State News

Readers of the Compendium may recall the April 2021 newsletter reporting that, according to Commissioner’s Bulletin #B-0012-21, the Division would relocate its Austin headquarters in the summer of 2022 to the Capitol Complex at 1601 Congress Avenue in Austin. 

On May 2, however, the Division announced that the Austin Field Office would hold hearings on a temporary basis in the Hobby Building at 333 Guadalupe starting on July 18, 2022. 

Two days later, on May 4, DWC rescinded its plans to move temporarily to the Hobby Building and announced that it will continue to hold hearings at the current Metro location through the summer. The move to 1601 Congress Avenue will be announced when the moving date is finalized. 

Copyright 2022, Stone Loughlin & Swanson, LLP 

A joint project sponsored by the Law-Related Education Department of the State Bar of Texas, the U.S. District Courts of Texas, and Law Focused Education, Inc. is seeking attorneys to serve as virtual guest speakers to school classrooms across the state on Constitution Day, September 26, 2022 (observed). The Zoom program will last approximately one hour, requires minimal preparation work, and affords attorneys the opportunity to earn pro bono hours while educating and engaging Texas high school students. 

For more information concerning this professional opportunity, attorneys may register here.

You may also contact kim_schaefer@txnd.uscourts.gov or keend@friscoisd.org with questions.

Copyright 2022, Stone Loughlin & Swanson, LLP

DWC adopted the Texas claim Electronic Data Interchange release 3.1.4 on March 9, 2022 and, as a result, DWC’s designated data collection agent, Verisk, will begin billing insurance carriers for one-time set-up costs and claim data collection activities for the first year of EDI 3.1.4. Carriers will be billed half of their one-time costs immediately after registration. 

All insurance carriers or carrier groups must register their billing contact information with Verisk by June 13, 2022. To register, go to https://txdwcedi.info/ and select “Billing Registration” from the menu.

Questions concerning registration may be submitted by email to: txdwcbillingquestions@verisk.com 

Copyright 2022, Stone Loughlin & Swanson, LLP

As reported in last month’s Compendium, the deadline for First Responders to request reconsideration, pursuant to Senate Bill 22, of their COVID claims denied between March 13, 2020 and June 14, 2021, is June 14, 2022. A sample Request to Reprocess a denied COVID claim may be found on the Division’s first responder website here.

Copyright 2022, Stone Loughlin & Swanson, LLP

The Division is accepting public comments on three new proposed forms:

DWC Form-003, Employer’s Wage Statement: The proposed new DWC-003 includes substantially the same information contained in the old form, however, the new form appears much clearer and less complicated for employers to complete.

DWC Form-003ME, Employee’s Multiple Employment Wage Statement: This form provides the injured employee a way to provide wage information for other employers to the Carrier for calculation of the average weekly wage and issue income benefits when the injury affects ability to work.

DWC Form-003SD, Employer’s Wage Statement for School Districts, allows employers a way to report wage information to the Carrier to calculate average weekly wage and issue income benefits for school district employees.    

DWC will consider all substantive comments before adopting the proposed new forms which may be viewed here. 

Written comments should be submitted on the forms by 5:00 p.m. on June 21, 2022 to: RuleComments@tdi.texas.gov. 

Copyright 2022, Stone Loughlin & Swanson, LLP

The Division has adopted new DWC Form-033, Request to Reduce Income Benefits Due to Contribution, as of May 18, 2022. The adoption of the form is necessary to allow insurance carriers to reduce the amount of income benefits paid to an injured employee due to a past work-related injury to the same body part or parts. 

Carriers are to use the adopted form on and after June 13, 2022. A copy of the new DWC Form-33 is available here.

Copyright 2022, Stone Loughlin & Swanson, LLP

As regular readers of The Compendium well know, Stone, Loughlin & Swanson is a Founding Sponsor and long-time supporter of Kids’ Chance of Texas, an organization whose mission is to create and support scholarship programs to provide educational opportunities for children in Texas who have had a parent catastrophically or fatally injured while in the course and scope of his or her employment. As participants in the Texas Workers’ Compensation system, we are particularly aware of the devastating toll such an injury takes on a family and, especially, the children. 

Please help us to give the kids a chance by becoming a participant or sponsor and joining us at Topgolf Austin on June 28 from 5:30 – 8:30 p.m. for a workers’ comp networking and FUN-draising good time! For more information and to register to join us in knocking the stuffing out of those little dimply balls, click here.

Copyright 2022, Stone Loughlin & Swanson, LLP

NJ Workers’ Comp Legislative Update

The New Jersey Assembly recently introduced legislation, A2886, which would provide employment protections for paid first responders diagnosed with work-related post-traumatic stress disorder.  The bill states as follows: An employer shall not discharge, harass, or otherwise discriminate or retaliate or threaten to discharge, harass, or otherwise discriminate or retaliate against an employee with respect to the compensation, terms, conditions, duties, or privileges of employment on the basis that the employee took or requested any leave related to a qualifying diagnosis of post-traumatic stress disorder.  Following a period of leave related to a qualifying diagnosis of post-traumatic stress disorder, an employer shall reinstate an employee whose fitness to return to work has been documented by a licensed physician or licensed mental health professional to the position and duties held by the employee prior to the leave.

The bill makes clear that the PTSD condition must arise from work by stating as follows:

b.   A diagnosis of post-traumatic stress disorder is qualified under subsection a. of this section if:

(1)        the diagnosis is made by a licensed physician or licensed mental health professional; and

(2)        as determined by the licensed physician or licensed mental health professional, the post-traumatic stress disorder arose:

(a)        as a direct result of the employee experiencing or witnessing a traumatic event during and within the scope of the performance of regular or assigned duties of the employee; or

(b)        due to vicarious trauma experienced by the employee as a direct result of the performance of regular or assigned duties of the employee.

A2886 would apply only to paid first responders, which of course includes law enforcement officers, firefighters, emergency and paramedic personnel, but also extends to 9-1-1 dispatchers, who may only “witness” trauma by telephone. 

The first question is why did the Legislature focus solely on medical leaves for PTSD?  What about medical leaves for spinal surgery, which are equally common, if not more common? Legislation by diagnosis can become an endless trend.  Moreover, federal law under the Family and Medical Leave Act already provides job protection for covered leaves.

This bill calls to mind A2617 which was signed into law on September 24, 2021.  That bill provided: “Following a work-related injury, an employer shall provide a hiring preference to an employee who has reached maximum medical improvement (MMI) and is unable to return to the position at which the employee was previously employed for any existing, unfilled position offered by the employer for which the employee can perform the essential functions of the position.”

The problem with A2886 and A2617 is that neither bill is needed since New Jersey law already forbids such discrimination.  New Jersey already has powerful anti-discrimination laws, namely the New Jersey Law Against Discrimination and N.J.S.A. 34:15:39.1. Both of these laws protect employees from discrimination. Section 39.1 is contained within the New Jersey Workers’ Compensation Act and protects employees who file workers’ compensation claims from wrongful discharge or discrimination related to the making of a workers’ compensation claim. 

The question that legislators must answer is what holes have they suddenly found that need to be filled in the expansive New Jersey Law Against Discrimination?   

For more information on the progress of this proposed legislation, contact the undersigned at jcottell@capehart.com.

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Jennifer A Cottell, Esq., is a Shareholder in Capehart Scatchard's Workers’ Compensation Group.  Ms. Cottell 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. Cottell at 856.914.2087 or by e‑mail at jcottell@capehart.com.

Practical Advice In New Jersey Workers’ Compensation

The general rule is that an injured worker is entitled to TTD for the time frame that the authorized treating doctor placed the employee out of work.

Pursuant to Monaco v. Albert Maund, Inc., 17 N.J.  Super. 425 (App. Div.), 21 N.J. Super. 443 (App. Div. 1952), generally, TTD continues until the employee is able to resume work or until the employee “is as far restored as the permanent character of the injuries will permit” [placed at MMI], whichever happens first. This means that TTD can cease in either of the following situations: a. The employee is placed back to work and authorized treatment is ongoing and continuing; or b. The employee is placed at MMI from treatment, even if the employee is discharged with permanent work restrictions (irrespective of whether the restrictions can be accommodated).

In addition to the above rule, there are some tricky situations where TTD benefits may be stopped for other reasons.  Below are hypothetical situations regarding TTD, and how we would recommend handling each scenario.

Scenario 1: Bob works for a large retailer and is injured on February 2, 2022. Bob is receiving authorized treatment and is initially not placed out of work. On March 14, 2022, Bob is caught stealing from the register at work, as well as stealing $4,000 worth of merchandise from the electronics department. The authorized doctor places Bob out of work as of March 17, 2022; it is anticipated he will be out of work for a few months. After an investigation into the theft, Bob is terminated for cause on March 28, 2022. The employer pays TTD from March 17, 2022 through the date of his termination, March 28, 2022. Bob alleges that he is owed TTD from March 17, 2022 onward, as he was placed out of work by the authorized doctor on March 17, 2022 and has not yet been returned to work.

Our position is that Bob is owed TTD only for the date range of March 17, 2022 through March 28, 2022, the date of the termination.

There are quite a few cases dealing with this issue. In all of the cases, the main point comes down to this: The purpose of TTD is to compensate for actual lost wages. As such, in a situation like this, our position would be that Bob is not owed TTD after March 28, 2022.

The most important case on this scenario is Cunningham v. Atlantic States Cast Iron Pipe Co., 386 N.J. Super. 423 (App. Div.), certif. denied, 188 N.J. 492 (2006), where the Court stated that Cunningham must “prove that he actually lost income…because of his disability”. The Court noted that TTD is wage replacement for “actual lost wages”, and not “theoretical or fictitious wage loss”.

The Court in Cunningham was guided by the holding of Outland v.  Monmouth-Ocean Educ. Serv. Comm’n, 154 N.J. 531 (1998). In Outland, the Court held that in order for a teacher who teaches during the school year to be entitled to TTD during the summer months, she must prove that she would have had summer employment. The case of Gioia v. Herr Foods, Inc., No. A-0667-10T4 (App. Div. October 11, 2011) also deals with an employee terminated for misconduct (in that case, violation of the employer’s drug policy), and the holding of Gioia makes it clear that TTD is for actual lost wages, not theoretical lost wages. In a case where an employee is terminated for cause, at the point of his termination, he no longer has wages. If there is no actual wage loss, TTD is not owed.

Scenario 2: Nate has been placed out of work by the authorized doctor and is not working. TTD is being issued. The authorized doctor, on May 15, 2022, recommends that Nate undergo a shoulder surgery. Nate receives all surgical clearance and on May 22, 2022, the authorized doctor schedules the surgery to occur on June 5, 2022. However, Nate has a pre-planned vacation June 4- June 18. Then he is moving residences during the end of June, and then will have family visiting during July as well as various other summer activities, so he wants to push the surgery back until at least August 15. Nate asserts that he is entitled to TTD during the time frame of May 22, 2022 through August 15, 2022.

Our position is that Nate is not entitled to TTD during the time frame of May 22, 2022 through August 15, 2022.

Nate is refusing treatment, for reasons that are not related to any health or medical issues. An employee not complying with the authorized doctor’s treatment plan, and treatment schedule, based on a personal reason or personal preference, is not entitled to TTD benefits.

Our position is that if petitioner is not actively treating, or is missing appointments, he is not entitled to TTD under N.J.S.A. 34:15-19, which states that after an injury, an employee must submit himself for physical examination within this state, as often as may be reasonably requested, and, “the refusal of the employee to submit to such examination shall deprive him of the right to compensation during the continuance of such refusal”. Since Nate is failing to, or refusing to, comply with treatment and is not cooperating with authorized treatment, he is not entitled to TTD during his non-cooperation.

Scenario 3: Ronald, an electrician, was injured on January 15, 2022. The authorized doctor places Ronald out of work February 10 through March 1, 2022. On March 2, 2022, Ronald is released to work light duty; the doctor noted that full duty was anticipated on or around April 2, 2022. The employer can accommodate light duty work and can pay Ronald his usual salary in his temporary light duty position; Ronald was offered the light duty position on March 2, 2022. Ronald refuses the light duty position, as he does not want to work “desk duty”; Ronald maintains he is owed TTD from March 2, 2022 through April 2, 2022 (or whenever he is in fact returned to work full duty).

Our position is that Ronald is not entitled to TTD as of March 2, 2022, the date that light duty was offered, and declined.

We recommend relying on Harbatuk v. S & S Furniture Systems Insulation, 211 N.J. Super. 614 (App. Div. 1986) in a situation like his. If the employee is offered a light duty job, and the employee refuses the light duty job, the employer can terminate TTD upon the refusal. For this reason, it is a good idea to put the light duty offer in writing, dated, and reference the date that the authorized doctor placed the employee back to work light duty, and the date light duty could be accommodated, particularly as under Williams v. Topps Appliance City, 239 N.J. Super. 528 (App. Div. 1989), “the burden is on the employer to show that light work was offered to [the employee] and that it was refused”.

The above scenarios re-emphasize two important things to keep in mind with respect to issuance of, and entitlement to, TTD benefits: (1) TTD is to compensate for actual lost wages; and (2) An employee’s refusal to comply with offered light duty and/or the authorized doctor’s recommended course of treatment may be cause for TTD to be terminated.

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Often cases are referred to this insurance defense attorney where the policy was cancelled prior to the alleged date of loss. The claimant-petitioner has retained an attorney and has filed a Claim Petition in the Division of Workers’ Compensation. The petitioner’s counsel has reviewed the New Jersey Compensation Rating and Inspection Bureau website and found the policy which would have been in effect at the time of the date of loss and has named that carrier. The carrier retains counsel and seeks to deny the claim for lack of coverage.  The question is whether there is sufficient evidence to prevail on a Motion to Strike Carrier.

Prior to filing a Motion to Strike Carrier, there are certain steps and documents which should be reviewed between counsel and the carrier regarding the effectiveness of the cancellation. In New Jersey, there is a strong public policy favoring uninterrupted workers’ compensation coverage for all employees. As a result, an insurance carrier must strictly comply with all statutory and regulatory mandates regarding any cancellation of a policy.

It is therefore beneficial to review N.J.S.A. 34:15-81, Cancellation of Contract. The Statute lays out three individual steps which must be followed in order for cancellation to be effective. Section 81 states that no policy for workers’ compensation coverage is deemed cancelled until the following three criteria are met:

• (a) At least ten days’ notice in writing of the election to terminate such contract is given by registered mail by the party seeking cancellation thereof to the other party thereto; and
• (b) Until like notice shall be filed in the office of the commissioner of banking and insurance, together with a certified statement that the notice provided for by paragraph “a” of this section has been given; and
• (c) Until ten days have elapsed after the filing required by paragraph “b” of this section has been made.

While the foregoing three steps appear to be straightforward, there are various ways in which a potential issue may arise and therefore result in a finding of improper cancellation. The New Jersey Supreme Court has held that there needs to be strict compliance with the Statute in order for cancellation to be effective. Sroczynski v. Milek, 197 N.J. 36 (2008).

Consider an example of a policy issued to an employer for a policy period beginning on February 1, 2019 through February 1, 2020. During the policy period, the employer fails to make payments on the policy leading to a cancellation. The carrier sends a notice to the employer on July 1, 2019 stating the following:

“We hereby notify you that the policy identified above will be cancelled effective 12:01 a.m. July 30, 2019 in accordance with the cancellation condition of the policy and that all liability of the Company under such policy will cease at that time. Premium adjustment will be made to the date of cancellation and statement rendered. The reason for this action is: Nonpayment of Premium.”

With respect to the first step in cancelling a policy, a notice needs to be generated by the carrier and sent to the employer with at least 10 days’ notice of the date of the cancellation. So far, our cancellation example appears to comply with subsection (a) of the Statute as the notice is sent on July 1, 2019 and gives more than 10 days’ notice.

Subsection (a) of the Statute also states that this notice must be sent by “registered mail.” The Statute does not define “registered mail.” In practice, the carrier should send the notice to the employer by certified mail. The carrier should retain any and all transmittal information with the USPS regarding sending of the notice of cancellation as these documentary proofs are vital in the carrier’s Motion to Strike Carrier for Lack of Coverage.

The sending of the notice of the cancellation to the employer is not the end of the journey for the carrier. The carrier must also submit a “like notice” to the office of the Commissioner of Banking and Insurance. The Statute does not require “exact same notice,” but rather states “like notice.” The Commissioner of Banking and Insurance in New Jersey has designated the Compensation Rating and Inspection Bureau (CRIB) as the entity to receive the like notice.

CRIB requires that the like notice be submitted electronically and has provided a reference form to be used by carriers for the submittal of like notice.

You can download the above form and note that at the bottom of the submittal there is a certification for which the carrier must provide a signatory. The certification is required in the like notice submittal to CRIB. Subsection (b) of the Statute has two clauses which must be adhered to in order for the cancellation to be effective. The first is that the like notice is filed with CRIB, the second is a certified statement must be provided by the carrier that the employer was provided notice in accordance with subsection (a), i.e., that the employer was provided notice of the election to terminate via registered (‘certified’) mail with at least 10 days’ notice.  These steps are required.

Finally, the Statute requires one last step for the policy to be effectively cancelled. Subsection (c) of the Statute requires that at least 10 days have elapsed since the filing of the notice with CRIB prior to the cancellation being effective.

Let us return to our example policy which is being cancelled by our hypothetical carrier. The policy period is for the year February 1, 2019 through February 1, 2020 and, due to nonpayment of premium, the policy is being cancelled. The notice of cancellation is sent to the employer via registered mail on July 1, 2019 stating that the policy will be cancelled effective July 30, 2019.

The carrier should at that time submit the like notice to CRIB that the policy is being cancelled with the effective date of cancellation being reported as July 30, 2019.

What then occurs if the like notice to CRIB is not submitted until August 15, 2019 and an injury occurs to an employee at the company on August 5, 2019 and the company did not obtain replacement coverage? In this practitioner’s experience, any issue with the filing of the like notice creates strong arguments by petitioner’s counsel that the policy was not effectively cancelled. The carrier will try to argue that the policy was effectively cancelled July 30, 2019 per the notice to the employer and that it is incumbent upon the employer to obtain proper coverage.

The New Jersey Workers’ Compensation Act provides certain timelines and a procedure which must be strictly complied with in order for the policy to be cancelled. In this example, the carrier did not provide the like notice to CRIB until after the date of the loss. As a result, the carrier cannot show compliance with subsection (b) and subsection (c) of the Statute.

Let us move the date of loss then to August 20, 2019 and the like notice still is submitted to CRIB on August 15, 2019. The carrier can now show that the loss occurred after the date of cancellation and after the filing of the like notice with CRIB. However, again, this fact scenario will likely result in an improper cancellation and a covered loss. Subsection (c) of the Statute requires that at least 10 days have passed since the filing of the notice with CRIB. In this example, only 5 days have expired. As a result, the petitioner will have a strong argument that the policy was still in effect at the time of the loss despite the policy being cancelled as of July 30, 2019.

While the foregoing examples appear to result in simple solutions, Section 81 of the Statute often results in lengthy litigation regarding proper proofs of cancellation. As a result, the carrier should retain detailed documentary proofs and evidence of each step of the cancellation in order to properly seek to be stricken for lack of coverage from a pending claim.   Readers with questions on cancellation can reach the undersigned at knagy@capehart.com.

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Keith E. Nagy, Esq., is a Shareholder and Co-Chair in Capehart Scatchard's Workers’ Compensation Group.  Mr. Nagy concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation matters. Should you have any questions or would like more information, please contact Mr. Nagy at 856.840.4928 or by e‑mail at knagy@capehart.com.