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 Tracey Jones and Heather Baker
On July 26, 2022, the Full Commission issued another extended benefits decision, Messick v. Walmart Stores, Inc. The panel consisted of Vice-Chair Griffin, Commissioner Taylor and Commissioner Goodman. In this case, the Full Commission awarded the claimant extended benefits. The issue of extended benefits was not an issue at the Deputy Commissioner level. The Deputy Commissioner issued an Opinion and Award finding compensable aggravations to claimant’s pre-existing left knee condition and mental health condition, awarded ongoing TTD benefits, and ordered payment for claimant’s dental treatment related to a post-accident fall. Defendants did not appeal the findings or conclusions related to causation, but appealed on the issue of whether the first date of disability versus the date of injury was controlling in regard to determining the indemnity benefits and/or extended benefits owed to claimant under N.C.G.S. § 97-29.
Claimant sustained two compensable injuries; one to her lumbar spine and another to her right knee. Her lumbar spine injury was pre-2011 statutory reform and her right knee injury was post-2011 reform. Both injuries were accepted by Defendants. Defendants also authorized benefits for psychological treatment as a part of the claim. Ultimately, claimant required, among other treatment, a spinal cord stimulator, a knee replacement surgery, and a knee replacement revision procedure, along with increased psychological treatment for depression, which included a 20-day psychological support and physical reconditioning program where she weaned off Oxycodone. Eventually, claimant’s left knee became problematic, and she required a left total knee replacement, which claimant’s doctor opined was the result of her accepted right knee injury. She was ultimately assessed with failed back syndrome, chronic low lumbar pain, and chronic knee pain.
As a part of litigation, the parties deposed nine experts, consisting of claimant’s medical providers and claimant’s vocational expert. In terms of disability, many providers deferred to other providers and/or a vocational expert, and claimant was assigned permanent sedentary restrictions with no repetitive bending or stooping; no lifting more than twenty pounds; no twisting; no kneeling; no climbing ladders or stairs; no walking more than forty yards at a time; and no sitting or standing for more than thirty minutes at a time. The claimant’s vocational expert concluded that there was no reasonable vocational probability that claimant would be able to secure a job and maintain gainful employment. He testified she had a total loss of wage-earning capacity, despite noting that claimant expressed multiple times she would prefer to be working and productive.
The good news is the Full Commission, in keeping with it’s other extend benefits decisions, clearly states that the standard in extended benefits cases is different than the normal standard for proving entitlement to temporary total disability benefits. Applying the revised standard set forth in the 2011 revisions to N.C. Gen. Stat. § 97-29(c), the Full Commission reiterated that to establish entitlement to extended compensation, a plaintiff must show that they have a total loss of the ability to earn wages in any employment. See N.C. Gen. Stat. § 97-29(c) (2021).
However, the Full Commission found the vocational expert’s opinion credible and concluded there were no jobs in the job market within claimant’s functional capabilities. The Commission found ongoing disability for claimant’s pre-reform injury, and the Commission also found a total loss of wage-earning capacity due to her compensable injury for the second post-reform injury. Claimant was awarded ongoing medical benefits and TTD benefits for the pre-reform injury until claimant returns to work or until further order by the Commission and awarded extended benefits for the post-reform injury. The Commission focused on claimant’s chronic pain, age, and length of time from being in any academic situation and relied on the only vocational expert to testify in the case to conclude that claimant has sustained a total loss of her wage-earning capacity.
This Opinion and Award once again demonstrates the importance of expert testimony in these extended benefit cases. The physicians deposed all found claimant’s pain complaints credible and either would not comment on claimant’s ability to work or deferred to a vocational expert as to whether there were jobs available that claimant could perform. The only vocational expert that was deposed clearly testified that claimant had suffered a total loss of wage-earning capacity because of her restrictions and chronic pain complaints. In order for defendants to successfully defend these cases, they must retain or have testimony from both medical and vocational experts that the claimant has some wage earning capacity. If defendants can successfully present this evidence, past cases suggest that they will prevail and extended benefits will not be awarded.
Legal Update by Attorney Alison Stewart and Law Clerk Morgan Borron
In Tripp v. Scott County Emergency Communication Center, 977 N.W.2d 459 (Iowa 2022), the Iowa Supreme Court addressed whether Iowa law holds emergency workers to a separate, higher standard to be eligible to receive workers’ compensation benefits for trauma-induced mental injuries, than other workers who sustain identical injuries, but work in other roles. In this case, Claimant was diagnosed with PTSD after receiving a disturbing call from a mother who was screaming about the death of an infant. Claimant had worked in that role for approximately 16 years prior, but testified the screams in this call were “beyond ‘normal’ sounds: ‘guttural, awful.’” In the days that followed, Claimant became withdrawn, unable to process emotions, wanting to sleep, and tearful. The employer approved Claimant’s treatment with a licensed mental health counselor and psychologist, both of whom diagnosed Claimant as having suffered from PTSD as the result of the September 30, 2018 call.
Claimant’s treating psychologist testified her PTSD constituted a chronic episodic condition that resulted in a permanent disability. The Deputy Commissioner denied Plaintiff’s petition for workers’ compensation benefits because 911 dispatchers “’routinely’ take calls involving death and traumatic injuries” and that Plaintiff had failed to establish that the call was “unusual” or “unexpected” as required under the court’s prior mental injury cases. The Commissioner affirmed the Deputy’s Arbitration Decision, as did the District Court. Claimant appealed, which was retained by the Iowa Supreme Court.
Psychological injuries meet the definition of personal injuries for purposes of determining workers’ compensation benefit entitlement in Iowa, but employees claiming mental injuries must prove both medical and legal causation. See Brown v. Quik Trip Corp., 641 N.W.2d 725, 727-29 (Iowa 2002). The legal causation requirement could be satisfied where an “unusual strain” led to the mental injury. The Court held that based on the evidence, Plaintiff Tripp’s PTSD arose directly from her handling of the September 30, 2018, 911 call in the course of her work as an emergency dispatcher. The Court held that focusing on an employee’s job to determine an “unexpected strain” placed emergency workers in a disfavored position when compared to other workers. It held there should be no “heightened evidentiary hurdle” for these types of employees. Rather, because Claimant was able to prove her purely mental injury (PTSD) was traceable to a readily identifiable work event (the September 30, 2018, phone call) she had proven legal causation. The likely impact of this case is that this expands the compensability of mental injuries in Iowa.
The Commissioner awarded industrial disability in two cases involving the shoulder.
Both Carmer and Anderson are on appeal; however, they are the current law of the Agency and should be considered when evaluating shoulder cases.
In Martinez-Rivera v. Signet Builders, Inc., File No.: 5064517.01 (Arb. Dec. Sept. 16, 2021), the deputy commissioner held that the Claimant did not qualify for Second Injury Fund benefits because section 85.64(1) does not list the shoulder as an enumerated body part which may trigger Fund liability.
The question of whether a claimant was entitled to industrial disability pursuant to 85.34(2)(v) due to her voluntary choice to transfer to a lower-paying position with Defendant/Employer was addressed in Kish v. University of Dubuque, File No.: 5066482 (Arb. Dec. July 29, 2021), affirmed on appeal, (App. Dec. Nov. 30, 2021). In Kish, claimant injured her back on May 30, 2018, while working as a lead custodian for the University (making $1.00 more per hour than regular custodians). She was released to return to work without restrictions and placed at MMI on June 19, 2019 and returned to work that same day as a lead custodian, at the same rate of pay and working the same number of hours. Claimant did not think she would be able to handle the lead custodian position when students returned to campus, and so she bid into a regular custodial position in August 2019, which reduced her pay by $1.00/hour.
The deputy held that Claimant made a voluntary choice to transfer, that the University did not request/require Claimant to change positions, and no physician had imposed permanent restrictions that would prevent her from continuing to work as a lead custodian. In light of the above, the Deputy found that the employer had offered Claimant ongoing work in a position that paid the same or more than she earned on the date of injury, limiting her recovery to the functional impairment pursuant to 85.34(2)(v). Kish is currently being appealed.
The agency addressed employer responsibility for an alleged work related COVID-19 death in Bolton v. Marcus Lumber, File No. 20015335.01, 2022 WL 1787479 (Arb. Dec. Mar. 24, 2022).
To establish a compensable injury in Iowa, an employee must establish
that the injury has a causal connection to the employment. The question
of medical causation is “essentially within the domain of expert
testimony.” Cedar Rapids Cmty. Sch. Dist. v. Pease, 807 N.W.2d
839. 844-45 (Iowa 2011). Here, both parties presented expert witnesses
to opine when Bolton may have contracted COVID-19, which ultimately led
to his death. The employer provided evidence they followed all CDC
guidelines and precautions for their employees, including requiring
masks, social distancing, temperature checks, and negative COVID tests
for employees before return to work after exhibiting symptoms. In this
case, multiple employees had tested positive for COVID in the weeks
leading up to Bolton’s diagnosis, however, the employer was not found
liable. The Claimant did not meet the burden of proof where evidence was
introduced indicating Claimant was not following the CDC guidelines in
his personal life where he was gathering with family outside of his
household, going out to lunch, and working for the fire department all
while not wearing a mask.
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NOTICE TO THE PUBLIC
The determination of the need for legal services and the choice of a lawyer are extremely important decisions and should not be based solely upon advertisements or self-proclaimed expertise. This disclosure is required by rule of the Supreme Court of Iowa.
Peddicord Wharton Legal Updates are intended to provide information on current developments in legislation impacting our clients. Readers should not rely solely upon this information as legal advice. Peddicord Wharton attorneys would be pleased to answer any questions you may have about this update. ©2022 Peddicord Wharton. All Rights Reserved.
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Legal Update by Attorneys Alison Stewart and Jordan Gehlhaar
The Iowa Division of Workers’ Compensation recently released a decision assessing how settlement with the Second Injury Fund (SIF) affects an injured employee’s claim against their employer and its insurance carrier in Milbrandt v. R.R. Donnelly.
The SIF compensates injured employees who have proven a previous qualifying injury, a second compensable work injury, and permanent disability resulting from each. In effect, the current employer is responsible only for the portion of disability attributable to the injury occurring during their employ; SIF assumes responsibility for the remainder of total disability.
Claimant Nancy Milbrandt filed a petition alleging a work related cumulative injury to her left and right arms and hands as of November 26, 2019. In addition to the employer and insurance carrier, the petition stated a claim against the Second Injury Fund of Iowa. Prior to the arbitration hearing, the claimant entered into a compromise settlement agreement with SIF, which was approved by the Workers’ Compensation Commissioner.
The subject of the settlement included the November 26, 2019 injury occurring with the defendant employer. As such, the employer argued that once the settlement was approved, the Commissioner lacked jurisdiction over the case. Claimant argued that the settlement was a contract binding only the parties—her and the SIF—and the case against her employer should still proceed to hearing.
The Deputy Commissioner focused on the language of Iowa Code Section 85.35(9): “an approved compromise settlement shall constitute a final bar to any further rights arising under this chapter . . . regarding the subject matter of the compromise . . . .” The Iowa Supreme Court had previously interpreted this language broadly. Accordingly, a previous decision by the Commissioner found that as a matter of law, a settlement with the SIF operated to deprive the agency of jurisdiction, meaning a claimant cannot re-litigate the same injury against the employer that was the subject of the settlement. This is true even when the parties include language attempting to preserve further claims against other defendants.
Since the date of injury against the employer was part of the subject matter of the approved settlement with the SIF, Claimant Milbrandt had no further rights under the workers’ compensation code. Employers and their insurance carriers should be aware their liability may be affected if the SIF is a co-defendant. However, this holding may affect claimants’ willingness to enter into settlement negotiations.
Peddicord Wharton will continue to monitor case law on this issue.
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~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
NOTICE TO THE PUBLIC
The determination of the need for legal services and the choice of a lawyer are extremely important decisions and should not be based solely upon advertisements or self-proclaimed expertise. This disclosure is required by rule of the Supreme Court of Iowa.
Peddicord Wharton Legal Updates are intended to provide information on current developments in legislation impacting our clients. Readers should not rely solely upon this information as legal advice. Peddicord Wharton attorneys would be pleased to answer any questions you may have about this update. ©2022 Peddicord Wharton. All Rights Reserved.
Return to Work: When an employee is not at MMI but is still being treated for a work injury:
Vocational Rehab:
Practical Advice in New Jersey Workers’ Compensation
Under N.J.A.C. 12:235-3.8, interrogatories are allowed in the following types of cases without motion (meaning, neither party is required to file a Motion for Leave to Serve Interrogatories with the Court): dependency cases (See N.J.A.C. 12:235-3.8(a)), re-opener cases (See N.J.A.C. 12:235-3.8(d)), and occupational exposure cases (See N.J.A.C. 12:235-3.8(f); for sample occupational interrogatories, click here).
Pursuant to N.J.A.C. 12:235-3.8(g), interrogatories may be allowed in other cases, upon motion, for good cause shown. Examples of cases where a motion for interrogatories may be filed are COVID-19 cases, medical provider cases, or certain types of denied cases where further information is being sought by the Respondent due to a disputed issue in the claim.
Situations where Respondents may consider filing a Motion for Special Interrogatories are cases where there is a specific issue or dispute requiring further clarification and investigation. Special Interrogatories may be used to obtain critical information of a discovery or factual nature that either party needs to prove its case.
While interrogatories are only allowed without a Motion in dependency, re-opener, and occupational exposure cases, respondents can also file Motion for Leave for Special Interrogatories in other cases, and special interrogatories are under-utilized in New Jersey workers’ compensation. For a client and practitioner, one never wants to start trial without pinning down key facts that could make or break one’s case. Trial by surprise remains a risky endeavor. Practitioners should consider filing Motions for Leave to Serve Special Interrogatories in those cases where there is a factual dispute or issue worth investigating.
While most cases in New Jersey workers’ compensation involve traumatic accidents where interrogatories are not allowed without Motion (and granting of the Motion), consider a situation where the authorized treating physician notes that the injured worker had a skiing accident three years ago in Vermont. In this instance, Respondent should consider filing a Motion for Special Interrogatories seeking further, and specific information, from the injured worker about the prior out-of-state accident, including names and addresses of all treating physicians, the nature of the injury, etc.
Respondent may wish to investigate petitioner’s subsequent/ additional employment, and in that instance, a set of interrogatories could be served seeking information regarding a claimant’s second job, including job duties, earnings, and employment information.
Another example of where special interrogatories would be useful is a situation where there is a dispute over ownership and control of an area. In this instance, interrogatories could be served seeking to obtain deeds and/or tax records and other documents to demonstrate ownership and control, or lack of ownership or control.
In those cases with disputed coverage or policy issues, interrogatories could be served seeking policy documents, cancellation notices, and other documents regarding proper cancellation of coverage.
The ultimate goal with filing a Motion for Leave to Serve Special Interrogatories is to obtain a Court Order granting the Motion, and more importantly, having the Order provide that the requested answers to interrogatories be provided within a certain time frame, such as thirty, forty-five, or sixty days. Then, if the answers are not provided within that designated timeframe, Respondent can file an appropriate motion. Parties and practitioners on both sides should be aware of how important interrogatories can be to centralize the issues.
Turning to those situations where answers to interrogatories are allowed without Motion, we first look at inquiries posed in dependency cases. These inquiries ask the alleged dependent to supply proof of dependency to the decedent, including the manner of relationship between the alleged dependent and decedent, as well as evidence that the decedent’s death was work related. These interrogatories also inquire as to the nature of any financial dependency the alleged dependent had with the decedent prior to the decedent’s passing. Dependency Claim Petitions and filing requirements are subject to N.J.S.A. 34:15-51, which require that a Dependency Claim Petition must be filed within two years of the decedent’s death.
In re-opener cases, inquiries are posed to petitioner regarding any treatment since the entry of the prior Award, including details regarding physicians and the nature of any treatment since the entry of the prior Award. Petitioners are asked to identify any subsequent employment held since the entry of the prior Award, including job duties at any new / subsequent positions. An inquiry is made regarding any new relevant accidents / injuries or claims and any new Awards or settlements. Essentially, these interrogatories are seeking information regarding any new injuries, incidents, or treatment since the entry of the prior Award. It is worth noting that any re-opener application must be filed within two years of the last date of payment made to petitioner, pursuant to N.J.S.A. 34:15-27. If the re-opener application is filed more than two years after the last date of payment or treatment date if treatment is rendered, Respondent should seek a dismissal of the matter pursuant to Section 27.
In occupational exposure cases, a standard set of respondent occupational interrogatories can be found on the NJ Department of Labor’s website, as noted above. In this practitioner’s opinion, the most important inquiry is Number 10: “Set forth the date and circumstances under which the petitioner became aware that the claimed injuries resulted from his employment”. Under N.J.S.A. 34:15-34, a petitioner in an occupational disease claim must file the petition within two years after the date on which the petitioner first knew the nature of the disability and its relation to the employment. For example, if petitioner files an occupational Claim Petition on January 1, 2022, and his response to Inquiry Number 10 states that he became aware of his claimed injuries and their alleged relationship to employment at any time prior to January 1, 2020, Respondent should utilize petitioner’s Answers to seek a dismissal of the claim pursuant to N.J.S.A. 34:15-34. Often, the Answer to Inquiry 10 is something along the lines of, “I became aware of my issues and their relationship to work upon consultation with my attorney”, but if a specific date is noted, Respondent should compare the date listed in Inquiry 10 to the date of the filing of the Claim Petition.
With the increase of COVID-19 cases, this practitioner has seen interrogatories being posed both on petitioners and respondents. Often the interrogatories served by petitioner asks respondent to identify whether petitioner was an essential worker. There is very little guidance on who is an essential employee, so this is actually a complex legal question as proximity to the public is not defined in the Essential Employee Law.
Practitioners should not limit interrogatories to those cases where interrogatories are allowed without Motion, and should consider filing Motions for Leave for Special Interrogatories in cases where further information is needed to flesh out disputed issues.
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Maura Burk, Esq., is a Shareholder in Capehart Scatchard's Workers’ Compensation Group. Ms. Burk concentrates her practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation matters. If you have any questions or would like more information, please contact Ms. Burk at 856.840.4941 or by e‑mail at mburk@capehart.com.
One recurring question which adjusters and practitioners are often asked is this: in computing the workers’ compensation lien, does the employee get to reduce the employer’s lien by the amount the injured worker had to pay for costs and expenses in the third party action? Further, does the employee get to reduce the employer or carrier’s lien by the amount the injured worker paid in counsel fees in the workers’ compensation case?
Let’s deal with costs first. Many third party law suits are complex and require a substantial outlay of funds for depositions, experts and investigation. When it comes time to repay the workers’ compensation lien, some plaintiffs’ counsel will send the subrogation adjuster a ledger of all expenses paid in the third party case. Sometimes those costs can amount to many thousands of dollars.
Nonetheless, N.J.S.A. 34:15-40 only allows a reduction in the employer’s lien for costs up to $750. If the costs are only $300, then $300 is the reduction. But if the costs are well over $750, then the lien is only reduced by a capped amount of $750. Before the 2007 amendments to N.J.S.A. 34:15-40, the cost cap was only $250!
What about counsel fees in the workers’ compensation case paid by the employee to his or her own attorney? Let me provide a scenario to make this situation clearer. Suppose Employer pays $150,000 in workers’ compensation benefits, consisting of $50,000 in medical and temporary disability benefits and eventually $100,000 in permanent partial disability benefits. In New Jersey the petitioner’s attorney is entitled to a fee of 20% of the gross workers’ compensation award. So on a $100,000 workers’ compensation award, the legal fee will be $20,000. Who pays the $20,000 in petitioner’s counsel fee on a percentage award? The answer is that the employer pays 60% of the injured worker’s legal fee and the injured worker pays 40% of that fee. In the above scenario, that means that petitioner is paying her attorney $8,000 from her award and the employer or carrier in the workers’ compensation case is paying $12,000 toward petitioner’s attorney’s fee for a total of $20,000.
The third party case settles for $400,000 before the permanency aspect of the case settles. The attorney in the third party sends a check to the employer for two thirds of $50,000 minus $750 for costs. That takes care of the lien on the medical and temporary disability benefits. The statutory costs have also been resolved. The permanency award settles next for $100,000. Does the employer have a lien on $100,000 or on $92,000. (Remember, the employee paid her lawyer $8,000 from the $100,000 compensation ward). The employee may argue that she did not receive $100,000 in the workers’ compensation award and therefore should not have to pay back two thirds of $100,000. Suppose the plaintiff’s attorney only offers to pay back two thirds of $92,000. Who is right here?
This issue was decided in 2021 in Panckeri v. Allentown Police Department, A-2015-19 (App. Div. March 2, 2021), reaffirmed, (App. Div. August 19, 2022). While this is an unreported case, the case is useful because the Appellate Division answered this very question head on. It affirmed the ruling of the Honorable Christopher B. Leitner, Judge of Compensation, who found that the permanency lien is based on the gross award in the compensation case. So the employer gets back two thirds of $100,000, not two thirds of $92,000. The Appellate Division said, “We further agree with the judge that had the Legislature intended to include the petitioner’s fees and costs in Section 40, it could have done so through the 2007 amendment or at any other time in the Act’s one-hundred-and-ten-year history.”
The Appellate Division made one other important point based on a prior case called Kuhnel. It said the employer cannot lien what it paid toward the workers’ compensation counsel fee of petitioner. In our example above, even though the employer paid $12,000 toward the injured workers’ counsel fee, the employer cannot add that $12,000 to its lien and seek repayment of $112,000 in our scenario above. The employer’s lien is based on the gross permanency award, which was $100,000 in our scenario. It is not reduced by what the injured worker had to pay her attorney nor increased by what the employer had to pay toward the legal fee of petitioner’s attorney.
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John H. Geaney, Esq., is a Shareholder and Co-Chair in Capehart Scatchard's Workers’ Compensation Group. Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at jgeaney@capehart.com.
Practical Advice in New Jersey Workers’ Compensation
A reader reached out asking about the terms and abbreviations often used in the workers’ compensation practice. Below is a glossary of these abbreviations and phrases often used (listed generally in the order in which they may appear as a case progresses).
“CP” – Claim Petition: This pleading is filed by the injured worker in workers’ compensation court when benefits (most often, permanency) are being claimed by the injured worker.
“MPC” – Medical Provider Claim Petition: In New Jersey, medical providers have the right to file their own petitions.
“FRI/FROI” – First Report of Injury: This form is completed by the employer after an accident. It generally outlines how the accident occurred and the injured workers’ injury(ies). This form gets filed with the Division. (For suggestions regarding what types of inquiries and items may be incorporated into an FRI/FROI and could be asked of the injured worker, please contact the undersigned at mburk@capehart.com or John H. Geaney, Esq. at jgeaney@capehart.com.)
“IW” – Injured Worker
“TTD” – Temporary Disability Benefits: For more information regarding TTD issues, please read our prior blog post entitled, Advice To Employers In Dealing With Complex TTD Scenarios.
“TDB” – Temporary Disability Benefits: These are benefits issued by the State of New Jersey. This is also an abbreviation for “New Jersey Temporary Disability Benefits.” In certain circumstances, an employee may receive State TDB benefits instead of TTD from the employer. In these cases, a lien will likely be filed by the Division of Temporary Disability Insurance in the workers’ compensation case.
“ROC” – Rate of Compensation: This refers to petitioner’s rate of TTD and the amount which is paid weekly while petitioner is out of work and receiving TTD benefits.
“RTW” – Return to Work: This is often used in conjunction with TTD (discussed above).
“LD” – Light Duty: Practitioners may also see the terms “mod duty,” “MD” or “modified duty.” “AD” – Alternative Duty may be used as well.
“FD” – Full Duty
“FCE” – Functional Capacity Evaluation: This may also be referred to as a fitness for duty examination. An FCE may be ordered by a treating physician to better assess return to work status and return to work potential/abilities.
“MA” – Medical Authorization: An MA signed by the injured worker is needed in order to obtain medical records from prior physicians during respondent’s investigation.
“ISO”: Refers to a New Jersey-based national company that searches for prior claims information. This used to be called a “CIB”.
“NCM” – Nurse Case Manager: In certain circumstances, a nurse case manager may be assigned to an injured worker’s case to assist with medical scheduling, appointments, exams, and treatment.
“CMS” – Center for Medicare Services: Medicare’s interests must be considered and protected in workers’ compensation claims and settlements.
“MSA” – Medicare Set Aside: An MSA must be obtained in certain types of settlements if the employee is a Medicare recipient or Medicare-eligible.
“CPL” – Conditional Payment Lien: MedicareCPL information must be obtained in settlements if the employee is a Medicare recipient or Medicare-eligible.
“HMS” – Health Management Systems: This is the Medicaid counter-part to Medicare’s CMS.
“Rogs” or “Roggs” – Interrogatories: Interrogatories may be served seeking additional information in occupational exposure, re-opener, dependency, and certain other types of cases.
“MMT” – Motion for Medical and/or Temporary Disability Benefits: This may be filed by an injured worker during a case if he is seeking additional TTD or treatment.
“RMI” – Request for Medical Information OR “DMI” – Demand for Medical Information: When one party seeks medical discovery from another party.
“IME” – Independent Medical Evaluation: This generally refers to an exam by either petitioner or respondent where a physician will address causation and treatment issues (often during treatment) or address causation and permanency issues (once treatment has concluded).
“PPD” – Permanent Partial Disability: These are benefits which are awarded to a petitioner at the end of the case depending on the amount of permanency petitioner is able to demonstrate. This may also see this abbreviated as “perm.”
“OAS” – Order Approving Settlement: This is one of two ways a case may settle. In Orders Approving Settlement, the petitioner’s case resolves for a specific percentage of disability and the petitioner retains the right to reopen for future benefits. Corresponding with the level of disability, the percentage award is paid over a certain number of weeks.
Readers with questions regarding workers’ compensation terms and phrases, or general questions about practical guidance and workers’ compensation tips may contact the undersigned at mburk@capehart.com.
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Maura Burk, Esq., is a Shareholder in Capehart Scatchard's Workers’ Compensation Group. Ms. Burk concentrates her practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation matters. If you have any questions or would like more information, please contact Ms. Burk at 856.840.4941 or by e‑mail at mburk@capehart.com.
Fresh on the heels of COVID-19, reports of monkeypox outbreaks in the United States are starting to get the attention of employers. Monkeypox is a rare disease caused by infection with the monkeypox virus. Monkeypox symptoms are like smallpox symptoms, but milder and rarely fatal.
Monkeypox will not rise to the level of a pandemic because it does not transmit as quickly as the coronavirus and stopping it will not require dramatic interventions like the COVID-19 lockdowns.
The White House recently declared the virus a public health emergency with over 7,000 confirmed cases in the U.S. A county in California declared monkeypox a public health emergency earlier this week with 59 probable/confirmed cases within that county.
A news release from the Alabama Department of Public Health said as of August 8, 2022, there were 19 cases of monkeypox in Alabama.
As with COVID-19, it is conceivable that workers’ compensation claims will be made for monkeypox. For the same reasons that COVID-19 WC claims were denied in Alabama, claims for monkeypox will also likely be denied.
In Alabama, an occupational disease is defined as “a disease arising out of and in the course of employment… which is due to hazards in excess of those ordinarily incident to employment in general and is peculiar to the occupation in which the employee is engaged but without regard to negligence or fault, if any, of the employer.”
Therefore, for the monkeypox virus to be considered compensable in Alabama, the employee would have to be able to prove that contracting it was due to hazards in excess of those ordinarily incident to employment in general and that it is peculiar to the employee’s occupation.
It will be difficult for an employee to show that contracting the virus resulted from a risk of employment. The reason being that, like the flu, you face the same sort of risk when you go home or when you walk about in public. Some state laws have presumptions for health care workers or first responders. Alabama is not one of those states. Without a statutory presumption in place, it would be nearly impossible to prove causation.
About the Author
This blog submission was prepared by Mike Fish, an attorney with Fish Nelson & Holden, LLC, a law firm dedicated to representing self-insured employers, insurance carriers, and third-party administrators in all matters related to workers’ compensation. Fish Nelson & Holden is a member of the National Workers’ Compensation Defense Network. If you have any questions about this submission or Alabama workers’ compensation in general, please contact Fish by e-mailing him at mfish@fishnelson.com or by calling him directly at 205-332-1448.
Attorney Alison Stewart has been appointed to serve a second
term on the Workers’ Compensation Section Council of the Iowa State Bar
Association (ISBA) for 2022-2023. The ISBA is a vibrant organization due in
large part to its volunteers. This will be Alison’s second term of service on the Council.
The purpose of this ISBA Section is to provide an organization in which members who have an interest in workers' compensation can meet for discussion and exchange of ideas; to provide an opportunity for discussion and exchange of ideas leading to improvement of the abilities of its members to practice in this field; and to assist the Worker's Compensation Commissioner in establishing rules and procedures for the more certain and expeditious disposition of matters coming before the Commissioner.
Written by: Matt Marriott
Over the last year, we have seen an uptick in claimant attorneys requesting a second opinion on treatment options under N.C. Gen. Stat. § 97-25(b) and that defendants 1) issue a prepayment for that visit and 2) pay beyond the NCIC fee schedule amount for the visit.
Claimant attorneys argue there are not any medical providers in North Carolina who will accept payment of just the fee schedule amount for second opinion visits and do not require any prepayment. Therefore, they contend they are being deprived of their right to a second opinion on treatment options under N.C. Gen. Stat. 97-25(b) if defendants do not pay a prepayment as well as more than the fee schedule amount for the visit. Additionally, many attempt to argue that the NCIC Fee Schedule does not specifically lay out a billing code for second opinion on treatment options visits under N.C. Gen. Stat. 97-25(b).
While there is no binding case law from the NC Court of Appeals or Supreme Court on these issues, the Full Commission issued a decision in May 2022 that provides a comprehensive analysis explaining:
Commissioners Taylor, Phillips, and Goodman explained in Wyatt v. The Golden Mint, Inc., I.C. No. 20-038523 (May 2022), that N.C. Gen. Stat. § 97-90 continues to prevent medical providers from forcing defendants to pay any kind of prepayment for a visit. The Commission specifically stated:
The charges assessed by healthcare providers for medical compensation under the Act are subject to the approval of the Commission. N.C. Gen. Stat. § 97-90(a) (2021). No “physician or hospital or other medical facilities shall be entitled to collect fees from an employer or insurance carrier until he has made the reports required by the Commission in connection with the case.” Id. “[A] request for a specific prior approval to charge shall be submitted to the Commission for each such fee or charge.” Id. Any health care provider who willfully or intentionally undertakes to submit charges for health care that was not furnished is subject to an administrative penalty, assessed by the Commission, not to exceed ten thousand dollars. N.C. Gen. Stat. § 97-88.3(a)(1) (2021). The clear intent of N.C. Gen. Stat. §§ 97-26 and 97-90 “is to assure that medical and related expenses incurred by an injured employee for which the employer or his insurance carrier is to be liable shall be kept within reasonable and appropriate limits, and the responsibility for the enforcement of these limits rests upon the Industrial Commission.” Morse v. Curtis, 20 N.C. App. 96, 99, 200 S.E.2d 832, 834 (1973), cert denied, 285, N.C. 86, 203 S.E.2d 58 (1974). Wyatt at 9-10.
In addition to confirming in Wyatt that N.C. Gen. Stat. § 97-90 prevents defendants from being compelled to pay a prepayment for a second opinion, the Commission also confirmed N.C. Gen. Stat. § 97-26 prevents defendants from having to pay beyond the fee schedule for a N.C. Gen. Stat. § 97-25(b) second opinion evaluation on treatment options. The Commission held:
N.C. Gen. Stat. § 97-26(a) requires the Commission to adopt by rule a schedule of maximum fees for medical compensation. The Commission, pursuant to that mandate and in compliance with the North Carolina Administrative Procedure Act, 150B et seq., has adopted 11 NCAC 23 Subchapter J Fees for Medical Compensation. 11 NCAC 23J .102(b)(1) sets the maximum reimbursement rate for professional services for evaluation & management at 140 percent of the Medicare base amount. While the Act also contemplates instances in which the fee schedule does not apply to a particular type of service and in those instances, the maximum reimbursement to which the provider is entitled is “the usual, customary, and reasonable charge for the service or treatment rendered,” this option is only available when the Fee Schedule does not apply. See N.C. Gen. Stat. § 97-26(c) (2021). The Commission, in its discretion, takes judicial notice of American Medical Association, Current Procedural Terminology (CPT®) (4th ed. 2019) and specifically the full description of CPT code 99456. Id. at 43. Pursuant to the North Carolina Rules of Evidence, the Commission concludes that this information is capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. See N.C. Gen. Stat. §8C-1, Rule 201(b) and (c). In this instance, the fee schedule’s enumeration of services for “evaluation & management” and the CPT code 99456 description in its entirety contemplates examination by a non-treating physician with a medical history, exam with a diagnosis, assessment of capabilities and impairment, “development of future medical treatment plan; and completion of necessary documentation . . . .” A 97-25(b) second opinion examination encompasses an extensive medical history, a physical exam, diagnosis, assessment of capabilities and impairment, and development of future medical treatment plan. Thus, the Medical Fee Schedule and specifically CPT code 99456 contemplate and encompass the professional services involved in a second opinion examination. Wyatt at 8-9.
After verifying that defendants do not have to pay beyond the fee schedule for a second opinion evaluation on treatment options under N.C. Gen. Stat. § 97-25(b), the Commission established that $301.23 was the correct amount under the fee schedule for a second opinion under N.C. Gen. Stat. § 97-25(b), as laid out in CPT code 99456.
A decision from the Full Commission is not binding case law in the same way an opinion from the NC Court of Appeals or Supreme Court would be. With that said, Wyatt establishes that the Full Commission sides with defendants about not being responsible for any kind of prepayment when a plaintiff requests a N.C. Gen. Stat. § 97-25(b) second opinion evaluation on treatment options, and about not being responsible for payment beyond the fee schedule for such a visit.
While this issue remains a hot topic and could evolve in the future once the appellate courts address the issue, for now, defendants are within their rights to not issue any prepayment or pay beyond the fee schedule when a plaintiff attorney is demanding that those conditions be met.
Finally, based on Wyatt, CPT code 99456 is the correct billing code to apply to a second opinion evaluation under N.C. Gen. Stat. § 97-25(b), and the correct fee schedule amount is $301.23 for such a visit.