State News

While limited workers’ compensation legislation was passed in the 2017 session, there were a few new items advanced out of the recent 86th Legislature. Prominent among this year’s new laws is SB 2551, which addressed workers’ compensation liability, payment and benefits relating to firefighter and emergency medical technicians suffering from cancer as a result of their job duties for claims filed on or after 6/10/19.
 
The DWC recently accepted comments on an informal working draft of rules designed to implemental SB 2551. The changes involve the amended process for claim notification, the carrier’s obligation to investigate when it receives notice of an injury for which a presumption may apply, and the assessment of administrative penalties and factors to be considered in determining sanctions for those violations.
 
Of particular note in this draft is the provision that, under certain circumstances, an insurance carrier is not required to comply with the 15-day deadline to initiate benefits payments or provide notice of refusal, and the steps a carrier must take to qualify for that exemption in those cases.

For more information see:https://www.tdi.texas.gov/wc/rules/documents/dr124sb2551m.pdf.
 
Copyright 2019,Stone Loughlin & Swanson, LLP

The State of Oklahoma filed suit against pharmaceutical manufacturers alleging their marketing, promotion and sales of opioid drugs in Oklahoma led to an opioid epidemic that constituted a violation of the state’s public nuisance law.  On 8/26/19, an Oklahoma district judge ordered Johnson & Johnson to pay $572 million dollars to abate the public nuisance.  In his 42 page judgment after a 33 day trial involving 42 witnesses and 874 exhibits, the judge laid out the history of the opioid crisis in Oklahoma and the rest of the country, and his conclusions that the defendants engaged in false and misleading marketing of their drugs in violation of Oklahoma’s public nuisance law. 

Attorneys on both sides of the issue have been watching the Oklahoma case as several other states have sued drug manufacturers for their role in the nationwide crisis.  The State of Texas, Bexar County, Harris County, the City of Houston, and McLennan County (to name a few) have all filed suit against Purdue Pharma and Johnson & Johnson, the defendants in the Oklahoma lawsuit.
 
A federal trial is scheduled to begin this fall in Ohio involving almost 2,000 cases brought by cities, counties, communities and tribal lands claiming the drug companies caused the epidemic.  On the heels of the Oklahoma judgment, according to a Washington Post article published 08/27/19, Purdue Pharma, one of the common defendants in all of the pending opioid litigation, has offered to settle the federal suit for around $12 billion, including $3 billion in personal funds from the family who owns the company.  The family would relinquish control of the company and declare bankruptcy as part of the deal.  According to the article, the plaintiffs are considering the deal seriously in light of the fact that Purdue is likely headed to bankruptcy soon, regardless of the outcome of settlement negotiations. 
 
Shortly after the Oklahoma judgment was entered, Johnson & Johnson attorneys announced their plan to appeal the judgment.  It promises to be a long and drawn out process, but Round One of this test case goes to the plaintiffs.

-  Copyright 2019, Stone Loughlin & Swanson, LLP

This practitioner is often asked two questions regarding workers’ compensation settlements in New Jersey:  1) Can we settle out of court? and 2) Can we get a termination agreement at the time of settlement?

There are a number of limitations on settlements in New Jersey that are different from the practice of law in other states.  One has to do with the prohibition against out of court settlements. The employer, third party administrator or carrier may not reach an agreement with the injured worker to settle a workers’ compensation claim unless that claim is the subject of a claim petition properly filed and heard before a Judge of Compensation.  An injured worker is not even eligible for an award of permanent partial disability until he or she files a claim petition through counsel.

Three sections of the New Jersey Workers’ Compensation Act make this clear:  N.J.S.A. 34:15-22, 34:15-39, and 34:15-50.  In all three sections, as a precondition to settling any claim of workers’ compensation, a claim petition must be filed in the Division of Workers’ Compensation, and only the Judge of Compensation can enter an order approving settlement or one of dismissal.

Another major distinction between New Jersey and other states has to do with waiver of workers’ compensation rights in other agreements.  The statutes cited above make clear that the employer may not ask an injured worker to waive rights to workers’ compensation as part of another agreement, such as a separation agreement.  There are many laws that can be waived in a valid separation agreement, such as rights under the ADA, FMLA, etc., but workers’ compensation is not one of them.   These kinds of waivers are against public policy.

Similarly, it is fairly common in many states that an employer will get a signed letter of resignation at the time of the workers’ compensation settlement.  There are both practical and legal reasons why this does not happen in New Jersey.  First, most injured workers are back to work doing the very same job by the time the settlement occurs.  That is a big practical difference from other states where workers remain out of work for years even for relatively modest injuries.

New Jersey is not a wage loss state but rather a functional loss state.  Most of the injured workers in New Jersey who have formal claim petitions in the Division have already returned to work long before the settlement, either to their former job or a new job.  In wage loss states like Pennsylvania, the injured worker may have been out of work for years by the time the case is settled.  In states like Pennsylvania, the worker who has been away from work for years may agree to provide a letter of resignation for nominal consideration. 

In New Jersey, going back to work – even the same job – does not detract from the ability of the injured worker to obtain a compensation award for permanent partial disability.  Injured workers in New Jersey may receive both temporary disability benefits and an award of permanent partial disability as part of the same case.  There is no requirement that an injured worker prove impairment of working capacity to obtain an award of permanent partial disability.   All the injured worker must do is prove objective medical evidence of impairment as well as substantial impairment of major life activities.

Since the vast majority of injured workers are back to work in New Jersey at the time of settlement and doing the very same job as the one they did before their injury, seeking a resignation letter is fraught with legal peril.  First, the employee is often an active working unit performing essential job functions. In that situation, there is seldom any legal basis to terminate someone who is doing his or her job satisfactorily. Second, many judges would view an attempt to terminate an injured worker as part of a workers’ compensation settlement as retaliatory or a violation of the New Jersey Law Against Discrimination.  If the employee is able to perform the essential functions of the job, termination of employment as part of a settlement of a workers’ compensation claim would likely lead to immediate labor law litigation.

So can an employer ever get a resignation at the time of settlement?  It can be done but it must be done through labor counsel, following all the rules that prevail in such agreements in New Jersey.  Further, these employment releases are only done when the employee remains out of work for a very long time.  The agreement between the parties must be negotiated for separate consideration, and the injured worker will almost certainly need his own labor counsel.   There are many laws that such an agreement must cover to be effective, and any employment release must meet state and federal legal requirements. 

If the parties do reach an agreement on termination of employment through respective labor counsel, that agreement will not be placed on the record in the New Jersey Division of Workers’ Compensation.  Judges will not reference any separation agreement nor determine whether it is fair or just.  The employment agreement is executed outside workers’ compensation court with both sides having retained labor counsel to advise them.

--------------------------------

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. 

The case of Kaur v. Garden State Fuels, Inc., A-2135-17T1 (App. Div. April 12, 2019) presents some interesting legal issues.  The facts begin with the tragic death of Surinder Singh, who was shot and killed during the course of his employment at Woodbury Gulf LLC. 

In 2014 Singh’s widow, Kirandeep Kaur, filed a dependency claim petition in workers’ compensation. The gas station was uninsured for workers’ compensation at the time of her husband’s death. Mr. Goyal and Mr. Saini were the sole members of the Woodbury Gulf LLC. 

In 2015 Kaur sued Woodbury Gulf civilly alleging that the station’s negligence led to the death of her husband.  She amended that suit in 2017 to add a claim against Mr. Goyal. 

On March 28, 2016, petitioner settled her workers’ compensation dependency claim petition for $150,000.  She said that she understood that the Section 20 settlement was final and that she could not return for further workers’ compensation benefits.  Petitioner received mostly deferred payments from the two members of the LLC:  $30,000 up front followed by $5,000 each month for 24 months.  The Order recited that the settlement was not a complete and absolute surrender and release of any and all rights of petitioner’s dependents under Section 13.  This was important because the petitioner and decedent had two young children.

The Judge of Compensation did not sign the 2016 order but waited until 2018 when all payments had been made.  Counsel reappeared on April 13, 2018, and the Judge again commented that this Section 20 settlement did not contemplate a release of decedent’s dependents’ rights. 

Meanwhile in her civil law suit, Kaur made some interesting arguments:

1.      She argued that she could sue Woodbury civilly because the gas station’s insurance had lapsed.  She contended that this was akin to an intentional wrong, thereby exempting her from the fundamental rule that neither an employee nor an employee’s dependents can sue the employer.

2.      She also argued that payments under a Section 20 are not recognized as workers’ compensation payments for any purpose other than for insurance rating purposes, so a civil suit should be permitted.

The motion judge ruled for Woodbury LLC and its members, holding that the civil law suit was barred.  Kaur appealed.  The Appellate Division devoted a good deal of analysis to Section 20 settlements.  It said, “A Section 20 settlement bars a subsequent lawsuit against the paying employer as it would be unfair to hold the employer liable for both common law damages and workers’ compensation liability,” citing Hawksby v. DePietro, 165 N.J. 58 (2000). 

The Court also seemed to suggest that a Section 20 settlement amounts to an implied acknowledgement that a claimant’s disability is work related, citing the Sperling case for this concept. For these reasons the Appellate Division affirmed the ruling that petitioner and her children could not sue her husband’s employer or the members of the LLC. 

As for the failure of Woodbury to maintain insurance for its own employees, the Court pointed out that this was potentially either a disorderly person offense or a fourth-degree crime, depending on whether the actions were willful.  Nonetheless, the Court ruled, “Their failure to maintain insurance did not alter the effect of the Workers’ Compensation bar, especially since plaintiff took advantage of the Act’s statutory scheme to obtain benefits under the Section 20 settlement.”

Importantly, the Court confirmed that consent of the workers’ dependents must be obtained for a Section 20 settlement that purports to waive dependency benefits.  In sum, the Court held that the two minor children were entitled to bring a dependency claim of their own against Woodbury Gulf and the members of the LLC.  The Court cited the Kibble case for the proposition that “a Section 20 settlement between the employer and a claimant ‘cannot extinguish the rights of those who do not participate, or do not have the opportunity to participate in a settlement.’”

The case is helpful in understanding that it does not really matter whether the workers’ compensation claim is resolved under an order approving settlement with reopener rights or a Section 20:  in either case, the claimant and his or her dependent cannot bring a civil action against the employer since the exclusive remedy is workers’ compensation.

--------------------------------

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. 

An independent medical examination can be requested at any reasonable time and place in the state for a variety of reasons: there may be an issue of causation, ability to work, second opinion on surgery, need for further treatment, or assessment of permanent partial disability.  No matter what the purpose of the examination is, a well-reasoned IME is critical to the successful defense of workers’ compensation claims.

This blog focuses on the steps employers, carriers, third party administrators and lawyers should take as well as the mistakes to avoid in setting up IMEs.

Explain the nature of the claim to the IME physician.

Example:  Employee files an occupational claim petition alleging physical labor from 2000 to January 30, 2019 caused knee pathology. The employer denies the claim petition. An IME is arranged.  There is no explanation of the allegations of the claim to the IME physician. No letter is ever sent other than perhaps a check-off letter asking for guidance on “permanency” and “causation.” The injured worker tells the physician during the IME that on January 30, 2019 he felt pain in his left knee while walking at work. The employee has an MRI showing a tear. The doctor writes a report stating, “I find that the petitioner’s accident of January 30, 2019 caused his knee pathology and I recommend arthroscopic surgery.”

What went wrong? The claim was not for a specific accident!  January 30, 2019 was just the last day of exposure when the pain was noticed or became intolerable.  Occupational claim petitions are required to list a beginning and end date.  This claim asserted that 19 years of physical labor caused the knee pathology, not walking at work one day (which is not a true accident).  The doctor in this case did not know that the claim was denied, nor that this was truly an occupational claim and that the worker was never injured on any particular day. 

Send the IME physician key information in the case:

As a general rule, the IME physician wants to read the claim petition to understand the formal allegations, as well as the answer of the respondent. The doctor wants to see all treating records including prior records that may be relevant.  If there are answers to interrogatories, the doctor will want to see them as well because they often contain important information.  If there is a recent and subsequent injury, whether work or non-work related, the IME doctor will want that information.

If you have a specific doctor or type of specialty you need for an IME, don’t call an IME group and ask for the next available IME date without mentioning the particular physician or specialty.

IME companies have dozens of physicians that they schedule for IMEs. Some are surgeons; some are not.  If you want the earliest possible date, the company will find the physician whose calendar is open and assign you that doctor.  That may or may not be the doctor or specialty you wanted. Some physicians are very busy and booked out for three months; others have fewer assignments.  If you just want any orthopedic surgeon as soon as possible, but you do not want an occupational physician or physiatrist, then make that clear.

Make sure you have all the relevant records –including records of prior and subsequent accidents – before setting up the IME.

We all want cases to move quickly.  The average New Jersey claim petition lasts 28 months, so understandably clients are concerned about moving files.  However, rushing an IME is generally a mistake.  The absence of critical records often costs the employer a great deal of money.   The IME doctor can only give an opinion on the records he or she has.  There may be prior records that will show that the condition at issue was already in existence a few months before the accident, or that there has been a subsequent non-work car accident which has significantly aggravated the work-related condition.  The process of getting medical records takes time.  It takes time to prepare and send HIPAAs to opposing counsel, who then send them to their clients to be returned to respondent counsel.  Hospitals often delay sending records.  The hospital may reject the medical authorization and demand a subpoena.  But getting the prior or subsequent medical records may help clarify whether the claim is even work related, thereby avoiding costs of surgery and a large permanency award, with a potential reopener down the line.  This practitioner has seen cases where the doctor is missing almost all the treating records and writes a report basically drawing no conclusions pending receipt of medical records.  That creates a need for a second IME with double the cost.

When a case has high exposure or is likely to be tried, retain the most qualified expert.

Yes, it costs more to retain a board certified expert with a sub-specialty. But there are many high exposure cases in workers’ compensation, and the cost of not retaining a specialized expert is far greater than the extra $1,000 you may pay for a medical report from a highly qualified expert.  When you have a case involving lung cancer, you should retain a board certified oncologist or pulmonologist.  There are many internists who do such examinations but they may not have sat for or passed the board certification in pulmonology.  The outcome of a case often depends on the credibility of competing experts.  Judges always assess credibility of medical experts; they review their training and qualifications, and they consider the expertise of the IME physician when the experts flatly disagree on an issue in the case. This advice is also true in orthopedic cases.  If the case involves an issue of whether a fusion surgery should be performed, respondent is far better off retaining an expert who performs fusions, rather than an expert who does not perform such surgery.  

Find out early on if a translator is needed.

There are few things in workers’ compensation more frustrating than cancellation of an IME because the employee could not converse with the IME physician.  Contact must be made early on with petitioner’s attorney to inquire whether the injured worker will need a translator and if so, what specific language will be needed.

Try to make a reminder call or send an email to petitioner’s attorney a few days before the IME.

This is not always possible to do, since everyone is so busy, but it pays off.  Many times a letter is sent to a petitioner’s attorney two or three months before the exam date.  When an exam is set up months in advance, there is a higher likelihood of a missed appointment.  Communications fall apart or injured workers forget about the exam date.  If possible, a follow-up call or email to counsel a few days before the exam may eliminate a potential missed appointment.

--------------------------------

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. 

Today marks 100 years since Governor Thomas Kilby signed bill 26-1 into law thereby creating what is now known as the Alabama Workers’ Compensation Act.  Back then, it was known as the Alabama Workmen’s Compensation Act.  The law later went into effect on January 1, 1920.  Although there has been some recent controversy as to the constitutionality of the Act in its current state, it remains a better alternative to employees having to prove tort liability and tort liability exposure for the employer.  As the Honorable E.R. Mills so adeptly stated in his Singletary v. Mangham Construction,
418 So.2d 1138 (Fla. 1st DCA, 1982) opinion, “Workers' compensation is a very important field of the law, if not the most important. It touches more lives than any other field of the law. It involves the payments of huge sums of money. The welfare of human beings, the success of business, and the pocketbooks of consumers are affected daily by it.”

----------------

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.

2019 Kansas Legislature:  There were no substantive Kansas work comp legislative changes in 2019.

Constitutionality of Statute Requiring Use of AMA Guidelines 6^th Ed. –Johnson case pending before the Kansas Supreme Court:  As of August 1, 2019, the Kansas Supreme Court is considering an appeal from a decision by the Kansas Court of Appeals which issued a broad constitutional rejection of Kansas’ use of the AMA Guides to the Evaluation of Permanent Impairment 6^th Edition to determine permanent partial functional impairment in Kansas work comp cases.

In Johnson v. U.S. Food Serv., 56 Kan. App. 2d 232, 427 P.3^rd 996 (2018), the Kansas Court of Appeals ruled across the board striking down all 2013 Kansas act amendments which substituted the use of the AMA Guides 6^th Ed. for the AMA Guides 4^th Ed. to both scheduled and general body disabilities.  The Court’s ruling broadly applies to all injured workers and all body part ratings.  In colorful literary prose, theJohnson Court focused in on the question of whether the 2013 legislative substitution of the 6^th Ed. for the 4^th Ed. finally so tipped the scales that the Act’s workers compensation legislative remedy is no longer an adequate substitute for the loss of the injured employee’s original common law tort remedy.  The Court held that the use of the 6^th Ed. over the 4^th Ed. so drastically cut the remedy and monetary recovery of Kansas’ injured workers, that there is no longer an adequate quid pro quo for injured workers suffering a permanent impairment of function for their work injury.

Approaching the issue from a historical perspective, the Court noted that multiple pro-employer legislative revisions to the Kansas Act over the years has resulted in injured workers seeing a gradual erosion of the fair exchange between rights granted under the Act verses the recovery rights lost under common law, equivalent to “death by a thousand paper cuts” for the permanently disabled worker in Kansas.

Note that Kansas never adopted the AMA Guides 5^th Ed., going directly from use of the 4^th Ed. to the required use of the 6^th Ed. under the 2013 legislative paper cut.  Thus, the ultimate outcome of this issue will likely be the binary choice between whether the law mandates use of the 4^th Ed. or the 6^th Ed. of the AMA Guides.

The Johnson decision by the Kansas Court of Appeals was timely appealed to the Kansas Supreme Court and on February 28, 2019 the Supreme Court accepted the Petition for Review of the Court of Appeals decision.  As of August of 2019, the Court is towards the end of the briefing process and it is likely oral arguments will be scheduled for some time in late 2019 or early 2020.  It is anticipated that a decision by the Kansas Supreme Court will be issued by spring 2020.

During the pendency of this appeal, most parties to active ongoing litigated KS work comp cases are procuring both AMA Guides 4^th Ed. and 6^th Ed. impairment rating opinions, not knowing which Edition will apply after the Supreme Court decides the issue.  Employers, carriers and TPAs should consult with defense counsel when considering settling any Kansas work comp claim, particularly regarding what rating opinions would be needed to reliably accomplish a claim settlement before a Kansas settlement judge.

2019 Kansas Schedule of Medical Fees.  The updated 2019 Kansas Medical Fee Schedule effective on and after March 29, 2019 and applicable to Kansas work comp claims can be found on the Kansas Division of Workers Compensation web site at the following link:

https://www.dol.ks.gov/docs/default-source/workers-compensation-documents/schedule-of-medical-fees/2019-schedule-of-medical-fees.pdf?sfvrsn=b0a18e1f_12

2019 Rates Update.  The maximum weekly indemnity benefit rate was increased to $666.00, effective 7/1/2019 through 6/30/2020, based upon annual indexing to the state average weekly wage of $888.29.  The minimum weekly benefit rate for fatalities for the same period, pursuant to K.S.A. 44-510b, is increased to $444.00.  Medical mileage reimbursement rate for the same period increased to $.58 cents per mile.

By: Bruce Hamilton and Elizabeth Ligon

The North Carolina Court of Appeals recently released two decisions that impact the state’s exclusive remedy doctrine. Under N.C. Gen. Stat. § 97-10.1, the North Carolina Workers’ Compensation Act provides an exclusive remedy for unintentional work-related injuries. This provision affords North Carolina employers “limited” liability and allows employers to more accurately calculate their exposures, unlike in the civil liability arena. Injured workers, on the other hand, have certain guaranteed benefits for compensable work injuries, and claims are handled much more efficiently through the North Carolina Industrial Commission.

Historically, there have been few exceptions to the exclusive remedy doctrine. The most notable exception was outlined inWoodson v. Rowland, 329 N.C. 330, 407 S.E.2d 222 (1991), which permitted employees to pursue civil actions in cases where the employer intentionally engaged in misconduct knowing it was substantially certain to cause serious injury or death to an employee, and an employee was injured or killed by that misconduct.

In Seguro-Suarez v. Key Risk Insurance Co., ___ N.C. App. ___, 819 S.E.2d 741 (2018), the plaintiff fell from a significant height and suffered a traumatic brain injury. The claim was accepted as compensable by Key Risk. However, after a period of hospitalization and recovery, Key Risk denied the treating physician’s request for additional medical treatment, a neurological evaluation, and an occupational home therapy evaluation. Key Risk also obtained surveillance of the plaintiff and provided heavily edited footage (from nine hours over several months to 45 minutes) to the plaintiff’s neuropsychologist, which caused him to change his opinion and opine that the plaintiff was exaggerating his symptoms and did not need further treatment.

After several adverse court decisions, Key Risk obtained an independent medical evaluation, which confirmed the validity of the plaintiff’s current condition and ongoing disability. Key Risk then obtained additional surveillance, and Key Risk’s investigator showed local authorities edited footage and convinced them to bring criminal charges against the plaintiff for obtaining workers’ compensation benefits under false pretenses. The plaintiff was arrested, jailed, and ultimately indicted on numerous fraud charges. These charges were ultimately dismissed, and the plaintiff filed a civil suit against Key Risk, its Senior Vice President, two Vice Presidents, the handling adjuster, and the investigator. The Court of Appeals upheld the trial court’s denial of the defendants’ motion to dismiss the plaintiff’s malicious prosecution, abuse of process, and unfair and deceptive trade practices claims, finding that these claims were only “tangentially” associated with his workers’ compensation claim. The Court noted concern that, in the extreme, an insurer could “hire an assassin to kill an insured employee” and try to hide under the protection of the exclusivity provision.

In the second case, Jackson v. The Timken Co., ___ N.C. App. ___, ___ S.E.2d ___ (2019), the plaintiff suffered a stroke at work and was seen by the staff nurse, a licensed RN. The staff nurse took the plaintiff’s blood pressure, asked him to complete a drug screen authorization form numerous times, obtained hair samples for a drug screen test, and sent him home with instructions to follow up with his primary care provider. Shortly thereafter, the plaintiff collapsed in the parking lot of his primary care provider’s office, and was rushed to the hospital. He suffered permanent injuries.

The plaintiff initially filed a workers’ compensation claim with the Industrial Commission.  He also filed a civil action in Superior Court while waiting for the Industrial Commission to issue a decision, alleging he was negligently diagnosed and treated by the staff nurse. The Superior Court asserted subject matter jurisdiction over the case, and denied the defendants’ motion to dismiss for lack of subject matter jurisdiction. The Deputy Commissioner at the Industrial Commission subsequently denied the plaintiff’s claims on the ground that the plaintiff did not suffer a compensable injury by accident. The plaintiff did not appeal the denial of his workers’ compensation claim.

The Court of Appeals upheld the Superior Court’s decision to assert subject matter jurisdiction, contradicting the North Carolina Supreme Court’s prior decision holding that the Act “provides the exclusive remedy when an employee is injured in the course of his employment by the ordinary negligence of co-employees.”  Abernathy v. Consolidated Freightways Corp. of Delaware, 321 N.C. 236, 362 S.E.2d 559 (1987). The Court attempted to distinguish Abernathy on the basis that, in this case, the plaintiff was alleging that his co-worker had breached a special duty for medical professionals when she rendered care, and the plaintiff did not suffer a compensable injury by accident.

Taken together, these two cases appear to carve out additional exceptions to the exclusive remedy doctrine, and could potentially expose employers to additional civil liability.Segura-Suarez allowed a civil action when certain tort claims were only “tangentially” associated with a workers’ compensation claims, although it remains to be seen whether the decision will be limited to the case’s particularly egregious facts. Jackson not only appears to have created an exception in cases involving potential medical malpractice committed by an employer’s on-site medical staff, but could also be read to suggest a plaintiff may be able to successfully pursue a civil action if his claim is deemed not compensable under the Workers’ Compensation Act.  The attorneys at Teague Campbell will continue to monitor the courts’ handling of the exclusive remedy doctrine. Please reach out to a member of ourworkers’ compensation team with any questions.

On July 17, 2019, the Minnesota Supreme Court issued its decision in Smith v. Carver County, A19-0199 (Minn. 2019).  Smith claimed he sustained PTSD from numerous traumatic incidents he experienced while working as a deputy sheriff. Carver County denied liability.  PTSD is a compensable workers’ compensation condition in Minnesota if it meets the specific criteria set forth Minn. Stat. § 176.011.  For an employee to recover workers’ compensation benefits for PTSD, the employee must prove a psychiatrist or psychologist has diagnosed him or her with PTSD and the professional based the employee’s diagnosis on the latest version of the DSM (Diagnostic and Statistical Manual of Mental Disorders by the American Psychiatric Association).

At trial, Smith presented medical evidence of his PTSD diagnosis via report and deposition transcript of a psychiatrist (Dr. Keller).  The County countered with an expert report and deposition transcript of their own, Dr. Arbisi (psychologist), who opined Smith did not have PTSD but did diagnose Smith with somatic symptom disorder and adjustment disorder (not compensable diagnoses).

The judge adopted the opinion of Dr. Arbisi, finding it persuasive and noting Dr. Keller was unpersuasive.  The WCCA reversed, holding that the trial judge must confirm the expert’s reports are in line with the precise wording of the DSM.  Effectively, the WCCA’s decision would require judges to “lay each expert’s report on the desk next to the DSM-5 and assess whether the medical professional’s opinion confirmed with the precise wording of the DSM-5 as the compensation judge interprets those words.”

The Minnesota Supreme Court disagreed with the WCCA, noting nothing in the PTSD statute “even remotely suggests that such an exercise is required.”  Because Dr. Arbisi’s opinion had adequate factual foundation, the trial judge’s choice of experts is to be affirmed.  Smith’s claim for PTSD related workers’ compensation benefits was denied.

https://mn.gov/law-library-stat/archive/supct/2019/OPA190199-071919.pdf

Summary prepared by Parker T. Olson

The Minnesota Legislature approved statutory changes to implement a modernized technology system, which will replace the aging system which has been in place since 1992.  These changes are promised to bring a simplified and expediated interaction with the workers’ compensation system.  The effective date is August 2020.  These changes also clarify when first reports of injury and subsequent reports must be filed with the commissioner, adding that a first report of injury must be filed when a dispute is initiated, when a vocational rehabilitation form is filed and when permanent partial disability is ascertainable.

Minn. Stat. § 176.312 is amended to extend the time from 10 to 20 days for a party to petition for reassignment of a compensation judge.  This change went into effect July 1, 2019.

Also, there are new SAWW, TTD maximum rates effective for October 2019: the statewide average weekly wage (SAWW) effective October 1, 2019, is $1,112.00, the maximum temporary total disability rate (TTD) will change to $1,134.24 and the minimum permanent total disability benefit rate (PTD) will be changed to $723.00.

Summary prepared by Whitney Teel