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As we celebrate 100 years of Alabama Workers’ Compensation in 2019, the Alabama Workers' Comp Blawg celebrates its 12th year.  We would like to thank all of our readers who have helped to makehttp://www.alabamaworkerscompblawg.com a nationally recognized and award winning news source for Alabama workers' compensation! 

About the Author

This blog submission was prepared by Mike Fish, an attorney with Fish Nelson & Holden, LLC, a law firm dedicated to representing self-insured employers, insurance carriers, and third party administrators in all matters related to workers’ compensation. Fish Nelson & Holden is a member of the National Workers’ Compensation Defense Network. If you have any questions about this submission or Alabama workers’ compensation in general, please contact Fish by e-mailing him at mfish@fishnelson.com or by calling him directly at 205-332-1448.

The Following are summaries of 2019 West Virginia cases dealing with the issues of pre-existing conditions and mental health exposure claims.

1.         Comorbidities and the Dreaded Pre-Existing Condition

 In Bowles v. WV Office of the Insurance Commissioner and Pine Ridge Coal Co., LLC, No. 18-0797, 2019 WL4165292 (W. Va. Sept. 3, 2019), the Supreme Court of Appeals of West Virginia found that a claimant had not established that his carpal tunnel syndrome was work related and affirmed an order denying compensation. The claimant, Mr. Bowles, worked as a coal miner for many years and was eventually diagnosed with carpal tunnel syndrome which he alleged was the result of repetitive wrist motions required by his job.Id. at *1. An independent medical evaluation revealed that Mr. Bowles suffered from two non-occupational risk factors, diabetes mellitus and obesity, which could cause carpal tunnel.Id. Additionally, the independent examiner opined that Mr. Bowles' work activities were not of the type to cause carpal tunnel and emphasized the fact that Bowels had quit working in 2012 and was not diagnosed with carpal tunnel until three years later.Id. at *2. Ultimately, Bowles' pre-existing conditions were a significant factor in denying his request for workers' compensation benefits. The Court found the only opinion as to causation was the IME doctor, who opined that the carpal tunnel syndrome was not causally related to Mr. Bowles's occupational activities. Instead, the IME doctor found Mr. Bowles has two important and significant nonoccupational risk factors for the development of carpal tunnel syndrome, diabetes mellitus and obesity. The fact that Mr. Bowles ceased work in 2012 and experienced increased symptoms for three to four years before filing for benefits is consistent with the doctor's opinion.Id., at *2.

 In contrast, the court in Arcelormittal Weirton, LLC v. Prentice, No. 18-0723, 2019 WL 1828005 (W. Va. Apr. 25, 2019), held that a claim for carpal tunnel and ulnar neuropathy was compensable despite the fact that the claimant suffered from pre-existing conditions, including diabetes and obesity. In that case, Mr. Prentice, the claimant, alleged that he developed carpal tunnel as a result of carrying tools while working as a crane repairman.Id. at *1.

An EMG performed on July 27, 2016, showed bilateral ulnar sensory and motor neuropathies, severe on the right and moderate to severe on the left. Mr. Prentice reported to his treating physician on August 26, 2016, tingling in both of his ring and small fingers. The treating doctor reviewed the EMG and noted that carpal tunnel syndrome was not diagnosed. On examination, Mr. Prentice had positive Tinel's and Phalen's signs over the median nerves of the wrists and positive Tinel's sign over the ulnar nerves in the elbows. The treating doctor noted Prentice's history of rheumatoid arthritis, bilateral ulnar nerve neuropathy at the elbow, and an exam suggestive of carpal tunnel syndrome. He recommended a repeat EMG. The treating physician diagnosed rheumatoid arthritis, bilateral post-traumatic osteoarthritis, bilateral ulnar neuropathy, and bilateral carpal tunnel syndrome. A repeat EMG was performed on September 2, 2016, and showed marked bilateral ulnar neuropathy.Id., at *1. Prentice's doctor performed carpal tunnel release surgery on October 5, 2016, and his claim was rejected thereafter on October 25, 2016.Id. In a subsequent record review, a different doctor noted Prentice's diabetes and obesity and opined that there was no evidence of carpal tunnel.Id. at *2. Despite the record review findings and the pre-existing conditions, the court found no error in awarding Prentice compensation.Id. at *2-3. The court stated that it was acceptable to find Prentice's practicing physician more persuasive than a doctor performing a record review. Prentice also presented evidence that his job required repetitive heavy manual lifting, which pursuant to West Virginia Code of State Rules § 85-20-41.5, has been shown to contribute to the development of carpal tunnel syndrome.Id. at *2.

These two cases document the Court's view the causation determination for CTS is fact-specific. When evaluating allegations of CTS, it is imperative to investigate the preexisting medical conditions of each claimant and determine the impact on the claimant's medical condition. Additionally, a precise examination of the job duties and functions of a claimant is also important to analyze the compensability under the parameters of West Virginia Code of State Rules § 85-20-41.5.

2.         Mental Health Exposure Claims

In D'Amour v. Combined Ins Co. of Am. AT, No. 18-0677, 2019 WL 2404586 (W. Va. May 30, 2019), the West Virginia Supreme Court held that adjustment disorder with anxious mood and post-concussion syndrome were compensable claims, in part overturning a decision by the Board of Review. The claimant, D'Amour, sought to add compensable conditions to his claims including Post-concussion syndrome and post-traumatic brain injury.Id. at *1. D'Amour was a door-to-door salesman and was injured when he knocked on a door and was attacked by four dogs.Id. D'Amour reported a bite on the wrist and head injury after he fell back and struck the sidewalk, but an initial CT scan revealed no abnormalities.Id.

D'Amour stated that his head was not bothering him at the emergency room, but he was perplexed when it took him three hours to drive home despite the fact that he lives only thirty minutes away from the hospital.Id. D'Amour developed headaches and light sensitivity and reported problems with short term memory, focusing, and concentration.Id. Subsequent brain scans continued to show no abnormalities and D'Amour was diagnosed with post-concussive syndrome.Id. at *1-*2. Several months later, D'Amour's symptoms worsened and he began suffering from depression as a result of his inability to work.Id. at *2. D'Amour was eventually diagnosed with major depression and adjustment disorder with depressed mood.Id. at *2-3. In denying D'Amour's request to add post-concussion syndrome to his compensable claims, the Board of Review relied upon one physician who believed that D'Amour was not a valid reporter of his symptoms even though four other physicians had concluded that it was the proper diagnosis. Id. at *3-4. The West Virginia Supreme Court decided that such a finding was clearly wrong based upon the evidentiary record and determined that post-concussion syndrome and concussion were compensable.Id. at *4.

In Riley v. All. Coal, LLC, No. 18-0586, 2019 WL 2406701 (W. Va. May 30, 2019), a coal miner appealed a Board of Review decision denying the addition of post-traumatic stress disorder to his claim. Mr. Riley was injured on the job when rocks fell from the veiling and struck his helmeted head. Id. at *1. The claim was initially held compensable for concussion and bilateral upper extremity numbness.Id. Subsequently, Riley reported problems with behavior, sleep, memory, and anxiety and was found to have met the criteria for PTSD.Id. Riley was evaluated by three doctors and his PTSD was confirmed by two. The third doctor determined that Riley had reached maximum medical improvement, but deferred an opinion on Riley's psychological stated because he was not qualified in that area.Id. at *3. The West Virginia Supreme Court held that there was sufficient evidence linking Riley's PTSD to his compensable injury. However, the employer did not get an opportunity to evaluate Riley with their own physician so the court remanded the case for further evidence. Id. at *3-4.

By: Joe Unger and Dill Battle

What happens when an employee is treating for one injury and during the course of treatment he or she develops a brand new injury? There are precious few cases on this set of facts, and the latest decision in Robinson v. United Airlines is extremely important to practitioners in analyzing how to approach derivative injury cases.  Prudence Higbee, partner with Capehart Scatchard, won the case for United Airlines at trial and on appeal.

Priscilla Robinson, a flight attendant, suffered a work-related wrist fracture, requiring her to perform physical therapy.  She claimed that on the first day of PT, namely June 15, 2016, the physical therapist had her lift a bar approximately to eye level multiple times.  She said she did not feel well and experienced shortness of breath and heart palpitations while in therapy. Petitioner admitted that she did not complain of shoulder pain at therapy, but when she got home she said she felt shoulder pain.  She saw her family doctor the next day, who ordered an MRI on June 22, 2016, which showed a rotator cuff tear.  Petitioner eventually filed a claim petition contending that physical therapy for her wrist caused or aggravated the rotator cuff tear in her shoulder.

Respondent produced testimony from the physical therapist.  She contradicted the critical element of petitioner’s testimony about exercising with a bar.  She brought her contemporaneous notes to court, which made clear that all petitioner did on June 15, 2016 was stretching exercises. She said that she makes entries in notes covering all activities, and no bar movement occurred. The notes also made clear that petitioner never complained of shoulder pain, although she did report heart palpitations and a feeling of weight on her chest.  The therapist offered to call 9-1-1 and take petitioner’s vital signs, but petitioner declined.  Petitioner did return two days later saying she had shoulder pain.  The therapist modified activities, and petitioner did not complain of any pain that day.

Petitioner returned on June 20, 2016 and had no complaints at all.  She did several exercises that day, including a push-pull cart, which simulated pushing a beverage cart for 200 feet.  She did other exercises with her right hand only.

Petitioner relied on the testimony of Dr. Craig Rosen, a surgeon, who saw petitioner on January 11, 2018.  He recommended arthroscopic surgery to repair the torn rotator cuff.  He opined that it was hard to say whether the tear was old or new but he did not feel it was a “longstanding chronic tear.”  He felt it was caused by a lifting movement of a bar or doing some kind of swimming motion that petitioner mentioned.  Dr. Rosen was emphatic that petitioner reported lifting some type of bar and going through a swimming type of motion on day one.  He said that this movement could have caused a tear.

Respondent produced Dr. Kenneth Levitsky, also an orthopedic surgeon, who said that the most likely mechanism of injury for a rotator cuff tear would be an extension or abduction stretch-type injury with the arm overhead.  He said a very forceful twisting injury could also cause such a tear.  He examined the list of exercises that the therapist recorded.  Dr. Levitsky said none of these exercises would cause a rotator cuff tear because they were not forceful enough and did not fit the classic mechanism of injury.  He said, “There’s no exercise here that demonstrates or would cause a significant twisting force on the shoulder with the arm in an unusual position.”  He concluded that the tear was likely preexisting.  He had no evidence of petitioner having a prior rotator cuff tear, but he did note that petitioner had some degenerative changes that preexisted her PT.

The Judge of Compensation considered all the evidence and found in favor of United Airlines.  The Judge held that petitioner did not carry her burden of proof that her rotator cuff tear was caused or exacerbated by her physical therapy for the wrist. He credited the daily activity logs maintained by the physical therapist.  The Judge also noted that petitioner did not tell her own family doctor that she had suffered a traumatic accident on June 15, 2016.  Further, the Judge found Dr. Levitsky’s testimony to be more persuasive than that of Dr. Rosen.

On appeal petitioner contended that the Judge of Compensation should have shifted the burden of proof to respondent to show that petitioner’s accident was caused by a prior, personal condition.  Counsel for petitioner argued that respondent’s defense was that this incident was idiopathic, and that the burden shifts on idiopathic claims to the defense.  The Court said, “We disagree. In our view, petitioner confuses those cases in which an employee’s idiopathic condition causes a work accident or event that results in injury, with a work accident or event that aggravates a pre-existing condition or injury.”

The Appellate Division found that this was not a case in which respondent was contending that petitioner’s rotator cuff tear was preexisting and personal.  All respondent was saying was that petitioner never proved a work accident.  The Court said, “… the dispute focused on whether petitioner’s shoulder injury was occasioned or aggravated by her therapy, or whether it represented the progression of a pre-existing injury.  Stated differently, the dispute was whether any event had occurred at work and caused or aggravated petitioner’s injury.  Consequently, the burden of proof did not shift to the employer and the JOC did not err by finding petitioner did not sustain her burden.”

In affirming the denial of the petitioner’s claim for the shoulder, the Court made an important distinction.  When an employer is aware of a prior medical condition and believes that a new injury derives entirely from a personal condition, this triggers the idiopathic defense.  In such cases, it is the employer’s burden to prove the condition is from personal causes. On the other hand, when a worker is arguing that he or she suffered a work incident but there is no evidence of any preexisting condition, the burden of proof remains on the petitioner to establish that a work injury occurred.  The problem petitioner had in this case is that her doctor felt that the mechanism of injury was raising a bar to eye level; but petitioner could not show that she performed such a maneuver on the day of the injury.

This case can be found at Robinson v. United Airlines, A-5917-17T2 (App. Div. September 18, 2019).   The winning tactic in this case for United Airlines was bringing in the physical therapist to rebut the testimony of petitioner as to the mechanism of alleged injury.  That testimony, more than any other factor, led to victory for the employer.

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John H. Geaney, Esq., is an Executive Committee Member and a Shareholder 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. 

There are a large number of petitions for permanent partial disability benefits filed each year in New Jersey for scars and serious lacerations.  It is important for practitioners to understand that injuries due to scars are subject to completely different proofs from all other physical injury claims in New Jersey. 

The main difference between a scar case and every other physical injury case is that there is no requirement for a claimant to prove restriction of bodily function.  Even if the scar has absolutely no impact on the function of one’s hand, arm or body part, the petitioner can receive an award.  In fact, it is uncommon that a scar injury has an impact on bodily function.  The operative test is that a scar injury case must be substantially disfiguring to receive an award. What is or is not substantially disfiguring is in the eye of the beholder.  Certainly if one looks at the injury and no scar is visible at all, that injury would not meet the test of substantial disfigurement, and no award would be made. Yet all other kinds of injuries in New Jersey require proof by objective evidence of a restriction of the function of the body or its member organs.

Given that the test is essentially how disfiguring the scar looks, these kinds of cases may not even need an evaluation by a physician, although the practice statewide seems to favor getting IMEs.  In many instances, it is more helpful to ask the injured worker to come to court so that the lawyers, and sometimes the Judge of Compensation, can view the scar if it is on the face, hands or arms.  When the location of the scar is more private, or the claimant is uncomfortable having it viewed in person, a current photograph can be just as helpful or a description by a doctor in a medical report can suffice.

When it comes to viewing a scar and determining whether it is disfiguring, a Judge of Compensation, claim adjuster or a lawyer is equally qualified to make the same determination as a physician on whether the scar looks substantially disfiguring.  One does not need a medical degree to answer the following:  Is it a raised scar? Is it uneven or bumpy?  Is it discolored? Does the skin appear to be keloidal in nature? These are observations that anyone can make in assessing whether a scar is substantially disfiguring.  In fact, this practitioner has found that many doctors who do IMEs on scar injury cases mistakenly focus on assessing functional loss because they do not realize that in scar cases functional loss is not required under N.J.S.A. 34:15-36. 

Because scars take a long time to heal and because collagen breaks down slowly at the site of the wound, the scar may fade significantly over a long period time.  For this reason, it is not wise in serious scar injury cases for respondents to rush to get an IME soon after the injury.  Often scars improve markedly one year or more after the initial injury.   It is often startling to see how different the injury site looks at the time of the work incident versus how it looks one or two years later.

Practitioners often debate whether a scar should be compensated based on where it is located on the body or whether the injury is more psychological in nature and therefore should be compensated as a partial total injury.  For instance, should a very unsightly scar on one’s hand be compensated in terms of the hand (one percent equals 2.45 weeks) or should it be compensated under partial total (one percent equals six weeks)?  The answer is that this it depends on whether the petitioner is having psychiatric problems in relation to the appearance of the scar.  An IME with a psychiatrist would be necessary to make the argument that the injury should be compensated in whole or in part under partial total with more weeks.  The defense, in this instance, would need an IME with its own psychiatrist.

The best advice for employers in handling serious scar cases is not to try to settle the cases early on and to make sure that whenever possible, the defense counsel or court adjuster has an opportunity to view the scar at or near the time of settlement.  In a significant percentage of cases, the IME is really unnecessary because, as noted above, the test is simply whether the scar appears to be disfiguring.

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John H. Geaney, Esq., is an Executive Committee Member and a Shareholder 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. 

By: Tracey Jones and Melissa Woodard

There are two categories of workers’ compensation claims: injury by accident and occupational disease claims.  Occupational diseases are contracted over time based on the nature of the employee’s job.  Some of the most common examples are hearing loss, respiratory diseases from alleged exposure to harmful chemicals or dust, and carpal tunnel syndrome.

North Carolina has two types of occupational diseases: those enumerated, or specifically listed, in N.C.G.S. § 97-53 and those that fall into the catch-all provision of that statute.  The plaintiff must prove different criteria than when he or she alleges an injury by accident.  If an employee alleges an enumerated occupational disease, he must prove exposure to the harmful agent and causation.  Occupational diseases that fall under § 97-53(13), the catch-all provision, require proof of an additional element, increased risk.  The plaintiff must prove that the nature of his job put him at a risk greater than the general public of contracting the alleged occupational disease.  Briggs v. Debbie’s Staffing, Inc., 812 S.E.2d 706 (2018).

Occupational diseases also differ from injury by accident claims in their filing requirements.  In order to confer jurisdiction upon the Industrial Commission over an injury by accident claim, the plaintiff must file a Form 18 within two years of the date of injury or the last payment of medical bills, whichever is later.  For an occupational disease claim, however, the plaintiff has two years to file from the first date of disability or from the date a medical provider has provided an opinion causally linking the claimant’s disease and occupational exposure, whichever is later. N.C.G.S. § 97-58.  Frequently, this means the plaintiff will have long since left his or her employment with the insured employer and possibly retired altogether.

Another interesting distinction between injury by accident and occupational disease claims is found in N.C.G.S. § 97-57, which describes the employer and carrier liable for the claim.  The statute states the employer and carrier on the risk, or responsible for the claim, is the one where the employee was last injuriously exposed to the hazards of the occupational disease.  The Court has determined that injurious exposure, however slight, is enough to shift the liability to another carrier.  This issue creates a complexity to occupational disease claims that does not generally exist in injury by accident claims.  There are often multiple employers and usually many insurance carriers brought into occupational disease claims as defendants because it is difficult to prove where the last injurious exposure may have occurred.  As the result of the last injurious exposure standard being so low, often times the last employer and carrier in time ends up being liable despite evidence to the contrary.

Practice Tip: When dealing with an occupational disease claim, be sure to retain counsel as soon as possible and especially if discovery is served, because discovery in these cases can be very complicated and will require a detailed analysis regarding what is relevant and what should actually be produced.  Only in very rare cases would it be in the interest of the employer or carrier to accept an occupational disease claim due to the burden of proof on the plaintiff and the last injurious exposure defense outlined in from N.C.G.S. § 97-57.  The best practice is to allow defense counsel to take the lead on investigating the claim, in order to evaluate the strength of the last injurious exposure defense as well as answering discovery from the plaintiff.

On September 6, 2019, the Alabama Court of Civil Appeals released its opinion inEx parte Warrior Met Coal, Inc.  In Warrior, the employee continued to work for employer when he filed a complaint for hearing loss.  The employer moved for summary judgment because the employee was still working for them under the same noise conditions.  The argument being that the employee could not establish a date of last exposure which, in Alabama, is considered the date of injury for cumulative exposure claims.  The employer also argued that the employee could not establish a date of maximum medical improvement “MMI” since he continued to be exposed to the same noise conditions.  The trial court denied the employer’s motion.  The employer then petitioned the Alabama Court of Civil Appeals for a Writ of Mandamus directing the trial court to grant the summary judgment motion.   

The Court of Appeals denied the employer’s petition.  The court noted that nothing in the Act precluded employees from pursuing hearing loss claims simply because they would continue to be exposed.  The Court noted that date of last exposure did not mean the last time the employee would ever be exposed with that employer.  Rather, it means the most recent in time or latest.  To rule otherwise would mean the employee would have to wait until he/she would never be exposed again in order to pursue any benefits including medical.

Concerning the MMI issue, the Court noted that this only had to do with whether or not there was any further medical care or treatment that could reasonably be anticipated to lessen the extent of current disability.  It has nothing to do with whether or not the employee’s condition could worsen in the future.

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About the Author

This blog submission was prepared by Mike Fish, an attorney with Fish Nelson & Holden, LLC, a law firm dedicated to representing self-insured employers, insurance carriers, and third party administrators in all matters related to workers’ compensation. Fish Nelson & Holden is a member of the National Workers’ Compensation Defense Network. If you have any questions about this submission or Alabama workers’ compensation in general, please contact Fish by e-mailing him at mfish@fishnelson.com or by calling him directly at 205-332-1448.

When you think of pirates of the 13^th Century, images of fierce sword-wielding warriors engaged in bloody ship to ship sea battles immediately come to mind.  It may shock you to know, that pirates actually had one of the earliest no-fault workers’ compensation systems.  Each ship had a written compensation schedule where it was agreed that the loss of a limb would result in a lump sum payment of a pre-set number of pieces of eight.  Once the agreement was signed, it was not negotiable.  Therefore, despite their bloody nature, the pirates’ workers’ compensation system was not adversarial in any way.

The modern day workers’ compensation system, however, is exceedingly adversarial.  By definition, the system is characterized by conflict or opposition.  The word “adversarial” is synonymous with words such as “jaundiced”, “negative”, “unfriendly”, and “unsympathetic”.  Such an antagonistic system often times results in delays to the injured employee and increased costs to the employers and insurers.  Why and how has it come to this? 

There is language in every state’s Workers’ Compensation Act that is open to interpretation by judges.  Issues of causation and extent of disability are also typically litigated matters.  Contributing to the process are harbored feelings by parties and their lawyers of bias, demonization, distrust, prejudice, and stigmatization.  When you throw in the personalities and emotions of all involved, it creates an environment that would shiver even a pirate’s timbers.   

On September 19, 2019 at 1:00 p.m. EST, a webinar entitled Adversarial Workers’ Compensation Systems; Survival and Success in a Contentious World will be co-hosted by the President of WorkersCompensation.com, Bob Wilson, and Judge David Langham.  Joining as guests to this 10^th installment of The Hot Seat webinar series will be Virginia Commissioner Wes Marshall and yours truly.  Registration is free.  You may register here.

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About the Author

This blog submission was prepared by Mike Fish, an attorney with Fish Nelson & Holden, LLC, a law firm dedicated to representing self-insured employers, insurance carriers, and third party administrators in all matters related to workers’ compensation. Fish Nelson & Holden is a member of the National Workers’ Compensation Defense Network. If you have any questions about this submission or Alabama workers’ compensation in general, please contact Fish by e-mailing him at mfish@fishnelson.com or by calling him directly at 205-332-1448.

A review of consent orders issued by the Commissioner of Workers’ Compensation since early 2019 indicates the DWC is monitoring and removing designated doctors who fail to perform under the requirements of the rules. A Medical Quality Review Panel (“MQRP”) audit was done to evaluate the medical necessity and appropriateness of additional testing or referral by designated doctors.  At the conclusion of the audit, the DWC determined that, not only did the doctors unnecessarily make referrals to other providers or order unnecessary testing, they also engaged in other activities that either violated the rules or were considered substandard by the DWC.  Specifically, the consent orders identify the following reasons for sanctioning the designated doctors:
 

• failing to explain why additional testing or referral was necessary;
• submitting inaccurate or inappropriate reports due to insufficient medical history or physical examination and analysis of medical records;
• unreasonably certifying the date of MMI;
• failing to consider DWC adopted guidelines where MMI was an issue;
• failing to consider return to work guidelines where return to work was an issue;
• assigning an inappropriate or unreasonable impairment rating; and
• opining on extent of injury when not ordered to do so.

 
The following designated doctors have either been removed from the DWC designated doctor list for a period of time ranging from 2 to 4 years or have been ordered to pay administrative penalties and complete DWC workshops and other additional training:
 

AL Jameson, D.C.                 removed for 2 years

At the recent State Bar of Texas Advanced Workers’ Compensation Seminar, attorney Matt Lewis, reviewed the DWC Appeals Panel decisions from August of 2018 to July of 2019.  Lewis noted that the vast majority of the Appeals Panel Decisions focused on correcting clerical errors or misstatements of evidence and facts in Administrative Law Judge Decisions. The decisions were remanded or rendered by the Appeals Panel in situations where ALJs: failed to make a determination on complete periods of disability; provided inconsistent determinations within the D&O; failed to make findings of facts and conclusions of law on all issues litigated; misstated fact despite stipulations to those facts; failed to allow a Carrier to get an RME after the ALJ ordered a new DD examination; and, adopted MMI/IR certifications that failed to rate the entire compensable injury or rated conditions that were not compensable.
 
In the months of July and August of 2019, the Appeals Panel wrote four decisions. 

To Rate a Hernia, There Must be a Palpable Defect.  In APD 191070, the ALJ adopted the designated doctor’s certification of MMI/IR, which included 1% for bilateral inguinal hernia using Class 1 in Table 7 of the AMA Guides.  However, the designated doctor’s narrative report explained that Claimant’s hernia repair was holding well and he had no palpable defect or protrusion. The Appeals Panel noted that each class listed in Table 7 of the AMA Guides requires a palpable defect in the supporting structures of the abdominal wall to justify rating under that table.  The case was remanded for the ALJ to instruct the DD to rate the compensable injury in accordance with the AMA Guides.
 
Injury While Walking Across a Public Street is Likely Not Compensable under the Access Doctrine.  In APD 190929, the Appeals Panel discussed, among other things, whether an injury was compensable under the access doctrine where the claimant was walking across a public street when he was struck by a truck. Under the “coming and going” rule, an injury that occurs while an employee is going to or coming from work is not compensable. However, there are several exceptions to this general rule including the “access doctrine.” Under the “access doctrine,” an injury is compensable if the employer has evidenced an intention that the access route or area that should be used by employees in going to or from work is so closely related to the employer’s premises as to be fairly treated as part of them.
 
The claimant in this case was injured when he was struck by a truck while crossing a public street on foot. The ALJ determined the injury was compensable, but failed to identify under which of the four alternate theories advanced the ALJ relied to determine the injury was compensable. The Appeals Panel remanded to the ALJ for further development of the case, but cautioned that the Supreme Court has held that “no case has extended the ‘access exception’ out into the public streets where other members of the public are subject to the same hazard.” 
 
ALJ Cannot Add Issue if it is Not Raised at the BRC or Actually Litigated.  In APD 190915, the Appeals Panel reversed and struck an ALJ’s determination that the Carrier did not specifically contest compensability based on the claimant’s failure to timely file a claim for compensation within one year. The issue was not certified out of the BRC and neither party asked to add the issue at the CCH. In fact, the issue was never mentioned at the CCH. The ALJ added the issue after the CCH without notifying the parties he was doing so. The Appeals Panel held that the issue of the carrier’s waiver was not actually litigated and it was an abuse of discretion to add the issue.
 
Rebutting the Compensability Presumption in Firefighter Cancer Case.  In APD 191065, the ALJ determined that a self-insured rebutted the presumption that a firefighter developed pancreatic and liver cancer during the course and scope of his employment. The self-insured showed that a risk factor, accident, hazard or other cause not associated with the firefighter’s work caused his cancer, relying on a doctor’s report. In testimony at the CCH, the doctor opined that the cancer was related to family history. The Appeals Panel disagreed with the ALJ that the presumption of compensability was rebutted by the self-insured.
 
The self-insured’s rebuttal evidence included the firefighter’s own testimony that his father had kidney cancer. However, no specific evidence was offered linking the father’s kidney cancer to a neuroendocrine tumor, which is one of the conditions with which the firefighter had been diagnosed. Moreover, the self-insured’s doctor did not identify the cause of the firefighter’s cancer, but rather, the doctor simply voiced his contention that the cancer was related to family history citing an absence of the cancer among those identified in the firefighter literature.  
 
The Appeals Panel reversed and rendered a decision that the self-insured did not rebut the presumption. Following this decision, it appears that to rebut the presumption, the Appeal Panel may require some evidence of genetic testing to determine if the firefighter possesses any of the genetic syndromes which have been identified to cause pancreatic neuroendocrine tumors.
 
Copyright 2019, Stone Loughlin & Swanson, LLP

SB 1742, effective 09/01/19, amended Texas Labor Code Section 408.0043 and requires peer review, utilization review and independent review of health care services to injured employees to be performed by doctors of “the same or a similar specialty” as the requesting physician. It will be up to the DWC to explain, hopefully by administrative rule, what “similar” actually means. 
 
Prior to the amendment, the statute required peer review, utilization review, independent review, designated doctor, required medical examination and medical quality review panel doctors who reviewed workers’ compensation cases to hold “a professional certification in a health care specialty appropriate to the type of health care that the injured employee is receiving.”  The amendment now requires a specialty “match” the requestor for certain kinds of review.  It remains to be seen how “similar specialty” will be defined by the DWC.
 
Copyright 2019,Stone Loughlin & Swanson, LLP