder (PTSD) by a mental health professional because of one or more specified types of incidents, then the injury is presumed to have been incurred in the line of duty and is compensable under the workers’ compensation law, unless it is shown by a preponderance of the evidence that the PTSD was caused by non-service-connected factors. The types of incidents that may give rise to this presumption are: (a) directly witnessing the death of a minor, or treating the injury of a minor who subsequently died; (b) directly witnessing an individual whose death involved a serious bodily injury of a nature that shocks the conscience; (c) responding to an event where there was a victim with a serious bodily injury that shocks the conscience; or (d) responding to an event where a responder, co-worker of a responder, or family member of a responder sustained a serious bodily injury or died.

IV.                Date of Diagnosis 

This presumption applies to a firefighter who is diagnosed with PTSD within one year of the firefighter’s final date of employment with the fire department.

V.                  Exception for Disciplinary Action 

A mental condition resulting solely from disciplinary action, work evaluation, job transfer, layoff, demotion, termination, or similar action taken in good faith by the employer is not considered an injury sustained in the line of duty.

VI.                Grant Program 

Public Chapter 465 requires the Department of Labor and Workforce Development to establish and administer a grant program to mitigate the costs to an employer of providing workers’ compensation for firefighters diagnosed with PTSD. The Department may award an employer a grant if the employer provides mental health awareness training for its personnel.

VII.               Effective Date 

This act takes effect January 1, 2024.


For any questions, please contact:
Fredrick R. Baker, Member
Wimberly Lawson Wright Daves & Jones, PLLC
1420 Neal Street, Suite 201
P.O. Box 655
Cookeville, TN 38503-0655
Phone: 931-372-9123
Fax: 931-372-9181
fbaker@wimberlylawson.com
www.wimberlylawson.com

by Jenna Christensen | Jun 21, 2023 | Workers' Compensation

In law school, one of the first concepts taught is the proverbial “eggshell” Plaintiff. The doctrine means that you take the victim (or in workers’ compensation cases, the employee) as you find him or her. In real world terms, some employees may be hired with absolutely no pre-existing problems while others may have a number of comorbidities that make them more susceptible to injury. However, the employee’s susceptibility to injury is not a defense to an otherwise compensable workers’ compensation claim.

The vast majority of workers’ compensation cases in Nebraska involve an employee with some extent of a pre-existing medical condition. However, the law is very clear: An injury, disability, or death that is solely the result of the normal progression of a preexisting condition or that is due to natural, idiopathic causes, although occurring while the employee is at work, is not compensable. Neb. Rev. Stat. § 48-151(4). Alternatively, if the work-related accident combines with, accelerates, or aggravates a pre-existing injury, the entire resulting disability is compensable. Heiliger v. Walters & Heiliger Electric, Inc., 236 Neb. 459, 461 N.W.2d 565 (1990).

Unlike some other states, Nebraska does not look for primary or secondary causes of an injury. Stated another way, if the employment was a “contributing factor” to the employee’s injury, the entire disability is compensable. Miner v. Robertson Home Furnishing, 239 Neb. 525, 531, 476 N.W.2d 854, 859 (1991). This is even true if the employee would not have been injured but for the pre-existing condition.

Because nearly every disputed case in Nebraska involves a pre-existing condition, it is not difficult to find cases from each of the six judges discussing the concept of aggravations. However, several recent decisions reveal an important factor that the judges routinely consider when deciding an aggravation case – honesty.

Often times, for whatever reason, an employee will misrepresent or significantly downplay the extent of his or her past medical conditions. For example, an employee with a work injury to his back may claim he’s never seen a doctor for his back prior to the work accident, only for that statement to be discredited by a neurosurgeon’s records from just weeks before the alleged accident. Alternatively, an employee may admit to prior ankle problems “years ago,” but her records show her ankle surgery occurred in the month before the work accident.  It is abundantly clear that the workers’ compensation judges value when an employee is honest and forthcoming about his or her prior problems.  In 2020, Judge Block specifically highlighted an employee’s honesty with his medical providers when deciding to award benefits for an aggravation to the employee’s back. Similarly, in 2022, Judge Stine awarded benefits to an injured employee who had been seeking medical treatment for his disputed knee claim just a few weeks before the alleged accident. In making that decision, Judge Stine highlighted that claimant was always forthright about his prior problems and how the accident made it worse.

Contrast these opinions with cases where employees aren’t forthright about their prior problems. In 2020, Judge Hoffert entered an Order of Dismissal in part because the employee was dishonest about her lack of prior back problems. He highlighted the voluminous records presented by the employer showing that the employee had been on a leave of absence for prior back problems right up until the day before her alleged accident. This evidence, he noted, was in stark contrast to the employee’s testimony on the stand.

While it may be somewhat obvious that judges value honesty from employees, these cases show the vital importance of securing employee’s prior medical records. When evaluating new cases, it’s important to pay attention to the parts of the medical records discussing an employee’s past problems or past medications. These portions of the treatment notes can be easily glanced over, but may contain information that sheds an important light on the employee’s prior medical history that he or she is unwilling to share voluntarily. Additionally, in cases where a recorded statement is taken, it’s necessary to ask the employee about his or her past medical problems. If an employee acknowledges a relevant past history, securing those records could be a major development in the case. While it’s true that employers take employees as they find them, to evaluate whether the eggshell plaintiff rule applies, one needs to know what “cracks in the shell” even existed before the accident.

If you have questions about a case involving an employee with a pre-existing condition, please contact any of the lawyers at CPW by phone or email. Want to ensure you don’t miss out on the next post in the CPW compendium series? Be sure to subscribe to our newsletter.

The Iowa Division of Workers’ Compensation has released updated rate information that will be in effect from July 1, 2023 through June 30, 2024. Peddicord Wharton has updated its rate and interest calculators which can be found on our website under the Resources page. We hope you will take advantage of these resources we have there for you, including our legal blog.

The Iowa Division of Workers’ Compensation releases annual rate information for mileage reimbursement and the following types of weekly workers’ compensation benefits: temporary total disability (TTD), healing period (HP), permanent partial disability (PPD), permanent total disability (PTD), and death.

    In a 6-3 decision, the Oklahoma Supreme Court on 4/18/23, said the Legislature intended for injured workers to have at least one year from the date of an injury in which to file a workers' compensation claim before the Workers' Compensation Commission. The case is Schumberger Technology Corp. v. Paredes, 2023 OK 42.  The case involves an un-represented claimant that later hires an attorney. 

    The Supreme Court was asked to interpret 85A O.S. Sec. 69, in pertinent part:

      "A claim...shall be barred unless it is filed...within one (1) year from the date of injury or, if the employee has received benefits under this title for injury, six (6) months from the date of the last issuance of benefits."

    Justice Gurich, writing for the majority, said the Legislature had created a method to extend payment of benefits beyond an arbitrary SOL since at least 1941. She noted that each time amendments were made to the workers' compensation law, the Legislature continued to provide for a way to extend benefits for injured workers. 

    Justice Gurich wrote, "that the SOL is "not an absolute time bar." The burden is on the employer to take affirmative action, or "arguably, even the one-year SOL will be extended." There must not only be an objection based upon the running of the SOL, but ALSO A HEARING. The opinion says otherwise the statute would be meaningless if the Commission did not have the discretion to adjust the statute of limitations based on the circumstances presented.

    The holding is that an injured worker in Oklahoma has at least one year from the date of an injury in which to file his or her claim. The six-month provision of Sec. 69 only extends the SOL in cases in which the employer admits the injury and pays benefits. If a badly injured worker is off four years when treatment is terminated, he or she has six months from that date to file a claim before the Commission.  

    In the opinion, Justice Gurich also quoted comments by Commissioner Biggs during oral argument in this case. He told defense counsel, "My argument is simple, the system works when people know when deadlines are, when the SOL starts...if they didn't have notice of when your company paid, how do they know when the clock starts?"

 The Court has created a new requirement that was not present previously.  The opinion can interpreted to require a specific date which the SOL runs and the 6-month Statute of Repose will not begin to run until the date the claimant is informed of the specific date.  An employer can no longer wait-out the SOL to assert the affirmative defense.  The Court is requiring specific notice to an un-represented claimant before a SOL defense can be asserted.