State News

A Judgment Disorder

“He who represents himself has a fool for a client.” That morsel of legal wisdom, well-known among those in the profession, is generally attributed, perhaps apocryphally, to Abraham Lincoln. Well, if the gentleman from Springfield ever did say it, no one bothered to tell Phyllis Lee.  

Ms. Lee, was a Grand Prairie ISD employee. Without legal counsel, she filed a petition for judicial review of a Decision and Order and Appeals Panel affirmance that her injury does not extend to or include “adjudgment disorder” (whatever that is) along with “depressed mood, psychological factors adversely affecting medical conditions, or major depression.” She further accused the School District of “due process violations, fraud, and conspiracies” committed against her.  

The school district scored a victory at the trial court level, where Ms. Lee’s suit was dismissed summarily for not having been filed within the thirty days allotted under the Administrative Procedure Act (APA). But the Austin Court of Appeals sided with the still-unrepresented Ms. Lee, reversing the decision and remanding the case back to the trial court. The Court of Appeals confirmed that Ms. Lee’s deadline to file her petition was forty-five days under Texas Labor Code Section 410.252, which is the statute that applies to all Appeals Panel decisions, and not thirty days per Section 2001.176 of the APA.  

So, this time, anyway, it seems Lee got the better of Lincoln.  

Copyright 2024, Stone Loughlin & Swanson, LLP

One Big Trucking Fraud

Frances Hall, the widow of San Antonio-based trucking mogul Bill Hall, Jr., was sentenced to ten years deferred adjudication and ordered to pay $150,000.00 in restitution for her role in a workers’ compensation fraud on July 10 by the 147th District Court in Austin pursuant to a plea agreement entered the prior May.  She is also ordered to undergo unspecified “treatment,” per the probation department’s recommendation.  

Mrs. Hall co-founded Bill Hall Jr. Trucking with her husband. The Division’s fraud unit found that Mrs. Hall underreported payroll information and concealed payroll reports to her workers’ compensation insurance carrier between 2006 and 2016, which allowed her to avoid paying approximately $9 million in work comp premiums. 

Mrs. Hall was convicted in September 2016 of felony murder in the death of her husband, but received only a two-year prison sentence. She has since been released.

Copyright 2024, Stone Loughlin & Swanson, LLP

CGI (Computer-Generated Impairment)

On July 15, the DWC revealed its proposed revision to Texas Administrative Code §133.30, “Telemedicine, Telehealth, and Teledentistry Services.” The change would permit treating doctors (not Designated Doctors or Required Medical Examiners) to perform MMI evaluations remotely via telemedicine. The certifying doctor would only be permitted to determine if MMI has been attained and, if so, to provide a determination of no permanent impairment. The rule change specifies that “The term (telemedicine services) does not include an examination to assign an impairment rating” under Rule 130.1.  

The new “telecertification” Rule references Rule 130.2, subsection (a)(2), which currently allows a treating doctor to provide an MMI certification without scheduling an examination, so long as the injured employer has been released from treatment without the expectation of further treatment and is not receiving Temporary Income Benefits.  

Thoughts on the rule draft can be submitted to RuleComments@tdi.texas.gov by 5:00 p.m. on August 12, 2024.  

Copyright 2024, Stone Loughlin & Swanson, LLP

Temporary Total Disability (TTD) Benefits and Credit for Wages Paid
General Motors, LLC v. Giovanni Smith, 2024-CA-0367-WC (7/12/24 KY Court of Appeals, To Be Published, not final)
 

Smith was employed by GM for 13 years working on the assembly line. In February of 2021, he began having pain in his right hand and wrist which he reported in March. He was pulled off the line on August 10, 2021 due to his injury and moved to a different position until March 29, 2022, when he first went off work. He underwent carpal tunnel surgery on July 13, 2022 and was released to full duty, without restrictions, on September 12, 2022. He returned to a different position following surgery and testified that he did not believe he could return to his pre-injury position. Smith testified that his position from August 2021 through March of 2022 involved cleaning and make-work projects, or no work at all. Dr. Bloemer (PL IME) diagnosed an arthritic condition as well as CTS due to work, opining that Smith is incapable of returning to his pre-injury position. Dr. Nicoson (Def IME) found the CTS to be work-related but felt the arthritis was not. He assessed permanent restrictions that would not prevent a return to the pre-injury position. Both doctors agreed that Smith reached MMI on October 13, 2022.
 
The ALJ awarded TTD from August 1, 2021 to October 13, 2022, with no credit for wages paid and PPD benefits with a 3x multiplier. GM appealed, arguing that TTD should not begin until March 29, 2022 or, in the alternative, that they should receive a credit for wages paid during this time. The Court of Appeals affirmed the TTD award, finding that Smith was not at MMI and had not reached a level of improvement that would permit a return to employment. The Court also upheld the denial of the credit because GM failed to provide paystubs showing the net wages after taxes. GM also appealed the application of the 3x multiplier. The Court of Appeals upheld the award of the 3x multiplier, finding that the substantial evidence supported the award.

The Governor signed SB 206 affecting workers compensation. It is effective 1/1/25.

NOTICE. The notice deadline in section AS 23.30.100(a) has been shortened from 30 days to 15 for Employee to report the injury to Employer.

REEMPLOYMENT: While the Board has to notify people of their rights sooner, the time frames for Employer’s mandatory referral was extended from 90 days to 120 days. The tuition amount went up to $22,150 and can be adjusted every 5 years to account for inflation. The SCODDOTS are replaced with the OIN database published by the US Dept of Labor. This is more objective than having rehab specialists develop job descriptions in every claim. This is a good change—updated objective job descriptions including jobs that didn’t exist back in the day when SCODDOTs were created.

A major change is the adoption of a “stay at work” program as AS 23.30.043. It will be developed by the rehab specialist and provided to the employee, employee, program coordinator, and attending physician. The board has to adopt regulations to develop the standards and procedures a rehab specialist must use to develop the stay at work plan. It is apparent that the employer will need to be responsive and be involved in this process. Fortunately, there is an opt-out provision. An employer may elect not to participate or continue to participate in the stay at work plan at any time before completion of the plan. This section is vague, with the discretion left to the board to implement regulations and procedures.  This is a process that we should try to be involved in as employer representatives and provide perspective on how this will impact real life. 

In addition, a last minute addendum was tacked on that resulted in a major change is the presumption of compensability for PTSD for a number of professions mostly related to first responders. AS 23.30.118. The notice timeline, presumption standard and rebuttal standard are all altered by this bill.

 The PTSD has to be diagnosed by a psychologist or psychiatrist. The diagnosis must come within 3 years after the last day of employee’s employment. We are not sure where/why this timeline came from as it is different from 2-year latent injury, and it doesn’t seem to be tied to any particular event, just general employment as a reason in one of the identified positions is sufficient to trigger the presumption of compensability. It also eliminates the comparison with others in a similar role. A broad category that it may apply to is “employees who are certified under state law to perform emergency medical services.” It appears broad enough to potentially include home health care workers and medical providers.

 Relevant definitions are in AS 18.08.200:

(9) “emergency medical services system” means a system that provides for the arrangement of personnel, facilities, and equipment for the effective and coordinated delivery of health care services, including trauma care, under emergency conditions, occurring either as a result of the patient's condition or of natural disasters or similar situations, and that is administered by a statewide network that has the authority and resources to provide effective administration of the system;

(13) “provider of emergency medical services” means a person whose occupation or profession is, or has been, the delivery or administration of emergency medical services; a person who has a fiduciary position with, or has a fiduciary interest in, a health activity, facility or other health agency, or a legal or financial interest in the rendering of any component of emergency medical services.”

Once the presumption has attached, there is a secondary change in the legal standard for rebuttal. The phrase “may be rebutted by a preponderance of the evidence that the employee’s PTSD resulted from factors that were not work related” is problematic because it means that we cannot controvert based on “substantial evidence.” Preponderance of the evidence is a factual determination by a trier of fact. This means that once the presumption of compensability is triggered by a psychologist or psychiatrist as minimally as, “Jane Doe has been diagnosed with PTSD and is unable to work. She was a nurse within the last 3 years,” there is no ability to controvert and the claim must go to hearing to establish whether the preponderance of evidence demonstrates that the PTSD resulted from factors that are not work related. The presumption for compensability “may be rebutted by a preponderance of the evidence that the employee’s PTSD resulted from factors that were not work related.” This appears to create an entirely new standard when compared to AS 23.30.010(b) which is that the work stress must be the predominant cause of the work injury.

In a practical application it means that large groups of first responders could all be taken off work at once with no recourse for Employers until after a merits hearing (which can take 9 months or more). There are also likely butterfly effect ramifications and increased stress that will result from understaffing. Without the comparison and controversion abilities there is little opportunity for mitigation. This portion of the legislation really deserved public comment and more thought.

In a Petition filed January 23, 2023, claimant alleged that she developed Chronic Inflammatory Response Syndrome (“CIRS”) as a result of mold exposure at her workplace. Claimant suffered from a variety of treatment resistant symptoms and was diagnosed with CIRS by her functional medicine physician, Dr. Matta. His theory was that mold in claimant’s workplace was causing her chronic symptoms. Her employer, Athletico Physical Therapy, argued that CIRS is a broad diagnosis with many potential causes, and that it would be impossible to identify the origin of the symptoms and whether the diagnosis stemmed from the workplace or if its roots were elsewhere. 

In order to prove that her CIRS was an occupational illness, claimant needed to establish that the CIRS was a natural incident of her occupation at Athletico Physical Therapy, such that working there presented a risk that was distinct and greater than employment in general; however, evidence brought to light at hearing poked holes in the idea that her condition began at work.

Testimony by claimant’s treating physician and the employer’s medical expert, Dr. Gelman, revealed that her blood contained traces of twelve types of mold, only four of which were found at her job; the mold that was found at her job was common to indoor environments and only slightly above the normal range; her workplace and around her home displayed similar quantities of the same types of mold; and the mold that had the highest concentration in her blood was not present at her workplace. Additionally, claimant had a plethora of other medical conditions that could have contributed to a CIRS diagnosis, and her symptoms began while she was on vacation in Florida - not while she was at work. Lastly, Dr. Matta conceded under cross-examination that he could not identify which of the twelve types of molds found in claimant’s blood were the actual cause of symptoms, nor could he exclude any as the culprit.  Because of these reasons, the Board denied the Petition outright, stating that claimant had failed to show that the conditions in her workplace were a distinct hazard, worse than employment in general and capable of leading to a diagnosis of CIRS on their own.

 Should you have any questions regarding this decision, please contact Nick Bittner, or any other Attorney in our Workers’ Compensation Department.

Elena Doherty v. Athletico Physical Therapy, IAB No. 1532122 (May 29, 2024)

In a recent decision, the Florida First District Court of Appeal reaffirmed that the payment of fees and costs to a claimant’s attorney is not a benefit within the meaning of the workers’ compensation statutes which serves to toll the statute of limitations. American Airlines Group v. Lopez, 2024 WL 2306999 (Fla. 1st DCA May 22, 2024). As an initial matter, Section 440.19(1), Florida Statutes provides that all petitions for benefits are barred unless they are filed within two years of the date on which the injured employee knew or should have known that their injury arose out of work performed in the course and scope of their employment. Section 440.19(2) provides that payment of any indemnity benefit or the furnishing of medical treatment tolls the statute of limitations for one year from the date such benefits were provided. In other words, the applicable statute of limitations period in Florida is the later of two years from the date of the accident or one year from the date of the last indemnity payment or authorized treatment.

In the Lopez case, the claimant suffered a compensable accident on August 8, 2019, and filed two petitions for benefits on July 24, 2020. The Employer/Carrier/Servicing Agent provided both medical and indemnity benefits. The last medical bill was paid September 22, 2020, and the last indemnity payment was made November 13, 2020. The issue of entitlement to attorney’s fees and costs remained pending from the claimant’s July 24, 2020 petitions, though this was resolved via stipulation on April 28, 2021, and the stipulation was approved by the Judge of Compensation Claims on May 3, 2021. On December 1, 2021, more than two years after the subject accident and more than one year after the last medical or indemnity payment, the claimant filed another petition followed by a third petition on June 6, 2022.[1] The E/C/SA asserted a statute of limitations defense, which was rejected by the JCC on the grounds that the payment of attorney’s fees is considered a monetary benefit to the claimant, which tolled the statute of limitations for one year.   

On appeal, the First DCA held that the JCC erred in holding that payment of attorney’s fees and costs is a “benefit” which has the effect of tolling the statute of limitations. The court applied the statutory interpretation principle of expression unius est exclusion alterius – the expression of one thing is the exclusion of another – in holding that the statute clearly sets forth the two events which serve to toll the statute of limitations: payment of indemnity benefits or furnishing authorized medical treatment. By expressly including these two events in the statute, the court reasoned that the Florida legislature necessarily excluded all others. Accordingly, as payment of an attorney’s fee is not payment of indemnity benefits or furnishing medical treatment, the statute of limitations had run, and the claimant’s petitions were untimely and barred.

A misunderstanding of a key fact can doom an expert opinion.  That was the situation in V.S. v. Spectrum360, No. A-0710-23 (App. Div. June 24, 2024). The petitioner, a special education teacher, was working on July 26, 2021, when a student kicked her in her left breast.  Petitioner felt pain, tenderness, extreme redness and blood clotting in her left breast.

A medical examination on the date of the incident was consistent with a contusion to the left breast.  V.S. had undergone breast augmentation surgery in 2011.  Since then, petitioner admitted that she had gained a “significant amount of weight,” which augmented her breast size.  Petitioner’s board certified plastic surgeon, Dr. Boris Volshteyn, suspected that V.S. “sustained a fracture of the silicone implant on the left side.”  He sent her for an MRI on September 30, 2021.  Dr. Volshteyn said that the MRI “demonstrated significantly increased folding of the implant on the affected left side compared to the right side.”  He attributed the changes in her left breast to the work incident and recommended breast reconstruction surgery and removal and replacement of both breast implants to repair what he thought was a slow leak rupture of the left breast implant.

Petitioner filed a motion for medical treatment seeking breast reconstruction surgery. Respondent sent petitioner for a second opinion with Dr. Beverly Friedlander, a board certified plastic surgeon.  In a key distinction between the two plastic surgeons, Dr. Friedlander noted that petitioner did not have silicone implants, contrary to what Dr. Volshteyn had assumed.  Rather she had saline implants. She pointed out that if Dr. Volshteyn had been correct that petitioner had suffered a rupture or puncture of the left breast when kicked by the student, a deflation in the breast would have occurred rapidly with a saline implant.  When a saline implant is compromised, she said its contents will leak and reabsorb into the body quickly.  But that had not happened in this case.  Even petitioner agreed that there was no material difference in size after the accident between the left and right breasts. 

The experts also disagreed on the interpretation of the MRI results.  The MRI of the left breast showed evidence of folds in the left breast.   Dr. Volshteyn attributed this to the work incident, arguing that the MRI demonstrated “significantly increased folding of the implant on the affected left side compared to the right side.”  Dr. Friedlander read the same MRI but she did not notice in her examination any rippling in the left breast.  She added that ripples in breast implants are actually quite common.  She said that all breast implants ripple, and that if an implant is underfilled, the ripples are even more observable.  In her opinion, one implant was inflated more than the other implant, leading to surface irregularities. She concluded that the folds that showed on the MRI had nothing to do with the work injury.

The Judge of Compensation denied the petitioner’s motion, finding that Dr. Friedlander was more credible than petitioner’s expert.  The Appellate Division affirmed the dismissal.  It said, “The judge found Dr. Volshteyn erroneously believed V.S. had silicone – not saline – implants and that mistake regarding the composition of the implants undermined his overall opinion.” The Court felt that there was sufficient credible evidence for the Judge of Compensation to find Dr. Friedlander more credible in that petitioner’s left breast implant was intact and had not ruptured contrary to the opinion of Dr. Volshteyn.

As for petitioner’s complaint of more pain in her left breast after the accident, the Court noted that Dr. Friedlander had an explanation for this.  Petitioner had chronic pain related to a 2007 motor vehicle accident as well as lupus/rheumatoid arthritis.  Dr. Friedlander also said that petitioner had a history of discomfort in both breasts related to her significant weight gain since the time of her 2011 augmentation.

The Minnesota Supreme Court issued its ruling in Johnson v. Concrete Treatments, Inc. on May 29, 2024. The Court overruled the WCCA’s prior ruling that where potential intervenors’ interests had been extinguished and the employee’s attorney did not unequivocally establish representation of parties which had not intervened in the matter, the attorney could not make direct claims for their interests. Writing for a unanimous Court (minus Justice Hennesy, who had not yet joined the Court while this matter was being considered), Justice Procaccini held that “even if a medical provider itself is barred from bringing a claim for medical expenses because it sought to intervene after the statutory deadline, the employee’s right to assert a direct claim for those medical expenses endures.”

This essentially does away with the holding of  Duehn v. Connell Car Care, Inc. (WCCA 2017), where the WCCA concluded that the employee could not assert a claim for medical expenses owed to that medical provider because the employee’s attorney did not establish dual representation of the employee and the untimely intervenor at the hearing.

 Here is the decision in full:

 https://mn.gov/workcomp-stat/sup/Johnson%20Daniel%20-%20sup%20-%2024.html

 (Summary prepared by Attorney Lucas Cragg of Heacox Hartman)

Brooks v. Benore Logistics System, Inc., 442 S.C. 462, 900 S.E.2d 436 (2024).

In Brooks v. Benore Logistics System, Inc., the South Carolina Supreme Court reversed a 2022 ruling of the Court of Appeals and re-affirmed an already long-standing test for repetitive trauma claims. 442 S.C. 462, 900 S.E.2d 436 (2024). In Brooks, Respondent Claimant alleged a work-related repetitive trauma injury to his back. Appellant Employer denied Claimant’s claim. The Single Commissioner found the Claimant suffered a compensable repetitive trauma claim, but the Appellate Panel reversed. In reversing, the Appellate Panel held that in order to prove a compensable repetitive trauma injury under Section 42-1-172, a claimant must satisfy a two-prong test: (1) That the claimant’s job was “repetitive” in nature as defined by Section 42-1-160(F); and (2) That medical evidence supports a causal link between the repetitive work and the alleged injury.  The Court of Appeals reversed the Appellant Panel’s decision, holding that the Workers’ Compensation Commission did not have the authority to determine whether a claimant’s job was repetitive in nature. Specifically, the Court of Appeals explained that the two-part test announced by the Appellate Panel was unfaithful to the plain language of Section 42-1-172 in that it set an “extra hurdle” for claimants.

In reversing the Court of Appeals decision, the Supreme Court held that the Court of Appeals “erred in rejecting the appellate panel’s conclusion that Section 42-1-172 requires a two-prong analysis, specifically, (1) whether a claimant’s job activities are repetitive, as that term is defined in Section 42-1-160(F); and (2) whether the claimant establishes by medical evidence that there is a causal link between the repetitive work and the alleged injury.”  The Supreme Court explained that “it is self-evident that, to receive compensation for a repetitive trauma injury, a claimant must first prove his or her job is in fact repetitive.”  The Supreme Court acknowledged that “repetitive” is not explicitly defined in Section 42-1-172 but found direction from Section 42-1-160(F) which provides that any injury that occurs as a result of “a series of evidence in employment, of a similar or like nature, occurring regularly, continuously, or a frequent intervals in the course of such employer, over extended periods of time” is not compensable except as provided for in Section 42-1-172.  Because the General Assembly removed those types of injuries from the general “injury by accident” statute (Section 42-1-160), the Supreme Court utilized this as a definition of “repetitive” in applying the two-party analysis. Accordingly, while affirming in result, the Supreme Court reversed the Court of Appeals and re-established that compensability of an alleged repetitive trauma injury must be proven pursuant to the two-part test as outlined above.

As an additional aside, the Supreme Court affirmed the Court of Appeals’ finding that ergonomics studies may but used in meeting the first prong of the aforementioned test, but are inadmissible, unless conducted by a medical professional, as evidence for or against the second prong (causation).

Samual Paulino v. Diversified Coatings, Inc., 2024 S.C. LEXIS 100 (2024).

            In Samual Paulino v. Diversified Coatings, Inc., Samuel Paulino sustained an injury to his back while working as a custodian at Diversified Coatings, Inc. in February 2015. 2024 S.C. LEXIS 100 (2024). Despite undergoing surgery and extensive treatment, including physical therapy and pain management, Paulino continued to experience significant pain and limited mobility. His treating physicians assigned impairment ratings of 12% to his lumbar spine and 13% to his whole person, and his functional capacity evaluation indicated he could perform medium work duties with substantial limitations. At a hearing before the single commissioner, Paulino testified about his ongoing pain and inability to perform his job duties, which led the commissioner to find that he was permanently and totally disabled due to a greater than fifty percent loss of use to his spine.

The court of appeals reversed the workers' compensation commission's award, stating there was no medical evidence to support the finding of a fifty percent or greater loss of use. However, the Supreme Court of South Carolina reversed the court of appeals' decision, reinstating the commission's award. The Supreme Court found that the commission's decision was supported by substantial evidence, including medical records, functional capacity evaluation notes, and Paulino's testimony. The court emphasized that the commission's findings did not solely rely on medical impairment ratings but considered the entire record, demonstrating a comprehensive evaluation of Paulino's condition and its impact on his ability to work.

            Importantly, the Supreme Court disagreed with the employer’s argument that doctors’ medical impairment ratings are “virtually outcome determinative,” and that, in the alternative, even if ratings do not control, they are “clearly the paramount factor for the Commission’s consideration.”  In so holding, the Court reiterated its view that substantial evidence can support findings of permanent and total disability even when the claimant’s impairment rating alone would not. See, e.g., Linen, 286 S.C. at 68-70, 332 S.E.2d at 211-212 (affirming finding of fifty percent loss of use of the back based on other evidence in the record despite doctors assigning impairment ratings of 15% and 20%-30%); Lyles v. Quantum Chem. Co. (Emery), 315 S.C. 440, 445, 434 S.E.2d 292, 295 (Ct. App. 1993) (affirming finding of a fifty-eight percent disability to the back based on testimony from the claimant); Sanders v. MeadWestvaco Corp., 371 S.C. 284, 291-93, 638 S.E.2d 66, 70-71 (Ct. App. 2006) (affirming finding of forty percent disability to the back based on claimant's testimony despite a doctor assigning an impairment ratings of eighteen percent to the lumbar spine); c.f. Tiller v.  Nat'l Health Care Ctr. of Sumter, 334 S.C. 333, 340, 513 S.E.2d 843, 846 (1999) ("[M]edical testimony should not be held conclusive irrespective of other evidence."   (Quoting Ballenger v. S. Worsted Corp., 209 S.C. 463, 467, 40 S.E.2d 681, 682-83 (1946))).

Thomas Contreras v. St. John’s Fire District Commission, 442 S.C. 596, 900 S.E.2d 463 (Ct. App. 2024).

              In Thomas Contreras v. St. John’s Fire District Commission, Thomas Contreras, a firefighter, sought workers' compensation for injuries sustained to his right shoulder, arm, and clavicle. 442 S.C. 596, 900 S.E.2d 463 (Ct. App. 2024). The South Carolina Workers' Compensation Commission initially awarded permanent partial disability (PPD) compensation solely for his right shoulder, based on medical evidence and evaluations. Contreras contested this decision, arguing that his injuries extended to his arm and clavicle, which would entitle him to broader disability benefits under South Carolina law. The Appellate Panel, tasked by the court to provide specific findings on each affected body part, initially upheld the single commissioner’s decision but faced subsequent appeals challenging the weight given to medical forms and the extent of Contreras's injuries.

Contreras contended that his right arm and clavicle were also impaired, presenting medical evidence and expert opinions supporting additional disabilities beyond the scheduled injury to his shoulder. Despite his arguments, the Appellate Panel affirmed its original decision, emphasizing that the medical records and evaluations did not sufficiently establish impairments to the arm and clavicle beyond the shoulder. The court upheld the Appellate Panel’s decision, citing substantial evidence supporting the limitation of compensation to the scheduled injury of the right shoulder under South Carolina's workers' compensation laws. This case underscores the importance of detailed medical evidence and the Appellate Panel's authority in determining the extent of disabilities in workers' compensation cases.

Ana Galvan v. Griffin Stafford North Charleston, 2024 S.C. App. Unpub. LEXIS 15

Claimant presented a supplemental report from an unauthorized doctor after the statutory period allowed for the submission of APAs. The Hearing Commissioner allowed the report to be introduced after deciding to hold the record open. Defendants argued that such submission was contrary to the statutory requirements for APA submissions. The Court of Appeals held that Regulation 67-612(E) grants the Commission discretion to hold the record open, and that “it is an abuse of discretion for a commissioner to reject evidence when its admission does not cause prejudice.”  See Morgan v. JPS Automotives, 321 S.C. 201, 203-04, 467 S.E.2d 457, 459 (Ct. App. 1996). The Court of Appeals held no such prejudice existed as the Hearing Commissioner offered Defendants the opportunity to depose the doctor and Defendants declined.

Michael Crowley v. Darlington County, 2024 S.C. App. Unpub. LEXIS 223

            Deputy Michael Crowley sustained two admitted injuries to his right knee and back while employed with Darlington County in 2017 and 2018. In Jan. 2021, Defendants filed a Form 21, which included a report from Dr. James Bethae date December 17, 2020. Claimant’s Counsel objected to the submission of this report pursuant to S.C. Code Ann. Section 42-15-95(c) because Defendants had failed to notify Claimant’s Counsel of their October 27, 2020, pre-IME letter to Dr. Bethae and accompanying medical records. Defendants argued that Section 42-15-95 did not apply in this instance as no doctor-patient relationship had been established between Dr. Bethae and the claimant at the time of the October 27, 2020, IME letter given Dr. Bethae had not examined or treated the claimant. The Hearing Commissioner admitted the report and the claimant appealed.

Section 42-15-95 provides the following:

(B) A health care provider who provides examination or treatment for any injury, disease, or condition for which compensation is sought . . . may discuss or communicate an employee's medical history, diagnosis, causation, course of treatment, prognosis, work restrictions, and impairments with the insurance carrier, employer, their respective attorneys or certified rehabilitation professionals, or the commission without the employee's consent. The employee must be:

(1) notified by the employer, carrier, or its representative requesting the discussion or communication with the health care provider in a timely fashion, in writing or orally, of the discussion or communication and may attend and participate. This notification must occur prior to the actual discussion or communication if the health care provider knows the discussion or communication will occur in the near future;

(2) advised by the employer, carrier, or its representative requesting the discussion or communication with the health care provider of the nature of the discussion or communication prior to the discussion or communication; and

(3) provided with a copy of the written questions at the same time the questions are                                                                                                   submitted to the health care provider. The employee also must be provided with a copy of the response by the health care provider.

Section 42-15-95(C) provides that “[a]ny discussions, communications, medical reports, or opinions obtained in violation of this section must be excluded from any proceedings under the provisions of this title.”

            The Court ultimately found that Defendants had violated Section 42-15-95 because “the purpose of the statute is for providers to exchange information with employers rather than an employer to provide a claimant’s medical records to a provider not known to the claimant, as occurred here.”  However, the Court also determined that the admission of Dr. Bethae’s report was harmless error.

The issue here is the interpretation of the words “not known to the claimant.”  If the Court is simply referring to situations, as was the case here, where a letter and medical records are sent to an IME provider pending an evaluation and without a claimant’s knowledge, that is a simple fix: include the claimant on all IME provider letters. If, however, the Court is referring to the IME providers as a whole as being unknown to the claimant because they have provided no treatment for the claimant, then that is a much more complex issue. Under this interpretation, Claimant Attorney’s may seek to argue that since all IME providers (in general) have not previously provided medical treatment and are therefore unknown to the claimant, the provision of any letters and/or medical records to these providers prior to an evaluation violates Section 42-15-95. This interpretation would greatly limit Defendants’ ability to outline the scope of an evaluation and to provide valuable background information with regard to causation, pre-existing conditions, and the like.