State News

Permanent injuries in Nebraska are either to a “scheduled member” or to the “body-as-a-whole.”  In general, “scheduled members” are those injuries specifically listed in § 48-121(3). Scheduled members include fingers, hands, toes, feet, knees, eyes, ears, and hearing. Permanent impairment to a single scheduled member, such as an arm, is compensated in terms of loss of function. You’ll most frequently see this loss of function expressed as a percentage of permanent impairment.

Alternatively, injuries to body parts not expressly listed in § 48-121(3) are commonly called whole-body or body-as-a-whole injuries. Most commonly, these include injuries to the back, neck, head, and psyche. For these whole-body injuries, compensation is based on the employee’s “loss of earning capacity” or “LOEC” which is also referred to as the employee’s “loss of earning power.”  There is no numerical formula to determine an employee’s LOEC. It is determined by considering four factors: (1) the worker’s general eligibility to procure and (2) hold employment, (3) the worker’s capacity to perform the tasks required by the work and (4) the worker’s ability to earn wages in employment for which he or she is engaged or fitted. Sidel v. Travelers Ins. Co., 205 Neb. 541, 288 N.W.2d 482 (1980).

Pursuant to a 2007 statutory amendment, the Act also provides that if an employee suffers two or more scheduled member injuries arising out of one accident and the loss of earning capacity is at least 30 percent, the compensation court has the discretion to compensate the employee based upon the resulting loss of capacity. Neb. Rev. Stat. § 48-121(3).  This is commonly called the “two scheduled member exception,” but for purposes of this post, it will be referred to succinctly as the ”exception.”

Historically, the purpose of the exception was meant to apply to bilateral injuries arising from the same accident or injuries to completely different body parts. For example, an employee who suffered bilateral knee injuries or both a hand injury in conjunction with a knee injury would be considered under the exception. That argument seemed to change in 2017 when Judge Hoffert held that an employee’s injuries to two different fingers on the same hand could also fall within the exception.

In Abdi v. JBS Holdings, 2017 WL 2437763 (Neb. Work. Comp. Ct.) Judge Hoffert first addressed whether or not a thumb and index finger qualify as multiple member injuries under the exception. To that, Judge Hoffert concluded, “The Court has carefully reviewed the subject statute and searched in vain for any applicable case law. In the end, the Court finds no prohibition against considering a thumb and finger injury as two separate member injuries as each are certainly listed as scheduled injuries under Section 48-121(3). If it were the legislature’s intent to exclude thumb and finger injuries from consideration an affirmative statement to that effect would likely have been made. Additionally, one could easily imagine a circumstance where an injured worker may lose or suffer serious injury to both thumbs in a single accident and would undoubtedly be significantly impaired as to his future earning capacity.” (emphasis added). Importantly, even Judge Hoffert seemed to recognize that the exception was most relevant to bilateral injuries.

Since Judge Hoffert’s decision, several similar cases were decided at the trial court level with differing opinions from the Judges as to whether injuries to the same extremity or limb can satisfy the “two scheduled members” exception.

The most relevant is Judge Fitzgerald’s recent decision in Espinoza v. Job Source, USA, 2022 WL 432217 (Neb. Work. Comp. Ct.). In Espinoza, Judge Fitzgerald held that a right arm and right-hand injury were not two separate injuries for purposes of the exception. As background, the employer in that case stipulated that the employee suffered both a right wrist and right elbow injury as a result of an accident on March 20, 2019. Shortly after the accident, the employee underwent a right wrist surgery. One month later, she had surgery on her right elbow. In light of the same, the employer stipulated that the employee was entitled to a 13% rating to the right upper extremity pursuant to the AMA Guidelines. This rating was a combination of a 5% rating to the elbow and a 9% impairment to the wrist. This is important because § 48-121(3) values an injury to the elbow differently than an injury to the wrist. Specifically, an injury to the elbow is worth up to 225 weeks while an injury to the wrist is worth up to 175 weeks.

Citing to the two-member exception, Judge Fitzgerald held: “A loss of use due to an injury to the wrist and the elbow in a single arm is not an injury to parts of more than one member. The arm is a single member, and any loss of use for an injury below the elbow would be included in the loss of the use of the same arm. The Court finds that an injury to the wrist and the elbow of the same arm is still an injury to a single member and does not entitle an employee to a loss of earning power.”

Espinoza is now on appeal to the Nebraska Supreme Court and is drawing attention from both sides of the workers’ compensation aisle. The Plaintiff’s bar argues that § 48-121(3) should be read to allow an employee to prove multiple injuries to the same limb to satisfy the two-member exception. However, such an argument overlooks the plain language of § 48-121(3), and the intent of the legislature from when it was passed.  Indeed, when the 2007 legislative session created the two-member exception, the phrase “bilateral injuries” was consistently utilized by proponents. The example of bilateral carpal tunnel was specifically raised as a type of injury that should qualify under the exception. Other examples included entirely different limbs – a rotator cuff and a knee.

A decision from the Supreme Court will likely not be issued for several weeks, but CPW Law will continue to closely monitor the same as it will certainly impact a dispute among the trial court Judges as to when the two-member exception applies.

If you have questions about a case involved multiple scheduled member injuries, please contact any of the lawyers at CPW by phone or email. Want to ensure you don’t miss out on the next post in the CPW compendium series? Be sure to subscribe to our newsletter.

Practical Advice In New Jersey Workers’ Compensation

N.J.S.A. 34:15-57.4 (commonly known as the Workers’ Compensation Fraud Act) states in pertinent part: “If a person, purposely or knowingly makes, when making a claim for benefits pursuant to R.S. 34:15-1 et seq., a false or misleading statement, representation or submission concerning any fact which is material to that claim for the purpose of obtaining the benefits, the division may order the immediate termination or denial of benefits with respect to that claim and a forfeiture of all rights of compensation or payments sought with respect to the claim.”

This means that both past and future benefits may be forfeited as a result of fraud (past benefits generally being medical and TTD, and future benefits generally being potential permanency benefits).

The Fraud Act goes on to state: “[I]n addition to any other remedy available under law, if that person has received benefits pursuant to R.S. 34: 15-1 et seq. to which the person is not entitled, he is liable to repay that sum plus simple interest to the employer or the carrier … and the division shall issue an order providing for the repayment …” N.J.S.A. 34:15-57.4(c)(2).

The Fraud statute sets a very high burden of proof for Respondents, as Respondent needs to demonstrate: 1. A false or misleading statement was made by petitioner; 2. The false statement must be material to the claim; and 3. The false or misleading statement was made for the purpose of obtaining benefits in the workers’ compensation case.

Below are hypothetical situations where Respondent may have a good argument that an employee committed fraud, and should consider filing a Motion to Dismiss for Violation of the Fraud Act.

Scenario 1: Tom is under authorized treatment for a January 1, 2022 work accident where he injured his low back and left shoulder. The authorized doctor placed petitioner out of work as of January 25, 2022. Petitioner is receiving TTD as he is out of work and he continues to deposit his TTD checks but at the same time, he continues to work as a delivery driver for a food delivery company and is paid from his second job as a delivery driver at the same time he receives TTD from his first job.

Our position is that this is fraud. An injured worker cannot collect TTD for not being able to work but actually be working. In this example, petitioner is representing that he cannot work but is working and therefore, he is making a fraudulent representation.

Scenario 2: During testimony on a Motion for Med/ Temp, Ryan testifies that due to his April 15, 2022 work injury, he cannot walk more than one block. He also cannot do any household chores and testifies that he has had to hire a housecleaning service. However, surveillance shows Ryan performing in triathlons and marathons, winning awards for being in second and first place in various events. He is also seen working on his home and building an addition to his back patio.

As Ryan has grossly exaggerated his abilities, our position would be that this is fraud. Misrepresenting of abilities to this degree is similar to the case of DuBrel v. Maple Crest Auto Group, No. A-3321-10T3 (App. Div. January 30, 2012), where petitioner testified that he could no longer do a variety of things, including training and trailering horses. However, petitioner was observed doing these activities, in direct opposition of his testimony. The court in this case found that this type of false testimony was a flagrant violation of the Workers’ Compensation Fraud Act. The Appellate Division affirmed the decision of the Judge of Compensation in terminating all benefits.

Scenario 3: Mary has a work accident of March 1, 2022, where she injures her left knee. During her course of authorized treatment, she specifically denies any prior left knee issues, injuries, or treatment. However, Respondent’s investigation reveals that on January 2, 2022, petitioner underwent arthroscopic surgery to the left knee. She then underwent a course of post-operative physical therapy through February 15, 2022 and treated with her prior surgeon through February 28, 2022. When confronted with this information, Mary indicates that she simply “forgot” about her prior surgery and prior treatment.

We would maintain that this is fraud in misrepresenting past medical history. In a case like this, testimony, or specific interrogatories, would likely be needed to elicit further details. It is difficult to believe that Mary “forgot” about a surgery from two months ago and “forgot” about her prior relevant treatment, which ended just before her work accident to the same knee, but the Judge of Compensation will ultimately decide on this issue.

Scenario 4: Bob says he got hurt in Aisle 4 of the grocery store, falling by the cereal boxes. He reported the injury right away and specifically says he fell by the Cheerio boxes. Security video shows Bob never even walked down Aisle 4 on the alleged date.  In fact, he never fell at all.

It would be our position that this is fraud. The fabrication of a work injury for the purposes of obtaining medical treatment, TTD, and/or permanent disability benefits, is fraud.

If Respondent obtains new information in a closed file, Respondent can re-open the case. For example, in a case where a prior Order Approving Settlement was awarded and there may now be fraud (for example, petitioner is observed doing very physical activities that he stated he could not do at the time of settlement), Respondents can file its own Re-opener application to lower the Award. Alternatively, Respondents can file a Motion to Vacate the Prior Order Approving Settlement. Finally, Respondents can file a Motion to Dismiss for Violation of the Workers’ Compensation Fraud Act. Respondents may also be able to negotiate a small Section 20 settlement, or dismissal, of a case where the employee committed fraud.

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Maura Burk, Esq., is a Shareholder in Capehart Scatchard's Workers’ Compensation Group.  Ms. Burk concentrates her practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation matters.  If you have any questions or would like more information, please contact Ms. Burk at 856.840.4941 or by e‑mail at mburk@capehart.com. 

In Saiti v. Garden Homes, No. A-1328-20 (App. Div. October 11, 2022), the petitioner received an award for $66,074 on September 3, 2020.  The terms of the settlement were memorialized in an order signed by the Judge of Compensation and both parties. Petitioner’s attorney made numerous phone calls in the ensuing 60 days regarding non-payment of the order.  After 60 days, petitioner moved to enforce the Order since payments still had not been made.  Over 90 days after the Order was entered, a telephone conference occurred on December 7, 2020 regarding the late payment.  There was no record of the conversation and no record of any oral argument by the parties, although there is mention that the parties appeared.

On December 7, 2020, the Judge of Compensation issued an oral decision on petitioner’s motion, noting that the payments were now due over 90 days.  The Judge of Compensation ordered:

1.     Costs and interest on the settlement payments;

2.     An additional assessment of 25% of the monies due for the unreasonable payment delay to the petitioner with $16,287 payable to Saiti;

3.     $4,000 in attorneys’ fees payable to counsel for Saiti;

4.     $5,000 in penalties payable to the Second Injury Fund;

5.     Additional legal fees of $2,188 to counsel for Saiti in relation to enforcement efforts.

Respondent appealed the December 7, 2020 Order and argued that the Judge of Compensation abused his discretion in awarding penalties and sanctions without affording counsel the opportunity to be heard. 

The Appellate Division observed, “The Workers’ Compensation Act does not establish a specific timeframe for payment of workers’ compensation settlement proceeds.”  That statement is puzzling because N.J.S.A. 34:15-28 states as follows: “Whenever lawful compensation shall have been withheld from an injured employee or dependents for a term of 60 or more days following entry of a judgment or order, simple interest on each weekly payment for the period of delay of each payment may, at the discretion of the division, be added to the amount due at the time of settlement.” While this statute gives the Judge of Compensation some discretion, it also clearly refers to a 60-day time period.

The Appellate Division held, “Having reviewed the parties’ arguments in light of the record and the applicable legal principles, we are unable to determine whether the imposition of penalties and assessments under the December 7, 2020 order was reasonable.”

The Court held, “We are satisfied that it was a mistaken abuse of discretion to enter an order awarding sanctions without permitting counsel to be heard and without findings as to why the payment delay was unreasonable.”

The Court directed that the Judge of Workers’ Compensation “shall conduct a hearing and consider the steps taken by Saiti’s counsel to secure payment within sixty days of the entry of the September 7, 2020 order.” The Order was vacated pending a new hearing.  The case seems to turn on procedural due process, namely the need for the Judge of Compensation to hear oral arguments on the reasonableness of the delay, specifically whether the delay in payment had some justification.

This decision provides no comfort for respondents.  It is true that the December 7, 2020 Order was vacated, but a new hearing will be held in which the Judge of Compensation will hear oral arguments from defense counsel explaining the reason, if any, for delays in paying the Order of September 3, 2020.   The best advice to employers remains this:  all orders need to be paid within 60 days.  That is the clear import of the relevant statute.

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John H. Geaney, Esq., is a Shareholder and Co-Chair in Capehart Scatchard's Workers’ Compensation Group.  Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at jgeaney@capehart.com. 

Claimant was allegedly injured in a work incident on July 25, 2018. Following a Hearing, the Industrial Accident Board issued a Decision finding claimant had sustained only a limited injury which had resolved, with treatment only compensable through January 2, 2019. Later, several medical bills for treatment after the date of resolution of injury were paid by accident.

Upon learning of the mistaken payments, the adjuster immediately requested reimbursement, with Heckler & Frabizzio providing a letter to be sent to each provider, explaining the consequences of the Board’s prior Decision, and reinforcing the need to issue reimbursement. However, none of the providers complied. The Employer filed a Motion with the Board, seeking to compel reimbursement of the mistaken payments. At the Legal Hearing, no physicians were present, despite receiving notice. Claimant’s attorney was present and argued against ordering reimbursement, out of concern the providers would then seek payment from the claimant.

In an Order dated August 11, 2022, the Board agreed with the Employer and granted the Motion. Because the treatment was all administered by certified providers under the Workers’ Compensation System, and because the Board has statutory authority over medical payments, the Board was empowered to compel reimbursement. Further, as the payments were issued for treatment after a clear cutoff date, the Board agreed they were made by mistake. As such, the providers were required to issue reimbursement within thirty days, or else they would be subject to further sanctions from the Board.

Should you have any questions regarding this Decision, please contact Nick Bittner, or any other Attorney in our Workers’ Compensation Department.

Patricia Wesley v. State of Delaware, IAB No. 1475026 (Aug. 11, 2022).

Written by Tracey Jones 

Revised Guidelines for In-Person Industrial Commission Hearings

We are living through a period of sharp inflation in almost everything from food and gasoline to automobiles and airfare, but one area where costs are sharply declining in New Jersey pertains to the cost of getting copies of medical records.  Governor Phil Murphy signed S 2253 on September 22, 2022.  This legislation dramatically lowers the costs that hospitals and physicians can charge for providing copies of medical records.  

We begin first with a key definition.  The bill refers to a “Legally authorized representative.” That means the patient’s spouse, domestic partner, or civil union partner; the patient’s immediate next of kin; the patient’s legal guardian; the patient’s attorney; the patient’s automobile insurer; or the patient’s worker’s compensation carrier, if the carrier is authorized to access to the patient’s treatment or billing records by contract or law, provided that access by a worker’s compensation carrier shall be limited only to that portion of the treatment or billing record that is relevant to the specific work-related incident at issue in the worker’s compensation claim.

Here are the allowable fees for a legally authorized representative under the new law:

1. Medical records in paper, electronic format, microfilm or microfiche  – no more than $1 per page – capped at $50 per individual admission or patient record
2. No charge for copies of billing records
3. Reproduction of x-rays shall be no more than $15 per printed image or $30 per CD or DVD – plus an administrative fee of $10
4. Search fees can be no more than $20 per request
5. Certification fees can be no more than $10 per certification
6. Delivery fees are at cost, plus sales tax, if applicable

“Authorized third party” means a third party, who is not a legally authorized representative of the patient, with a valid authorization, subpoena, legal process, or court order granting access to a patient’s medical or billing records.

Here are the allowable fees for authorized third parties under the new law:

1. Medical and billing records not on microfilm/microfiche – no more than $1 per page – no cap
2. Records on microfilm/microfiche – $1.50 per image – no cap
3. Reproduction of x-rays shall be no more than $15 per printed image or $30 per CD or DVD – plus an administrative fee of $10
4. Search fees can be no more than $20 per request
5. Certification fees can be no more than $10 per certification
6. Delivery fees are at cost, plus sales tax, if applicable

Before passage of this new legislation, providers could charge $1 per page up to $125 for copies plus a search fee up to $25.  The new $50 cap represents a significant cost reduction.  Workers’ compensation practitioners need to know about this legislation because it has been routine to obtain requests for records that amount to hundreds of dollars. The law is so new that medical providers and hospitals may not even be aware of the changes. 

Our thanks to Francine Viden, our firm’s excellent librarian, for obtaining the information and organizing the salient changes in the law.

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John H. Geaney, Esq., is a Shareholder and Co-Chair in Capehart Scatchard's Workers’ Compensation Group.  Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at jgeaney@capehart.com.

Few readers of this blog may know that the New Jersey Division of Workers’ Compensation achieved a number of notable firsts this year with the appointment of the Honorable Maria Del Valle Koch as Director of the Division in June 2022.  Director Koch is the first woman Director and the first Hispanic Director in the history of the New Jersey Division of Workers’ Compensation.  This is particularly noteworthy right now because September 15, 2022 through October 15, 2022 is National Spanish Heritage Month, an annual observance established by President Lyndon B. Johnson in 1968 to celebrate the histories, culture and contributions of Hispanic Americans. I recently had the pleasure of meeting Director Koch for the first time, and she was kind enough to allow me to interview her for this blog regarding her Hispanic heritage and her aspirations as Director.

Director Koch grew up in Jersey City, N.J. with four sisters and two brothers.  She said education was stressed at home.  She attended James J. Ferris High School and received her B.A. in History from St. Peter’s University in Jersey City.  She graduated in 1987 from Seton Hall University School of Law in Newark, N.J. 

Her mother, who is now 94 years of age, was born in Cuba and came to the United States in 1955.   Her natural father and her step-father were both born in Puerto Rico.  The Director learned to speak, read and write Spanish.   “I’m very proud of my being Puerto Rican and Cuban.”  She added, “The hallmark of my family is this: my mom told us to be proud of our Hispanic culture and to be proud to be American.”  Both of her brothers were born in Cuba, and both served in Vietnam.  She added, “We all believe in serving our country and our community.”

Director Koch worked in general practice in Jersey City, then worked for the Middlesex Region of the Public Defender’s Office until 1996.  She established her own law practice in 1996.  She worked as a Public Defender from 2002 to 2008 in Perth Amboy, N.J. In 2014, she was appointed a Judge of Compensation.  In December 2020 she was appointed Administrative Supervising Judge while sitting in Plainfield vicinage.  Governor Phil Murphy nominated her as Director of the Division on June 9, 2022.

Director Koch had not practiced workers’ compensation law before becoming a Judge of Compensation.  She credited several former judges of compensation with helping her develop a deep appreciation for the New Jersey Workers’ Compensation Act, including former Judge of Compensation Nilda Hernandez, former Judge of Compensation Yolanda Adrianzen and former Judge of Compensation James Welch.  In regard to being the first woman Director of the Division, she said, “All of the women judges who came before me have set the standard very high.”

Director Koch describes her style of leadership as collaborative, professional and consensus building.  “What motivates me as Director is that I am part of a greater task to do right by people.”  She summed up her approach as “be kind and be collegial.”  In addition to running the Division of Workers’ Compensation, she handles seven lists in the Plainfield vicinage.  “As a workers’ compensation judge, I have to set the tone and example for the way that we treat injured workers, attorneys, and everyone who is part of the Division.”

Director Koch commented that one of the major challenges in recent years for the Division, as for all courts, has been the COVID pandemic. “We in the Division have had an uncanny ability to think outside the box.”  She added, “Like a good ballplayer, you have to adjust with each at bat and with each pitch.”  Utilizing Zoom and Teams effectively has made a big difference,” she added.  “My mission and my goal is to continue the high quality standard of excellence during the pandemic crisis that the Division has always demonstrated in New Jersey.”

The Director remains optimistic about the future of the Division.  “Our Division has stood out as a court that is second to none in its ability to produce for workers and for all stakeholders.”  She is hopeful that more judges will be nominated in the coming years.

The Director lives at the Jersey shore and when she is not working, she said she enjoys sailing and surf boarding.  She has three children who are a big part of her life. She also remains an ardent fan of the New York Yankees and the New York Giants.  She noted, “The Giants did not look so good in their most recent game and need to do a little better.”

Our thanks to the Director for allowing readers to learn more about her very interesting personal background and her goals for the Division in the coming years.

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John H. Geaney, Esq., is a Shareholder and Co-Chair in Capehart Scatchard's Workers’ Compensation Group.  Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at jgeaney@capehart.com.

SB 1403, effective 9/24/2022, adds a new reporting requirement in Section 23-1061(N) for insurance carriers. Upon the receipt of written notice of an injury from an employee who was injured and intends to file a claim for compensation, the carrier must forward the written notice to the Industrial Commission within seven business days and inform the employee of the employee’s requirement to file a claim with the Commission. The one-year claim filing deadline may be suspended from the date the carrier received written notification until the date the carrier forwards the written notification to the commission. The statute expressly applies to all existing claims that have not been legally filed by the injured worker with the ICA regardless of the date of injury.

The ICA has acknowledged that “intent to file for compensation” is not  defined by the statute. The ICA has taken the position in their educational materials that “it is reasonable to assume that if the worker is seeking or has received medical and/or lost time benefits compliance is required.” It is anticipated that what constitutes “written notice” or “intent to file” will need to be addressed further by ICA policy or case law clarification. For example, if an employee sends an email or text to their employer claiming that they were hurt and they need help, that may constitute “written notice” in the eyes of the ICA.

From a carrier compliance standpoint, it is recommend to err on the side of caution and consider any written communication from an injured worker regarding notice of an injury and a request for any form of benefit to be “written notice” with an “intention to file.” This is particularly important as the statute not only indicates that the one year filing statute of limitations may be tolled, but also provides that violation of the new requirements may result in any other applicable bad faith/unfair claims processing allegations.

Workers’ Compensation Emerging Issues – Kansas 2022

Constitutionality of Statute Requiring Use of AMA Guidelines 6^th Ed. – Follow up to the 2021 Johnson case decision issued by the Kansas Supreme Court.  Howard Johnson III vs. U.S. Food Service and American Zurich Insurance Co., 312 Kan. 597, 478 P.3d 776 (2021).  On January 8, 2021, the Kansas Supreme Court issued its much-anticipated decision reversing an August 2018 decision of the Kansas Court of Appeals (56 Kan. App. 2d 232, 427 P.3^rd 996), that had struck down as unconstitutional the use of the 6th Edition of the AMA Guides to the Evaluation of Permanent Impairment, for measuring permanent impairment of function of injured workers with general body disabilities under the Kansas Workers Compensation Act.  The Kansas Supreme Court held the language of K.S.A. 2019 Supp. § 44-510e(a)(2)(B) referencing the use of the AMA Guides 6th Ed. could reasonably be interpreted as a "guideline" rather than a "mandate."  Therefore, the high court found the statutory provision requiring use of the 6^th Ed. constitutional under section 18 of the Kansas Constitution Bill of Rights. The court stressed the statutory reference to the 6th Ed. did not alter the additional statutory requirement that any impairment rating must also be "established by competent medical evidence" which rendered sufficient the constitutionality of the statute as worded by the legislature when referencing the use of the 6^th Ed.

The court went on to indicate that use of the 6^th Ed. is the starting point for a determination of permanent impairment under the statutory language for general body disability work injuries.  With this language, the Court appeared to open the door for administrative law judges to consider use of other editions of the AMA Guides and perhaps even no edition of the AMA Guides, as long as the 6^th Ed. is at minimum a starting point.

The initial application of the Supreme Court’s Johnson decision by administrative law judges appeared to adopt the approach that Justice Stegall, writing for the Court, delivered something for everyone in the Supreme Court’s Johnson decision.  For the employer and carrier side, the 6^th Ed. language in the statute was deemed to be constitutional and therefore retained as at least a starting point.  For the injured worker side, the decision is being interpreted as opening the door for formulations of rating opinions outside of the four corners of the 6^th Ed. of the AMA Guides, as long as the rating opinions also qualify as “competent medical evidence.”

The statutory context of the Johnson issue of whether use of the 6^th Ed. was constitution, was in relation to general body disability injuries under K.S.A. 2019 Supp. § 44-510e(a)(2)(B).  The next question after Johnson is whether in the context of scheduled injuries and disabilities found in K.S.A. 44-510d(b)(23), the mandate to use the AMA Guides 6^th Ed. in determining permanent impairment of function is constitutional, and both the starting and ending point for the analysis.  The statutory language mandating the use of the AMA Guides in K.S.A. 44-510e(a)(B) for scheduled disabilities is different than the language of K.S.A. 44-510d(b)(23) for general body disabilities.  The scheduled disability statute requires impairment of function related to a scheduled injury shall be determined using the 6^th Ed., if the impairment is contained therein.  The scheduled disability statute, K.S.A. 44-510d(b)(23), does not contain the phrase by "competent medical evidence" that the Johnson court cited in the general body disability statute.  The plain language of K.S.A. 44-510d(b)(23), the scheduled disability statute requires the functional impairment to be based upon the 6^th Ed. There is no explicit requirement in the language that the impairment rating be based upon any other criteria, including substantial competent medical evidence.

In Butler v. The Goodyear Tire and Rubber Company, OSCAR CS-00-0285-928 (WCAB May 2021) the Kansas Workers Compensation Appeals Board addressed this issue in the context of whether the plain language of the scheduled disability statute mandates the use of the AMA Guides 6^th Ed. for a shoulder injury.  The Appeals Board affirmed the ruling of the administrative law judge that the plain language of the scheduled injury statute is different than the plain language of the general body disability statute relied upon by the Johnson court.  That difference in the plain language of the scheduled disability statue was held to leave no room for the court to consider or apply any other AMA Guide edition other than the 6^th Ed. as required by the plain language of the statute.

Several notable Kansas Court of Appeals decisions in late 2021 and early 2022 illustrate that the question of whether the Johnson Court’s pronouncement that the AMA Guides 6^th Ed. is “just the starting point” is still somewhat up in the air regarding whether general body claims can be awarded impairment of function compensation based on any version of the AMA Guides other than just the Sixth Edition.

On October 1, 2021, the Kansas Supreme Court granted publication of the Court of Appeals decision in Zimero v. Tyson Fresh Meats, 61 Kan. App. 2d 1, 490 P.3d 86 (2021).  Zimero held that for a general body disability compensation claim, “any reference to the 4^th Edition for injuries occurring after January 1, 2015, is irrelevant.  The Court of Appeals rejected claimant’s argument holding that “Parties and courts do not choose between the 4^th Edition or the 6^th Edition.  The 6^th Edition is statutorily required.”

Next, on December 3, 2021, a separate panel of the Kansas Court of Appeals issued an unpublished opinion in Morris v. Shilling Construction Co., Inc., No. 123,297, 2021 WL 5751704 (Kansas Court of Appeals unpublished opinion filed Dec. 3, 2021).  The Morris opinion which appeared to affirm the Zimero position that the Supreme Court decision in Johnson while requiring that the starting point being use of the 6^th Edition and then using competent medical evidence to determine the compensable impairment, does not leave room for use of the 4^th Edition which the legislature expressly removed and replaced with the now required AMA Guides 6^th Edition.

Then on January 28, 2022, yet another panel of the Kansas Court of Appeals issued its opinion in Garcia v. Tyson Fresh Meats, Inc., 61 Kan. App. 2d 520, 506 P.3d 283 (2022) seeming to be critical of an Appeals Board decision that did not appear to consider medical evidence which was based on the AMA Guides 4^th Edition when awarding permanent impairment of function compensation.  Zimero clearly holds that the 4^th Edition can no longer be used to determine permanent impairment while Garcia appears to hold that not considering the 4^th Edition may be reversable error.

The bottom line at present is that it is not clear whether the plain language of our current statute requiring use of the AMA Guides 6^th Edition should be interpreted, after Johnson, to mean that permanent impairment compensation in general body disability claims can be awarded using other AMA Guide Editions other than the Sixth Edition.  As a practical matter for parties currently in litigation in general body disability claims, this situation means that it is likely medical opinion evidence using other editions of the AMA Guides, other than the 6^th Edition, will be presented to the administrative law judges and either asserted or attacked by the parties, thereby increasing the cost and scope of workers’ compensation final award litigation.

2022 Kansas Work Comp Legislative Update.  There were no substantive Kansas work comp legislative changes of import in 2022.

2022 Rates Update.  The maximum weekly indemnity benefit rate increased to $765.00, effective 7/1/2022 through 6/30/2023, based upon annual indexing to the state average weekly wage.  Effective July 1, 2022, the medical mileage reimbursement rate increased from $.56 cents per mile to $.585 cents per mile.

© Copyright 2022 by Kim R Martens, MARTENS WORK COMP LAW LLC. All rights reserved. Reprinted with permission.

Hot Topics in Louisiana Workers’ Compensation Law

LaPoint vs Commerce & Industry Insurance Company 20-388 (La. App 3 Cir. 4/27/22) --So.3d --    (awaiting publication)

(OWC Judge Dianne Marie Mayo, District 03)

Summary: Judgment of Georgia state court barring Employer’s claim for reimbursement of benefits paid under Louisiana Workers’ Compensation scheme is not res judicata in claim for reimbursement made in Louisiana

The employer’s right to recover from a third party tortfeasor in out of state litigation was addressed by Louisiana Courts. Employee was hired in Louisiana to work in Louisiana. Later Employee moved to Georgia, continuing to work for the same Employer.

            While working in Georgia, Employee was crushed by a vehicle owned and operated by USCI, another contractor doing work at the site. Immediately after the accident, the Employer accepted the claim and paid medical and compensation benefits to the employee under Georgia law. Shortly after his accident, Claimant moved back to Louisiana. At this point, the employer began paying the benefits under Louisiana Law.

            Employee filed a negligence suit in Georgia state court against USCI. After USCI and the Claimant settled the case, a dispute remained as to the amount of reimbursement out of the settlement due the Employer for compensation and medical benefits made. The Employer and Employee reached an amicable resolution as to only the amount paid in the form of Georgia workers’ compensation benefits, with all parties reserving their rights as to reimbursement of the Louisiana compensation benefits.

            Employee filed for a summary judgment in the Georgia Court to preclude Employer from collecting on its claim for reimbursement for benefits paid the claimant under Louisiana law. The Georgia court (applying lex loci delicti) found that Employer was precluded from asserting its claim for reimbursement for Louisiana benefits in a Georgia Court.

            Employee filed suit to enforce the Georgia judgement in Louisiana. The suit was unopposed, and the Louisiana District Court ordered that the Georgia judgement was entitled to full faith and credit in Louisiana. This judgment was not appealed.[1]

            Employer filed a claim in the Louisiana Workers’ Compensation Office requesting a forfeiture of his benefits due to his failure to reimburse it from the proceeds of the third-party case.  The compensation judge overruled Claimant’s exception of lack of subject matter jurisdiction, and the parties proceeded to a formal hearing.  The Compensation Judge correctly applied the statute, ordering the employee to pay two thirds of the amount retained in his trust account, the remaining third being payable to the employee’s attorney under applicable statute.[2]

Employee appealed, for the first time urging the exception of res judicata. Employee argued that the Georgia state court judgment was a final decision as to the Employer’s right to reimbursement and credit even as to the benefits paid under Louisiana law. The Court of Appeals sustained the exception of res judicata, dismissing the Employer’s claim for reimbursement and credit.

Supreme Court granted the Employer’s writ taking up the exception of res judicata. The Georgia Court did not have subject matter jurisdiction over the recovery of benefits paid under Louisiana law.  The Georgia Court’s judgment, though valid, did not adjudicate the Employer’s rights to recover its lien falling under Louisiana law.  The Supreme Court overturned the decision and remanded the case to the Third Circuit. The Third Circuit then reinstated the original judgment of the Louisiana Workers’ Compensation Office awarding 2/3 of the settlement recovery to the employer.

Batiste vs Minerals Technology, Inc. 21-795 (La. App. 3 Cir. 6/8/2022) (unpublished opinion).

(OWC Judge Anthony Palermo, District 04)

Summary: Judgment awarding attorney fees of $5,000.00 was an abuse of discretion and increased to $46,800.00 based upon an hourly rate of $225.00.   

On remand from the Third Circuit, the workers’ compensation judge awarded the Claimant supplemental earnings benefits (SEB), penalties for failure to provide medical treatment, and attorney’s fees.

The Claimant appealed, urging the compensation judge erred in failing to award penalties for non-payment of indemnity benefits, failing to award a penalty of $8,000.00 for failure to provide treatment on many occasions and awarding an abusively low attorney fee.   

The judgment of Louisiana Workers’ Compensation Office awarded attorney’s fees of $5,000.00 to counsel for the Employee after a successful prosecution of the claim for supplemental earnings benefits (SEB). The Employee did not submit evidence of his attorney’s time spent or his hourly rate.

Claimant’s post trial brief “outlined his time” spent before the Louisiana Workers’ Compensation Office through trial. Claimant’s counsel spent a total of 208 hours through trial and two appeals. The Third Circuit found that $225.00 per hour was a reasonable hourly fee and increased the award of attorneys’ fees from $5,000.00 to $46,800.00. The Court found that the award of $5,000.00 was an abuse of discretion by the Workers’ Compensation Judge.

Howard vs Rio Sol Nursing Home 2021-824 (La. App. 3 Cir. 6/15/22) 344 So.3d 216

(OWC Judge James J. Braddock)

Summary: Judgment reducing benefits based on available jobs within 45 miles of Claimant’s rural home reversed because the jobs were not in the Claimant’s geographical region.

The Claimant injured her neck and back while working as an LPN for the Employer. The Employer instituted indemnity benefits. The Claimant’s physician released the Claimant to light duty and the vocational counselor assigned to the case identified 3 light duty jobs within 50 miles of the Claimant’s rural home.  The Employer reduced benefits based upon the vocational evidence.

The Claimant filed a Disputed Claim for Compensation alleging improper reduction of her benefits. The Claimant appealed, alleging the Workers’ Compensation Judge erred in not finding her entitled to temporary total disability benefits and in finding the reduction of benefits proper.

On Appeal, the Thid Circuit found that the Employer failed to carry its burden of proving the existence of actual jobs in the claimant’s geographical region that were available to the Claimant. Specifically, the Court rejected the three jobs because they were not in the Claimant’s geographical region.

The Claimant’s hometown of Mansura, a small rural area in Avoyelles Parish, Louisiana. The jobs identified for the Claimant were within 45 miles of her home in the City of Alexandria.  The Claimant went to Alexandria for her medical care. Louisiana Courts have not set a standard mileage radius to determine whether the job is within the Claimant’s geographic region. This is decided on a case-by-case basis.

The Employer argued that is reasonable to expect the Claimant to drive 45 miles to work in Alexandria because there are very few jobs in her immediate geographic region. The Court took judicial notice of the distance between the Claimant’s home/ Employer’s premises from Google Maps. The Court found the jobs were outside her geographic region. The Court reasoned that because she takes daily medication that makes her drowsy and driving causes her pain level to increase, it was unreasonable to expect her to drive 350 miles round trip to work every week for a $10.00 per hour job plus $150.00 per week in SEB. Accordingly, the Third Circuit found the jobs to be outside of her geographic region, reversing the trial Court’s finding of a proper reduction in benefits. The Court ordered SEB benefits reinstated to the date of reduction at the full TTD rate.