Code of Maryland Regulations Removed the Cap on Reimbursement of Expenses and Costs Due to Missed Medical Examination Appointments.

Effective October 18, 2021, Code of Maryland Regulations (COMAR) 14.09.03.08B(6) was revised to remove the $125.00 cap on the reimbursement of reasonable expenses and costs associated with a missed medical examination. The amendment allows for a party to seek credit or reimbursement for the entire amount of no-show fees, or other reasonable expenses and costs incurred due to a missed exam. The reimbursement amount is now subject to the presiding Commissioner’s discretion.

Maryland Court of Appeals Holds that a Workers’ Compensation Commission’s Summary Denial of a Motion to Reopen or Modify is Not Subject to Judicial Review or Appeal.

On December 17, 2021, the Maryland Court of Appeals handed down their decision in Linda A. Sanders v. Board of Education for Harford County, et al., 265 A.3d 1083. The Court had to decide whether the Commission’s summary denial of Sander’s (Petitioner) second request for modification under Maryland Code, Labor and Employment § 9-736(b) (hereinafter “LE” § 9-736(b)) was subject to judicial review. The Maryland Workers’ Compensation Commission issued an Award denying the Petitioner’s shoulder surgery. The Petitioner did not appeal or request a rehearing of that Award. Over three years later, the Petitioner filed a request for modification of the Commission’s Award, which was summarily denied. The Petitioner filed a petition for judicial review with the Circuit Court. The Respondents filed a motion to dismiss, which was subsequently granted. The Petitioner then filed a second request for modification of the Commission’s Award based on the same issues, with the Commission. The Commission, again, summarily denied the second request for modification of the Commission’s Award. The Petitioner appealed to the Circuit Court for judicial review on this second request, which was subsequently allowed. The Circuit Court remanded the case back to the Workers’ Compensation Commission for further consideration.  The Respondent’s appealed the Circuit Court’s Order of remand to the Court of Special Appeals. The Court of Special Appeals found in favor of the Respondents, that the Circuit Court erred in their Order as summary denial of the Workers’ Compensation Commission is not an appealable decision. The Petitioner then filed a writ of certiorari with the Court of Appeals in 2021. The Court of Appeals granted the petition and affirmed the Court of Special Appeal’s decision.

 The Court of Appeals found as follows:

·         According to the plain language of LE § 9-736(b), the Commission has wide discretion to either modify a finding or order that it has previously issued, or no do so. Although LE § 9-737 generally provides for judicial review of the Commission’s decision within thirty days of the Commission’s Order, Maryland’s case law makes clear that summary denial of a request to reopen or modify under LE § 9-736(b) is not subject to judicial review, as it is not a reviewable decision.

·         The Court reiterated its position as to why the Commission’s summary denial of a request to reopen or modify a prior decision is not subject to judicial review. The Court clarified in Jerry Blevins v. Baltimore County, 352 Md. 620, that where the Commission denies an application to reopen or modify without discussing the merits or propriety of the earlier order, it is evident that the earlier order has not been reconsidered and no new decision has been made. Thus, when the Commission summarily denies a request to reopen or modify, they are not making any new decision, thus the previous order remains unchanged, and there is nothing new for an appellate court to review.

·         The key takeaway from this decision is that if the Commission declines to reconsider their prior Award, that decision is not appealable.

Maryland Court of Special Appeals Holds That Employer/Insurers Do Not Waive Their Statutory Subrogation Interest Against Third Party Proceeds by Failing To Expressly Reserve their Right.

On July 18, 2022, the Maryland Court of Special Appeals decided the case of Charles D. Conley, et al v. Trumbull Insurance Company, 2022 WL 2800977. The Court was tasked with deciding whether Employer/Insurers waived their statutory right of reimbursement of third-party proceeds by failing to expressly reserve their reimbursement right in their full and final settlement agreement with the Employee. The Employee (Conley) sustained an on-the-job injury due to the negligence of a third-party. Conley resolved his workers’ compensation claim with his employer’s insurance company (Trumbull) by way of a full and final settlement, approved by the Workers’ Compensation Commission. Conley then proceeded to settle his claim against the negligible third-party and collected the proceeds. When Trumbull asserted their subrogation lien against the third-party settlement proceeds, Conley refused as he believed Trumbull waived their right to the third-party proceeds by failing to expressly reserve their statutory lien under the full and final settlement agreement of the workers’ compensation claim. Trumbull filed a complaint against Conley to enforce the Employer’s subrogation right under the Maryland Workers Compensation Act. The Circuit Court of Baltimore County found in favor of Trumbull, holding that the Employer/Insurer’s statutory lien survived the full and final settlement agreement, as Maryland law does allow for an employer’s insured’s lien to be reimbursed upon the settlement of a claim against a tortfeasor. Conley appealed the Circuit Court’s decision to the Court of Special Appeals. The Court of Special Appeals ultimately affirmed the Circuit Court’s decision, albeit for different reasons.

The Court of Special Appeals found as follows:

·         Maryland Code, Labor and Employment §9-722 (hereinafter “LE” §9-722) provides the rules for settling claims under the Maryland Workers’ Compensation Act. While LE §9-722 does not address the impact of settlement on Employer/Insurer’s right to third-party reimbursement, LE §9-902 provides a framework for handling post-settlement third-party claims under the Maryland Workers’ Compensation Act. Prior to October 2018, LE §9-902 did not address whether an Employer/Insurer’s subrogation interest was waivable. However, the Court further considered the issue in light of the Maryland Workers’ Compensation Act amendment history and other general provisions in the Act.

·         The Court considered the language of LE §9-104, which in short states that except as otherwise provided in this title, an employee or employer may not by agreement, waive a right of the employee or employer under this title.

·         In light of LE §9-104, the Court held that an Employer/Insurer’s statutory subrogation interest was a “right” of the employer under the Maryland Workers’ Compensation Act, and pursuant to LE §9-104, the Employer/Insurer’s subrogation interest was not waivable by agreement, therefore, Trumbull did not waive its subrogation interest by failing to expressly reserve it in the full and final settlement agreement with Conley.

LE §9-902 was amended in October 2018 to include subsection (g), which requires an employee who recovered from a third-party to reimburse the Employer/Insurer if the Employer/Insurer has not waived third-party reimbursement. However, LE §9-104 was not affected by the amendment.

Change in Maryland Regulations Now Allows for Attorney’s to Accept Service on Behalf of Employers.

While a small change, the current version of Code of Maryland Regulations (COMAR) 14.09.03.05(E) has been amended to allow service of subpoenas to be made in accordance with the Maryland Rules. Under Maryland Rule 2-510(d), service of a subpoena may be made to a person authorized by law to receive service for the person named, or by service upon the attorney of a represented party. Previously 14.09.03.05(E) limited to service by way of personal service or certified mail to the person specified in the subpoena request. Now, not only can attorney’s accept service of behalf of employers, but they can also receive service by means other than personal delivery or certified mail in certain instances. Maryland Rule 2-121(c) allows for service by way of any other means that a Court deems appropriate in the circumstances and reasonably calculated to give actual notice. 

Written by John Tomei

When employees in North Carolina sustain injuries by accident arising out of and in the course of their employment with employers, their ensuing workers’ compensation claims are generally compensable. However, what if the injured worker is a subcontractor? And, does it matter if the injured subcontractor is uninsured?

What if the injured worker is a subcontractor?

The answer to the first question is determined by the analysis of whether the worker was an employee or an independent subcontractor at the time of the injury. Many employers mistakenly believe that simply calling  workers “independent contractors” or “subcontractors” and paying them cash or with a Form 1099 makes their workers independent or subcontractors.  That is often not the case. Rather, in North Carolina, it is a multi-factored analysis as to whether an injured worker is an employee or an independent contractor, with the ultimate test being whether the contracting entity had the right to control the details of the injured worker’s work.

Some of the factors the Industrial Commission considers are whether the injured worker (1) was engaged in an independent business, calling, or occupation; (2) whether they had independent use of their special skill,  knowledge or training; (3) whether they were doing a specified piece of work at a fixed price, for a lump sum,  or on a quantitative basis; (4) whether they are not subject to discharge for choosing their method of work; (5) whether they are in the regular employ of the other contracting party; (6) whether they are free to hire assistants; (7) whether they have full control over their assistants; and (8) whether they select their own time. No single factor is determinative. Instead, the ultimate test is whether the contracting entity had the right to control the details of the injured worker’s work.

These cases are all fact-specific and often require careful factual and legal analysis. Some at the Commission give the benefit of any factual doubts to the injured worker. Moreover, if the injured worker was paid by the hour, the Commission will often give that factor great weight and find that the injured worker was an employee rather than an independent contractor, such that the worker’s claim would be found compensable.

Does it matter if the subcontractor is uninsured?

If the injured worker is a subcontractor, and they are uninsured for workers’ compensation purposes, can they successfully argue that the statutory employment protections of N.C.G.S.  97-19 should nonetheless apply to enable them to obtain workers’ compensation benefits? Fortunately for contracting entities and their carriers, the answer is likely “No.”

N.C.G.S. 97-19 provides, in relevant part, the following:

…shall be liable, irrespective of whether such subcontractor has regularly in service fewer than three employees in the same business within this State, to the same extent as such subcontractor would be if he were subject to the provisions of this Article for the payment of compensation and other benefits under this Article on account of the injury or death of any employee of such subcontractor due to an accident arising out of and in the course of the performance of the work covered by such subcontract. N.C.G.S. Ann. 97-19.

In an earlier version of the statute, the class of persons protected by this provision included not only employees of the subcontractor, but also the subcontractor himself. Southerland v. B.V. Hedrick Gravel & Sand Co., 345 N.C. 739, 483 S.E.2d (1997). However, in 1995, the General Assembly reinstated the pre-1987 language of N.C.G.S. 97-19 by deleting ” any such subcontractor, any principal or partner of such subcontractor or” preceding “any employee of such subcontractor” effective June 10, 1996. Boone v. Vincent, 127 N.C. App. 604, 609, 492 S.E.2d 356, 359 (1997), cert. denied, 347 N.C.573, 498 S.E.2d 377 (1998). (citing 1995 N.C. Sess. Laws ch. 555 sec.1).

Consequently, the current Act only protects injured employees of a subcontractor, and not the uninsured, injured subcontractor himself. Obviously, subcontractors can choose to purchase workers’ compensation insurance coverage to protect themselves, in addition to their employees, in the event of a work-related injury.

Claims Handling Practice Tips

At the inception of a claim, insurance carriers and their adjusters need to thoroughly investigate and confirm whether the injured worker was an employee or an independent subcontractor, bearing in mind the factors mentioned above.  If the injured worker is a subcontractor and uninsured, the Act does not provide any protection for that injured subcontractor. Rather, under the statutory employment scheme of N.C.G.S. 97-19, only injured employees of subcontractors are protected by the coverage, which is afforded by the general contractor’s workers’ compensation policy.

2022-23 Biennium Budget Bill Brings Pro-Employer Changes to Ohio Workers’ Compensation Law.

On June 29, 2021, Governor Mike DeWine signed into law the 2022-23 budget which enacted some changes to Ohio workers’ compensation law, including:

·         Requiring claimants in receipt of salary continuation to wait 26 weeks after their last payment to file an application for permanent partial disability compensation (“PPD”);

·         Requiring claimants who have previously been denied permanent total disability (“PTD”) to show new and changed circumstances before re-applying for the benefit; and

·         Reducing the statute of limitations for an occupational disease claim from two years to one year from the date of disability due to the disease began.

The budget bill also resulted in the return to in-person hearings in Ohio that may have come earlier than some expected. The Ohio Industrial Commission returned to in-person hearings on July 6, 2021, but the parties now have the option to calling rather than attend physically (this was always an option for injured workers, but rarely utilized). Parties who opt not to attend in person must waive their right to an in-person hearing. The waiver is not necessary for parties represented by attorneys or non-attorney representative attending in person. Otherwise, a waiver is required, either orally (if the party is represented by an attorney appearing remotely) or in writing (if the party is represented by a non-attorney representative appearing remotely).

Ohio General Assembly Limits Workers’ Compensation Coverage for Remote Employees

The Covid-19 pandemic has led to a dramatic increase in the number of employees who work remotely. In response to the various issues arising in connection with remote workers’ compensation claims, Governor Mike DeWine signed into law House Bill 447 (“H.B. 477”) on June 24, 2022 which amended Ohio Revised Code §4123.01(C) to exclude from the definition of “injury” any “[i]njury or disability sustained by an employee who performs the employee’s duties in a work area that is located within the employee’s home that is separate and distinct from the location of the employer[.]”  H.B. 447 does permit, however, an injury or disability sustained at the home to be compensable under Ohio workers’ compensation law if all of the following three factors are met:

(1)   The employee’s injury or disability arises out of the employee’s employment;

(2)   The employee’s injury or disability was caused by a special hazard of the employee’s employment activity; and

(3)   The employee’s injury or disability is sustained in the course of an activity undertaken by the employee for the exclusive benefit of the employer.

Ohio courts have defined “special hazard” as a “risk, either distinctive in nature of quantitatively greater than the risk common to the public.” H.B. 447 goes into effect on September 23, 2022.

Workers’ Compensation in Firefighter Cancer Claims

House Bill 17 (“H.B. 17”) is a proposed bill which would require the Ohio Bureau of Workers’ Compensation (“BWC”) to charge compensation and benefits paid from the State Insurance Fund for workers’ compensation claims involving firefighters disabled by cancer to the Surplus Fund Account. In a claim involving a firefight disabled by cancer where the employer is self-insured, the bill proposed that compensation and benefits payable to the firefighter be paid by the self-insured employer would be deducted from the paid compensation reported to the BWC.

BWC Updates on COVID Claims

Actual losses where Covid-19 was contracted by an employee during the period between the emergency declared under Executive Order 3030-01D, issued on March 9, 2020 and July 2, 2021, which is fourteen days after the Executive Order was repealed, shall be excluded from employer’s experience for the purpose of experience rating calculations.

In terms of how the Ohio BWC workers’ compensation system handled claims for Covid-19 allowances, hindsight has found that in very limited situations, some workers can file claims for workers’ compensation if they contracted Covid-19 at work. The Ohio BWC approved 836 claims for Covid-19 as of March 2021. As BWC guidance has set forth, it depends on how a person contracts it and the nature of the occupation. Generally, communicable diseases like Covid-19 are not workers’ compensation claims because people are exposed in a variety of ways, and few jobs have a hazard or risk of getting diseases in a greater degree or a different manner than the general public. However, if an individual works in a job that poses a special hazard or risk and contract Covid-19 from the work exposure, a claim could be allowed.

Voluntary Abandonment – State ex rel. Quest Diagnostics, Inc. v. Indus. Commission, 2022-Ohio-1093

The claimant’s husband was reassigned to work in California. The claimant notified her supervisor she would be moving to California at the end of October 2018 and submitted a request for a transfer to California, but in early October, she suffered her industrial injury. When she and the employer then learned, she would need to become licensed in California for a phlebotomist position, she submitted her resignation and then filed a motion for temporary total disability (“TTD”). The Ohio Industrial Commission found, based on her intent, the claimant did not voluntarily remove herself from her former position of employment and was entitled to TTD compensation.

The Tenth District Court of Appeals (Franklin County) disagreed and issued a writ of mandamus. The Court found that State ex rel. Klein v. Precision Excavating & Grading, Co., 155 Ohio St.3d 78, 2018-Ohio-3890, reasserted the fundamental tenant that a claimant is ineligible for TTD if the claimant’s workplace injury did not cause the loss of earnings. When the claimant removes herself from employment for reasons unrelated to the work-related injury she is no longer eligible for TTD. Here, an employee who quits her job for reasons unrelated to her workplace injury is ineligible for TTD because the circumstance of the injury did not cause the loss of earnings. Klein requires this result even if the claimant desired to retain her position and never intended to leave the workforce.

Scope of Employment

Owens v. Giant Eagle, Inc., 2022-Ohio-192 (8^th District Cuyahoga)

Claimant transported pallets of deli products from the delivery truck to the deli department. As he rounded the deli counter, he felt a pop at the back of his foot. His claim was disallowed for left Achilles tendon rupture. In his R.C. §4123.512 appeal, the court granted his employer’s motion for summary judgment on the grounds that the claimant’s injury was not sustained in the course of, and arising out of, his employment. The court of appeals found the claimant was working at the store location at the time of his injury, the employer had control over the scene, and the employer received a benefit from claimant’s presence at the scene up to the point of injury. The court found a genuine issue of material fact exists and revised and remanded to the trial court.

Hinerman v. Savant Systems, Inc., Hocking C.P. No. 21CV0053 (Nov. 21, 2021)

Claimant shut her finger in the door of her personal vehicle after she arrived for work but prior to entering the employer’s facility and starting her shift. She was in the employer’s parking lot, which was employer owned and controlled. The Commission denied her claim, finding she was not in the course and scope of employment when she was injured. In her R.C.  4123.512 appeal, the trial court granted the claimant’s motion for summary judgment finding she was a fixed situs employee in the zone of employment (the employer’s parking lot), she was on the employer’s premises for the specific purpose of going to work and was in the process of existing her vehicle when the injury occurred, all actions which benefited her employer.

Permanent Partial Disability Awards for Partial Loss of Sight – State ex rel. Bowman v. Indus. Commission, 2022-Ohio-233

Bowman’s claim was allowed for significant conditions to her eyes as a result of an E. coli infection caused by lunch meat provided by the employer at a holiday party. Bowman filed an application seeking a scheduled loss of use, pursuant to R.C. §4123.57. The District Hearing Officer disallowed the award entirely because the claimant had worn contacts prior to the injury. On appeal, the Staff Hearing Officer granted Bowman a 67% loss of vision award of uncorrected vision in her right eye and denied the request for loss of vision in her left eye. The Commission relied on the report of Dr. McGowan for this award.

Bowman filed for an increase to her prior award later requesting loss of uncorrected vision bilaterally in the amount of 70% (3% increase in right and 70% increase in left eye). She based this request on the prior report of Dr. McGowan, as well as a report of Dr. Harnish who opined that the AMA Guidelines were not applicable. The BWC had Bowman evaluated by Dr. Wareham who found a loss of 65% vision in the right eye and a 45% loss of vision in the left eye. Dr. Wareham agreed with Dr. Harish that the AMA Guidelines were not applicable. Further complicating the facts, all physicians agreed that her total loss of vision bilaterally was at least 70%.

At the first hearing on the request for the increased award, the DHO found a 45% loss of vision for the left eye only based on Dr. Wareham’s report. Since Dr. Wareham’s opinion on the right eye was 2% less than the prior award, the DHO did not give an increased award for the right. The SHO affirmed. The claimant appealed to the Ohio Supreme Court, arguing all the physicians agreed the use of the AMA Guidelines was insufficient to measure actual visual impairment, and thus, Dr. Wareham’s opinion was unreliable since it based on such. Further, Bowman reminded the Court that R.C. §4123.57(B) holds that an award of compensation shall not be made for less than twenty-five percent loss of uncorrected vision. The Court held that, while generally speaking, it would be acceptable for the Commission to select a percentage within the range of percentages stated by the physicians, it finds here, where all the physicians agree that Bowman’s actual visual impairment is 70% of greater, the Commission did abuse it discretion in finding that eh had a 65% impairment in the right eye and a 45% impairment in the left eye.

Refusal of Good Faith Job Offer/Entitlement to Temporary Total – State ex rel. Ryan Alternative Staffing, Inc. v. Moss, 2021-Ohio-3539.

Claimant sustained a work injury while employed by Ryan Staffing in a second-shift position, working 4:00 pm to midnight. Her workers’ compensation claim was allowed for a knee sprain, and she requested TTD. The employer offered claimant work within her medical restrictions, but on the day shift. Claimant refused the offer because she had to care for her granddaughter during the day while her daughter worked. The employer denied her request for TTD compensation because she had turned down the suitable job offer.

Claimant argued that the employer’s offer of employment was not made in good faith because it knew she was unable to work the day shift. The Commission granted her request for TTD compensation, finding both the offer and refusal were made in good faith. The Ohio Supreme Court held that while claimant may have had a good faith basis for her denial of suitable employment, this could not be used as a factor in justifying compensation under §4123.56. R.C. §4123.56(A) provides that payment for TTD compensation shall not be made for periods when work within the physical capabilities of the employee is made available by the employer, and read in conjunction with O.A.C. §4121-3-32(A)(6), which provides, “job offer” means a proposal, made in good faith, of suitable employment within a reasonable proximity of the injured worker’s residence, and “suitable employment” means work which is within the workers’ physical capabilities.

© Copyright 2022 by Christopher M. Ward, Calfee, Halter & Griswold, LLP. All rights reserved. Reprinted with permission.

This year’s legislative session brought about little substantive change in our code.  One anticipated change that has gone into effect are newly established caps for TTD, TPD, PPD and the maximums for Spousal dependency benefits where the surviving spouse is the sole primary beneficiary. The new established caps do apply only to dates of accident on and after July 1, 2022.

The new maximum rates for indemnity are as follows:

1. TTD goes from a maximum of $675 per week to $725,

2. TPD goes from a maximum of $450 per week to $483, and

3. PPD goes from a maximum of $675 per week to $725 due to the above changes in TTD rates.

 Also effective July 1, 2022 is a change in the maximum benefit payable to a surviving spouse with no other dependents. This figure goes from a maximum cap of $270,000.00 to $290,000.00 for dates of accident on or after July 1.

Effective July 1, 2022, there were also slight modifications to Board Rules 203 and 205.  The Board approved a new peer review organization in 2021. Claims Eval is the Board’s approved peer review organization and reviews disputes between medical providers and employers and insurers regarding medical charges. Some changes were made to the process and procedures for filing for peer review.

A change was also made to the rule to clarify that all medical treatment, items, and services covered by O.C.G.A. §34-9-200 can be included in the PMT process.  This latter change will be very helpful to the already successful PMT program that allows for requests and denials of certain medical procedures, items and services be done on an expedited basis.

Another note worth mentioning is the firm position that our Board continues to take on proper filing of Board forms in active claims.  Adjusters and other claims handlers will be held to a high standards as it relates to required filings and, when the opportunity arises, our Administrative Law Judges remind the section of this point.  Attorney’s fees and civil penalties will continue to be assessed for non-compliance issues and we should all consider ourselves on notice.

Finally, On October 19, 2021, the first Georgia Workers’ Compensation Claim involving Covid-19 in the workplace was litigated.. The claim was brought by a widower whose deceased spouse worked as a records clerk for a county jail. The ALJ issue an Award finding that in this particular claim, Covid-19 was not a compensable injury or disease under the Georgia statute. Interestingly, the claimant’s counsel argued that Covid-19 was not an occupational disease but was rather an injury leading to disease and brought on by injurious exposure.  The employer’s defense revolved around the deceased’s potential community exposure, as evidenced by bank records, as well as the extensive measures taken by the County to prevent the spread of Covid-19.  Although the finding was in favor of the employer in this case,  the Award left open the possibility that certain jobs or positions might lend a different result, and that is important to remember, especially for our first responder and health care clients who may be facing similar claims.  

Written by: Lindsay Underwood

A recent May 2022 decision from the North Carolina Court of Appeals provides a refresher on the “eggshell plaintiff rule” and taking your claimant how you find them. In Kluttz-Ellison v. Noah’s Playloft Preschool, the claimant sustained two separate incidents to the knees while working as the owner and director of a preschool. One incident took place in 2013, while the claimant was changing a lightbulb, and one took place in 2015, when she tripped over a student’s sleeping cot. Both claims were found to be compensable.

The claimant was ultimately referred for a revision replacement surgery for the right knee, as well as a total knee replacement for the left knee. Before she could undergo the same, her physician opined that she needed to lose a significant amount of weight to get the surgery. Unfortunately, the claimant was unable to lose weight on her own, and the physician recommended a bariatric surgery to assist with weight loss. The parties proceeded to hearing on the issue of weight loss and the need for bariatric surgery. The claimant testified she had tried to lose weight on her own using various diets. The Deputy Commissioner found the claimant’s need for a right knee revision surgery and repair of hardware loosening were not related to the compensable work injury, and, thus, the bariatric surgery, was unrelated as well. The claimant’s claims for the surgeries were denied.

The claimant appealed to the Full Commission. Notably, during the appeals process, the claimant underwent the right knee revision surgery and bariatric surgery on her own. The Full Commission reversed, concluding her right knee condition, treatment, and, now completed, right knee revision surgery was compensable. The Full Commission initially concluded her need for weight loss treatment/bariatric surgery was not directly related to her injury but following a Motion for Reconsideration and a Motion to Allow Additional Evidence filed by the claimant, the Full Commission amended the Opinion and Award. Though the Full Commission did not admit additional evidence, they concluded the bariatric surgery was medically necessary as a precedent to her compensable right knee surgery.

Defendants appealed to the Court of Appeals. The Court noted the claimant’s bariatric surgeon testified it was standard practice to not allow a patient to have knee replacement surgery until their BMI is under 40. Further, the surgeon testified that the claimant had fully participated in efforts to lose weight on her own. Thus, the only way for her to get her BMI under 40 so she could undergo the medically necessary knee replacement revision, was to have bariatric surgery. Further, the claimant needed surgery for both knees, and her authorized treating physician testified that it was an emergent weight loss requirement to get her BMI under 40 before she could undergo the surgeries.

The Court of Appeals cited N.C.G.S. §97-25, and the definition of medical compensation including “other treatment” such as payment of medical expenses incurred as a result of bariatric surgery because it was medically necessary to help her achieve an optimal BMI to allow her to undergo the right knee replacement revision. The question then became whether her need for bariatric surgery was directly related to the work injury. Applying the Act liberally, the Court of Appeals rejected Defendants’ argument that the claimant’s weight issues preexisted the work injury and were not therefore directly related to the compensable claim. Instead, they noted a direct line of causation connecting the dots between the compensable injury and the Commission’s award for bariatric surgery. As the bariatric surgeon testified that, due to physical limitations (the need for bilateral knee surgeries), she could not lose weight fast enough on her own, her need for bariatric surgery was directly related to the compensable injury.

Employers are often frustrated by the “tangential” medical treatments that come up while a claimant is receiving treatment for a compensable condition. Unfortunately, defendants take their claimant as they find them, and this decision only confirms that the Commission, and the Court of Appeals, will require defendants to take steps to return the claimant to their pre-injury status, even if it includes providing treatment like bariatric surgery, weight loss programs, and smoking cessation efforts.

Implications for Defendants

A key point was that the physician testified that the claimant had made her best efforts with other weight loss treatment, such that the bariatric surgery was the only remaining option. A motion to compel the claimant to comply with medical treatment is a potential option if defendants are ordered to pay for weight loss to treat a compensable work-related injury. The claimant will have to show up at meetings and comply with preliminary weight loss programs or they could jeopardize their benefits due to noncompliance with medical treatment. What is clear from this case is that Defendants should not have to immediately pay for the most expensive treatment modality, and the claimant still has to make efforts on their own via less-expensive options.

Claimant was involved in an 8/30/18 work related motor vehicle accident while working as a police officer. The neck and low back were accepted by Employer. She underwent a compensable two-level cervical fusion surgery on 8/7/19.

On 9/15/21, Claimant filed a Petition seeking 26% permanent impairment to the cervical spine and 10% permanent impairment to the lumbar spine, based upon Dr. Rodgers’ opinion. Dr. Rodgers rated permanency under the 5^th Edition of the AMA Guidelines. Employer contested the ratings based upon the opinion of Dr. Piccioni, who found there was 9% permanency to the cervical spine and 3% permanency to the lumbar spine. Dr. Piccioni rated permanency under the 6^th Edition of the AMA Guidelines.

After trial, the Board issued a Decision dated 7/7/22 finding in favor of Employer, and awarding Dr. Piccioni’s ratings. The Board noted that Claimant’s cervical fusion was successful. The surgery improved her pain and function. The treating surgeon released Claimant to work without any restrictions for the neck or back thereafter. Post-surgery imaging showed no nerve root compromise. Claimant declined offered lumbar injections. Claimant did not seek a second opinion for the neck or back. The Board also accepted the opinion of Dr. Piccioni that the 6^th Edition focuses more on objective findings and function, whereas the 5^th Edition relies more on subjective complaints.

Should you have any questions regarding this Decision, please contact Greg Skolnik, or any other attorney in our Workers’ Compensation Department.

Mobley v. City of Wilmington, IAB Hrg. No. 1476680 (July 7, 2022). 

The 2022 Indiana legislature enacted a clarifying change to the statute of limitations under the Worker’s Compensation Act due to recent challenges to a long-held practice honoring the Board’s position that plaintiffs have two years from the last date for which compensation has been paid for  an accepted injury claim to file its Application for Adjustment of Claim.

Statute of Limitations

I.C. 22-3-3-3, effective July 1, 2022, now confirms the two-year period within which an Application for Adjustment of Claim must be filed to begin running on the last day for compensation was paid after the occurrence of an accident for  which compensation is paid as temporary total or temporary partial disability benefits.

Increased Benefits

The Act was amended to increase temporary total disability and benefits for payment of permanent partial impairment beginning July 1, 2023 with regular 3% increases through 2026.

Contact Diana Wann:  diana.wann@jacksonkelly.com  for a schedule of rates and benefits through 2026.

Ambulatory Surgery Centers Included  in 200% of Medicare Cap

Ambulatory surgery centers were defined and included in the medical cap of 200% of Medicare reimbursement as used by CMS previously affecting hospitals only, effective January 1, 2023.

Clean Claim Provision Added, I.C. 22-3-7.2, Payments of Claims

Clean Claim payment deadlines were established, effective January 1,2023.

Written by Tracey Jones and Heather Baker 

On July 26, 2022, the Full Commission issued another extended benefits decision, Messick v. Walmart Stores, Inc. The panel consisted of Vice-Chair Griffin, Commissioner Taylor and Commissioner Goodman.  In this case, the Full Commission awarded the claimant extended benefits. The issue of extended benefits was not an issue at the Deputy Commissioner level. The Deputy Commissioner issued an Opinion and Award finding compensable aggravations to claimant’s pre-existing left knee condition and mental health condition, awarded ongoing TTD benefits, and ordered payment for claimant’s dental treatment related to a post-accident fall. Defendants did not appeal the findings or conclusions related to causation, but appealed on the issue of whether the first date of disability versus the date of injury was controlling in regard to determining the indemnity benefits and/or extended benefits owed to claimant under N.C.G.S. § 97-29.

Claimant sustained two compensable injuries; one to her lumbar spine and another to her right knee. Her lumbar spine injury was pre-2011 statutory reform and her right knee injury was post-2011 reform. Both injuries were accepted by Defendants. Defendants also authorized benefits for psychological treatment as a part of the claim. Ultimately, claimant required, among other treatment, a spinal cord stimulator, a knee replacement surgery, and a knee replacement revision procedure, along with increased psychological treatment for depression, which included a 20-day psychological support and physical reconditioning program where she weaned off Oxycodone. Eventually, claimant’s left knee became problematic, and she required a left total knee replacement, which claimant’s doctor opined was the result of her accepted right knee injury. She was ultimately assessed with failed back syndrome, chronic low lumbar pain, and chronic knee pain.

As a part of litigation, the parties deposed nine experts, consisting of claimant’s medical providers and claimant’s vocational expert. In terms of disability, many providers deferred to other providers and/or a vocational expert, and claimant was assigned permanent sedentary restrictions with no repetitive bending or stooping; no lifting more than twenty pounds; no twisting; no kneeling; no climbing ladders or stairs; no walking more than forty yards at a time; and no sitting or standing for more than thirty minutes at a time. The claimant’s vocational expert concluded that there was no reasonable vocational probability that claimant would be able to secure a job and maintain gainful employment. He testified she had a total loss of wage-earning capacity, despite noting that claimant expressed multiple times she would prefer to be working and productive.

The good news is the Full Commission, in keeping with it’s other extend benefits decisions, clearly states that the standard in extended benefits cases is different than the normal standard for proving entitlement to temporary total disability benefits.  Applying the revised standard set forth in the 2011 revisions to N.C. Gen. Stat. § 97-29(c), the Full Commission reiterated that to establish entitlement to extended compensation, a plaintiff must show that they have a total loss of the ability to earn wages in any employment.  See N.C. Gen. Stat. § 97-29(c) (2021).

However, the Full Commission found the vocational expert’s opinion credible and concluded there were no jobs in the job market within claimant’s functional capabilities. The Commission found ongoing disability for claimant’s pre-reform injury, and the Commission also found a total loss of wage-earning capacity due to her compensable injury for the second post-reform injury. Claimant was awarded ongoing medical benefits and TTD benefits for the pre-reform injury until claimant returns to work or until further order by the Commission and awarded extended benefits for the post-reform injury.  The Commission focused on claimant’s chronic pain, age, and length of time from being in any academic situation and relied on the only vocational expert to testify in the case to conclude that claimant has sustained a total loss of her wage-earning capacity.

Takeaways for Defendants

This Opinion and Award once again demonstrates the importance of expert testimony in these extended benefit cases.  The physicians deposed all found claimant’s pain complaints credible and either would not comment on claimant’s ability to work or deferred to a vocational expert as to whether there were jobs available that claimant could perform.  The only vocational expert that was deposed clearly testified that claimant had suffered a total loss of wage-earning capacity because of her restrictions and chronic pain complaints.  In order for defendants to successfully defend these cases, they must retain or have testimony from both medical and vocational experts that the claimant has some wage earning capacity.  If defendants can successfully present this evidence, past cases suggest that they will prevail and extended benefits will not be awarded.

Our team will continue to monitor the developments as this issue works its way through our court system. 

If you have questions or wish to discuss how to best position yourself in potential extended benefits matters, please reach out to Tracey Jones or a member of our Workers’ Compensation Team. 

Legal Update by Attorney Alison Stewart and Law Clerk Morgan Borron

Compensability Standard for Mental-Mental Claims of Emergency Responders

In Tripp v. Scott County Emergency Communication Center, 977 N.W.2d 459 (Iowa 2022), the Iowa Supreme Court addressed whether Iowa law holds emergency workers to a separate, higher standard to be eligible to receive workers’ compensation benefits for trauma-induced mental injuries, than other workers who sustain identical injuries, but work in other roles. In this case, Claimant was diagnosed with PTSD after receiving a disturbing call from a mother who was screaming about the death of an infant. Claimant had worked in that role for approximately 16 years prior, but testified the screams in this call were “beyond ‘normal’ sounds: ‘guttural, awful.’” In the days that followed, Claimant became withdrawn, unable to process emotions, wanting to sleep, and tearful. The employer approved Claimant’s treatment with a licensed mental health counselor and psychologist, both of whom diagnosed Claimant as having suffered from PTSD as the result of the September 30, 2018 call.

Claimant’s treating psychologist testified her PTSD constituted a chronic episodic condition that resulted in a permanent disability. The Deputy Commissioner denied Plaintiff’s petition for workers’ compensation benefits because 911 dispatchers “’routinely’ take calls involving death and traumatic injuries” and that Plaintiff had failed to establish that the call was “unusual” or “unexpected” as required under the court’s prior mental injury cases. The Commissioner affirmed the Deputy’s Arbitration Decision, as did the District Court. Claimant appealed, which was retained by the Iowa Supreme Court.

Psychological injuries meet the definition of personal injuries for purposes of determining workers’ compensation benefit entitlement in Iowa, but employees claiming mental injuries must prove both medical and legal causation. See Brown v. Quik Trip Corp., 641 N.W.2d 725, 727-29 (Iowa 2002). The legal causation requirement could be satisfied where an “unusual strain” led to the mental injury. The Court held that based on the evidence, Plaintiff Tripp’s PTSD arose directly from her handling of the September 30, 2018, 911 call in the course of her work as an emergency dispatcher. The Court held that focusing on an employee’s job to determine an “unexpected strain” placed emergency workers in a disfavored position when compared to other workers. It held there should be no “heightened evidentiary hurdle” for these types of employees. Rather, because Claimant was able to prove her purely mental injury (PTSD) was traceable to a readily identifiable work event (the September 30, 2018, phone call) she had proven legal causation. The likely impact of this case is that this expands the compensability of mental injuries in Iowa.

Industrial Disability Awarded in Two Cases Involving a Shoulder Injury

The Commissioner awarded industrial disability in two cases involving the shoulder.

• In Carmer v. Nordstrom, Inc., File No. 1656062.01 (Iowa Workers’ Comm’r App. Dec. December 29, 2021), the worker sustained a right shoulder injury and then developed a left shoulder sequela injury due to overuse. The agency concluded that the two shoulder injuries cannot be compensated separately under 85.34(2)(n), as that section refers only to a singular shoulder. Further, because the legislature did not add the shoulder to the list of scheduled members to be compensated on a 500-week basis when two are injured in a single accident, the two shoulder injuries could not be compensated under 85.34(2)(t). The Commissioner therefore held that the two shoulder injuries together should be compensated industrially under “catch all” provision of 85.34(2)(v).
  
  
• In Bridgestone Americas, Inc. v. Charles Anderson, Case No. CVCV063124, Ruling on Petition for Judicial Review (Polk Co. Dist. Ct. Aug. 3, 2022), the district court affirmed the Commissioner’s award of industrial disability under 85.34(2)(v) where the worker sustained an injury to the shoulder and separate injury to the arm arising out of the same incident. The Anderson decision stands for the principle that where an employee sustains injuries to the shoulder and any other scheduled member, the injuries will be compensated industrially.

Both Carmer and Anderson are on appeal; however, they are the current law of the Agency and should be considered when evaluating shoulder cases.

Shoulder Injuries and Second Injury Fund Benefits

In Martinez-Rivera v. Signet Builders, Inc., File No.: 5064517.01 (Arb. Dec. Sept. 16, 2021), the deputy commissioner held that the Claimant did not qualify for Second Injury Fund benefits because section 85.64(1) does not list the shoulder as an enumerated body part which may trigger Fund liability.

Impact of Termination of Employment and Industrial Disability Entitlement

The question of whether a claimant was entitled to industrial disability pursuant to 85.34(2)(v) due to her voluntary choice to transfer to a lower-paying position with Defendant/Employer was addressed in Kish v. University of Dubuque, File No.: 5066482 (Arb. Dec. July 29, 2021), affirmed on appeal, (App. Dec. Nov. 30, 2021). In Kish, claimant injured her back on May 30, 2018, while working as a lead custodian for the University (making $1.00 more per hour than regular custodians). She was released to return to work without restrictions and placed at MMI on June 19, 2019 and returned to work that same day as a lead custodian, at the same rate of pay and working the same number of hours. Claimant did not think she would be able to handle the lead custodian position when students returned to campus, and so she bid into a regular custodial position in August 2019, which reduced her pay by $1.00/hour.

The deputy held that Claimant made a voluntary choice to transfer, that the University did not request/require Claimant to change positions, and no physician had imposed permanent restrictions that would prevent her from continuing to work as a lead custodian. In light of the above, the Deputy found that the employer had offered Claimant ongoing work in a position that paid the same or more than she earned on the date of injury, limiting her recovery to the functional impairment pursuant to 85.34(2)(v). Kish is currently being appealed.

COVID-19 Death Ruled Non-Compensable

The agency addressed employer responsibility for an alleged work related COVID-19 death in Bolton v. Marcus Lumber, File No. 20015335.01, 2022 WL 1787479 (Arb. Dec. Mar. 24, 2022). To establish a compensable injury in Iowa, an employee must establish that the injury has a causal connection to the employment. The question of medical causation is “essentially within the domain of expert testimony.” Cedar Rapids Cmty. Sch. Dist. v. Pease, 807 N.W.2d 839. 844-45 (Iowa 2011). Here, both parties presented expert witnesses to opine when Bolton may have contracted COVID-19, which ultimately led to his death. The employer provided evidence they followed all CDC guidelines and precautions for their employees, including requiring masks, social distancing, temperature checks, and negative COVID tests for employees before return to work after exhibiting symptoms. In this case, multiple employees had tested positive for COVID in the weeks leading up to Bolton’s diagnosis, however, the employer was not found liable. The Claimant did not meet the burden of proof where evidence was introduced indicating Claimant was not following the CDC guidelines in his personal life where he was gathering with family outside of his household, going out to lunch, and working for the fire department all while not wearing a mask.

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Peddicord Wharton Legal Updates are intended to provide information on current developments in legislation impacting our clients. Readers should not rely solely upon this information as legal advice. Peddicord Wharton attorneys would be pleased to answer any questions you may have about this update. ©2022 Peddicord Wharton. All Rights Reserved.