David Rollins worked for Amtrak for 23 years until August 2015 as a supervisor in North Brunswick, N.J. overseeing 20 employees performing track maintenance.  His normal supervisor went on vacation, and Rollins experienced tension and stress with his temporary supervisor, Josh Newbold.  Rollins reported to another supervisor, Semliatschenko, his concerns about safety due to what he perceived as insufficient coordination with Newbold.  A meeting among all three was arranged on March 12, 2015 in which there was a heated argument.  Semliatschenko left the room for a few minutes during which Newbold later  claimed that Rollins threatened him with bodily harm.  Newbold did not report the alleged threat for six weeks.

On April 23, 2015, Rollins placed a call to ‘Operation RedBlock,” an employee assistance program helpline.  He said he was dealing with work and family stress issues.  At his duty station that night, Rollins was approached by Amtrak Police and paramedics from the local hospital asking him whether he was contemplating suicide.  Rollins denied suicidal thoughts and admitted simply work and family stress.  He noted his son was dealing with cancer treatment. He was taken to a local hospital and later released.  The hospital determined Rollins did not have suicidal thoughts and was not a danger to the railroad.  He was placed on medical leave pending clearance to return to work.

When he came to work the next day, Newbold found out about the incident the night before involving Rollins, and Newbold became concerned about Rollins’ emotional stability.  Newbold said that he was fearful about the threat that Rollins allegedly made on March 12, 2015, and he then reported the alleged threat for the first time.  He said that Rollins threatened to “come down to Levittown and slide one in me.”

Rollins was cleared to return to work in July 2015.  However, an investigation with a neutral hearing officer ensued at this point over the alleged threat against Newbold.  That led to a hearing on August 10, 2015.  In the hearing Newbold explained that he did not report the threat for the first six weeks because he did not think Rollins had been serious about harming him initially.  He said he became concerned about Rollins’ emotional stability when he came to work on April 24, 2015 and found out about the hospital visit.   The hearing officer recommended termination of Rollins’ employment in part for a violation of the Amtrak Workplace Anti-Violence Policy.  Rollins made multiple appeals without success and then filed a civil suit alleging violations of the New Jersey Law Against Discrimination.

In his suit Rollins argued that Amtrak discriminated against him on the basis of a perceived disability.  He contended that Amtrak perceived him as having a mental disability on account of his call to operation RedBlock and his discussion with a counsellor who alerted Amtrak Police.  He further argued that his firing was based on a pretext that he had engaged in an act of violence at his workplace.

Amtrak moved to dismiss the case.  Its management denied having any discriminatory animus against Rollins and conceded only that one co-employee, Newbold, could have had any discriminatory animus against him.

The federal court rejected the motion for summary judgment filed by Amtrak:  “Based on the facts provided by the parties, one can plausibly argue that Newbold and Amtrak management were motivated by discriminatory animus.  Defendant received Newbold’s complaint for an alleged threat that occurred weeks prior thereto, the morning after Plaintiff’s call to Operation RedBlock.  A jury may determine that the request for psychological services was the motivation to seek Rollins’ dismissal.”

Timing was the problem Amtrak faced in winning its motion for summary judgment.  The alleged threat by Rollins against Newbold occurred on March 12, 2015 but was not reported until the day after Rollins was taken to a hospital and found to have no suicidal thoughts, some six weeks later.  The report of the alleged threat then led directly to the termination of Rollins.  In the end the Court believed Rollins had made out a sufficient case to allow a jury trial on whether Amtrak wrongfully perceived him as having a mental disability and discriminated against him on that basis.  The case can be found at Rollins v. National Railroad Passenger Corp., 2018 A.D. Cases 336982 (D.N.J. September 18, 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. 

                                                                THE COMMONWEALTH COURT ISSUES ITS

                                                                        SECOND DECISION POST-PROTZ

                                                                                 By Lisa A. Miller, Esquire

On June 6, 2018, the Commonwealth Court circulated a Decision in Whitfield v. WCAB (Tenet Health System Hahnemann LLC), Pa. Cmwlth., June 6, 2018.

The Commonwealth Court has published its second Decision addressing the Supreme Court’s holding inProtz regarding the retroactivity of the Impairment Rating Evaluations.

The facts of the case were not in dispute.  On March 25, 2002, the Claimant suffered a work-injury that required her to undergo lower back surgery.  From March 25, 2002, until September 28, 2002, the Claimant received partial disability benefits for the time period in which she performed alternative work.

The Claimant’s temporary total disability benefits began on September 29, 2002, the day before her lower back surgery.

On June 13, 2006, Dr. Brody performed an IRE under the Fifth Edition of the AMA Guides to permanent impairment.  Dr. Brody concluded that the Claimant had an impairment rating of forty-four percent (44%).

Based upon the IRE, the WCJ modified Claimant’s disability status from total to partial disability as of the date of the IRE.

The Appeal Board affirmed the modification of the Claimant’s benefits by Order on June 1, 2009.

The parties stipulated that the Claimant did not raise the constitutionality of the IRE before the original WCJ, or the Board.

Although the Claimant’s disability status was modified from total to partial, because she was not able to return to work following her surgery, the Claimant received workers’ compensation benefits at the temporary total disability rate from September 29, 2002, until mid-July 2015.  She testified that she continued to receive medical benefits.

On November 13, 2015, about one month after the Commonwealth Court’s Decision inProtz I, the Claimant filed a Petition for Reinstatement to total disability based upon the Commonwealth Court’s Decision inProtz I, holding that the Fifth and Sixth Editions were unconstitutional.

At the Hearings on the Reinstatement Petition, the Claimant testified that she did not feel as though she had fully recovered from her injuries, and that she had been unable to work from the time of her surgery through July 15, 2015.  There was some contradictory evidence that the Claimant was involved in a motor vehicle accident in May 2012, in which she injured her head, neck, and upper back, but not her lower back.

The Judge issued an Order denying the Claimant’s Reinstatement Petition.  The Judge found that Claimant was not entitled to a reinstatement of her benefits based uponProtz I for a number of reasons:

        (a)       In Protz (I), the Commonwealth Court did not expressly void all prior [IREs] or state that its Decision applied                     retroactively; 

        (b)       In Pennsylvania, generally only those matters that are pending in any phase of litigation, including Appeal or future                     matters, are entitled to a benefit in the change of the law, and the litigation in the instant matter ended on June 1,                     2009; [and]

        (c)       The constitutionality of Section 306(a)(2) was not raised or preserved in the underlying litigation.

The WCJ cited Winchilla v. WCAB (Nextar Broadcasting), 126 A.3d (Pa. Cmwlth. 2016), for the proposition that the Claimant waived the constitutionality argument by not raising it previously.  Because of the Judge’s Decision, the WCJ did not make a finding regarding the Claimant’s credibility.

The Claimant filed an Appeal of the WCJ Decision, and the Board affirmed in a 4 to 3 Decision.

The majority of the Board found that Claimant waived the right to challenge the constitutionality of the IRE citingRiley v. WCAB (Commonwealth of Pennsylvania), 154 A.3d 396 (Pa. Cmwlth. 2016).  The Board found that the Claimant did not challenge the constitutionality of the IRE before the WCJ or the Board when her change in status Petition was first being litigated.

Additionally, the Board noted that the Claimant did not Appeal the Board’s June 1, 2009 Order, in which the Board affirmed the original WCJ Decision modifying her status to partial disability.

The Board also noted that a Claimant may appeal a change in status at any time during the 500-week period of partial disability, so long as the Claimant presents evidence of a revised impairment rating of at least fifty percent (50%).  However, the Board held that Claimant was not entitled to a Modification of her disability status, because she failed to present such evidence.

The Board’s dissent disagreed with the Board’s majority that Claimant’s change in disability status was final.  The dissent distinguishedRiley, noting that in Riley, the Claimant attempted to challenge the IRE more than 500 weeks after the change in disability status, whereas Claimant here filed her Petition with the 500-week period following her change in disability status.

In a footnote, the Board noted that the Claimant filed her Petition within 500 weeks of the change in status on June 13, 2006, the dissent went onto cite Section 306(a.2)(4), which provides, in relevant part, that “An employee may Appeal the change to partial disability at any time during the 500 week period of partial disability.”

The footnote goes on to state that Claimant received twenty (20) weeks and six (6) days of partial disability benefits in 2002, leaving her with 479 weeks, one day before her 500 weeks of partial disability benefits were exhausted.  Although she did not actually receive payment of four (4) weeks of partial disability until April 2016, those benefits were for the period of July 13, 2015 through August 19, 2015.  Therefore, the Claimant exhausted her benefits in the summer of 2015, but did not file her Petition until November 2015.  Thus, Claimant did not file her Petition “during the 500 week period of partial disability”.

The dissent further found that Protz I should be applied retroactively, because it satisfied the criteria for retroactive application inBlackwell v. State Ethics Commission, 589 A.2d 1094 (Pa. 1991).

The first criterion is the purpose to be served by the new rule.  The dissent concluded that “applyingProtz I retroactively to the instant case serves the important purpose of mandating conformity with the Constitution.

Otherwise “allowing Claimants to have their disability status, and ultimately have their benefits completely cut off, based upon an IRE that was based upon an unconstitutional section of the Act, greatly prejudices those Claimants and blocks the main purpose of the Protz I Decision.

With regard to the second criterion, the extent of the reliance on the old rule, the dissent noted that “The IRE process is inherently not a final process, and remains an open case for 500 weeks past the time that a Claimant’s disability status has changed.”  Because the Guides could change, and Claimants retain a right to challenge their status during this 500 week period, the dissent found “Employers have never had full reliance that a change in Claimant’s disability status to partial would be final as that change only becomes final once the 500-week period has expired.”

The dissent believed “There would be a more adverse effect on the administration of justice ifProtz I was not retroactively applied to [cases in which the 500-week period had not expired], as those are not final cases.”

If Protz I was not given retroactive effect, the dissent stated “It would lead to the absurdity that Claimants would have the right to Appeal IREs, but have no actual remedy to carry through on that Appeal, as the right to Appeal would be based upon a now unconstitutional section of the Act.”

On Appeal to the Commonwealth Court, the Claimant argued that the Protz Decisions apply, and that she is entitled to have her disability status restored from partial to total disability, because the IRE upon which the change was based was unconstitutional and invalid.  The Claimant contends that the case is “strikingly similar” to the Commonwealth Court’s Decision inThompson v. WCAB (Exelon Corporation), 168 A.3d 408 (Pa. Cmwlth. 2017), in which the Commonwealth Court reversed the Board’s affirmance of a WCJ’s Decision modifying a Claimant’s disability status from total to partial.

Claimant also argues that Reinstatement Petitions made be filed within three years of the date of last payment, which is satisfied here.

In addition, the Claimant also argues that public policy and justice require the retroactive application ofProtz II.  Because Protz II struck the entirety of the IRE provision from the Act, the Claimant asserted that injured employees no longer have a statutory remedy to seek a change in status, and “by eliminating the statutory process for an employee to challenge his or her IRE – based partial disability status, the Supreme Court could not have intended to bind forever Claimants to a partial disability status that was unconstitutionally inacted.  In addition, the Claimant emphasizes that the remedial nature of the Act stresses that it should be liberally construed in favor of injured workers.

Employer argued that the reinstatement was not warranted, because at the time thatProtz II was decided, the Claimant had “already conclusively litigated the change in her benefit status, collected 104 weeks of temporary total disability benefits, and collected the entirety of her 500 weeks of temporary partial disability benefits.”

Employer also notes that Employers have relied on the now-invalid IREs, which largely went unchallenged until theProtz Decisions.  Employer explained:

“While the statutory scheme set forth in Section 306(a.2) of the Act allowed a Claimant to prove an entitlement to temporary total disability benefits at some point within thefuture of that 500 week period, presuming he/she was able to demonstrate a total person impairment of fifty [%] or greater, the statute did not provide a Claimant with 500 weeks within which to look back and invalidate apast IRE, and the corresponding change in benefit status.”

The Employer argued that Claimant fully litigated her change in benefit status a decade ago, but never challenged the constitutionality of the IRE provisions during that litigation.  The Employer argued that if the Court were to give retroactive effect toProtz II, the parties expectation of finality would be upset.

The Court goes on to summarize the holdings in Protz I and II, and the subsequent Commonwealth Court holdings in betweenProtz I and II, namely Winchilla, Rileyand Thompson.

In Thompson, the Claimant’s disability status was changed on August 30, 2005 from total to partial disability following an IRE performed utilizing the Fifth Edition of the AMAGuides.

The parties were in the midst of litigating the merits of the earlier change in status, based upon the Claimant’s 2011 Petition for Review, challenging the 2005 IRE whenProtz I was decided.  Although the Claimant had not challenged the constitutionality of the IRE before the WCJ or the Board, the Claimant in her Petition for Review to the Commonwealth Court raised the constitutionality issue.

The Employer argued that the Claimant failed to timely raise the issue, and should be barred from doing so on Appeal.

The Commonwealth Court rejected the Employer’s argument noting that “This matter began beforeProtz I and Protz II were decided.  It implicated the validity of the statute, and the [Claimant] raised this issue at the first opportunity to do so.” Thompson.

The Commonwealth Court noted that post-Protz II, the statutory time requirements were no longer valid, and the Commonwealth Court allowed a Claimant to raise the constitutionality of the IRE for the first time outside of those time periods, but while the litigation involving the change in status was still pending.  Thompson.

With regard to the case at bar, the Claimant argued that she was entitled to a reinstatement of her disability status from partial to total, because she filed her Reinstatement Petition within three years after the date of her most recent payment of compensation, and the IRE upon which the modification of her disability status was based is invalid.  She argues that her case is most analogous toThompson, because she filed her Reinstatement Petition at the first available opportunity, just one month after the Decision inProtz I.

The Claimant also argues that Protz should be applied retroactively.

Employer argues against retroactive application, stressing that Claimant did not raise the constitutionality of the IRE at any time during the underlying litigation related to the IRE itself, and she cannot do so now, because it would upset Employer’s reasonable expectation of finality.

It is undisputed that the Claimant filed her Reinstatement Petition within three years after the date of the most recent payment of compensation.  Her last payment was received in mid-July 2015, just four months before she filed her Petition.  Therefore, under Section 413(a), the Court examined the disability of [Claimant] has increased, decreased, recurred, or has temporarily or finally ceased.  77 P.S. §772.

The Court notes that “disability” is synonymous with a loss of earning power resulting from a work-related injury.  “Disability” may also refer to astatus, which is linked to the rate or amount of compensation to which a Claimant is entitled.  Traditionally, this status was linked to Claimant’s earning power under the traditional vocational efforts and earning power assessments.

Section 306(a.2) to the Act provided another method of changing Claimant’s disability status from total to partial disability, butwithout regard to any change in Claimant’s earning power.  The practical effect of the change in status for an impairment rating under fifty percent (50%) was to change the Claimant’s status from total to partial disability, and to limit a Claimant to 500 weeks of partial disability.  See Diehl v. WCAB (I.A. Construction), 972 A.2d 100, (Pa. Cmwlth. 2009).

Diehl discussed the distinction between a change in disability status based upon an IRE, and a change in earning power based upon a vocational evaluation.

In Diehl, the Court explained that “IRE remedies are separate from remedies involving actual ability to work.”  TheDiehl Court explained that “requiring proof of a Claimant’s level of impairment, and a Claimant’s earning power, would render the IRE provisions meaningless” and that “there would be no reason for the Employer to ever obtain an IRE.”

The Court noted that until the IRE provisions were struck down as unconstitutional, a Claimant’s disability status could be modified from total to partial disability in one of two ways:  (1) evidence of earning power under Section 306(b)(2), or (2) based upon a Claimant’s impairment rating without regard to his or her earning power under Section 306(a)(2).

Because earning power did not play any role in Claimant’s change from total to partial disability in this case, we discern no reason why the term “disability” in Section 413(a) governing reinstatement from partial to total disability status in this case should be restricted to its traditional definition of earning power.

The Court next considered whether Claimant’s disability status “increased, decreased, recurred, or has temporarily or finally ceased”. 77 P.S. §772.

Under the facts of this case, Claimant may establish entitlement to reinstatement of her disability status “recurred”.  The Court defined “recur” as “to return to a place or status”, or “to happen, take, place, or appear again.”  Webster’s Third New International Dictionary.

The Court noted that the legal effect of Protz I and subsequentlyProtz II was to render Claimant once again eligible for total disability benefits.  The impediment that rendered her partially disabled under the Act, the Impairment Rating Evaluation, is no longer a valid means of challenging a Claimant’s status.  There was no longer a legal basis for Claimant’s disability status to remain partial, because the IRE upon which the change in status was predicated was found, as a matter of law, unconstitutional and invalid.  This change in the law was a basis upon which Claimant could seek reinstatement.

This scenario is more akin to a Claimant seeking reinstatement of benefits currently under a suspension than one seeking a reinstatement of benefits following termination, because there is no allegation that Claimant’s disability had ceased.

The Supreme Court explained that suspension status “actually acknowledges” a continuing medical injury.” Latta v. WCAB (Latrobe Die Casting Co.), 642 A.2d 1083, 1085 (Pa. 1994).

In situations where Claimant’s benefits are suspended, the Claimant is only required to demonstrate that the reasons for the suspension no longer exist. Pieper v. Ametek-Thermox Instruments Division, 584 A.2d 301, 304 (Pa. 1990).

A Claimant is not required to demonstrate with medical evidence that the work-related injury giving rise to benefits continues; a Claimant’s testimony to that effect satisfies the Claimant’s burden of proof. Latta.

The Supreme Court held that “once a Claimant testifies that his prior work-related injury continues, the burden shifts to his Employer to prove the contrary.  Where an Employer fails to present evidence to the contrary, the Claimant’s testimony, if believed by the Judge, is sufficient to support to reinstatement.”

The Supreme Court explained that because the Claimant already established a work-related injury, it would be improper to require a Claimant to establish it again.  “In such suspension stituations, the causal connection between the original work-related injury and the disability which gave rise to the compensation is presumed.”  Pieper.

The Court goes on to distinguish Stanek v. WCAB (Greenwich Collieries), 756 A.2d 661, 668 (Pa. 2000).

The Court distinguishes Stanek because the Claimant there did not have his status changed based upon an impairment rating, rather he received partial disability benefits based upon a change in earning power.  InStanek, the Claimant exhausted 500 weeks of partial disability, and sought a reinstatement on the basis that his physical condition had worsened, rendering him totally disabled.  The Commonwealth Court noted that the standard enunciated by the Supreme Court, requiring evidence of a loss of earning power and a worsening of the Claimant’s physical condition, under these circumstances makes sense.

However, in cases where the Claimant’s change in disability status was never based on either a change in earning power, or a change in physical condition, but solely on an impairment rating, it does not make sense for a Claimant seeking reinstatement based upon an unconstitutional IRE to show a change in earning power when the Employer was not required to share the same when it had the Claimant’s disability status modified from total to partial.

Furthermore, in some cases, a Claimant will not be able to show a change in earning power, because he or her earning capacity remains at zero.  Moreover, because the change in disability status was not linked to any change in physical condition, but only to an impairment rating, it does not make sense to require Claimants to show their physical condition worsened.

Claimant testified that she was not able to work at all, since her surgery in 2002.  Employer did not present any evidence to the contrary.  Therefore, if Claimant’s testimony is credited, this satisfies her burden underLatta.

However, the Commonwealth Court remanded the matter to the WCJ, noting that the WCJ did not find it necessary to make any findings as to Claimant’s credibility, because of the Judge’s determination thatProtz I was inapplicable.

Therefore, the Commonwealth Court vacated the Board’s Order, and remanded the case to the WCJ to make factual findings related to whether Claimant credibly testified that she is totally disabled.  If her testimony is credited, and because Employer presented no evidence to the contrary, the Claimant is entitled to a reinstatement as of the date that she filed her Petition underLatta.

The Court cites the humanitarian purposes of the Act for rendering their decision.

Interestingly, the Court appeared to “punt” on the retroactivity issue.  The Court notes “Our Decision today does not impose any new legal consequences upon a past transaction.  Simply becauseProtz II is being applied to a case that arose from a work injury and a change in disability status that pre-dates it does not mean it operates retroactively.” Warren v. Folk, 886 A.2d 305, 308 (Pa. Super. 2005).

It would be retroactive if it related back and gave a prior transaction a legal effect different from which it had under the law in effect at the time.  This Decision does not alter Claimant’spast status.  Rather, it gives effect to the Claimant’s status as it existed at the time she filed a Reinstatement Petition, which was within the statutory time frame for filing of such Petitions.

                                                                        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.

New Jersey workers’ compensation has two kinds of settlements: those under Section 20, a full and final settlement, and those under Section 22, an accepted percentage of disability settlement with reopener rights retained by the petitioner.  Section 20 settlements are popular with employers and carriers because they do not involve an admission of liability, and the case is closed for good.  The two most frequent legal bases for obtaining a Section 20 settlement are liability and causation.  They comprise perhaps 95% of the Section 20 settlements in the Division, with the remaining small portion involving jurisdiction and dependency.  But what do liability and causation really mean?

An issue of liability refers mostly to legal considerations:

* The petitioner was not in the course of employment when injured

*  The petitioner was injured on premises not controlled by the employer

*  The petitioner was an independent contractor, for instance, not an employee

*  The petitioner cannot meet the definition of having a permanent impairment under Section 36

In contrast, causation refers mostly to medical-legal considerations:

*  The herniated disc is preexisting and was not caused by the injury

*  The petitioner’s present complaints reflect a subsequent non-work incident

*  The mechanism of injury is not consistent with petitioner’s pathology

The foregoing are just some examples of how causation and liability issues manifest in workers’ compensation cases.  As a practical matter, it is much easier to reach a Section 20 settlement if the workers’ compensation claim has been denied from the outset.   Accepted cases with objective evidence of permanent partial disability are not candidates for a Section 20.  Such cases are settled under Section 22, allowing the injured worker to retain the right to reopen the case in the future for additional medical, temporary or permanency benefits within two years from the last payment of compensation.

One exception to the above rule disqualifying admitted cases from a Section 20 concerns those matters where the defense doctor disputes that there exists any permanent disability at all.  If the defense IME finds zero permanent partial disability, even in an admitted case, the case may be a candidate for a Section 20 settlement.  Both parties must agree, and the Judge of Compensation must approve the Section 20.

Practitioners should realize that not all estimates of zero disability are the same.  If an IME doctor finds zero disability in a sprain and strain case with limited treatment and minimal lost time, the Judge of Compensation will be more likely to approve a Section 20 than a case where the defense IME has a zero estimate in the face of MRI findings of a bulging disc with radicular pain.  Just because the defense IME finds zero disability does not mean that the case will be approved for a Section 20.  Each case is different, and judges focus on the specific medical findings as well as the impact of the injury on the injured employee in his or her work and non-work life.  Minor sprains are excluded from compensation by statute under N.J.S.A. 34:15-36.  As such, admitted minor sprain cases are often settled under Section 20.

Perhaps the largest category of Section 20 settlements emerges from cases where the treating doctors have inquired about and identified preexisting or subsequent conditions that may explain the petitioner’s pathology and complaints. Often that questioning reveals prior car accidents or injuries that led to significant treatment and diagnostic testing, and that analysis often leads to a Section 20 resolution.  The skill of taking a detailed past medical history, inquiring about current sports, recreational activities and second jobs, varies immensely from doctor to doctor.  It takes time and effort to do this well.

Workers’ compensation is contingent health care, meaning that the physician must focus on whether the condition arises from work or perhaps from other non-work causes.  Most employers and carriers err in choosing doctors from enormous lists and large networks where the focus is primarily on provider pricing.  The reality is that the best results and greatest savings in workers’ compensation are directly traceable to the ability of physicians to analyze causation thoroughly and spend time taking a detailed past medical history.  Occupational physicians and surgeons should be selected primarily for their medical expertise and for their skill in analyzing causation, including taking a complete past medical history and considering non-work hobbies and sports in relation to the work activity that is alleged to be the cause of the injury.

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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. 

Does telemedicine have a place in workers’ compensation?  This practitioner was undecided on this question until a week ago when participating in a conference devoted to the benefits of using telemedicine in workers’ compensation. The presentation was offered by Concentra, and it made a strong case for telemedicine as a useful adjunct to workers’ compensation treatment.

The way it works is simple: an injured worker connects on a computer or a mobile device to a clinician by video.  Clearly telemedicine makes good sense for minor medical issues such as sprains or contusions.  Concentra estimates that 30 percent of initial injuries and 60% of injury rechecks can be treated via telemedicine.

What are the savings?  Among them is that there is no need to transport the injured worker to a medical facility and no need to provide coverage for that injured worker while out of the work site.  There are fewer hours of lost time.  Perhaps the biggest financial savings is not incurring ER charges or urgent care bills.

One type of New Jersey worker who clearly benefits from telemedicine is the over-the-road trucker who may be injured a thousand miles from home.  The telemedicine patient can be seen on the road, at work or even in the home.  The worker can request text notification regarding when the clinician is available to treat, thereby avoiding waiting times in medical offices.

The follow-up treatment involves sending paperwork by secure email to the employee as well as reports to the employer by email or other communication.

Will telemedicine replace occupational health centers?  Clearly not, because serious injury case are not appropriate for telemedicine.  It does seem to this practitioner that telemedicine will grow rapidly around the state for many types of injuries.  Clinicians will need to be careful in limiting the use of telemedicine to minor cases and recognizing when an in-person visit to a physician must be made. Many workers will no doubt prefer telemedicine in many situations.  Care may be improved by prompt telemedicine, eliminating the problem of workers who delay their own treatment because they do not want to take the time off from work to travel to an occupational clinic.

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JohDoes telemedicine have a place in workers’ compensation?  This practitioner was undecided on this question until a week ago when participating in a conference devoted to the benefits of using telemedicine in workers’ compensation. The presentation was offered by Concentra, and it made a strong case for telemedicine as a useful adjunct to workers’ compensation treatment.

The way it works is simple: an injured worker connects on a computer or a mobile device to a clinician by video.  Clearly telemedicine makes good sense for minor medical issues such as sprains or contusions.  Concentra estimates that 30 percent of initial injuries and 60% of injury rechecks can be treated via telemedicine.

What are the savings?  Among them is that there is no need to transport the injured worker to a medical facility and no need to provide coverage for that injured worker while out of the work site.  There are fewer hours of lost time.  Perhaps the biggest financial savings is not incurring ER charges or urgent care bills.

One type of New Jersey worker who clearly benefits from telemedicine is the over-the-road trucker who may be injured a thousand miles from home.  The telemedicine patient can be seen on the road, at work or even in the home.  The worker can request text notification regarding when the clinician is available to treat, thereby avoiding waiting times in medical offices.

The follow-up treatment involves sending paperwork by secure email to the employee as well as reports to the employer by email or other communication.

Will telemedicine replace occupational health centers?  Clearly not, because serious injury case are not appropriate for telemedicine.  It does seem to this practitioner that telemedicine will grow rapidly around the state for many types of injuries.  Clinicians will need to be careful in limiting the use of telemedicine to minor cases and recognizing when an in-person visit to a physician must be made. Many workers will no doubt prefer telemedicine in many situations.  Care may be improved by prompt telemedicine, eliminating the problem of workers who delay their own treatment because they do not want to take the time off from work to travel to an occupational clinic.

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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.n 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. 

October 2018

Tennessee Workers’ Compensation Update

I.         A Busy Year for Workers’ Compensation in Tennessee

So far, the year 2018 has seen the Bureau of Workers’ Compensation (BWC) introduce the most expansive revisions to the Tennessee Workers’ Compensation Rules since the reform act went into effect in 2013.  Employers and insurance carriers now bear new legal burdens brought about by several brand-new pieces of legislation, amendments to the Bureau of Workers’ Compensation’s Rules and Regulations, and additional form requirements.  The purpose of this article is to serve as a general guide to the most relevant new provisions passed in 2018. 

II.        New Claims Handling Standards

The Tennessee Bureau of Workers’ Compensation (BCW, or “the Bureau”) has adopted a new set of regulations codified at 0800-02-14 et seq. This is the first revision to the Tennessee Claims Handling Standards in decades.  These new provisions, which went into effect on August 2, 2018, have a startling impact on the responsibilities of employers and insurance carriers in handling and maintaining workers’ compensation claims.  They create a more form-intensive environment.  The Bureau of Workers’ Compensation is also philosophically placing a new burden on the employer and insurance carrier to educate employees on the workers’ compensation processes, along with their rights and responsibilities under the workers’ compensation laws. 

Given the scope of this article being utilized in the context of a Labor and Employment Law Conference, I will first address the claims handling standards that directly impact an employer.  A new provision has been enacted stating that employer shall provide the BWC all information and documentation that is requested for the purpose of monitoring, examining or investigating the entity’s operations and processes.  Employers are required within ten (10) calendar days of request to provide any information requested by the Bureau of Workers’ Compensation unless the BWC allows an extension of time.  The purpose of this new regulation is for the BWC to be empowered during the course of a workers’ compensation case to obtain whatever information is required from the employer. 

Employers should be mindful that when they do receive requests from the Bureau of Workers’ Compensation, that they are under a separate duty from their adjusting entity or insurance carrier to provide this information.  Oftentimes the insurance carrier will take the burden from the employer for providing this information.  However, this does not change the fact this regulation does make it the employer’s responsibility under a potential $50.00 to $5,000.00 penalty if the employer does not comply and the insurance company fails to meet any of its duties to provide information timely. 

Generally speaking, a penalty program has been in effect at the Bureau for many years.  However, it is anticipated that regulations such as this type are being adopted for the purpose of the Bureau of Workers’ Compensation ramping up the enforcement of its penalty program which includes monitoring and disciplining employers for failure to comply with the Workers’ Compensation Rules and Regulations.

The remaining claims standards impact the duties of third party administrators and insurance adjusters.  These responsibilities and deadlines are listed in their entirety on the following chart:

Regulation              Responsible Party                   Brief Summary                                  Time Limit

III.      The Bureau of Workers’ Compensation Has Enacted New “General Rules” of the Workers’ Compensation Program

Several of these provisions, which went into effect May 31, 2018, directly impact employers.  For example, employers are required within one business day of the knowledge of an injury to report all known and reported accidents or injuries to their adjusting entity.  The employer shall provide the employee a panel (C-42) of physicians with medical providers that are qualified, willing and able to treat in a timely manner.  The new regulation requires a medical panel to be provided by the employer “as soon as practicable.”  However, the regulation goes on to state that if the employer does not provide a panel within three (3) business days, it will be subject to a penalty.

Penalties can also occur if the panel is not provided on the proper form or does not contain doctors that are “qualified, willing and able to treat in a timely manner.”  As such, if a panel is provided with a doctor who, for example, has decided not to take workers’ compensation patients, that is considered a failure on the part of the employer and the employer can be subject to a penalty.  If the doctor is not properly qualified, the employer can be subject to a penalty.  If the doctor cannot treat in a timely manner and states he will need a number of months to schedule an appointment, the employer can be penalized.  As such, it is critical for the employer to maintain current panels.  It would not be an unreasonable practice for an employer to contact all medical providers on the panel each time a panel is provided to ensure that the doctors being provide are qualified, willing and currently able to treat in a timely manner.  Also, please note that some employers do delegate the responsibility of provision of medical panels to their insurance carrier.  However, it is to be noted that this legal duty to provide a panel is assigned to employers and that the penalty could adhere to the employer, even if an insurance carrier fails to meet its obligations.

Sometimes penalties are unavoidable.  There is a new provision under the regulations that state that an employer or adjusting entity must pay uncontested penalties within twenty (20) days of receiving a notice from the Bureau of Workers’ Compensation.  There is an appeals process which, of course, defers the requirement to provide payment.

The Bureau of Workers’ Compensation went into great detail with some additional requirements for proper drafting and handling of medical panels.  The regulations state that an employer shall “immediately” provide proper emergency assistance.  Therefore, if an employee requests emergency assistance, treatment should be provided right away.  However, this does not remove the employer’s obligation to provide a panel of physicians within three (3) days.

For years, employer have utilized on-site, in-house or other employer-sponsored medical providers.  There has always been a question as to whether or not this was a  prima facie violation of an employer of the requirement to provide a panel.  Employees and their attorneys would argue that the employer sending the claimant unilaterally to one of these on-site sponsored medical facilities or nurses was a violation of the law.  However, the new regulations clarify that on-site, in-house or other employer-sponsored medical providers are appropriate.  An employer is allowed to direct a claimant to them prior to providing the initial panel.  Critically, this does not alleviate the requirement that the employer must provide an appropriate panel of physicians within three (3) business days.

The regulations also state that walk-in clinics and urgent care facilities can be included in the panel.  However, the actual name of the staff physician or medical director from that walk-in clinic or urgent care facility must be included on the panel.  This is an exception to the general rule that employers are allowed to put the general practice name instead of a physician’s name on the panel.  Employers should be mindful that if they do utilize walk-in clinics or urgent care facilities, that the doctor’s name must be included.

For all other facilities besides walk-in clinics and urgent care facilities, employers are still able to include the name of the specialty practice group without naming a specific doctor.  However, the regulations make clear that in these circumstances the employee will have the ultimate choice as to which doctor at that facility they want.  As such, it is recommended that employers, whenever possible, utilize the name of the doctor and do not give up control over being able to direct medical treatment to the physician of their choice.  Oftentimes there are far less conservative physicians within a practice group that the employer may not want to provide to an employee.

The regulations also address the modern reality that many medical providers are utilizing nurse practitioners on an increasing basis.  Oftentimes, employees or their attorneys have made the argument that they are not receiving medical treatment under the statute because they are not seeing an actual doctor.  The regulations clarify that the employer may provide medical treatment ordered by an attending nurse practitioner.  However, only the supervising physician may actually be listed on the panel, not the name of the nurse practitioner.  The regulations also clarify that only the supervising physician may determine medical causation, impairment rating and the MMI date.  Those issues are off limits to a nurse practitioner and will be disregarded by the court.

The remaining amendments to the General Rules primarily impact adjusters and insurance carriers.  However, they are provided here in summary form in the following chart:

TN Regulations    Responsible Party                    Brief Summary                                        Time Limit

IV.       2018 Legislative Changes

Typically, the most sweeping changes in Tennessee Workers’ Compensation Law come by way of reformation of the existing Tennessee Code Annotated provisions of the Workers’ Compensation Law.  However, this year such changes were relatively minimal.

Perhaps the most relevant legislative change addresses the issue of awarding attorney’s fees to employees who are successful in challenging workers’ compensation denials. This new legislation, effective April 18, 2018, seeks to clarify a previous rule that states that an employee can obtain attorney’s fees from employers and insurance carriers who “wrongfully” deny a claim.  Previously, the Tennessee Legislature had failed to define what constitutes a “wrongful” denial.  For a wrongful denial to be assessed, a workers’ compensation judge must subsequently make a finding that workers’ compensation benefits were owed but wrongfully withheld from an employee.  This process occurs either in the context of the BWC’s expedited hearing or a compensation hearing.

This new legislation defines the term “wrongfully” as erroneous, incorrect, or otherwise inconsistent with the laws or facts.  It also extends the “sunset date” for this law to persist at least through June 30, 2020 before it must be re-examined and possibly extended by the Tennessee Legislature.

Concurrent with the enactment of this new legislation was a Workers’ Comp Appellate Court decision in the matter of  Tori Andrews v. Yates Services, LLC.  This case, decided on May 8, 2018, dealt with the issue of whether or not an employer’s denial of benefits was in fact “wrongful.”  In  Andrews the claimant injured his lower back.  The employer initially accepted the claim as compensable and provided a panel of physicians.  Thereafter, the employer denied additional benefits after receiving a medical opinion from the authorized treating physician, indicating that the employee’s condition did not arise primarily out of and in the course of employment.  The employee thereafter sought treatment on his own and obtained an unauthorized medical opinion that the injury did arise primarily out of his employment.

The Trial Court accepted the opinion of the employee’s physician, finding that the employee was likely to prevail at a compensation hearing and ordered temporary total disability and medical benefits.  The issue was whether or not the employee was also entitled to attorney’s fees and expenses for a “wrongful” denial of benefits.  The Trial Court denied a motion for attorney’s fees by the employee, stating that a wrongful denial requires that minimum of finding that the employer’s denial lacks good cause.

The Appellate Court reviewed the new proposed statutory language.  It stated that applying this new definition of “wrongfully” meant that it had to disagree with the Trial Court that there needs to be some sort of finding that the employer’s denial lacked good cause.

The Appellate Court’s most important finding was to determine that the reasonableness of an employer’s denial is to be determined at the time the denial was made.  As such, in the facts of the  Andrewscase, the denial was made when the authorized treating physician was the only medical opinion available.  The Appellate Court stated that the employer should not be held accountable for a “wrongful” denial because the unauthorized doctor later was found to rebut that presumption.  In other words, the employer could not have known that in the future a medical opinion that did not exist would come into existence and prevail over the opinion of the presumed correct authorized treating doctor. 

As such, the holding in the  Andrews case is a win for employers.  However, one unanswered question would be whether or not the court would have found the denial “wrongful” had the employer and insurance carrier had the benefit of the unauthorized doctor’s opinion and then denied: would the court have determined that was erroneous, incorrect or otherwise inconsistent with the law or facts?  Future case law will likely further interpret this provision.

Another new piece of legislation establishes that insurance carriers are no longer required to maintain a physical claims office within the state of Tennessee.  This was effective April 12, 2018 and deletes a law that has been on the books for many years but has never been enforced by the Bureau of Workers’ Compensation. Because it has lacked enforcement, many out of state insurance companies do not have a local Tennessee office.

Yet another new legislative provision impacts employers that are considered to be “farm and agricultural employers.”  These types of employers can accept workers’ compensation coverage simply by purchasing a workers’ comp insurance policy.  They are also enabled to cancel workers’ comp insurance by simply not renewing their policy.  This was put into effect to eliminate any requirement for a farm or agricultural employer to register with the state or maintain paperwork in a formal capacity with the State of Tennessee in order to elect coverage under the Tennessee Workers’ Compensation Laws.

An additional provision deals with what the law refers to as “marketplace platforms.”  This provision provides that a marketplace contractor is an independent contractor and not an employee of the marketplace platform for all purposes under state and local laws, rules, ordinances and resolutions of certain additions are set forth in a written agreement between the marketplace platform and the marketplace contractor.  This provision went into effect July 1, 2018.

An interesting new law has been put into effect for what is referred to as “workplace learning.”  This is a situation in which an employer will act as a host for a student intern.  Basically, a work-based student learning grant program will, through an educational institution, coordinate for an employer to allow a student to act as an intern (paid or otherwise).  The employer has the option to opt into workers’ compensation insurance coverage for the participating students.  In the event that the employer does make that election to provide workers’ comp coverage for the student, the educational institution is required to maintain liability insurance coverage to compensate the student for any injury that would not be covered under the workers’ compensation law. 

This would conceivably include situations where an intentional tort was perpetrated by the employer on the student.  Nevertheless, the overall purpose of this is to assist an already existing student intern program by attempting to encourage employers to engage in the process.  They will have additional protections by being able to avail themselves of their own personal workers’ compensation coverage for these students, but also for additional tort liability coverage provided by the referring educational institution.  Nevertheless, it is important for employers who engage in this program to be mindful of this new legislation and protections if they wish to engage in such internship programs.

Lastly, some sunset provisions extend the life of the Bureau of Workers’ Compensation, Medical Advisory Committee, and Medical Payment Committee for six years through June 20, 2024. 

V.        Significant Revisions to the Tennessee Fee Schedule

The Tennessee Fee Schedule is a provision of the Bureau of Workers’ Compensation’s regulations that provide caps and limitations on certain types of medical treatment and medical costs.  The primary purpose of this section of the statute is for cost containment.  These new revisions are effective for services rendered on or after February 25, 2018, irrespective of the claimant’s injury date.  As such, these will grandfather in prior cases.  These new provisions are codified at 0800-02-25-.01 et seq. 

These set the ground rules that insurance carriers use for reimbursing medical providers.  Notice of an alleged violation of the Fee Schedule allows any party to contest at a case hearing before the Administrator under the Uniformed Administrative Procedures Act.  Specific guideline limits will not be detailed here as they are outside of the scope of this article.  However, please be mindful that there are limitations on costs and number of services associated with surgery, anesthesia, injections, ambulatory surgical centers, chiropractic services, outpatient physical and occupational therapy, medical equipment, orthotics and prosthetics, pharmaceuticals, ambulance services and clinical psychological services.

With regard to some of the new provisions under the Tennessee Fee Schedule, these provisions do the following:
·               Change the timeframes for holding, notification and payments;
·       Change some current definitions to line up with those under the Medicare program;
·       Require the authorized treating physician to see an injured worker at least every sixty (60) days if an injured worker is receiving temporary disability payments, to assess progress regarding return to work;
·       Provides rules for additional payments to physicians for certain additional causation opinions and drug/alcohol evaluation and counseling;
·       Allow payment for chiropractors for an additional evaluation;
·       Clarify rules about compounding, benchmarking and parity for all drug dispensers;
·       Clarify rules about laboratory charges, pay for CRNA’s, PA’s and NP’s;
·       Establish payment for work hardening programs and functional capacity evaluations;
·       Make discretionary the Utilization Review program for physical, occupational and psychotherapy;
·       Limit payments for invoiced items to a facility;
·       Prohibit providers for charging for negative records searches;
·       Provide additional payment to trauma hospitals for certain services;
·       Simplify hospital billing determinations by changing the inclusion under the stop loss calculations; and
·       Establish that a new Fee Schedule Handbook will be published in the near future.  This has not been published at the time of the drafting of this article.

Most relevant to an employer are the provisions of the Fee Schedule that deal with the timing of medical payments.  Oftentimes this is something that will be dealt with by the insurance carrier or TPA who is assigned to this task.  Nevertheless, the regulations themselves state that employer is required to pay any undisputed portion of a bill within thirty (30) calendar days of receipt of a properly submitted medical bill.  The employer has fifteen (15) days to resubmit the bill to the provider if it is not a proper form or does not comply with the Tennessee Fee Schedule.  If resubmitted to the provider, the timing shall not apply towards the thirty (30) days that the employer has to pay the bill.  Along with resubmission of the bill, an employer shall notify the provider that the bill was not properly submitted and specify the reason.  Thereafter, the employer shall date stamp medical bills and reports not submitted electronically on receipt.

Independent Medical Examinations are not to exceed $500.00 per hour.  A physician who performs an independent medical examination may only require prepayment of $500.00, no more.  Additional billings that come after that must occur after the examination and production of a report by the IME physician. 

Now deadlines for payment of medical bills have also been established, and are summarized in the chart below:

 TN Regulations    Responsible Party                    Brief Summary                                     Time Limit

VI.       Drug-Free Workplace Program Rules

These new amendments became effective May 6, 2018.  An extensive overview of the new Tennessee Drug-Free Workplace regulations is beyond the scope of this article.  Nevertheless, portions of this program do impact a workers’ compensation case.  These new regulations clarify the rule requiring that an employer must be a certified member of the Drug-Free Workplace Program.  One of the common problems with utilizing the Drug-Free Workplace Program is that employers will often forget to renew the program and, therefore, not avail themselves of the benefits in a workers’ compensation case when an employee tests positive for drugs or alcohol. 

Traditionally speaking, an employer who wants to assert the defense of willful intoxication will be required to meet its own burden of proof to show that the drugs or alcohol were the proximate cause of the injury.  The primary benefit of the Drug-Free Workplace Program is that burden is instead shifted to the employee to show that the intoxication was not the proximate cause of the injury.  Furthermore, the defense of willful intoxication can be applied in situations where an employee refuses to take a drug test.  However, that defense to a workers’ compensation claim is only available under the circumstances where the employer is a certified Drug-Free Workplace Program participant.

VII.     Adjuster and Adjusting Entity Certification Program

This voluntary program became effective May 31, 2018.  Lengthy regulations have been established to set up a voluntary system for adjusters to become trained and, therefore, “certified” as Tennessee adjusters.  A good portion of these regulations contain the contents of that training.  Training programs have already started taking place in Tennessee.

Presently, this certification program is voluntary.  However, it is clear that the Bureau of Workers’ Compensation’s intent is to eventually make adjuster training mandatory in Tennessee.  In the next few years we anticipate that this voluntary program will be made mandatory for adjusters in the state.  It remains to be seen if adjusters will be able to obtain their education remotely or will have to travel to the state of Tennessee to obtain this annual certification.

Fredrick R. Baker, Member
Wimberly Lawson Wright Daves & Jones, PLLC
1420 Neal Street, Suite 201
P.O. Box 655
Cookeville, TN 38503-0655
(931) 372-9123
fbaker@wimberlylawson.com

T. Joseph Lynch III, Member
Wimberly Lawson Wright Daves & Jones, PLLC
550 Main Avenue, Suite 900
P.O. Box 2231
Knoxville, TN 37901-2231
(865) 546-1000
jlynch@wimberlylawson.com

Effective 10/01/18 through 09/30/19, the Division of Workers’ Compensation has increased the maximum weekly benefit rate to $938, and increased the minimum weekly benefit rate to $141.

The discount rate and interest rate provided in the Texas Workers’ Compensation Act have likewise increased effective 10/01/18. For the fourth quarter of 2018, 10/01/18 through 12/31/18, the rates will be 6.06 percent.

Independent contractor Selena Scola was a content moderator for Facebook. Her job was to review content flagged as “inappropriate” by a Facebook user and determine whether the flagged content should be removed from the platform. The job was difficult and stressful, requiring Ms. Scola and her fellow content moderators to review, among other things, photos and videos of “rapes, suicides, beheadings and other killings.” The job took its toll and, according to a lawsuit filed by Ms. Scola in California, caused PTSD. The lawsuit asks Facebook to provide treatment for the content moderators, including the independent contractors.See New York Times article here.

Placing aside the question of whether Ms. Scola’s PTSD-type claim would be a compensable injury under the Texas Workers’ Compensation Act, after reviewing unhinged political Facebook posts from crazy family and friends, don’t we all feel a little traumatized?

-  Copyright 2018, Stone Loughlin & Swanson, LLP.

Every month we publish a newsletter and, it seems, every month we report a new criminal indictment related to a provider involved in some sort of criminal activity. The latest compound cream scheme involved pain management doctor Adam Gallardo Arredondo of the Texas Anesthesia & Pain Institute. The federal grand jury indictment alleges Dr. Arredondo, a Texas physician, accepted kickbacks from an OK Pharmacy (an Oklahoma compounding pharmacy) for prescribing excessive – allegedly – compound drugs to patients insured under the federal workers’ compensation system and other federal programs. Dr. Arredondo also – allegedly – accepted payments for recruiting other physicians to prescribe compound drugs for the OK Pharmacy.

Maybe next month we won’t have any indictments to report . . . but I wouldn’t count on it.

HT www.workcompcentral.com.

-  Copyright 2018, Stone Loughlin & Swanson, LLP.