State News

More Changes at DWC

SLS bids farewell to Administrative Law Judge Rabiat Ngbwa who presided over Contested Case Hearings in the Austin Field Office.  No word yet on who will replace Judge Ngbwa, but we wish her well in her future endeavors.

Copyright 2023, Stone Loughlin & Swanson, LLP  

One Girl’s Opinion – Editorial by Erika Copeland

If you live long enough things definitely seem to come full circle. I began my workers’ compensation career as a Hearing Officer in the field when designated doctors only addressed MMI and impairment ratings. As time went by, they added other issues to their repertoire and the list grew. Local treating doctors provided MMI/IR certifications and, if you didn’t like it, you requested a designated doctor. Then the scheduling companies moved in and doctors started traveling from Houston to Abilene to see patients and the whole landscape changed. Seemingly before we knew it, the tail was wagging the dog and the companies were making 60% of the amount billed for the examinations and recruiting doctors from all disciplines, demographics and age groups to be designated doctors. It was truly the wild, wild west.  

The Division, spurred by the Sunset Advisory Commission and the 82nd Legislature took action and in January of 2011, I was in Austin and was charged – along with many others – with making changes to the designated doctor program.  Many people at the Division spent untold hours working very hard to improve the program and developed new rules, qualification and certification criteria, testing, and training curriculum that met the statutory requirements and systems designated to ensure qualified doctors were selected for the thousands of examinations that were requested each year.  It was a complete overhaul of the system that was not without its fits and starts, but overall, we saw great improvement in the training, testing, and competence and resources available to the doctors charged with providing the opinions necessary for the system participants to use in resolving their disputes.   

All of these changes came with consequences – some anticipated and some unforeseen.  The requirements to become a designated doctor – or even a doctor certified to evaluate MMI/IR – were now more burdensome, time consuming and costly.  The number of examinations available no longer justified the cost for many and some made the economic decision to let their certifications lapse.  The training for years had been perfunctory and the testing was not monitored or meaningful.  Now, the Division was requiring a three-day training at no small expense and was requiring doctors to have access to the ODG and MD Guidelines – additional expense items.  Many doctors did not want to take the time to learn or maintain the certification.   

Some unintended problems with the way the Division selected the most qualified doctors - and the additional costs associated with new training, testing and administrative requirements under the new rules - pushed many MDs and DOs out of the system.  In September of 2012, there were over 1,200 doctors on the Division’s list.  As of the date of this newsletter, the list is down to 238 and less than 30% are MDs and DOs. 

Over the years, the Division attempted to solve the problem of the ever-shrinking list with rule changes.  In December of 2018, they implemented a rule change designed to change the way the examinations were assigned and modified the qualification standards, yet the list continued to shrink.  This new set of rules has the stated goal of maintaining and increasing participation in the designated doctor program and allowing better access to certain kinds of examinations.  While it may well achieve the latter, there is little hope of it doing the former for one simple reason.  In the April 10, 2023 rule memo, the Division clearly stated that neither rule concerns one of the most important issues that the Division has not changed in decades – billing and reimbursement.    While they may be working to address that issue, the status of the billing and reimbursement rules project remains unclear. In light of the current state of the list, a change to the fee structure could be, at this point, too little too late.

The medical doctors and osteopaths left because it was no longer cost effective for them to do the work.  The medical fee guidelines for designated doctor examinations have not been updated to adequately reflect the changes in the designated doctor program.  The administrative burden on designated doctors – with or without scheduling company assistance – increased considerably when the rules changed.  The complexity of the cases the board-certified doctors are asked to address – especially regarding the extent of the injury - and the sheer volume of medical records they are asked to review in order to adequately evaluate those kinds of issues – are not reflected in the medical fee guidelines.   There is no reimbursement when a doctor travels out of town to see a claimant that doesn’t show up.  There is no incentive for local doctors who feel as though they are being priced out of the market by traveling doctors.

The administrative burden has lessened to some degree, however.  The doctors, under the new rule, don’t have to test anymore.  Over time other requirements have lessened: training is no longer three days long every two years and much of it is available by webinar instead of live training; doctors are no longer required to have access to MDGuidelines or ODG, they just have to “apply” them.  The obvious casualty of these changes – report quality.

While the doctors have concerns that are no doubt legitimate, practitioners have their own concerns about the rules.  Notwithstanding the obvious concerns about the declining quality of the designated doctor reports, we are now back to square one (circa 2010) with the designated doctor deciding what is compensable – without regard for what the carrier has accepted or disputed – whether the doctor is addressing extent of injury or not.  The designated doctor will no longer provide multiple certifications unless the Division orders it.  This begs the question – how does this help us with informal resolution?

Meanwhile, the Carrier is required to pay benefits based on the designated doctor’s certification of MMI/IR – even if they have disputed the condition the designated doctor has rated.   The question then becomes, is this a voluntary payment according to the SIF when it comes time to seek reimbursement if the Carrier is able to get the MMI/IR determination overturned at a CCH?  How do we advise our clients?  

A lot of very hard work went in to making positive changes to the designated doctor program after the last Sunset Commission recognized the problems the Division was facing.  In this girl’s opinion the Division was on the right track with training and testing and educating a group of doctors to provide meaningful tools to aid system participants and the Division in dispute resolution.  

Unfortunately, just easing up on the administrative burdens and continuing to change the qualification criteria will not bring more doctors into the system.  Changing the criteria to make it easier for a doctor to “qualify” does not make a doctor more qualified.  
 

Copyright 2023, Stone Loughlin & Swanson, LLP 

The burial benefit under the Nebraska Workers’ Compensation Act will increase to $11,300.00 effective July 1, 2023. This benefit applies upon the death of an employee, resulting through personal injuries as defined in NEB. REV. STAT. § 48-151

Please select this link to view the latest news from the Nebraska Workers’ Compensation Court (https://www.newcc.gov/home/court-news).

https://cpwlaw.com/news-releases-coming-burial-benefit-to-increase/

Cumulative Trauma - Sufficiency of Evidence 

Lexington Fayette Urban County Gov’t v. Gosper, 2021-SC-0386-WC (not final)

Claimant worked exclusively as firefighter and EMT for employer for 18 years. He presented to his treating physician, Dr. Balthrop, in December of 2017 with unbearable bilateral knee pain which his physician stated was work-related. He underwent two total knee replacement surgeries paid through workers’ compensation. Claimant had treated for knee problems for years and was diagnosed with osteoarthritis in 2012. He had a prior right knee work injury in 2007 that led to a meniscectomy. Dr. Balthrop testified that Claimant’s physically exacting work demands combined with his varus deformity accelerated the gradual deterioration of his knees and his occupation worsened his arthritis. The employer’s IME expert, Dr. Prince acknowledged that sustained, repetitive, and strenuous work is a risk factor for arthritis and would have accelerated Claimant’s degenerative changes. Dr. Prince, attributed 75% of his left knee impairment and 50% of his right knee impairment to non-occupational factors, including his varus deformity and being overweight. He testified that without the work-related component, Claimant would likely not have needed the knee replacement surgery at the age he had it. Claimant’s IME expert, Dr. Burke, noted that while Claimant experienced intermittent knee pain, he continued to work, however by the end of 2017 his knees deteriorated to where he couldn’t function with regular duty activities. Dr. Burke diagnosed progressive development of bilateral osteoarthritis contributed significantly by the nature and duration of his work. The employer also had a report prepared by Dr. Lyon, who attributed 50% of Claimant’s right knee condition to work and 0% of the left knee condition. Dr. Lyon emphasized Claimant’s history of knee pain and bowleggedness.

The ALJ found that the nature and duration of Claimant’s work aggravated his degenerative condition into active physical impairment sooner than would have been, awarding PPD benefits with the 3x multiplier and medical benefits. The employer appealed, arguing that the Claimant did not meet his burden of proving a work-related injury, noting injury does not include the effects of the natural aging process. The Supreme Court of Kentucky held that substantial evidence existed to support the ALJ’s determination, finding that three doctors, including one of the employer’s IME experts, acknowledged that the Claimant’s job duties significantly contributed to the acceleration or aggravation of his degenerative knee condition. 

The West Virginia Workers' Compensation Board of Review has implemented a new procedure for a claimant to file a protest to a claim administrator's order that does not include a Jurisdictional Claim Number. Claim administrators who are not following claim reporting procedures will be tracked by the Offices of the Insurance Commissioner. 

The Board of Review has changed the process for submitting a protest to a claim administrator's order that does not include the JCN. Claimants and their attorneys will no longer be required to call the claim administrator or the OIC's Claims Services in an effort to track down a JCN. Since a protest cannot be submitted on the Board of Review's portal without a JCN, please follow this process if you are submitting a protest to a claim administrator's order that does not include the JCN:

· Fax or mail the protest to the Board of Review (PO Box 2628, Charleston, WV  25329; 304-558-1322)

· A Temporary JCN will be assigned and the protest will be acknowledged.

· The Board will issue an order requiring the claim administrator to provide the JCN to the Board and the parties, in writing, within 15 calendar days from the date of the Board's order.  A copy of the Board's order will be provided to the OIC in order to track claim administrators who are failing to follow reporting procedures.

The Board of Review can be contacted by calling Beth Suter at 304-414-1027.

Written by: Logan Shipman

The N.C. Court of Appeals recently provided new guidance on calculating the average weekly wage (AWW) in a case involving a summer job for a full time graduate student. Although the case also addressed the admissibility of testimony under Rule of Evidence 702, the discussion below focuses primarily on the Court’s average weekly wage analysis.

In Gilliam, the decedent was an employee of a temporary employment agency and assigned to work at Bimbo Bakeries in a general utility position. At the time, the decedent was enrolled in graduate school at Mississippi College and began working for Defendant-Employer earlier that summer. Although his employment was at-will with no specified end date, the evidence demonstrated the decedent was set to end his employment with Defendant-Employer in August 2018, to return to school at Mississippi College.

On July 29, 2018, Plaintiff was working on the lid line in the bakery when he collapsed on the floor and was found unresponsive. EMS was called and he was pronounced dead at the hospital. An autopsy revealed the cause of death was probably dysrhythmia due to cardiomegaly. It showed an enlarged heart with increased concentric left ventricle thickness and noted that an enlarged heart impairs proper coordinated electrical conduction and predisposes the person to a fatal arrythmia. The autopsy further demonstrated increased fibrosis. Decedent’s parents filed a claim, alleging that Decedent collapsed and died while working in high heat inside the bakery. Defendants denied Plaintiffs’ claim on the basis that Decedent died from natural causes.

As noted above, the primary issue in this case was the proper method of calculating Plaintiff’s average weekly wage given his short term of employment. Plaintiffs contended the decedent’s average weekly wage should be calculated pursuant to the third method of calculating average weekly wage under N.C. Gen. Stat. § 97-2(5), which states, “where the employment prior to the injury extended over a period of fewer than 52 weeks, the method of dividing the earnings during that period by the number of weeks and parts thereof during which the employee earned wages shall be followed; provided, results fair and just to both parties will be thereby obtained.” Defendants, however, contended that the third method overestimated Plaintiff’s wages he would have earned but for the accident, since he was slated to end his employment shortly after the accident to return to graduate school. Defendants argued that the decedent’s average weekly wage should instead be calculated to the fifth method, which states, “but where for exceptional reasons the foregoing [methods of calculating average weekly wages] would be unfair, either to the employer or employee, such other method of computing average weekly wages may be resorted to as will most nearly approximate the amount which the injured employee would be earning were it not for the injury.”

After a hearing, the Deputy Commissioner concluded Decedent’s death was compensable and ordered Defendants to pay death benefits pursuant to the third statutory method of calculating average weekly wage. Defendants appealed to the Full Commission. The Full Commission affirmed the compensability of Decedent’s death but recalculated the average weekly wage pursuant to the fifth statutory method. The Full Commission found that the evidence demonstrated that Decedent would have ended his employment with Defendant-Employer and returned to school in August 2018. Medical records indicated Decedent was currently in grad school; a Facebook post from July 18, 2018, stated he was “so glad school starts in August so [he didn’t] have much longer in the bakery;” his sister testified he was in school at the time of his death; and his work history in the previous few years reflected he worked during the summer before returning to school each August. The Court concluded this evidence was sufficient to support its finding that Decedent would have ended his employment in August 2018. It held therefore that because he began working for Defendant-Employer on May 17, 2018, and would have ceased working in August 2018, within a few weeks of his death, Decedent’s earnings from May 17, 2018, to August 2018 would have constituted his total earnings in 2018. Thus, calculating his average weekly wage using the third method would overestimate his wages he would have earned but for the compensable accident. The Full Commission, using the fifth statutory method, calculated Plaintiff’s average weekly wage by adding his earned wages up to the date of the compensable accident and dividing that sum by fifty-two weeks. Defendants appealed the Full Commission’s Opinion and Award, and Plaintiffs cross-appealed.

The Court of Appeals ultimately found the Full Commission’s calculation did not fully capture the wages he would have earned but for the accident because it did not account for the remaining few weeks he would have worked before returning to school. The Court remanded the case to find the date he would have ended his employment and to recalculate the average weekly wage using that sum and dividing it by fifty-two weeks.  The appeal was dismissed in part and vacated and remanded with instructions in part.

Gilliam provides support for a lower calculation of an injured employee’s average weekly wage in cases in which the injured employee had worked less than fifty-two weeks as of the date of injury, but where the evidence demonstrates that the employee was going to terminate employment with the defendant-employer at a specific date shortly after the accident. As in Gilliam, this new guidance is particularly applicable to cases involving seasonal employment.

Written by: Tracey Jones

Amber May appointed as the NCIC’s Chief Operating Office Effective June 1, 2023

The Industrial Commission announced that Amber May will serve as its Chief Operating Officer effective June 1, 2023. May currently serves as the Commission’s General Counsel, having returned to the Commission in March of 2022 after eight years as Rules Review Commission Counsel at the North Carolina Office of Administrative Hearings. Prior to joining the Rules Review Commission, May served as the Law Clerk to former Commission Chair Pamela T. Young. Before that, May worked as a Staff Attorney for Legal Aid of North Carolina, where she represented clients in a wide variety of civil matters and gained substantial litigation experience. May earned her law degree from North Carolina Central University School of Law and her Bachelor’s Degree in Business Administration from Meredith College.

Pam Young retiring from the NCIC Effective June 1, 2023

The Industrial Commission’s Chief Operating Officer, Pamela T. Young, is retiring effective June 1, 2023. Young’s service to the State of North Carolina includes nearly 20 years at the Industrial Commission where she served as a Deputy Commissioner from 1996-2002; a Commissioner from 2003-2014, during which time she was designated by the Governor as Vice-Chair and then Chair of the Commission; and most recently as Chief Operating Officer since 2020.

William B. Wallace appointed to serve as a Deputy Commissioner Effective March 13, 2023

William B. Wallace was appointed to serve as a Deputy Commissioner beginning March 13, 2023. Wallace began practicing workers’ compensation law in 1998, and he has represented both plaintiffs and defendants in workers’ compensation cases. He is a North Carolina State Bar Board Certified Specialist in workers’ compensation law and a North Carolina Dispute Resolution Commission certified mediator. Wallace is a former Chair of the North Carolina Bar Association’s Workers’ Compensation Section. Wallace earned his undergraduate degree from the University of North Carolina at Chapel Hill and his J.D. from the University of Richmond T.C. Williams School of Law. Wallace will be assigned to the Commission’s Charlotte regional office.

Elias W. Admassu appointed to serve as a Deputy Commissioner Effective February 27, 2023

Elias W. Admassu was appointed to serve as a Deputy Commissioner in the Raleigh office beginning February 27, 2023. Admassu brings considerable workers’ compensation experience to the Commission, having litigated claims before the Industrial Commission from 2009 through 2020 while representing employers and insurers. He also has significant employment law and governmental experience, having served in important advisory roles in the Chief Counsel’s Office of the North Carolina Division of Employment Security and as counsel to the Human Resources and General Counsel’s Office of the North Carolina Department of Justice over the past few years. Most recently, Admassu was a Special Deputy Attorney General responsible for representing the North Carolina Department of Health and Human Services in complex employment, labor, disability, and constitutional law litigation in federal and state courts and before administrative agencies. Admassu earned his undergraduate degree from Howard University and his J.D. from the University of North Carolina School of Law.

Phillip A. Baddour, III reappointed to the Full Commission

Governor Roy Cooper has reappointed Philip A. Baddour, III to serve a second six-year term as a Commissioner on the North Carolina Industrial Commission beginning May 1, 2023, subject to confirmation by the North Carolina General Assembly.

In March of 2017, Baddour was appointed by Governor Cooper to serve his first term as a Commissioner, and he was confirmed by the General Assembly in June of 2017. In February of 2019, Governor Cooper designated Baddour as the Chair of the Industrial Commission. Baddour previously served as a Deputy Commissioner at the Industrial Commission for 17 years. Baddour received his B.A. degree from the University of North Carolina at Chapel Hill in 1992 and earned his law degree from Campbell University in 1996.

New Procedure: Report of Mediator Fee Invoices to be emailed when the Mediator is appointed.

On Monday, February 20, 2023, the Industrial Commission began emailing Report of Mediator fee invoices at the time the mediator is appointed. The Report of Mediator invoice will be sent to defense counsel by email shortly after the Appointment of Mediator Order is emailed.

This new procedure, which was created in response to stakeholder feedback, will give employers and carriers additional time to process and pay Report of Mediator fees. Upon receipt of the Report of Mediator invoice, the $200 fee can be paid online via credit card (MasterCard or Visa) or e-Check. A link for online payment will be provided in the email. The $200 fee also may be paid by paper check mailed to the Industrial Commission.

While the Industrial Commission strongly encourages early payment of Report of Mediator fees to avoid past due invoices, this new procedure does not change the Report of Mediator fee due date (i.e., payment of the $200 Report of Mediator fee is due no later than seven (7) days from the deadline for completing mediation or seven (7) days from the date mediation is completed, whichever is earlier). With the ability to pay Report of Mediator fees early, however, employers and carriers can avoid the risk of late payment (which may subject them to statutory penalties and interest) and can more efficiently manage and bring closure to their case files.

Written by: Lindsay Underwood

One of the hot topics in Workers’ Compensation over the past few years has been entitlement to extended benefits and what standard the courts would apply to determine the same. Most recently, the Court of Appeals issued a decision in one of the cases currently pending – Sturdivant v. NC Department of Public Safety. Interestingly, the opinion has since been withdrawn, and it is unclear how the Court will move forward at this juncture. Even so, the opinion merits discussion.

As a reminder, the key question presented by the extended benefits cases is what analysis the courts would use to determine entitlement to benefits beyond the 500 weeks. The plaintiff’s bar argued that the standard remains the same in pre-500 week and post-500 week cases. Defendants argued that benefits beyond the 500-week cap have an increased standard, such that a claimant has the burden to show a total loss of wage-earning capacity.

In Sturdivant, the claimant sustained a compensable injury to the back in 2011. Claimant was a high school graduate. He was certified to drive a forklift, had training in blueprint reading, and had CPR experience. The claimant had been on his church’s Board of Trustees since 2008. Four of the claimant’s physicians testified he could work and noted he could perform many of the essential functions of his prior job as a correctional officer. Claimant only started looking for work in January 2020 and produced a job log, but some of the entries were inaccurate. Defendants’ vocational expert met with the claimant, performed a transferrable skills analysis, performed a labor market survey and identified several jobs in the surrounding area that claimant was capable of performing. Claimant’s vocational expert testified claimant was unable to work at all. However, the vocational expert did not contact any potential employers, and only looked for jobs in Anson County. As a result, Deputy Commissioner Erin Taylor afforded more weight to the defendants’ vocational expert and determined that claimant could not show a total loss of wage-earning capacity and was not entitled to extended benefits beyond the 500-week cap on benefits.

Plaintiff appealed to the Full Commission, and the Full Commission affirmed the decision finding claimant failed to meet his burden to establish a total loss of wage-earning capacity. Plaintiff appealed to the Court of Appeals. The Court of Appeals agreed with the lower courts and affirmed the denial of extended benefits, but specifically noted that  the standard for total loss of wage-earning capacity and total disability are the same. Though they found that claimant still has the burden of proof to show they sustained the loss, the standard for disability does not change when a claimant applies for benefits beyond the 500 week cap. The Court further noted claimant could receive extended benefits even if not medically restricted from all work, if he showed there were no jobs available to him. Since the claimant did not meet his burden, he was not entitled to extended benefits in this case.

Though a victory for the Defendants in this specific case, the conclusion that there is no higher standard for disability once the claimant applies for extended benefits creates significant additional exposure for Defendants. However, as noted above, the Court has now withdrawn its opinion. It is unclear how they will proceed, or what this means for extended benefit cases moving forward. It should be noted that Mary Betts v. North Carolina Department of Health and Human Services – Cherry Hospital, is still pending before the Court of Appeals and a decision has not been issued in that case.

As we are somewhat back to square one when it comes to guidance in light of the withdrawal, our recommendations for handling remain the same: retain credible experts (both medical and vocational), investigate claimant’s job search, hobbies, and non-work related activities and participation, obtain a detailed understanding of claimant’s job history and educational background, and make sure your vocational expert meets with claimant to identify possible jobs and explore work history.

Passing of the Torch

Our founding partners, Mark Hamberger and Ronald Weiss, have served on the firm’s Governing Committee, and as Managing Partners in the Buffalo and Rochester offices respectively, since the founding of the firm in 1991. Effective January 1, 2023, Mark and Ron have decided that the time has come to pass the management responsibilities to the next generation. 

Accordingly, the firm created a new Governing Committee, and elected F. Daniel Bowers, Renée Heitger, and Joseph DeCoursey to serve on that committee, effective January 1, 2023 to manage the firm. Dan and Joe will serve as Managing Partners in Buffalo and Rochester respectively.  

Under Mark and Ron’s 31 years of leadership, the firm has grown to become the largest law firm dedicated solely to Workers’ Compensation defense in New York. Mark and Ron will remain with the Firm as Special Counsel, where they will play integral roles in the firm's continued success.

 H&W Saves Client Nearly $60,000 With Fraud Finding and Permanent Bar on Indemnity

Our associate, Victoria Hahn, obtained a WCL §114-a (fraud) finding and secured a permanent disqualification of the claimant's indemnity benefits for our client in a particularly tricky claim that was decided a few weeks ago. The claimant in this case had been out of work since the date of accident in March 2020. Our client's investigator was able to get some limited evidence of the claimant's work activity: a few photos and a 10 second video from an informant showing the claimant working as a carpenter at a job site. During testimony, the claimant alleged that he was just "helping a friend." Unfortunately, the informant was murdered before trial in an unrelated incident, leaving Tori without much of a case. 
 
Undeterred, she subpoenaed the claimant's bank records, which showed large deposits into a business account in the claimant's name, with the claimant listed as the sole signer and authorized user. These records were critical as they proved that the claimant was engaged in substantial work activity while collecting workers' compensation benefits. The Law Judge felt that the video surveillance and photographs were insufficient on their own to establish a fraud finding. However, the Judge found that the bank records completely discredited the claimant's testimony and that the only logical conclusion regarding the deposits noted in the bank records were that they were for services performed by the claimant on behalf of his business. 
 
Given the classification with a permanent partial disability and a 33% loss of wage earning capacity Tori's efforts saved our client nearly $60,000 in workers' compensation payments. For any questions about this case, please contact Tori and if you have a fraud case you would like to us to review, please contact us.