State News

NWCDN is a network of law firms dedicated to protecting employers in workers’ compensation claims.


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.


Now Considering Firms for Our Network in

Written by: Tracey Jones

Originally appeared on the Teague Campbell website.

Mary Betts v. North Carolina Department of Health and Human Services – Cherry Hospital

On February 1, 2022, the North Carolina Full Commission released a decision in the second extended benefits case since the Reform in 2011. The case was originally heard by Deputy Commissioner Robert Harris, who found that the claimant had proven by the preponderance of the evidence that she “sustained a total loss of wage-earning capacity” because of her compensable long-term ankle condition. The underlying facts are as follows: claimant, a 53-year-old healthcare technician, sustained an injury to her ankle while trying to restrain a combative patient.  Her injury required multiple surgeries. Claimant was a high school graduate with CNA qualifications, was involved in several volunteer activities, including Girl Scouts and the PTA, cut her own grass, and did crafts, including making flowerpots out of old car tires.  Claimant’s authorized treating orthopedic physician gave claimant sedentary work restrictions; however, claimant’s pain management physician, Dr. Elizabeth Bagsby, testified claimant would need a sedentary job that could accommodate elevating her leg above her heart and repositioning herself throughout the day.

Claimant’s vocational expert testified that claimant’s past employment history and education, as well as her sedentary work restrictions and need to elevate her leg throughout the workday, prevented her from being employable. Defendant’s vocational expert testified that claimant was employable and felt her need to elevate her foot could be accommodated in a sedentary position. The expert also identified several positions in the medical field that were sedentary in nature, which she believed claimant could perform.  The Deputy Commissioner noted in his Opinion and Award that the Defendant’s vocational expert did not meet or speak with the claimant, nor contact any of the identified employers to discuss claimant’s ability to perform the jobs.

The Full Commission panel, consisting of Wanda Blanche Taylor, James Gillen, and Adrian Phillips, gave greater weight to the testimony of claimant’s long-time treating physician rather than the pain management physician as it relates to claimant’s work restrictions.  The Full Commission noted that Dr. Thompson, the authorized treating physician, at no time opined that claimant needed to elevate her leg above her heart.  Additionally, the Full Commission noted there was no expert testimony or opinion that claimant was incapable of performing work. Furthermore, the Full Commission gave greater weight to the Defendant’s vocational expert as her testimony was consistent with the medical evidence indicating claimant had the ability to perform sedentary work and was more consistent with claimant’s demonstrated ability to perform valuable services, including organization, scheduling, supervision, and her reliability in her continued volunteer work.  The Full Commission noted that claimant was a likely candidate to perform flexible work from home or part-time work. The Full Commission went on to note that at oral argument, claimant’s counsel conceded that she could perform one to two hours of work a week for wages.

The Full Commission concluded that the extended benefits statute in N.C.G.S. § 97-29(c) does not invoke “disability” as defined in N.C.G.S. § 97-2(9), nor does it require the employee to prove that she is unable to obtain competitive employment. The Full Commission noted that the statute on its face requires the employee to prove “by a preponderance of the evidence that the employee has sustained a total loss of wage-earning capacity.”  The Full Commission interpreted this statutory language by using the plain, ordinary, and literal meaning of the words contained in the statute.  The Full Commission cited the Webster Dictionary which defined “total” as “complete;” “utter” and “loss” as “to bring to ruin or destruction;” and “capacity” as “ability.”  The Full Commission concluded using these definitions that claimant must prove by a preponderance of the evidence that she sustained a complete destruction of the ability to earn wages [emphasis added]. The Full Commission noted claimant’s ability to perform sedentary work in her volunteer activities, and claimant’s claim for extended benefits beyond the 500 weeks was denied.

Practical Takeaways for Defendants

This case is an excellent indication of how difficult it should be for claimants to prove they are entitled to extended benefits beyond the 500-week cap. If the injured employee has any ability to earn wages, albeit small, defendants should prevail assuming all the Commissioners follow the standard articulated above.  No doubt this case is probably heading to the North Carolina Court of Appeals, and we will keep you updated on its potential path through our Appellate Courts.

In the meantime, some practical takeaways when defending these extended benefit cases include:

    • Have a detailed understanding of the claimant’s job history, educational background, and daily activities, including volunteer activities.
    • Obtain detailed testimony, including dates, times, and follow-ups, from the claimant regarding their job search, or lack thereof.
    • Use credible experts.
      • Solid expert opinions, both medical and vocational.
      • The vocational expert should meet with the claimant in person to identify jobs within the claimant’s labor market that are readily available considering their work restrictions and educational and vocational background.
      • The vocational expert should contact potential employers to determine the likelihood that the claimant can secure employment within their work restrictions.

Our team will continue to monitor the developments as this issue works its way through our court system. If you have questions or wish to discuss how to best position yourself in potential extended benefits matters, please reach out to Tracey Jones or a member of our Workers’ Compensation Team. 

Income Benefits

O’Bryan v. Zip Express, (2020-SC-02620WC, not final) – The Supreme Court of Kentucky

Claimant was found by the ALJ to be permanently and totally disabled following a work-related motor vehicle accident. Claimant was 65 on the date of accident. Claimant appealed the award, arguing the age 70 cap on indemnity benefits under KRS 342.730(4) is an unconstitutional violation of equal protection.

The Court of Appeals found KRS 342.730(4) and the age 70 cap is constitutional both on its face and as retroactively applied (applies to all cases not fully and finally adjudicated as of the effective date of the act, 7/14/2018). The Supreme Court affirmed, consistent with its opinion in Kroger v. Cates, 627 S.W.3d 864 (Ky. 2021).

Employee v. Independent Contractor

AIG v. Oufafa, et. al., (2020-CA-0942-WC, not final); Taxi, LLC d/b/a Taxi 7 v. Oufafa, et. al., (2020-CA-0946-WC, not final) – Kentucky Court of Appeals

Taxi 7’s business is leasing taxicabs and related services, including dispatch and credit card processing to individuals, corporations, partnerships and other entities. Claimant signed a Lease agreement with Taxi 7 agreeing to pay $405 weekly for a cab lease, dispatch services, and credit card processing services, as well as $30 weekly for vehicle insurance. He also signed a paper titled “Status as a Self-Employed Businessperson,” in which he clearly acknowledged he was not an employee and not entitled to workers’ compensation benefits. Claimant could operate the cab as he saw fit, choose his hours, charge his own rates, and keep his collected fares.

Claimant filed for worker’s compensation benefits after being shot while driving. ALJ found Claimant was an independent contractor and Taxi 7 was a taxicab leasing company. While the ALJ did find that cab driving was an integral part of Taxi 7’s business of leasing cabs, the ALJ concluded that driving passengers was a distinct occupation different than the leasing of cabs.

The appellate Board reversed, finding that the ALJ incorrectly concluded that Taxi 7 was a taxicab leasing company rather than a taxicab company that employed the Claimant as a driver. The Court of Appeals reversed the Board, stating that the ALJ’s finding of fact that Taxi 7 was a taxicab leasing business and Claimant was not an employee was supported by the facts and not clearly erroneous. The Court emphasized Claimant received no remuneration from Taxi 7 and his earnings all came directly from his customers.

 

Should you have any questions or wish to discuss any related matters, please contact us at your convenience.

H. Douglas Jones, Esq. – djones@jsbattorneys.com, 859.594.4200

Margo Menefee, Esq. – mmenefee@jsbattorneys.com, 859.594.4200

DWC Shows HCPs Some Love and a Friendly Reminder

 
In January, the DWC announced new training opportunities for health care providers and their medical staff who participate in the workers’ compensation system.  The Division’s on-demand training topics for HCPs include reimbursement policies and methodologies and billing and reimbursement for DDs, RMEs and other MMI/IR providers. The DWC also announced upcoming HCP Lunchtime Webinars.  February topics include Medical Fee Dispute Resolution and The Preauthorization Process: Utilization Review and Medical Necessity.  

You can take a look at the on-demand training topics here
 
Fun Fact:  No where in any of the DWC materials is there a provision for a designated doctor to seek reimbursement for a no-show appointment.  If you are seeing bills for claimant’s failing to attend a DD examination – you should not be!
 
The Division reminded HCPs that they need to disclose their financial interests (and those of their immediately family members) in imaging centers, physical therapy and work hardening clinics and other facilities if they refer patients to those facilities.  The reason for such disclosure – reducing the likelihood of HCPs making unnecessary referrals in order to pad their own wallets. 
 

Lonely Hearts' Club


Blame it on supply chain issues, COVID or Zoom BRCs, but we recently ran into one of the saddest things we have seen lately.  The winner of the Lonely Hearts’ Award February 2022 is this lonely vending machine in the corridor of the Lubbock Field Office of the DWC.
 

A Time for Love and A Time for Audit


Carriers:  It’s that time again.  Every two years, the DWC audits insurance carriers through PBO.  The majority of the audit focuses on timely payment of TIBs and processing of initial medical bills. Other measures include timely processing of requests for reconsideration of medical bills and timely submission of EDI data for initial payments and medical bill processing. The relevant time frame for the audit: 1/1/22 through 6/30/22. You can get more information here. 

HCPs: The DWC announced its approval of the 2022 Medical Quality Review audit this month. This year, the audit will focus on the reasonableness of return-to-work decisions and recordkeeping and the use and effectiveness of spinal cord stimulators.

We gave you a sneak peak of the proposed Shoulder Surgery Plan-Based Audit in our November newsletter. On 1/13/22, the DWC announced that audit plan was approved. It will be interesting to see if the audit results in a curtailing of distal clavicle resections in routine shoulder surgery as those procedures can, without careful monitoring and/or litigation, result in significantly higher impairment ratings for shoulder injuries.
 

 


Who Doesn't LOVE Safety?


The Division recently announced its 2022 Safety Pro Seminars.  New safety professionals and coordinators can enjoy free online courses in Safety and Health Program Development and Recordkeeping beginning in February.  

More information is available here.

Exclusive Love


On 1/25/22, in Reyes v. Lubrizol Corp., the Texas 14th Court of Appeals upheld an exclusive remedy defense asserted by a property owner in a lawsuit filed by a welder who alleged he suffered injuries as a result of the negligence of two employees.  The court addressed “the nuanced but not uncommon situation where a non-employer secures - by written agreement - workers’ compensation employer’s status over the employees of others.”  The court held that it was proper for the trial court to grant summary judgment dismissing the complaint made by the welder asserting the exclusive remedy. This was a classic scenario where a general contractor entered into a written agreement to provide workers’ compensation insurance coverage to the subcontractor and its employee. That agreement made the general contractor the employer for purposes of workers’ compensation law and, by extension, covered the actions of the subcontractor’s employees under the exclusive remedy provision of the Workers’ Compensation Act. See the entire opinion here.
 

Do We Love This Change?


The Division recently solicited comments on proposed changes to EDI Rules. According to our good friend Steve Nichols of Sentinel Governmental Affairs, the biggest issue is the short window of time provided for testing of the submission of claims EDI data.  In comments to the rule, Steve proposed additional time for testing so that insurance companies, EDI trading partners and the DWC could ensure successful claims data reporting. Steve cautioned the DWC and stakeholders to avoid a repeat of the NPI EDI data element change that resulted in enforcement actions, that could have been eliminated with adequate testing.  We await the DWC rule changes and hope that adequate consideration is given to these concerns.
 

We are pleased to announce that four of our attorneys: Matt Hoffman, John Land, Dave Marello, and Brian Schaedler have been elected as partners in the firm, effective January 1, 2022.

Matt has been practicing workers' compensation defense since he was admitted to New York Bar in 2014. He is expert in appellate practice and, notably, he successfully argued O'Donnell v Erie County, 35 N.Y.3d 14 (2020) before the New York Court of Appeals, reaffirming the obligation of partially disabled injured workers to demonstrate a nexus between their post-retirement reduction in earnings and their disability. Matt is also an adjunct professor at the University at Buffalo Law School where he teaches a course on appellate advocacy.

He is a member of the Erie County and New York State Bar Associations. Matt is resident in our Buffalo office.

John has also been practicing workers' compensation defense since his admission to the bar in 2015, following his graduation, summa cum laude, from the State University of New York at Buffalo Law School in 2014. While in law school, John won “Best Oralist” at the Midwest Super Regional Round of the Phillip C. Jessup International Law Moot Court Competition in February 2014. John's professional interests cover every aspect of workers' compensation claims from initial controversy to appellate court. He has also defended employers against illegal employment claims under WCL §120.

He is a member of the Erie County and New York State Bar Associations. John is resident in our Buffalo office.

Dave has been practicing law with Hamberger & Weiss LLP since his admission to the New York Bar in 2015. In addition to general workers' compensation litigation, Dave has developed a sub-specialty in representing our clients’ interests in third party actions before State Supreme Court and the Court of Claims. He also handles Loss Transfer arbitration hearings for our clients.

Dave is an Erie County native. Outside of the office, Dave enjoys playing sports and working on his golf game. He is a member of the Erie County Bar Association and is resident in our Buffalo office.

Brian is also a graduate of the State University of New York at Buffalo Law School, where he not only served as a Publications Editor on the Buffalo Law Review, but graduated in 2014 with the honor of three separate awards: the Robert J. Connelly Trial Technique Award, the American Bar Association and the Bureau of National Affairs Award for Excellence in the Study of Health Law, and the Harold A. Dautch Memorial Scholarship Award for Academic Excellence. Brian is an expert litigator and has successfully defended our clients throughout the thousands of hearings and depositions he has handled.

When not in hearings, Brian can be found at the gym, playing sports, or watching the Buffalo Bills or Sabres. Brian is a member of the New York State Bar Association and is resident in our Rochester office.
 

 

Bram Lehman Joins H&W LLP as Special Counsel 

 

We are pleased to welcome Bram Lehman to the firm, who joined us as Special Counsel in December 2021. Bram has more than 30 years of experience in New York workers’ compensation. He was most recently a partner in the firm of Bond, McDonald, & Lehman in Geneva, NY where he represented claimants for 20 years. Bram graduated cum laude from Syracuse Law School in 1991, where he was an editor of the Syracuse Law Review. He began his workers’ compensation career in 1993 at the Syracuse defense firm Mackenzie, Smith, Lewis, Michel, and Hughes, where he represented a wide range of carriers, third party administrators and self- insured employers.  He then became a partner at another Syracuse defense firm, Whyland & Richmond, LLP, where he practiced until 2000. Bram was a Geneva City Court Judge from 2007 until 2014. He is a member of the New York State Bar Association and is resident in our Rochester office.

 

Practice Tips Regarding the 130 Week PPD Credit/MMI "Safety Valve" Provision

 

In 2017 the workers’ compensation law was amended to allow carriers to take credit for temporary disability payments paid to a claimant beyond 130 weeks (2.5 years) from the date of accident or disablement against that claimant’s maximum benefit weeks from a permanent partial disability award under §15(3)(w). This rule applies to all injuries with dates of accident or disability after April 9, 2017. However, the credit only applies if there was no intervening finding that the claimant was not at maximum medical improvement (“MMI”). Now that we are well past 130 weeks from April 9, 2017, this provision has become increasingly relevant and we have encountered a few different issues we want our clients to be aware of. 

1)         The amendment applies as a matter of law:

Our firm maintains, and the Board thus far seems to agree, that the amendment applies as a matter of law.  In other words, there is no need for the carrier to specifically note its entitlement to the credit at the time classification is decided. We have seen some cases where the claimant's bar disputes this and alleges that the existence of a credit must have been raised at the time of permanency. We are unaware of any precedent in support of this position. Should you receive any ruling from the Board finding the carrier is not entitled to a credit against the cap on the basis that it was not raised at permanency, please let us know.   

2)         All weeks in which payments were made after 130 weeks from the date of accident/disablement count towards the credit

We have heard some argument that the carrier is only entitled to a credit after 130 weeks of payments have been made, rather than the credit applying for any benefits paid after 130 weeks have passed from the date of injury. We disagree with this argument. The statute states that whenever the carrier has provided compensation beyond 130 weeks from the date of accident, it gets a credit for those payment weeks. It says nothing about an obligation to have paid 130 weeks of compensation.  Furthermore, Board Subject Number 046-936 says “The reforms … provide a credit for periods of temporary disability that extend beyond 2.5 years (130 weeks) from the date of injury. Insurance carriers may receive a credit against the maximum benefits payable for permanent partial disability for any periods of temporary disability paid beyond the 2.5 years (130 weeks).”  This language makes no claim that 130 weeks of benefits must be paid for the credit to apply. 

Accordingly, should you receive any decision where a WCLJ finds you are not entitled to credit weeks on the basis that they did not begin to accrue until 130 weeks of temporary benefits had been paid, please let us know. 

3)         Avoid MMI litigation when the outcome is uncertain

To paraphrase Sun-Tzu, “never enter into any battle you have not already won.” As noted above, the credit for temporary benefits disappears if there is a no MMI determination before permanency is ultimately found. Thankfully, this provision is worded narrowly. For the credit to be forfeit, 1) permanency must be at issue; 2) the claimant must have produced medical evidence he is not at MMI; 3) the carrier must have had the chance to secure an opinion on the question; and 4) the Board must have decided that the claimant is not at MMI.  

Therefore, it is wise to avoid litigating the issue if it does not seem likely the carrier will prevail.  Better to accept the opinion of a claimant’s doctor that he is not at MMI for the time being, secure in the knowledge that the benefits you are paying now will ultimately act as a credit, rather than litigate and lose not only the issue of MMI, but the availability of the credit. In cases where the Board sets the matter down for permanency on its own motion, and there is an opinion from claimant's doctor that he is not at MMI, it may be prudent to consider accepting that opinion, unless there is some obvious factual or legal deficiency.  We can then argue that the credit was not forfeit on the basis that none of the latter three events occurred.

We anticipate that the claimant's bar may ultimately argue for such cases to be disqualified from the credit, but we are optimistic about our position given the language of the statute. 

 

Governor Hochul Signs Workers' Compensation Bills at end of 2021

 

A number of workers' compensation bills were signed into law by New York Governor Kathy Hochul to close out 2021. The first creates a schedule for attorney fees and removes much of the Board’s discretion regarding same. The new law adds subdivisions 2 and 3 to WCL §24 and provides that the Board “shall” approve fee applications “in an amount commensurate with the services rendered and the amount of compensation awarded, having due regard for the financial state of the claimant” in accordance with the following schedule:

(a) One third of a week’s compensation for continuing payments
(b) 15% of a retroactive award increase over prior payments
(c) 15% of SLU and SFD awards less prior payments
(d) 15% of PTD and PPD classification awards less prior payments, plus a sum equaling 15 weeks of the weekly rate
(e) 15% of Death awards less prior payments, plus 15 weeks at the weekly rate
(f) 15% of Section 32 Settlement award and waiver of any prior fees awarded but not accrued.

Despite stating that fees shall be "commensurate with services rendered," the amendment seems to indicate that the Board must award fees in accordance with this schedule, regardless of the amount of work the attorney performed. The fact that the language provides that the Board “shall” award in accordance with the schedule implies that the Board has little discretion on fees. The Governor’s signing memorandum references some technical changes to the law, which are now the subject of Senate Bill S7762, currently working its way through the legislature. This bill will push the effective date for the attorney fee schedule to 1/1/23. Additionally, the bill will require written fee applications for fees more than $1,000.00. Significantly, the bill states that benefits allocated towards future medical expenses in Section 32 agreement shall not be included in the calculation of the fee. Senate Bill S7762 has been passed by both the Senate and the Assembly. Thus, the bill will presumably be signed by the Governor in the near future.

The next bill, signed on 12/23/21, concerns the Uninsured Employers Fund (UEF) and adds a new subdivision 6-a to WCL §26-a. The new subdivision provides that in the event the Board is unable to identify the responsible insurance carrier for an employer within ten days of filing of a new claim, it shall “appoint” the UEF as the insurance carrier “until such time as the responsible insurance carrier is determined.” At the time she signed the bill, the Governor announced that she had reached an agreement with the legislature to amend the bill to allow thirty days from claim filing for appointment of the UEF as carrier. The amendment further provides that “Upon such appointment, the UEF shall immediately commence payments and provide medical care…” (emphasis added). It remains to be seen just how immediate the UEF’s payments will be. Arguably, this legislation denies the UEF the opportunity to controvert a claim on basic ANCR issues. The amendment takes effect sixty days after signing (February 20, 2022) and applies only to claims filed on and after that date.

The bill most applauded by attorneys, signed on 12/22/21, takes away the Board’s power to deny applications for Board review and Rebuttals to same based on technical defects in the RB–89 and RB–89.1 cover sheets. The bill adds a new Sec. 23-a to the WCL which provides that notwithstanding Board Rule 300.13(b) and Board Subject Nos. “a mistake, omission, defect and/or other irregularity in a coversheet accompanying” an Application for Board Review, Application for Full Board Review, or Rebuttal shall not be grounds for denial of such Application or Rebuttal. The Board is to “permit any such mistake, omission, defect and/or irregularity to be corrected within twenty days of written notice by the board” of same, or "if a substantial right of either the party filing the application or party filing the rebuttal is not prejudiced, such mistake, omission, defect and/or irregularity shall be disregarded.”
WCL §23-a takes effect immediately but does not apply to previously denied Applications or Rebuttals.

Other bills signed near the end of 2021 include S.1022-A, which added a new WCL §17-a to the statute, requiring the Board to translate all documents and forms used by or issued to injured employees in the 10 most common non-English languages spoken in New York State. The new law also requires the Board to provide interpretation services to injured employees and to publish a "language access plan" as well as a point a "language access coordinator." The new law is effective 3/22/22.

Finally, in October 2021, the Governor signed the "Nigro Act" named for Anthony Nigro, a bus mechanic who died in 2012 of lung cancer from exposure to diesel exhaust. This law creates a new WCL §16-a that provides a one time, one year opportunity to file a death benefit claim for any cancer due to exposure to diesel exhaust that otherwise would be disallowed by the timely claim filing or timely notice defenses. The one-year window begins on 10/29/21 and ends on 10/28/22.

Please contact our partner Ron Weiss with any questions about the above legislation.

 

Contact Us

 

Hamberger & Weiss LLP - Buffalo Office
700 Main Place Tower
350 Main Street
Buffalo, NY 14202
716-852-5200
buffalo@hwcomp.com

Hamberger & Weiss LLP - Rochester Office
1 South Washington Street
Suite 500
Rochester, NY 14614
585-262-6390
rochester@hwcomp.com

 

Thomas Coleman recently secured a favorable decision at the Office of Administrative Hearings in a case involving multiple claimed work injuries.

The first injury was alleged to have resulted from an accident involving a motor vehicle and a train, wherein the employee claimed to have suffered significant and permanent injuries to the cervical spine, bilateral shoulders, and back. He subsequently underwent cervical fusion surgery. The second injury involved a claim for PTSD, which the employee allegedly sustained as a result of another accident.

The Compensation Judge at the Office of Administrative Hearings found that the first injury was a temporary aggravation, which resolved within six weeks, and he denied any claims after that time. This included a denial of significant amounts of indemnity benefits and medical benefits, including the cervical fusion surgery. With respect to the PTSD claim, the Compensation Judge denied primary liability for the claim in its entirety.

This was an outstanding result in a case involving significant exposure and a possible permanent total disability claim.

52 Next