State News

Temporary worker Demetrius Grant was hired by staffing company Arrow Personnel and assigned to work at client company Wind Turbine and Energy Cables (WTEC) where he was injured.  He sued Arrow, WTEC, and other entities for negligence.  The Fort Worth Court of Appeals held that Grant’s suit against WTEC is barred by the exclusive remedy defense because: 1) WTEC was Grant’s employer at the time of the injury based on a right-of- control analysis, and 2) WTEC was covered by a workers’ compensation policy.  Arrow was not a subscriber to workers’ compensation and therefore, not entitled to assert the exclusive remedy defense.  The court nonetheless held that Grant could not sue Arrow for negligence because Arrow was not his employer under the right-of-control test with respect to the work at issue and therefore, owed him no duty.  Although not expressly stated by the court, the takeaway here is that Grant’s remedy for his injury is workers’ compensation benefits under WTEC’s policy.  

Grant v. Wind Turbine and Energy Cables Corp., et al., No. 02-21-00036-CV, 2022 WL 2840142 (Tex. App.—Ft. Worth July 21, 2022, no pet.) (mem. op.).    
 

Copyright 2022, Stone Loughlin & Swanson, LLP 

Pro se workers’ compensation claimant Alvy Childress filed suit for judicial review of a Division decision denying his claim for benefits. Childress named as defendants his employer, the carrier, and the Division. The Division filed a plea to the jurisdiction which the trial court granted, and Childress appealed. The Third Court of Appeals affirmed the trial court’s order granting the Division’s plea to the jurisdiction.  Childress complained on appeal about the hearing he received at the Division including the fact that it was held by telephone due to the pandemic and that he was allegedly prevented from presenting evidence or reviewing or verifying evidence presented at the hearing. 

The court of appeals’ decision doesn’t announce any new law but does affirm some long-held principles.  First, pro se litigants are held to the same standards as represented parties, even at the appellate level.  “We construe appellant’s brief liberally, attempting to discern and comprehend his appellate issues as best we can, but we must hold him to the same standards as appellants represented by counsel.”  As courts have explained before, if this were not the case, unrepresented parties would have an unfair advantage. Second, the Division is not a proper party to a suit for judicial review. The court cites numerous cases for the proposition that the Texas Workers’ Compensation Act does not waive the state’s sovereign immunity and provide a claimant with the right to sue the Division in a judicial review action.

Childress v. Travelers Indemn. Co., et al., No. 03-21-00579-CV, 2022 WL 2542005 (Tex. App.—Austin July 8, 2022, no pet.) (mem. op.).

Copyright 2022, Stone Loughlin & Swanson, LLP 

We can officially report that Robin Holm (known to system participants as Robin Lowenkron) is the new Administrative Law Judge in the Houston West Field Office.  She replaces Eric Robertson who left the Division to enter private practice.  Ms. Holm née Lowenkron worked for Smith & Carr for more than a decade and was a very well-respected attorney among the Division judges.  We welcome Judge Holm to the bench!  

Copyright 2022, Stone Loughlin & Swanson, LLP

The Division announced its health care provider PBO assessment methodology on July 26th. The memo states that one of the assessment measures will be whether the provider explained how the work injury prevents the injured employee from working in any capacity.  

This is a perennial problem where the provider checks the “complete inability to work” box but doesn’t explain how the injury prevents the injured employee from returning to work:
 

Division Rule 129.5 requires the doctor to explain how the claimant’s injury prevents them from working in order for the report to be considered complete. Carriers are not required to reimburse doctors for incomplete work status reports. In addition, the failure to provide a complete report may also constitute an administrative violation.  

Requiring providers to explain why the claimant can’t return to work in any capacity may cause providers to consider more closely whether the claimant could be working with restrictions. Doing so may facilitate early return to work which benefits the injured employee and the employer.
 

Copyright 2022, Stone Loughlin & Swanson, LLP

The average hourly rate for lawyers in Texas varies by practice type from $130 per hour for juvenile law to $415 per hour for mediation/arbitration, according to a report from Clio, a legal billing software company: https://www.clio.com/resources/legal-trends/compare-lawyer-rates/tx/

Comparing the hourly rates for workers’ compensation with other practice types, workers’ compensation attorney fees are the least expensive of any practice area other than juvenile law which usually involves court appointments for juvenile criminal court proceedings.  

From 1991 to 2015, workers’ compensation attorney fees were capped at $150 per hour.  In 2015, the Division raised the cap to $200 per hour where it remains today. However, many claimant and carrier attorneys charge less than the cap putting the average rate at around $175 per hour.

Comparing this rate to the rate for other practice areas makes workers’ compensation look like a real bargain.  Examples of the hourly rate for other practice types include administrative law at $317, bankruptcy law at $360, civil litigation $297, employment/labor law at $314, family law at $279, and real estate at $293.  The hourly rate for workers’ compensation is even on par with the hourly rate charged by some plumbers and auto mechanics, as demand for those services has increased.

The hourly rate for workers’ compensation law looks even better when considering the level of expertise of the workers’ compensation bar as a whole. Many of its practitioners are board-certified in workers’ compensation and have been in practice for twenty or more years. Also good news is that the average legal costs per claim have decreased since the elimination of in-person benefit review conferences. Attorneys no longer have to travel to attend BRCs now that they are all conducted by telephone or videoconference. This pandemic-induced change was made permanent effective December 9, 2021.

However, one downside of the low rates for workers’ compensation is that they seem to be attracting fewer new attorneys to the practice of workers’ compensation law.  The workers’ compensation bar is graying and as experienced workers’ compensation attorneys retire, they’re not necessarily being replaced.  There will also continue to be economic pressure on workers’ compensation attorneys to raise their rates (subject to the cap) due to the significant inflation our country is currently experiencing.

Copyright 2022, Stone Loughlin & Swanson, LLP

Sandra Bullock once played a character known as “Accident Amy” on the George Lopez Show. “Accident Amy” was so-named by her co-workers because she was accident prone and always getting hurt at work. You can see “Accident Amy” in action here: https://www.youtube.com/watch?v=e89asOS0rIU.  

We recently came across our very own “Accident Amy” when DWC’s response to our request for a record check revealed our claimant had a total of 12 workers’ compensation claims.  This prompted the following suggestion about how she ought to dress at work:
 

Copyright 2022, Stone Loughlin & Swanson, LLP

September 2022

Tennessee Appoints New Administrator and Workers’ Compensation Judge, Plus Other Recent Developments on the Firefighter Cancer Presumption and Mileage Reimbursement

New Administrator
Troy Haley, former Legislative Liaison of the Bureau, is now the new administrator for the Tennessee Bureau of Workers’ Compensation.  Troy succeeds Abbie Hudgens, who recently retired.

New Workers’ Compensation Judge in Memphis
Administrator Troy Haley has appointed Shaterra Reed Marion as a Judge on the Court of Workers’ Compensation Claims, the adjudicative function within the Tennessee Bureau of Workers’ Compensation (BWC). She will be located in the Memphis office of the BWC. Judge Marion has practiced law in Tennessee since 2012, primarily in workers’ compensation and insurance defense. She has been Field Counsel in Memphis for Liberty Mutual Insurance Company/Law Offices of Julie Bhattacharya Peak since 2014. She will replace the recently retired Judge Deana Seymour on the Court of Workers’ Compensation Claims in Memphis.

Firefighter Cancer Presumption
Effective July 1, 2022, Tennessee added leukemia and testicular cancer to the list of cancers (Non-Hodgkin’s Lymphoma cancer, colon cancer, skin cancer, and multiple myeloma cancer) for which a presumption is created that certain conditions or impairments of full-time firefighters arose out of employment, unless the contrary is shown by a preponderance of the evidence.

Mileage Reimbursement
Injured workers are entitled to request reimbursement for their travel expenses. Mileage reimbursement is a workers’ compensation benefit for injured workers who must travel outside a radius of 15 miles one way from their residence or workplace to an authorized medical provider or facility. The rate has been updated twice in 2022. For travel dates between January 2, 2022 to June 30, 2022, the reimbursement rate is $0.585 per mile.  For travel dates from July 1, 2022 to the present, the mileage reimbursement rate is $0.625.

For any questions, please contact:

Fredrick R. Baker, Member
Wimberly Lawson Wright Daves & Jones, PLLC
1420 Neal Street, Suite 201
P.O. Box 655
Cookeville, TN 38503-0655
Phone: 931-372-9123
Fax:  931-372-9181
fbaker@wimberlylawson.com
www.wimberlylawson.com    

Minnesota Workers’ Compensation Case Law Update and

Annual Rate Changes

NEW RATES EFFECTIVE 10/01/2022

Maximum Compensation Rate:  Injuries which occur on or after 10/01/2022 will have a new maximum compensation rate of $1,312.74.

Minimum Compensation Rate:  Injuries which occur on or after 10/01/2022 will have a new minimum compensation rate of $262.55 or the average weekly wage, whichever is lower.

Statewide Average Weekly Wage: The SAWW as of 10/01/2022 will be $1,287.00, which yields a minimum compensation rate of $836.55 for employees who are permanently and totally disabled.

.645 Adjustment:  The annual adjustment to the compensation rate for the upcoming year will be 4.46%.

Supplementary Benefits Rate:  As of 10/01/2022, the supplementary benefits rate is $837.00.

A complete list of rate changes that take effect on 10/01/2022 can be found here:

https://www.dli.mn.gov/sites/default/files/pdf/annladj.pdf

MINNESOTA CASE LAW UPDATE: December 2021 to September 2022

OCCUPATIONAL DISEASE – WORKPLACE EXPOSURE AND MEDICAL BENEFITS OF SETTLEMENT – PIERRINGER RELEASE

Sershen vs. Met Council (Minn. May 11, 2022)

Factual Background:

 v Counsel appealed the Compensation Judge’s and the Worker's Compensation Court of Appeal's decisions holding that the employee sustained an occupational disease of hearing loss. Further, counsel argued that the Compensation Judge and the W.C.C.A. improperly found the Employer and Insurer liable for medical benefits and erred by failing to consider the liability of the prior employers who settled with the employee pursuant to a Pierringer release.

Holding:

 v The Minnesota Supreme Court affirmed in part, reversed in part, and remanded to the Compensation Judge.

v The Supreme Court held that the employee established a workplace exposure to a hazard causing an occupational disease and that, consistent with Minn. Stat. § 176.135, subdivision 5 (2020), it was not an error to order payment of medical benefits by the employer where the employee was last exposed.

v The Supreme Court also held that the compensation Judge erred by concluding that all issues, other than medical benefits, were moot by not determining whether the last exposure employer has a right to reimbursement against the last significant exposure employer under Minn. Stat. § 176.135, subdivision 5, and Minn. Stat. § 176.66, subdivision 10 (2020).

v The Supreme Court remanded the matter to the Compensation Judge for determining whether the council was entitled to reimbursement and how that reimbursement is to be made consistent with the Pierringer principles.

POST TRAUMATIC STRESS DISORDER – PERSONAL INJURY STATUTE CONSTRUED

CHRC vs. Mower County (W.C.C.A May 9, 2022)

Factual background:

 v The employee began working for Mower County as a deputy sheriff in 2007. He was then diagnosed with PTSD, moderate to severe alcohol use disorder, and major depression in April 2019.

v The employee was recommended various forms of treatment for his PTSD and addiction.

v The employee's condition worsened, and effective March 31, 2020, the employee received duty-related disability benefits from the County, which included monthly income and ongoing health insurance, and he retired from his position.

v He filed a Claim Petition in May 2020 alleging entitlement to various benefits including wage loss benefits beginning April 1, 2020. Dr. Arbisi examined the employee upon the employer's request, and he determined that the employee did not meet the criteria for PTSD under the DSM-V, and that the employee had an unspecified adjustment disorder and alcohol use disorder related to his pending criminal charges. He also later testified that the employee did not follow the standard treatment protocol for PTSD, and instead relied on medication.

v The employee's treating psychiatrist and Dr. Slavik concluded that the employee had chronic PTSD caused by his employment activities as a deputy sheriff which were not resolved.

v Following a hearing, the Judge concluded that the employee had sustained work-related PTSD on April 3, 2019, and awarded wage loss benefits from April 1, 2020 to the present and continuing, though noted the employee had reached MMI and service of MMI occurred on May 18, 2021. The Judge also awarded 20% PPD as determined in Dr. Slavik's report. The employer appealed.

Holdings:

 v In a 2-1 decision, the W.C.C.A reversed the award of PPD, vocational benefits, and medical expenses for treatment after March 30, 2021, and modified the award of TTD benefits to allow TTD only to March 30, 2021.

v The W.C.C.A determined the employee had sufficiently recovered from his PTSD diagnosis to the point where he no longer met the criteria for PTSD under the DSM-V. Because an employer's liability for workers compensation benefits under Chapter 176 ends when an employee is no longer disabled, and the employee was no longer disabled by PTSD as of March 30, 2021, he was not entitled to workers compensation benefits after that date.

v The dissent contended that the majority's opinion resulted from a “narrow interpretation" of the PTSD statute and that the holding was “problematic and unworkable."

TERMINATION OF EMPLOYMENT - VOLUNTARY TERMINATION

TEMPORARY TOTAL DISABILITY - JOB SEARCH

Berglund v. Wildrose Health Care, LLC (W.C.C.A. January 7, 2022)

Factual Background:

v The employee appealed the compensation Judge’s determination that she voluntarily resigned from her employment and the denial of her claim for reinstatement of benefits. The employee sustained an admitted injury with the employer for which benefits were paid. The employee was released to work on a part-time, light-duty basis and the employee returned to work. The employer and insurer filed a notice of intention to discontinue temporary total disability (TTD) benefits and indicated temporary partial disability (TPD) benefits would be paid.

  The employee was upset by the discontinuance and advised the employer she would not be working her scheduled shifts that weekend. She then did not show for a meeting to discuss her concerns with her supervisor. Her supervisor considered the employee’s failure to work her scheduled shifts and attend the scheduled meeting along with her statements that she was “done with Wildrose” to be a voluntary resignation and provided the employee with a letter accepting her resignation. At a hearing on an objection to discontinuance, the compensation Judge found the employee voluntarily resigned from her employment and had not made a diligent search for other employment.

Holding:

v The W.C.C.A. affirmed the compensation Judge’s decision, indicating that the findings appealed by the employee were factual determinations made by the compensation Judge after considering the evidence and arguments of the parties. The W.C.C.A. concluded that substantial evidence existed to support the compensation Judge’s factual determinations. The Court found no evidence on the record that the employee searched for another job. She did work with a QRC, but testified that she had little discussion with her QRC about returning to work. In addition, the last stated rehabilitation goal was returning the employee to work with the date-of-injury employer.

JURISDICTION - SUBJECT MATTER

MEDICAL TREATMENT & EXPENSE

Warhol v. Corexpo, Inc. (W.C.C.A. December 7, 2021

v The W.C.C.A. previously decided this case on April 28, 2021, and affirmed the award of benefits for medical marijuana. The Supreme Court reversed the W.C.C.A.’s decision as it regards to the award of benefits for medical marijuana based on its decision in Musta v. Mendota Heights Dental Ctr. 965 N.W.2d 312 (Minn. 2021) (holding that the Controlled Substances Act preempts requirements under Minnesota Workers’ Compensation that obligate and employer to reimburse an injured employee for medical treatment when that treatment is an award for medical cannabis).

On August 24, 2022, the South Dakota Supreme Court issued its opinion in the matter of Douglas Ries v. JM Custom Homes, LLC, 2022 S.D. 52 indicating workers’ compensation was the only remedy available to Ries, an employee of JM’s subcontractor, under the workers’ compensation statutes SDCL 62-3-2 and SDCL 62-3-10.

Pine Tree Plumbing (“Pine Tree”) was a subcontractor of JM Custom Homes, LLC (“JM”). Ries was injured when he fell through a plywood stair while working as an employee of Pine Tree. Ries filed for workers’ compensation benefits against Pine Tree and Pine Tree’s insurer, Acuity Insurance. After Pine Tree and Acuity paid Ries’ workers’ compensation benefits, Ries filed a negligence claim against JM for failing to anchor the plywood or install handrails. In response, JM asserted the affirmative defense of statutory immunity under SDCL 62-3-2 and 62-3-10.

SDCL62-3-2 is an exclusivity provision, which limits an employee’s right to sue. The statute provides that, when an employer accepts liability for workers’ compensation, the employer is provided immunity against all other rights and remedies of an injured employee in return (except those arising from intentional torts). Also known as the “great compromise” the trade-off is a “quid pro quo” exchange inherently ingrained in South Dakota’s Workers’ Compensation Act.

SDCL 62-3-10 provides that a principal contractor (JM) is liable for workers’ compensation “to the same extent as the immediate employer” (Pine Tree). The statute extends liability upwards to general contractors for workers’ compensation claims from sub-contractor employees. However, it also extends the exclusivity provisions of SDCL 62-3-2 to general contractors, limiting a sub-contractor employees’ claims for injuries against higher-rung general contractors to workers’ compensation.

Under these statutes, JM argued that Ries’ sole remedy for his injuries was through workers’ compensation, and he could not sue JM for negligence. The circuit court agreed, and Ries appealed.

On appeal, Ries argued that JM’s insurance policy overrode the exclusive remedy provisions of SDCL 62-3-2. Ries argued that, under the language of the policy, JM was not liable for workers’ compensation claims of its subcontractors and, therefore, could not claim immunity from Ries’ negligence claims. In response, JM argued: (1) the language of the insurance policy was irrelevant; and (2) the policy provided coverage for workers’ compensation by stating “we will pay promptly when due the benefits required of you by workers compensation law.”

The Court determined the ultimate issue was whether JM accepted its obligation to be liable for workers’ compensation claims. If JM was deemed to have accepted its obligation by purchasing insurance coverage, Ries’ claims would be limited to workers’ compensation under SDCL 62-3-2, and JM would be entitled to immunity from Ries’ negligence claims. The Court determined that a private employer is deemed to have accepted its obligation under the Workers’ Compensation Act when it (1) purchases insurance (or enters into a reciprocal insurance agreement); or (2) complies with self-insurance rules.

The Court held the language of the insurance policy was relevant to determine whether JM had accepted its obligation to be liable for workers’ compensation. However, the Court found that JM’s policy secured the relevant coverage, so JM was deemed to have accepted its obligation under the Act. Accordingly, the Court held Ries’ sole remedy was limited to workers’ compensation, and affirmed the circuit court’s dismissal of Ries’ negligence claims against JM.

            Although the opinion reinforced long-existing precedent, it is also significant because it clarified the importance of, not only securing insurance coverage for workers’ compensation claims, but also ensuring that the policy’s language is sufficient to establish the employer’s acceptance of its workers’ compensation obligations under the laws of South Dakota. Failure to do so in this case may have exposed JM to liability for injuries of its subcontractor’s employee under a theory of negligence. As always, please feel free to contact us for more information.

On July 20, 2022, the South Dakota Supreme Court issued its opinion in the matter of Baker v. Rapid City Regional Hospital and Hartford Insurance, 2022 S.D. 40 affirming the denial of Permanent Total Disability (“PTD”) to the Claimant based in part upon deference to the South Dakota Department of Regulation, Division of Labor Management’s (the “Department”) factual determinations.

The Claimant, William Baker, was attacked by a patient and struck on the head in 2013 and 2014 while employed by the Rapid City Regional Hospital (“RCRH”). Baker was subsequently diagnosed with Post Concussive Syndrome (PCS), Post Traumatic Stress Disorder (PTSD), and anxiety. Years after the initial attacks, Baker continued to suffer from paranoia and obsession that purportedly limited his ability to work in public or interact with co-workers. However, it was unclear whether Baker’s symptoms were caused by the attacks at work or the stress from Baker’s ongoing litigation.

Baker argued the injuries he sustained at work remained a contributing cause of his mental impairments and he was entitled to PTD benefits. The Department held that even if Baker’s mental impairments were disabling, they were not caused by physical trauma from the injuries, and, therefore, he was not entitled to PTD. Baker appealed the Department’s decision to the Sixth Circuit Court, County of Hughes, Judge Christina Klinger presiding. The circuit court remanded the causation issue but affirmed the denial of PTD benefits.

Baker appealed the denial of PTD benefits to the Supreme Court, arguing: (1) the circuit court erred in denying his claim for PTD as he made a prima facie showing of obvious unemployability; and (2) RCRH and Insurer failed to meet their burden of proving suitable employment was available to Baker, because their vocational expert failed to inform potential employers of all of Baker’s limitations.

The Court agreed Baker did make a prima facie showing of obvious unemployability. However, the Court declined to impose “the exacting requirement suggested by Baker that the employer must speak with each prospective employer and inform them of claimant’s limitations.” Instead, the Court concluded an employer need only “show more than a general availability of jobs to persons with some of claimant’s disabilities.”

Baker further argued he was unemployable as he could not work around other people due to his mental condition. However, RCRH and Insurer’s vocational expert provided examples of 24 different available jobs, most of which would allow Baker to work without significant interaction with other co-workers. The positions were approved by one of Baker’s treating physicians, and Baker testified the positions would allow him to work individually. However, Baker never applied to any job position. Deferring to the Department’s personal observations regarding Baker and whether he was permanently totally disabled, the Court affirmed the Department and the circuit court’s determinations that Baker failed to meet his burden to show his impairments prevented him from obtaining employment.

Although the opinion generally reaffirms long-established precedent regarding odd-lot disability benefits, the opinion is unique insofar as it is the first time the Supreme Court has encountered a claim for odd-lot benefits based upon a mental condition, rather than a “physical condition” as stated in SDCL 62-4-53 (stating “An employee is permanently totally disabled if the employee’s physical condition . . . causes the employee to be unable to secure [employment]”). The Court questioned whether the Legislature ever intended to allow PTD benefits for a mental condition in the first place under the statutory language of SDCL 62-4-53. However, the Court declined to answer the question, as the issue was not challenged on appeal.