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: Matthew Flammia
As we head into the summer season, there is no better time for a refresher on the calculation of average weekly wages for seasonal employees.
A seasonal employee is one whose primary employment is during “peak” times versus “slack” times. When looking into this issue, it is important to remember a couple of guidelines that have been established by the North Carolina Courts:
In North Carolina, there are five methods for calculating an injured employee’s average weekly wage.
Method 1: Is to be used when the employee worked for the employer 52 weeks prior to the date of injury and did not miss more than seven (7) consecutive days at one or more times. The average weekly wage is simply calculated by dividing the total wages over 52 weeks by 52.
Method 2: The employee worked for the employer 52 weeks prior to the date of injury, but missed seven (7) consecutive days at one or more times over those 52 weeks. To calculate the average weekly wage under Method 2, calculate the total wages over 52 weeks and divide by the number of weeks remaining after subtracting one week for each seven-day period missed.
Method 3: Is to be used when the employee worked for the employer less than 52 weeks prior to the date of injury. To calculate the average weekly wage under Method 3, divide the total wages of the employee by the total number of weeks the employee worked for that employer.
Method 4: Is to be used when the employee has worked for employer for only a short period of time or employment has been casual intermittent and it is impractical to use Method 1, 2 or 3. To calculate the average weekly wage under Method 4, you would use a similar situated employee with the same grade paid in a similar position during the 52 weeks prior to the date of injury.
Method 5: Is the “catch-all” provision that may only be used when the prior Methods produced an unjust result to either party. There is no prescribed Method to calculate the average weekly wage under Method 5.
Generally, for seasonal workers, also sometimes categorized as temporary, intermittent or casual employees, we will look to Method 5 and use a hybrid approach to determine the average weekly wage.
For seasonal workers, the average weekly wage would be calculated by dividing the amount the employee earned by 52 weeks, no matter the length of employment. Using this method will account for the peak and down time during the season and rest of the year. Otherwise, if you only used the weeks that an employee worked or earned wages, the seasonal position would be turned into a full-time, year-round employment. Again, the Courts have held that the average weekly wage should be fair and just to both parties.
Around this time of year, North Carolina’s agriculture business tends to increase, which in turn leads to an increase in seasonal agricultural employees. One type of specialized seasonal agricultural employees are called H-2A workers. This program is administered by the North Carolina Growers Association (NCGA), and in fact, "approximately thirty percent (30%) of NC agricultural employees rely on the H-2A agricultural visa program to keep farming.” Calculating an H-2A’s average weekly wage should be performed in the same manner as seasonal employees, but there are some things to remember regarding these employees.
With any agriculture employee, if the employment contract provides compensation in lieu of wages (e.g. wage withholding for lodging) these allowances are deemed to be part of the employee’s earnings and should be included within the average weekly wage calculation. Generally, this is done by considering the fair market value of such lodging in the area and incorporating it into the employee’s earnings.
Finally, with agricultural employees, and commonly seen with H-2A workers, there may be a joint employment contract. H-2A workers in North Carolina are under a joint employment contract managed by the NCGA. These employees may work for any employer participating in the H-2A program with the NCGA, and therefore, the average weekly wages for the H-2A employees must consider the wages the employee earned from all of the joint employers that were part to the contract. This is not an exception to the general rule, but instead, reflects the relationship of the employee’s multi-employer contract.
For employers, perhaps the most negative aspect about New Jersey Workers’ Compensation Act is the proliferation of what are called “reopener” petitions. These do not exist in many states. The injured worker in New Jersey who receives a permanency award can file within two years of the last date of treatment or payment of indemnity benefits for an increase in disability. One reason employers get frustrated is that it is so easy to file a reopener claim petition in New Jersey even when the injured worker has never requested or received treatment from the date of the award right up to the date the reopener has been filed.
Modification petitions or “reopeners” comprise a large percentage of claim petitions in the Division. Either party can file for modification, but rarely do employers ever file to lower a percentage award. While most small percentage awards are not reopened, most large percentage awards do get reopened. This blog focuses on questions that employers should consider when faced with a reopener petition in determining whether the medical condition described in the prior award is deserving of additional treatment and ultimately an increase in the percentage of disability. Alternatively, is this a case that should be tried to a conclusion or should it be resolved on a Section 20?
We must start with what are known as form reopener interrogatories that are required to be completed by petitioners. The 18 questions on the form reopener interrogatories are helpful. They include questions about medical treatment and hospitalizations since the prior award, subsequent employment, new claim petitions against other employers and a question about new accidents/injuries: “Have you suffered any other accident or injury or occupational condition since the date of your last compensation hearing?”
These are all good questions but they are insufficient. In the opinion of this practitioner, the questions contained in reopener interrogatories are outdated and fail to address some of the most important issues. Let’s consider the case of a 50-year-old man with preexisting osteoarthritis. He sees his co-employee struggling to lift a heavy box and hurries over to assist. In so doing he feels sudden pain in his left knee. A partial tear is diagnosed, surgery ensues, and an award gets entered for 25% of the leg. At the time of the settlement petitioner gives his complaints and testifies that he still enjoys jogging, going to the gym and playing basketball.
Eighteen months later a reopener is filed with no treatment having occurred during those 18 months. The petitioner answers “no” to the question about any new accident or injury since the award. However, the petitioner has had knee pain since the award while working out in LA Fitness where he regularly goes, but the form interrogatories contain no question along those lines. Here is the problem with the question about subsequent “accidents” or “injuries.” If you ask 100 people for the definition of an accident or an injury, you will get 100 different answers. But if you ask whether the petitioner has had pain in his knee during the past 18 months, that is a yes or no question.
Petitioner’s counsel sends a letter to the adjuster requesting a referral back to the former surgeon. Now what? Options include setting up an exam right away, waiting for answers to form interrogatories before doing anything, or declining the request completely, which may prompt a motion for medical and temporary disability benefits. But there is another option: before deciding to set up an exam, defense counsel or the adjuster can ask counsel for petitioner some simple questions:
1. “Has your client been jogging, going to the gym or playing basketball in the past 18 months?” — remember, he testified to doing this at the time of settlement.
2. “When did your client begin to experience pain over the past 18 months and what was he doing when he felt the pain?”
Assume that the employee’s attorney responds that his client has in fact been going to the gym and has occasionally felt pain while working out. Counsel also states that after running sometimes petitioner felt more pain and swelling in his knee but he did not see a doctor. Is this information potentially important? The answer is emphatically yes and the examining doctor must consider it. Would you have gotten this information if you just used form reopener interrogatories. The answer is probably no. The point is that one must ask the right questions to get the right information.
A better interrogatory question than asking for a subjective characterization of whether there was a new accident or new injury would be to ask about the existence of pain in the knee since the award and the connection to any specific activity. There is a difference between a case where the employee says: “every day since the award my pain has never left me” as opposed to “I had 17 good months and then I was in the gym and the old knee pain suddenly returned.”
Practitioners know that if someone has a preexisting knee condition but that condition is legally aggravated (objectively worsened) by a work event, the employer is liable. But that rule works both ways. If someone gets an award for the knee and then post-award the knee condition is aggravated by running or working out in the gym, the employer may no longer be liable. Medical experts must comment on the connection between the non-work activities and the worsening in the knee.
Times have changed in the past 40 or more years since reopener interrogatories were created. Back then there were no gyms in every shopping center and no treadmills and elliptical machines at home. The hot stocks were IBM and GE, not Nike and Peloton. It is a significant omission that the form reopener interrogatories have no questions about gym activities, use of home exercise machines, outdoor sports, etc., and no questions about the existence of new or episodic pain since the prior award. For purposes of both treatment and increased disability, treating and evaluating doctors need to get information on physical activities which the petitioner engaged in since the prior award.
What can employers do when faced with a request for treatment 18 months post-award? Defense counsel can ask petitioner’s counsel for information on what physical activities petitioner has engaged in during the past 18 months. What sports activities has the injured worker engaged in? Could this be a case where the petitioner has been regularly hiking, jogging, riding a peloton or outdoor road bike? If so, that information may be highly important to the doctor. In addition, counsel and the adjuster can ask when the petitioner first felt pain since the award, or was the pain there all along since the time of the award?
Adjusters, employers and defense counsel should resist the temptation to view reopener interrogatories as the only questions that can ever be asked. Frankly, most petitioners’ counsel want to move the case along and get their clients to treating physicians. If the questions are reasonable, they will address them. In the same way, when petitioner’s counsel asks for the personnel file of the petitioner, most employers oblige even though there is no specific rule on this.
New Jersey is a state where the formal discovery is only moderately relevant; therefore informal discovery is critical to engage in. The doctor selected for the medical examination can also go into questions along these lines, but how many doctors understand what a reopener is? To put this in perspective, 18 months is a very long time: there could several hundred visits to the gym during that period of time or a few hundred two mile runs. What role did these activities play, if any, in the worsening of the knee case discussed above?
The lesson in all this is that in reopener cases employers need to focus heavily on the time period between the award and the date of the reopener. Social media can assist in certain cases, and interviews with supervisors can help identify possible outside activities. A new ISO is often pivotal. Unfortunately, the current diagnosis is that New Jersey’s form interrogatories seem rather out of shape and in need of a good workout.
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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.
For over 100 years it was accurate to say that the New Jersey Workers’ Compensation Act is a benefits law, not an employment rights law – but not for long. On May 20, 2021, the New Jersey Assembly voted in favor of creating a hiring preference for certain employees who reach maximum medical improvement (MMI). Under A2617 an employer with 50 or more employees must provide a hiring preference to an injured employee who has reached MMI, is unable to return to his or her own former position, but can perform the essential duties of an existing unfilled position.
When an employment law provision like this gets inserted into the New Jersey Workers’ Compensation Act, one must wonder what is the problem that the legislature is trying to resolve?
Perhaps the rationale was to reinforce existing employment laws under the New Jersey Law Against Discrimination and the ADA? No, that cannot be the answer because the laws are different. The NJLAD and ADA require the worker to prove a disability for coverage and the employee has the obligation to make a request for reasonable accommodation. A2617 does not contain a requirement that covered employees must prove a disability or request a reasonable accommodation. It seems to cover any and all employees who reach MMI and who cannot perform their former job – but only if their injury arose from work.
Perhaps the rationale was to solve the problem of employees not being able to find new jobs? The sponsors wrote, “Workers’ compensation injuries can be traumatic and devastating. No injured employee should be left without options for work?” This cannot be the answer either because the US Bureau of Labor Statistics announced on March 31, 2021, that the number of unfilled jobs in the United States is 8.1 million. New Jersey’s population is 3% of the nation’s total. Using three percent as a ballpark percentage for New Jersey, there would be 240,000 unfilled jobs in this state. It is easier today to find a job than it has been in half a century.
Maybe the rationale was to help a narrow category of workers who are financially disadvantaged by injuries? No, that does not make sense. Consider two employees with identical low back injuries who require fusion surgery at L4-5 and L5-S1. Employee A falls on January 1, 2021 on his deck at home and has fusion surgery. Employee B falls on January 1, 2021 at his work desk and has the same fusion surgery. Both reach MMI in May 2021. Employee A is not eligible for the $969 per week for lost time benefits (temporary disability benefits) because the injury occurred at home. Employee A is also not eligible for full medical coverage and must pay expensive deductibles and co-pays. Finally, Employee A is not eligible for partial permanent disability benefits in workers’ compensation.
By contrast, Employee B gets $969 per week for temporary disability benefits, has no medical bills to pay under workers’ compensation and eventually settles the workers’ compensation case for 40% permanent partial disability or $124,080 – all of which is tax free. So which worker did the legislature attempt to provide the job preference to? You guessed it: the one with the advantages of workers’ compensation coverage.
When it comes to the concept of a hiring preference for workers with injuries, there is no logical rationale to distinguish between seriously injured workers who get hurt at home versus those who get hurt at work. The NJLAD doesn’t make that distinction. The ADA doesn’t make that distinction. These employment laws are already adequate, and there is no need for A2617.
What does this bill do for the welfare of the state? Assuming A2617 in fact creates rights that did not previously exist for employees who cannot perform their job duties due to work-related injuries, one must wonder why would the legislature subject employers to potential for more litigation over and above the cost of workers’ compensation when so many employers in the northeast are already fleeing to more friendly business climates in the south?
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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.
Legal Update by Attorneys Nick Cooling, Alison Stewart, and Law Clerk Jordan Gehlhaar
On April 29, 2021, an Iowa District Court affirmed a final decision of the Iowa Workers’ Compensation Commission relating to interpretation of the shoulder under amended section 85.34. You can view our briefing of the Agency appeal decisionhere. The court affirmed that “shoulder” as a scheduled member includes the “complex and intertwined structure of the shoulder and not just the joint.”
Following an injury to her shoulder, Claimant Chavez was diagnosed with a full thickness rotator cuff tear, severe AC arthrosis, and tendonitis and tearing of the biceps tendon. She underwent a right shoulder arthroscopy with repair of the rotator cuff tendon (including supraspinatus, infraspinatus, and subscapularis tendons), debridement of the labrum, biceps tendon, and subacromial space, a biceps tenotomy, and subacromial decompression.
The primary dispute in the case was whether Claimant Chavez’s injury resulted in an unscheduled industrial disability or a scheduled member injury to her shoulder, in light of the Iowa Legislature’s 2017 addition of “shoulder” as a scheduled member under Iowa Code section 85.34(2)(n). The Iowa Workers’ Compensation Commissioner concluded this was a shoulder injury and therefore limited recovery based on her 10% upper extremity impairment rating. The Commissioner incorporated analysis from theDeng v. Farmland Foods ruling on the intricacies of the shoulder and legislative intent.
Claimant Chavez sought judicial review, asserting the injury should be unscheduled, or alternatively a combination of two injuries resulting in a body as a whole injury. On review, the district court agreed that “shoulder” was ambiguous in that it could mean just the shoulder joint, or it could include the tendons and muscles connected to the joint. Utilizing dictionary definitions and legislative history, the court concluded the ordinary interpretation of shoulder is the “complex structure that includes the joint, tendons, and muscles.” Therefore, it was not error for the Commissioner to find Chavez’s injury to her rotator cuff, labrum, and other tendons and muscles established a scheduled member injury under section 85.34(2)(n). Additionally, the court affirmed denial of industrial disability based on injury to two scheduled members: the shoulder and the arm. Claimant failed to meet her burden to establish an arm injury.
Consistent with prior decisions on this issue, the court noted that the exact parameters of a scheduled shoulder injury under section 85.34(2)(n) will need further exploration and development. Peddicord Wharton will continue to monitor case law on this issue.
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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. ©2021 Peddicord Wharton. All Rights Reserved.
Written by: Tracey Jones
Occupational diseases that attack injured workers’ lungs are often filed with the North Carolina Industrial Commission. The most common lung diseases include: (1) silicosis; (2) asbestosis; (3) byssinosis; and (4) occupational asthma. Silicosis and asbestosis are specifically enumerated in N.C Gen. Stat. § 97-53. Byssinosis and occupational asthma are not specifically enumerated under this statute, but fall under the “catch-all” provision of the statute.
Silicosis is a progressive disease that belongs to a group of lung disorders called pneumoconiosis. Silicosis is marked by the formulation of lumps (nodules) and fibrous scar tissue in the lungs. It is the oldest known occupational lung disease and is caused by exposure to inhaled particles of silica, mostly from quartz in rock, sand, and similar substances.
The precise mechanism that triggers the development of silicosis is still unclear. What is known is that particles of silica dust get trapped in the tiny sacs (alveoli) in the lungs where air exchange takes place. Diagnosis of silicosis is based on a detailed occupational history, chest X-rays, bronchoscopy and lung function tests. There is currently no cure for silicosis; however, treatment is available to relieve symptoms, treat complications, and prevent respiratory infections.
Asbestosis is a chronic, progressive inflammation of the lungs. Asbestosis is a consequence of prolonged exposure to large quantities of asbestos, a material once widely used in construction, insulation, and manufacturing. Asbestosis is most common in men over 40 who have worked in asbestos-related occupations. Smokers or heavy drinkers have the greatest risk of developing the disease.
Occupational exposure is the most common cause of asbestosis. Screening of at-risk workers can reveal lung inflammation and lesions including fibrosis (scarring of the lungs), as well as restriction on pulmonary function testing (PFT). The scarring is usually in the lower lobes of the lungs and the scarring is normally bilateral, or seen in both lungs. Pleural plaques are also seen in workers exposed to asbestos, but these plaques are generally not compensable under the NC Workers’ Compensation Act as they do not cause breathing impairment.
Byssinosis is a chronic, asthma-like narrowing of the airways. It is also known as the “Brown Lung” disease. The disease results from inhaling particles of cotton, flax, hemp or jute. More than 800,000 workers in the cotton, flax and rope-making industries are exposed in the workplace to airborne particles that can cause byssinosis.
Occupational asthma is a form of lung disease in which the breathing passages shrink, swell or become inflamed or congested as a result of exposure to irritants in the workplace. At least 15% of all cases of asthma can be tied to exposure to: animal hair, dander, dust, fumes, insulation and packaging materials, mites and other insects, or paints. Occupational asthma is most likely to impact workers who have personal or family histories of allergies or asthma, or who are often required to handle or breathe dust or fumes created by especially irritating material.
Short-term exposure to low levels of one or more irritating substances can cause a very sensitive person to develop symptoms of occupational asthma. A person with occupational asthma may have one or more symptoms, including cough, shortness of breath, tightness in the chest, and wheezing. The most effective treatment for occupational asthma is to reduce or eliminate exposure to symptom-producing substances. It is also important to note that this disease can be reversible.
Each of these diseases, the symptoms, and the treatment required are unique and should be treated as such. When a plaintiff files a workers’ compensation claim alleging an occupational disease lung claim with the North Carolina Industrial Commission, defendants must be prepared to proactively defend the claim with expert medical and vocational assessments.
JSB ATTORNEYS, PLLC
May 14, 2021
Legislation Enacted
Senate Bill 49: AN ACT relating to home and community based services waiver providers.(Effective June 28, 2021)
· Amend KRS 337.010 to exclude providers of certain home or community based services from the definition of employee in regards to payment of wages; amend KRS 342.650 to exempt certain home or community based services from coverage in regards to workers’ compensation; amend KRS 341.055 to exclude certain home or community based services from “covered employment” in regards to unemployment compensation.
Senate Bill 141 - AN ACT relating to the coal workers' pneumoconiosis fund.(Effective June 28, 2021)
· Amend KRS 342.1242 and KRS 342.1243 to provide guidelines for distribution of funds remaining in the Kentucky coal workers' pneumoconiosis fund.
House Bill 48 - AN ACT relating to reimbursement for pharmacist services. (Effective June 28, 2021)
· Create a new section of Subtitle 12 of KRS Chapter 304 to establish certain insurance practices relating to the reimbursement of pharmacists; amend KRS 304.14-135 to establish a clean claim form for the reimbursement of certain pharmacist services or procedures; amend KRS 304.17A-844 and 304.17B-011 to conform; amend KRS 18A.225 to require the state employee health plan to comply with pharmacist reimbursement requirements; amend KRS 342.020 to require workers' compensation employers, insurers, and payment obligors to comply with pharmacist reimbursement requirements.
House Bill 349 – AN ACT relating to legislative committees. (Effective June 28, 2021)
· Amend KRS 11.202, 304.13-340, 304.50-160, 341.240, 342.035, 342.1223, 342.230, 342.342, 342.765, and 342.817 to change the name of the committee of the General Assembly which shall receive agency reports.
Legislation proposed but not passed
Senate Bill 85 – AN ACT relating to workers' compensation for volunteer firemen and other emergency personnel.
· Amend KRS 342.140 to allow income benefits for volunteer firemen, police, and emergency management agency members or trainees to be based on fifty percent of the state average weekly wage if that is greater than the average weekly wage of their regular employment.
· 01/07/21: introduced in Senate to Committee on Committees (S); 02/02/21: to Economic Development, Tourism, & Labor (S)
Senate Bill 157 - AN ACT relating to workers' compensation.
· Amend KRS 342.610 to provide that contractors shall not be liable for payment of compensation to subcontractors with no employees who are not subject to KRS Chapter 342.
· 02/03/21: introduced in Senate to Committee on Committees (S); 02/09/21: to Economic Development, Tourism, & Labor (S)
House Bill 242 - AN ACT relating to the recognition and registration of professional employer organizations.
· Create new sections of KRS Chapter 336 to declare that professional employer organizations provide a valuable service to commerce and should be properly recognized and regulated; define "client," "co-employer," "co-employment relationship," "covered employee," "insurer," "professional employer organization group," "person," "professional employer agreement," "professional employer organization," "professional employer services," "registrant," and "temporary help service"; indicate that covered employees shall be deemed employees of the client for purposes of determining tax credits or economic incentives; require a person providing professional employer services to be registered and to set forth the registration requirements; require professional employer organizations to pay a registration fee; require a professional employer organization to either maintain positive working capital or provide a bond, letter of credit, or security; set forth the rights and responsibilities of parties to a co-employment agreement; set forth the health insurance obligations of professional employer organizations; set forth the workers' compensation requirements of professional employer organizations and the client; set forth the unemployment insurance obligations of the professional employer organization and the client; prohibit a person from knowingly providing professional employer services without becoming registered and set forth actions that may be taken by the Department of Workers' Claims against any person in violation; amend the definition of "premium" in KRS 342.0011 to include co-employment relationships with a professional employer organization; amend KRS 342.990 to delete references to KRS 342.615; repeal KRS 342.615; state that the provisions of this Act are severable.
· 02/09/21: introduced in House to Committee on Committees (H); 02/10/21: to Small Business & Information Technology (H)
House Bill 385 – AN ACT relating to employment.
· Amend KRS 337.010 to remove exemptions in definition of employee for agricultural workers and domestic service workers; amend KRS 342.630 to indicate that agricultural employers are subject to KRS Chapter 342; amend KRS 342.650 to remove exemptions for domestic service employees and agricultural employees from coverage under KRS Chapter 342; amend other statutes to conform.
· 02/04/21: introduced in House to Committee on Committees (H)
House Bill 529 - AN ACT relating to workers' compensation.
· Amend KRS 342.610 to exclude certain levels of delta-9-tetrahydrocannabinol in the blood from the presumption that an injury was caused by the introduction of certain substances into the employee's body.
· 02/22/21: introduced in House to Committee on Committees (H)
House Bill 59 - AN ACT relating to workers' compensation.
· Amend KRS 342.020 to require an employer to pay for medical benefits at the time of injury and thereafter during disability instead of 780 weeks; amend KRS 342.990 to conform.
· 01/05/21: to Committee on Committees (H)
House Bill 62 - AN ACT relating to occupational disease claims.
· Amend KRS 342.125 to remove the requirement that an affected employee previously diagnosed with occupational pneumoconiosis resulting from exposure to coal dust must have an additional two years of employment in the Commonwealth wherein the employee was continuously exposed to the hazards of the disease in order to reopen a claim.
· 01/05/21: to Committee on Committees (H)
House Bill 282 - AN ACT relating to workers' compensation.
· Amend KRS 342.315 to eliminate the requirement that physicians contracting with the commissioner of the Department of Workers' Claims to perform evaluations in occupational disease claims be "B" readers who are licensed in Kentucky and are board-certified pulmonary specialists; amend KRS 342.316 to allow the commissioner to select a physician or medical facility for referral in occupational disease claims and eliminate the requirement that such physicians be "B" readers who are licensed in Kentucky and are board-certified pulmonary specialists; amend KRS 342.794 to delete the definition of "board-certified pulmonary specialist" and eliminate the requirement that physicians on the list of qualified "B" readers maintained by the commissioner include only those licensed in Kentucky and board-certified pulmonary specialists.
· 02/02/21: to Committee on Committees (H)
House Bill 500 - AN ACT relating to workers' compensation for first responders.
· Amend KRS 342.0011 to clarify definition of "injury" to include psychological injuries for certain employees; create a new section of KRS Chapter 342 to set out when the psychological injuries are valid workers' compensation claims when no physical injury exists.
· 02/10/21: to Committee on Committees (H)
House Bill 479 - AN ACT relating to legal actions involving the Commonwealth of Kentucky and declaring an emergency.
· Amend KRS 15.020 to authorize the Attorney General to bring an action regarding the constitutionality of statutes, regulations, and orders; establish venue; amend KRS 15.060 to authorize assistance from other areas of state government regarding investigations and prosecutions of various matters; amend KRS 15.113 to identify additional illegal or fraudulent activity under the investigative authority of the Attorney General; amend KRS 15.240 to expand the statutes under which the Attorney General can initiate an action or intervene in an action; amend KRS 342.760 and 342.765 to transfer the legal representation and reporting requirements regarding the uninsured employers fund from the Attorney General to the Labor Cabinet; amend KRS 446.350 to establish a waiver of sovereign immunity under limited situations; EMERGENCY.
· 03/11/21: recommitted to Appropriations & Revenue (H)
Should you have any questions or wish to discuss any of these matters personally, please contact us at your convenience.
H. Douglas Jones, Esq.
Margo J. Menefee, Esq.
WORKERS' COMPENSATION LAW Deny, Deny, Deny – Claimant’s Denial of History Results in Denial of Petition |
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The Claimant was involved in a work-related lifting injury to her low back in June 2018. In October 2018, Claimant went to the emergency room with shoulder and neck pain, with no, follow-up treatment for the shoulder until she saw an orthopaedic surgeon in April 2019. According to the surgeon, Claimant identified an incident that occurred 6-8 weeks prior in which she was wearing a large, bulky back brace and attempted to reposition herself; after placing her full weight on her left arm, she experienced left shoulder pain, which was ultimately diagnosed as a rotator cuff tear. A similar history was given to the physical therapist. The surgeon testified that he relied upon this history to relate the left shoulder injury to the work accident, as he placed the blame on the work-related low back brace causing the claimant to move unnaturally. At the Hearing on Claimant’s Petition, however, Claimant gave an entirely different story. Claimant testified she was sitting on the couch in October 2018 and moved her left arm outward, at which point she felt a pop in her shoulder. Claimant specifically denied the history given by the surgeon and the physical therapist, with respect to both the mechanism of injury and the timing – she insisted it was a single event in October. Claimant also denied moving in any particularly awkward or abnormal ways while in the brace, again departing from the history reported by her surgeon. After hearing the significant inconsistencies and outright denials of the recorded histories, the Board found Claimant was not credible or consistent, finding her “timeline of events incoherent” and noting her denials of the history given to her doctors difficult to reconcile. The Board was “left wondering if there was an inciting event” and, if so, whether it was one event or multiple. Instead, the gaps and uncertain symptoms and causes supported the opinions of the Employer’s expert, Dr. Matz, who testified that Claimant’s condition presented as the result of a rotator cuff that has worn down over 68 years of daily life and work. Because the Board could not reconcile the denials with the treating surgeon’s efforts to explain the mechanism of injury, the Board was left with no choice but to deny Claimant’s Petition entirely on the basis of causation alone. Should you have any questions regarding this Decision, please contactNick Bittner or any other Attorney in our Workers’ Compensation Department. Geraldine Daggett v. ShopRite, IAB No. 1500021, March 19, 2021. |
The Alabama Court of Civil Appeals recently released an opinion in In re: Laura Register v. Outdoor Aluminum, Inc. wherein it reversed summary judgment in favor of the employer in a retaliatory discharge case. While the decision itself did not create any new legal precedent, or narrow, or expand prior holdings, it did highlight the importance of communication between the employer and the workers’ compensation claim handler.
In Register, the non-retaliatory reason asserted as the basis for the termination was absenteeism. In the usual case, assuming the employee was absent more than what would typically be allowed, such a reason would be considered legitimate and not pre-textual. In Register, however, since the employee had not yet been medically released to return to work, the Court of Appeals determined that there was a contradiction between the work status and the alleged absenteeism. As such, the Court held that there were material issues in dispute that needed to be decided by a jury.
My Two Cents: As the prison captain said to Paul Newman’s character in Cool Hand Luke, “What we’ve got here is a failure to communicate.” The effective handling of a workers’ compensation claim involves a partnership between the employer and the claims handler. As with any good partnership, communication is the key to success. In many cases, years of litigation and the time and expense associated with it can be avoided with a single e-mail or phone call.
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This blog submission was prepared by Karen Cleveland, 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 Cleveland by e-mailing her at kcleveland@fishnelson.com or by calling her directly at 205-332-1599.
Written by: Tracey Jones
The tripartite relationship refers to the relationship between the insurer, the insured, and the attorney arising out of the insurance contract. Each party to the relationship has their own respective duties and roles, which will be discussed in turn. In litigation, it is critical for each member of the tripartite relationship to understand its role and responsibilities. .
*The role between the insured and the insurer is defined by the insurance contract, with any ambiguities being interpreted by the courts in favor of the insured.
The tripartite relationship is formed with the primary objective of achieving a successful result in litigation. This relationship, while seemingly simple on the surface, can create numerous, and often complex questions depending on the peripheral goals and interests of the parties, which are not always mutual. Understanding the roles and each role’s responsibility is critical throughout the claims process.
[1] N.C. Admin. Code, Tit.27, Ch2, Canons I-VIII.
Attorney Adam Bates obtained a complete defense verdict for his client in front of the Iowa Workers’ Compensation Commission. Claimant had alleged an injury to his low back and claimed entitlement to significant industrial disability as a result. The injury was denied by Mr. Bates’ client as non-work related and a failure to timely report the injury. Mr. Bates successfully argued to the Commission that Claimant’s injury was not work-related based upon medical evidence, witness testimony, and Claimant’s failure to timely report his injury as work-related.
The Deputy Workers’ Compensation Commissioner agreed with Attorney Bates’ arguments, dismissing Claimant’s case in its entirety. A copy of the decision can be found here.
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