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DATING A NTCP IN PENNSYLVANIA
By
Kevin L. Connors, Esquire
Dear Client:
First, for those not living and administering workers’ compensation claims in Pennsylvania, a Notice of Temporary Compensation Payable (NTCP) is what we regard, under our Pennsylvania Workers’ Compensation Act, and the Bureau of Workers’ Compensation’s Regulations, as an administrative and procedural device legislated by the General Assembly under reforms enacted in 1996, under Act 57, with the form being increasing utilized by employers, insurers, and third-party administrators, to initially administrate workers’ compensation claims, through an initial ninety (90) day post-injury phase, during which the employer and/or insurer has an election to make, being whether the workers’ compensation is formally accepted, with the issuance of what we call our Notice of Compensation Payable, essentially a compensation judgment against the employer and insurer, entitling the injured employee to continue to receive workers’ compensation benefits in the form of both indemnity compensation benefits, for wage loss, as well as medical compensation benefits, for medical treatment related to accepted work injuries, while the NTCP has increasingly been favored by employers and insurers for utilization to postpone formal acceptance of the workers’ compensation claim as being compensable and work-related, until the employer and insurer can complete its investigation beyond the initial twenty-one (21) day period that the Act had previously required employers/insurers to engage in their initial investigation, to determine whether the claim would be accepted or denied, acceptance requiring issuance of the Notice of Compensation Payable, denial requiring the issuance of Notice of Compensation Denial.
In 1996, a new administrative tool was added to our compensation toolbox, being the Notice of Temporary Compensation Payable (NTCP), which initially had a shorter lifespan after enactment in 1996, but now has a lifespan of ninety (90) days from date of disability to end date, upon with the NTCP expires, and either converts, or is withdrawn by the employer/insurer, in which case the employer/insurer is allowed under our Act, to deny the workers’ compensation claim as being compensable and work-related, and also authorizes the employer and insurer to stop the payment of temporary compensation benefits.
The key to the NTCP is that it was not intended to constitute a formal acceptance of the workers’ compensation claim as compensable and work-related, to allow the employer and insurer to have greater flexibility in terms of their initial investigation into the compensability of a claim, as well as to allow the employer and insurer to investigate the factual and medical issues that drive compensability issues, classically being the following factors in terms of whether a claim is or is not compensable under our Workers’ Compensation Laws, to include:
An employer/employee relationship;
A work-related injury occurring within the course and scope of employment;
That the work-related injury was not caused by non-work-related factors;
That the work-related injury has resulted in the Claimant being disabled from being able to perform either pre-injury work, or available modified-duty work;
That the Claimant is not impeachable on other grounds, to include fraud or dishonesty;
That the Claimant has not refused or failed to return to work;
That the injury has resulted in wage-loss producing disability causing continuing income loss to the injured employee; and,
That the Claimant is not fully recovered from the alleged work injury.
What’s the big deal?
Well we live in a form-intensive and a disability-driven state, where acceptance of a workers’ compensation claim, resulting in compensation benefits being paid, can sometimes, obviously dependent upon the particular facts of a particular claim, can invite lifetime exposure for a particular injury, a particular Claimant, and can expose the employer and insurer to a Sisyphean burden of proof to secure an end point to the workers’ compensation claim, be it through petitioning for a procedural termination, modification, or suspension of workers’ compensation benefits, and/or through a claim compromise, resulting in the parties agreeing to resolve the workers’ compensation claim in a settlement, under which the parties are free to negotiate the terms of settlement, to include what benefits are being resolved, be it wage loss benefits, specific loss benefits, medical compensation benefits, and other potential benefits, to include penalties, attorneys’ fees, and statutory interest.
Fascinating, yes!
So as the NTCP has gained in popularity with employers and insurers, it is also become a form heavily scrutinized not only by the Bureau, but also by workers’ compensation practitioners and stakeholders, to include Claimants, Claimants’ attorneys, and Workers’ Compensation Judges deciding workers’ compensation claims where the NTCP might be the only workers’ compensation form that describes and articulates essential facts of the claim, be it the date of injury, mechanism of injury, the description of the injury, and what types of benefits are being paid, be it both indemnity and medical compensation benefits, or conversely, only medical compensation benefits, with there being no reference in the “medical only” NTCP to any temporary compensation benefits being paid in the form of indemnity or wage loss compensation benefits, again when those compensation benefits are considered to be “temporary” under the NTCP, and it does not constitute a formal admission of liability against the employer or insurer, and there is, therefore, no guarantee to the Claimant, that the benefits will continue beyond the ninety (90) days which our State and Act allow temporary compensation benefits to be paid for, from claim or disability inception date through expiration of the ninety (90) day compensation benefit.
As is known by most practitioners in Pennsylvania, the NTCP will automatically convert to an NCP, or Notice of Compensation Payable, if no action is taken at the expiration of the ninety (90) days of temporary compensation benefits under the NTCP, with the Bureau, in its infinite wisdom, issuing a Notice of Conversion, under which that NTCP has now become that procedural compensation judgment under a Notice of Compensation Payable, where the workers’ compensation claim has been accepted by employer and insurer as being work-related and compensable, with the benefits described in the NCP now being due and owing, absent the employer or insurer proving the following factors:
The Claimant dies, compensation benefits terminate by operation of both death and loss;
The Claimant voluntarily returns to work in their pre-injury capacities, and there is no continuing wage loss post-return to work, such that the Claimant’s compensation benefits are suspended;
The Claimant returns to work in a modified-duty capacity, with some reduction in return-to-work wages, such that the Claimant’s compensation benefits are modified, and temporary partial disability benefits are paid, subject to the 500 week limitation;
The Claimant executes a Supplemental Agreement, perfecting either a termination, suspension, or modification of the Claimant’s workers’ compensation benefits;
The Claimant signs a Final Receipt (almost never used), under which the Claimant agrees that all compensation benefits have been paid;
The Claimant is deported by virtue of not being able to prove legal immigration status;
The claim is settled under a Compromise and Release Agreement, perfecting some type of compromise of the indemnity and medical compensation benefits liability associated with the claim; and,
The Claimant’s compensation benefits are terminated, modified, or suspended by order of a workers’ compensation judge, with the employer/insurer carrying the burden of proving the entitlement to a change in the Claimant’s benefit entitlement status.
Pregnant with thought? Maybe not!
Recently, the Pennsylvania Commonwealth Court issued a Decision dated January 24, 2019 under the caption ofValley Stairs and Rails v. Workers’ Compensation Appeal Board (Parsons), with the Commonwealth Court issuing a ruling clarifying the proper use of the NTCP, specifically determining when the first date of disability under a NTCP should be considered to have occurred.
Before plunging into the facts of Valley Stairs, it is necessary to emphasize that the Claimant’s bar has been aggressively challenging the basis for using NTCPs, attempting to allege, that Employers and Insurers have subverted the form-issuance process under the Pennsylvania Workers’ Compensation Act, by delaying the decisions relative to the acceptance or denial of a workers’ compensation claim, by claiming, under the NTCP, that only temporary compensation benefits are payable for the first ninety (90) days relevant to the reporting of an alleged work-related injury.
In Valley Stairs, the Employer petitioned for a review of an Order issued by the Workers’ Compensation Appeal Board (Board), reversing an Order rendered by a Workers’ Compensation Judge (WCJ), which had denied a Penalty Petition that had been filed by the Claimant, under which the Claimant had alleged that a NTCP had been improperly used, with the Claimant contending that the NTCP was issued one day later than the Claimant contended it should have been utilized, further contending that the Employer’s revocation of the NTCP, at the 90th day of issuance of the NTCP, was also one (1) day late, under which the Claimant was alleging that the NTCP should convert to a Notice of Compensation Payable, requiring the Employer and Insurer to accept the Claimant’s workers’ compensation claim as compensable and work-related, and to, in accordance therewith, issue workers’ compensation benefits to the Claimant, in the course of paying the Claimant indemnity compensation benefits, for purposes of providing wage loss benefits to the Claimant, as well as to insure payment of the Claimant’s reasonable, necessary and causally-related medical expenses.
Often, facts count!
The timeline for Valley Stairs was that the Claimant had sustained a low back strain, while working for the Employer, Valley Stairs, on March 27, 2015. The Claimant’s injury resulted in the Claimant being transported by ambulance to hospital, with the Claimant then never working for the Employer after the alleged work injury, although the Claimant was paid full pay for the date that the Claimant alleged his injury, with the Claimant’s final paystub then stating that the Claimant was paid seven (7) hours of “COMP – TM”, at the Claimant’s regular pay rate.
In turn, the Employer, through its insurance carrier, issued a NTCP describing the injury as a low back strain, and indicating the date of injury as March 27, 2015, with NTCP indicating the ninety (90) day period, under Section 46.1(d)(6) of the Pennsylvania Workers’ Compensation Act (WCA), began on March 30, 2015, the date of issuance of the NTCP, through June 27, 2015, the 90th day from issuance of the NTCP on March 30, 2015.
On June 27, 2015, the Employer then filed a Notice of Compensation Denial, under which it alleged that the Claimant had failed to give timely and proper notice of his injury, and that the Claimant had not sustained any compensable wage loss. The very next day, the Employer filed a Notice Stopping Temporary Compensation Payable (as well as a Notice of Compensation Denial).
The very next day, the Bureau, in its infinite wisdom, issued a Notice of Conversion, converting the NTCP into a Notice of Compensation Payable.
Shortly thereafter, the Claimant filed a Penalty Petition, alleging that the Employer violated the Act, by stopping the payment of compensation and benefits after the NTCP had converted to a NCP.
In the course of hearings before the WCJ, the Claimant testified that he was injured on March 27, 2015, when he was sliding a stair across a floor, with the Claimant then going to the hospital by ambulance, and never returning to work after the injury.
The same day as the Claimant alleged his injury, the Claimant received paperwork stating that he could not return to work, presumably from the emergency room physicians or triage personnel, with the Claimant then presenting what can only be construed to be a disability note taking the Claimant out of work, to a co-worker at the Claimant’s Employer, with the co-worker then taking the paperwork into the building, and retrieving the Claimant’s lunch box.
Introduced into evidence in the Claimant’s hearings with respect to the Penalty Petition, was a copy of the Claimant’s final paystub, again reflecting that the Claimant received payment of salary wages for both “regular” hours, as well as seven (7) hours of “COMP – TM”.
Also presented as evidence were the first indemnity benefit checks, in the form of temporary compensation benefits, which were submitted to the Claimant, evidencing that the temporary compensation benefits actually began on March 30, 2015, continued, for some reason, until April 12, 2016. (???)
Finding that the Claimant received his full pay for the date of the alleged injury, being March 27, 2015, the Workers’ Compensation Judge, in ruling on the Penalty Petition, determined that the Claimant’s disability commenced on the date of first payment of temporary compensation benefits, being March 30, 2015, further finding that the Employer’s Notice Stopping Temporary Compensation (NSTC) was filed on the 90th day of the Claimant’s alleged disability, being June 29, 2015, with the Workers’ Compensation Judge finding that the Notice of Conversion issued by the Bureau had been improperly issued, and was thus void as a matter of law.
That conclusion resulted in the Workers’ Compensation Judge finding that the Claimant failed to prove a violation of the Act, with the Claimant’s Penalty Petition being denied.
Seeking appeal, the Claimant then appealed to the Workers’ Compensation Appeal Board (WCAB), asserting that the WCJ had erred in finding the first date of disability was March 30, 2015, with the Claimant contending that his injury had rendered him unable to return to work on the date of the alleged injury, being March 27, 2015.
In addition, the Claimant argued before the Board, that the WCJ had made an erroneous finding of fact that the Employer’s Notice Stopping Temporary Compensation was timely filed, since the Claimant contended that it was issued on the 93rd day of disability, with the Claimant contending that the Bureau had properly issued the Notice of Conversion, and that the Employer had improperly stopped the payment of temporary compensation benefits to the Claimant.
The Claimant’s appeal was actually upheld by the Board, which reversed the Workers’ Compensation Judge’s Decision, as the Board concluded, in reliance uponGalizia v. WCAB, 933 A.2d 146 (Pa. Cmwlth. 2007), that the “date the 90th day period begins on is the first day that the Claimant was entitled to receive disability benefits as a result of the work injury.”
Moreover, the Board concluded that the WCJ’s findings that the Claimant received his full pay for the date of the alleged injury did not outweigh the fact that the Board concluded that the Claimant had clearly sustained a loss of earning power on the day of the alleged injury, notwithstanding that the Claimant was paid by the Employer for that date.
Concluding that the Claimant should have been eligible for compensation benefits as of March 27, 2015, the date of the alleged injury, it further concluded that the ninety (90) day period for stopping temporary compensation benefits would have ended on June 25, 2015, further finding that NTCP would have converted to an NCP by operation of law before the Employer issued the NSTC and the NCD on June 29, 2015.
An immediate appeal was taken by the Employer, resulting in the Employer’s appeal ascending to the Commonwealth Court.
In deciding the Employer’s appeal, the Commonwealth Court reviewed the relevant provisions of the Act, to include Sections 306(a)(2) and 406.1(d), which stated as follows:
“Section 306(a)(2):
“Nothing does actually require payment of total disability benefits under this clause for any period during which the employee is employed or receiving wages.” 77 P.S. §511.2
“Section 406.1(d):
“The Employer and Insurer shall promptly investigate each injury reported or noted to the Employer and shall proceed promptly to commence payment of compensation due to either pursuant to an agreement upon the compensation payable or a Notice of Compensation Payable as provided in Section 407, or pursuant to a Notice of Temporary Compensation Payable as set forth in subsection (d) on forms prescribed by the Department and furnished by the Employer …
(d)(1):
In any instance where an employer is uncertain whether a claim is compensable under this Act or uncertain as to the extent of its liability under this Act, the Employer may initiate compensation payments without prejudice and without admitting liability pursuant to a Notice of Temporary Compensation Payable, as prescribed by the Department.
(4) Payments of temporary compensation may continue until such time as the employer decides to controvert the claim.
(5)(i) If the employer ceases making payments pursuant to a notice of temporary compensation payable, a notice in the form prescribed by the department shall be sent to the claimant and a copy filed with the department, but in no event shall this notice be sent or filed later than five (5) days after the last payment.
(ii) This notice shall advise the claimant, that if the employer is ceasing payment of temporary compensation, that the payment of temporary compensation was not an admission of liability of the employer with respect to the injury subject to the notice of temporary compensation payable, and the employee must file a claim to establish the liability of the employer.
(iii) If the employer ceases making payments pursuant to a notice of temporary compensation payable, after complying with this clause, the employer and employee retain all rights, defenses and obligations with regard to the claim subject to the notice of temporary compensation payable, and the payment of temporary compensation may not be used to support a claim for compensation.
(iv) Payment of temporary compensation shall be considered compensation for purposes of tolling the statute of limitations under section 315.
(6) If the employer does not file a notice under paragraph (5) within the ninety-day period during which temporary compensation is paid or payable, the employer shall be deemed to have admitted liabilityand the notice of temporary compensation payable shall be converted to a notice of compensation payable.
77. P.S. §717.1.
Arguing that the first date of disability is the first date that the Claimant is actually out of work as the date that compensation is payable, the Employer argued that the Claimant was prevented from receiving compensation benefits on the date of injury, since the Claimant had received his full pay for that date.
In so arguing, the Employer emphasized that the Claimant was paid the same rate of pay for all hours, further asserting that the Claimant earned his usual wages on the date of the alleged injury, such that the Claimant had no loss of earning power and, accordingly, that there was no “disability” for which there would have been either the right of the Claimant to receive compensation benefits, or the obligation of the Employer to pay the same.
As is well known in our form-intensive and disability-driven jurisdiction, we regard “disability” for workers’ compensation benefit purposes, as the loss of earning power, such that even if there is a work-related physical disability, it is only compensable if that physical disability occasions an actual loss of earnings that would entitle the injured employee to receive compensation benefits under the Act. Bissland v. WCAB, 638 A.2d 493 (Pa. Cmwlth. 1994).
Countering Employer’s argument, the Claimant pointed to Section 406(1)(d) of the Act, arguing that the Employer is directed to timely stop an NTCP within ninety (90) days from which the date that compensation was “payable”.
Arguing that he was treated for his work injury at the hospital on the date of the alleged injury, the Claimant argued that his compensation benefits were not only payable, but were actually paid, as the Employer did pay for the Claimant’s medical treatment on the date of the alleged injury, with the Claimant arguing that the WCJ had committed errors of fact and law in finding that the Claimant received his full pay on the date of being treated, since the Claimant’s paystub denoted the time that he was paid for as “COMP – TM”.
The Claimant also argued that even if what he was paid on the date of his alleged injury constituted full pay, such that no actual loss of wages had occurred, the Claimant argued that the wages that he was paid under the date of his injury was a “de facto acceptance” of his injury since he continued to receive payments from the Employer after he became disabled, prior to the actual issuance of the TNCP by the Employer’s Insurer.
Countering Claimant’s argument that the payment of the Claimant’s medical expenses on the date of the alleged injury constituted a payment of compensation benefits on the date of his injury, the Employer correctly asserted that “compensation”, sometimes loosely defined in the Act, and under ruling case law, is limited to wage loss benefits, and does not necessarily extend to medical bills that might be paid by an Employer or Insurer post-injury.
In reliance upon Bureau regulations regarding the payment of wages, the Commonwealth Court, in an Opinion authored by Judge Patricia McCullough, determined that the ninety (90) day period for the payment of temporary compensation benefits, also relevant to the ninety (90) day period for the stoppage of temporary compensation benefits, as well as for the issuance of the NSTC and NCD, was March 30, 2015, the first day that compensation benefits were paid to the Claimant, as listed on the NTCP.
Since the Employer had filed its Notice Stopping Temporary Compensation Payable on June 29, 2015, the 90th day from March 30, 2015, the Commonwealth Court concluded that the Notice Stopping Temporary Compensation and the Notice Denying Compensation were both timely issued, resulting in the Bureau’s Notice of Conversion being voided.
A Concurring Opinion was authored by Judge Ann Covey, with Judge Ann Covey concluding that the Claimant’s “first day out of work”, relevant for the first date upon which temporary compensation benefits should be paid, was March 30, 2015, the Monday following the Claimant’s alleged work injury on the preceding Friday.
It is anticipated that the Valley Stairs Commonwealth Court Decision will likely be appealed by the Claimant, as this is a strategy being advanced by the Claimant’s bar, to challenge NTCPs.
TAKEAWAYS
The take away, yes, we get it, our Newsletter was a little long-winded, but an issue that might not be considered critical to Employers, Insurers and Administrators, although it illustrates the extent to which the Claimant’s bar will seek penalties, in the course of challenging the utilization of NTCPs by Defendants.
The Valley Stairs Decision by the Commonwealth Court is supportive of tying together several sections of the Act, to reinforce relevant dates and deadlines critical to the utilization of NTCPs, as well as the forms that would stop temporary compensation benefits, being the NSTC and the NCD.
No less true, we sometimes run into claims where temporary compensation benefits are stopped with the utilization of only one form, when both are required, being the requirement that both the NSTC and NCD be issued at or before the 90th day of temporary compensation benefits, to avoid clashes with Claimants’ attorneys over whether an NTCP has “converted” to a Notice of Compensation Payable, a conversion that should be voluntary and not involuntary by Employers, Insurers, and Administrators.
ConnorsO’Dell LLC
Trust us, we just get it! It is trust well spent!
We defend Employers, Self-Insureds, Insurance Carriers, and Third Party Administrators in Workers’ Compensation matters throughout Pennsylvania. We have over 100 years of cumulative experience defending our clients against compensation-related liabilities, with no attorney in our firm having less than ten (10) years of specialized experience, empowering our Workers’ Compensation practice group attorneys to be more than mere claim denials, enabling us to create the factual and legal leverage to expeditiously resolve claims, in the course of limiting/reducing/extinguishing our clients’ liabilities under the Pennsylvania Workers’ Compensation Act.
Every member of our Workers’ Compensation practice group is AV rated. Our partnership with the NWCDN magnifies the lens for which our professional expertise imperiously demands that we always be dynamic and exacting advocates for our clients, navigating the frustrating and form-intensive minefield pervasive throughout Pennsylvania Workers’ Compensation practice and procedure.
Janice Hustvet worked for Courage Center, which merged with Allina Health System in 2013. Hustvet worked for 15 years at Courage Center as an Independent Living Skills Specialist, educating, supporting and assisting clients with disabilities including spinal cord and brain injuries.
On May 13, 2013, Hustvet completed her pre-placement health assessment. She acknowledged that she did not know if she had been immunized for rubella. She later confirmed that she had not been immunized for rubella. There was some confusion whether her job would require completion of a Respirator Medical Evaluation (“RME”). Following the merger on July 1, 2013, Hustvet was informed that she had to submit a complete RME and take one dose of a Measles, Mumps, Rubella vaccine (“MMR vaccine”).
Hustvet never took the MMR vaccine. She had had a severe case of mumps and measles, and she also had many allergies and chemical sensitivities. However, she did agree to take a rubella vaccine only, (without the mumps and measles), but no such vaccine was available. When Hustvet refused to do take the MMR vaccine, her employment was terminated.
Hustvet sued Allina Health alleging discrimination under the ADA. The federal court ruled against Hustvet, and she appealed to the United States Court of Appeals for the Eighth Circuit. Hustvet argued that she never received an offer of employment, and therefore the rules of post-offer medical examinations did not apply to her. She also argued that she was a continuous employee and that the health screen requirement was imposed after her employment.
The Court of Appeals interpreted the letter Hustvet received during the merger period advising that she would soon be an employee of Allina Health as an offer of employment. The Court noted that an employer has a right to apply entrance examination standards and withdraw an offer to those who do not meet those standards if the standards are job-related and consistent with business necessity.
Even if Hustvet were viewed as an existing employee and not subject to the post-offer requirement, the Court said that an employer can require an examination of an employee if that exam is shown to be job-related and consistent with business necessity. The Court said: “… We believe Allina’s decision to force a class of employees (those employees with client contact who merged into the company) to undergo a health screen was job-related and consistent with a business necessity. The information requested and the medical exam, which tested for immunity to infectious diseases, were related to essential, job-related abilities. The undisputed evidence shows that the purposes of Allina’s health screen were to (a) insure that incoming employees who might come into contact with clients had immunity to communicable diseases as recommended by the Centers for Disease Control and Prevention. . .”
The Court noted that rubella has been eliminated in the United States but observed that rubella remains a common disease in many parts of the world and can be contracted through foreign travel. The Court further observed that rubella is particularly dangerous to expectant mothers and infants.
Hustvet also argued that her multiple chemical sensitivities constituted a disability that Allina should have accommodated by foregoing the requirement of the MME. The Court rejected this argument as well. “There is insufficient evidence in the record to support the conclusion that Hustvet’s chemical sensitivities or allergies substantially limit her ability to perform major life activities. She has never been hospitalized due to an allergic or chemical reaction, never seen an allergy specialist, and never been prescribed an EpiPen. Nor has she ever sought any significant medical attention when experiencing a chemical sensitivity, taken prescription medication because of a serious reaction, or had to leave work early because of a reaction.”
For these reasons, the Eighth Circuit affirmed summary judgment in favor of Allina. The case shows that courts will support termination of applicants who cannot pass a post-offer examination if the standards are job-related and consistent with business necessity. Readers may find this case at Hustvet v. Allina Health System, 910 F.3d 399 (8th Cir. 2018).
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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.
Membership in the AWCO offers a number of professional and social opportunities annually to interact with other workers' compensation professionals. The highlight of the year is the annual AWCO Spring Conference where its members come together for three days of education, fun, and fellowship. Membership is only $75 if paid prior to February 27, 2019. After that, the annual fee goes up to $150. Once you are an AWCO member, the Spring Conference is free. You pay nothing, nada, zero, zilch to register and attend. This year, the 38th Annual AWCO Spring Conference will be held May 9-10, 2019 at the Sheraton Hotel in downtown Birmingham! For more information on how to join the AWCO or register for the Spring Conference, please call or e-mail me (contact info below).
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.
Ombudsmen Patricia Fraley and Ted Roose plan to continue to keep regular office hours on the 2nd and 4th Tuesdays of every month from 9-12 and 1-3 for anyone who wants to submit a settlement for their review. There is no need to make an appointment for these times but it is a good idea to call and give them a heads up just to make sure they will be there.
2019 OFFICE DAYS FOR BRCS
ALABAMA CARRER CENTER
3216 4TH AVENUE SOUTH BIRMINGHAM, AL 35222
9:00 AM- NOON & 1:00 PM-3:00 PM
FEBRUARY 12, 2019 FEBRUARY 26, 2019
MARCH 12, 2019 MARCH 26, 2019
APRIL 9, 2019 APRIL 23, 2019
MAY 14, 2019 MAY 28, 2019
JUNE 11, 2019 JUNE 25, 2019
JULY 9, 2019 JULY 23, 2019
AUGUST 13, 2019 AUGUST 27, 2019
SEPTEMBER 10, 2019 SEPTEMBER 24, 2019
OCTOBER 8, 2019 OCTOBER 22, 2019
NOVEMBER 12, 2019 NOVEMBER 26, 2019
DECEMBER 10, 2019 DECEMBER 17, 2019
Ombudsmen
Patricia Fraley 205-305-6343 patricia.fraley@labor.alabama.gov
Ted Roose 205-307-8576 theodore.roose@labor.alabama.gov
The Career Center located at 3216 4th Avenue South (Birmingham).
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.
No less inventive than the pleadings in the prior entry is the basis for a lawsuit filed by a group of injured workers against the Division, claiming that a designated doctor’s ability to assign maximum medical improvement prior to the date of the certifying examination amounts to an unconstitutional “taking” of property under the Fifth Amendment. The grounds for suitseems to be that an insurance carrier’s ability to recoup or convert overpaid Temporary Income Benefits (TIBs) deprives them of a vested property right to said benefits.
“Seems” is the operative word here, as per the Court of Appeals’ memorandum opinion: “Appellants’ pleadings are so vague as to be difficult to assess and their briefing is at times insufficient under the rules.” The Court elaborates: “Appellants . . . have not identified which statutory provision they seek to challenge, presented clear argument about how the statute was unconstitutional, or provided citations to the record or to relevant authority.”
The Court of Appeals explained that for a takings claim to have validity, the injured workers must establish a vested, constitutionally protected property interest. That requires more than mere expectancy of a benefit, it demands a “legitimate claim of entitlement.” An injured worker has “a mere expectancy” in receiving TIBs, per the Court, and not a vested right to such benefits. The injured workers in this case provided no authority to support their assertion to the contrary other than to argue, in essence, that because the insurance company paid their benefits, they must be entitled to them.
Holt v. Texas Department of Insurance—Division of Workers’ Compensation, No. 03-17-00758-CV, 2018 WL 6695725 (Tex. App.—Austin Dec. 20, 2018, affirmed) (mem. op.).
- Copyright 2018, Stone Loughlin & Swanson, LLP.
Of the twenty-one original defendants indicted in the Forest Park bribery and kickback scheme in 2016, ten remain scheduled to appear in federal court in Dallas. Among them is Royce Bicklein, noted claimants’ attorney and the chairman of the State Bar of Texas' Workers’ Compensation Section. Bicklein is accused of receiving kickbacks in the amount of $100,000 for referring clients to Forest Park Medical Center, and if court filings are any indication, Mr. Bicklein appears poised to offer a novel defense strategy: his clients authorized him to break the law.
Bicklein maintains that his clients were asked to sign a consent form, which apprised them of the possibility that their attorney might stand to gain financially from referrals made to certain medical professionals on their behalf. Mr. Bicklein’s defense seems to suggest that he committed no crimes because his clients knew of his financial relationship with Forest Park and consented to it.
Aside from the fact that subpoenas have thus far produced no such signed consent forms, prosecutors argue that client consent does not obviate penalties for commission of a crime, and the existence of such a form may actually demonstrate that Bicklein and his law firm knew that they were in violation of Texas and federal anti-kickback statutes; the consent form was apparently generated on the advice of Mr. Bicklein’s own law partner.
Mr. Bicklein’s trial is set to start February 19, 2019, in federal district court in Dallas.
- Copyright 2018,Stone Loughlin & Swanson, LLP.
The Texas Department of Insurance, Division of Workers’ Compensation, adopted a new rule, 28 TAC §140.9, which took effect on January 7, 2019, requiring that parties seeking to reset, reschedule, or continue any proceeding include with their requests a signed statement that reasonable efforts were made to confer with the opposing party about the subject of the request. Parties must indicate whether the motion is opposed and provide dates and times they areboth available for a rescheduled proceeding. Those dates and times must also be coordinated with the DWC docketing staff, thus ensuring that none of this will ever happen. The Division has modified the DWC Form-045 pursuant to the rule change.
In addition, 28 TAC §141.2 has been amended to clarify that a “first request” to reschedule a benefit review conference, which does not require a demonstration of good cause, pertains to the first such request made in adispute, not the first request made by a particular party. In other words, any subsequent request to reschedule a BRC by either party will require a showing of good cause.
Finally, 28 TAC §142.11 has been amended to legitimize the Division’s long-standing practice of issuing a “10-day letter” to a party who fails to attend a scheduled contested case hearing. The absent party is afforded ten days to respond and request that the hearing be reset. With the addition of this new rule, Administrative Law Judges are empowered to determine whether good cause has been established for the failure to attend and, if not, issue a decision based on the evidence previously admitted.
- Copyright 2018,Stone Loughlin & Swanson, LLP.
Several of the Division’s Administrative Law Judges are relocating to new offices, while others are either leaving for good or returning for more.
Just last October, Judge Geri-Lyn Thomas left the DWC to preside over cases at the State Office of Administrative Hearings. However, after a brief sojourn, Judge Thomas has returned to her post at the Division’s Dallas Field Office. We are certainly glad to have her back.
Judge Katie Kidd will be transferring from the Dallas Field Office to the Division’s Central Office in Austin, where she will assume a new position in quality control and oversight.
As one judge arrives in Austin, another departs. Last May, Dee Marlo Chico, formerly one of the DWC’s traveling judges, accepted a position on the Appeals Panel, but has decided to move on. Judge Chico is leaving the DWC imminently for her new post at the Railroad Commission.
No word yet on who might replace Judge Chico on the Appeals Panel, but one possibility might be Judge Travis Dupree. Judge Dupree has been the Division’s sole ALJ in Midland since 2015, but is also relocating to the Central Office in Austin as the Division’s new designated traveling ALJ, a position most recently held by . . . Judge Dee Marlo Chico!
Finally, the Midland judgeship is the province of Robert Clarkson, a University of Houston alum who graduated from the University of Pittsburgh Law School in 2000. Judge Clarkson previously practiced insurance defense litigation in Irving, Texas. We are happy to welcome him.
- Copyright 2018,Stone Loughlin & Swanson, LLP.