State News

Legal Update by Attorneys Alison Stewart and Jordan Gehlhaar

The Iowa Division of Workers’ Compensation recently released a decision assessing how settlement with the Second Injury Fund (SIF) affects an injured employee’s claim against their employer and its insurance carrier in Milbrandt v. R.R. Donnelly.

The SIF compensates injured employees who have proven a previous qualifying injury, a second compensable work injury, and permanent disability resulting from each. In effect, the current employer is responsible only for the portion of disability attributable to the injury occurring during their employ; SIF assumes responsibility for the remainder of total disability.

Claimant Nancy Milbrandt filed a petition alleging a work related cumulative injury to her left and right arms and hands as of November 26, 2019. In addition to the employer and insurance carrier, the petition stated a claim against the Second Injury Fund of Iowa. Prior to the arbitration hearing, the claimant entered into a compromise settlement agreement with SIF, which was approved by the Workers’ Compensation Commissioner.

The subject of the settlement included the November 26, 2019 injury occurring with the defendant employer. As such, the employer argued that once the settlement was approved, the Commissioner lacked jurisdiction over the case. Claimant argued that the settlement was a contract binding only the parties—her and the SIF—and the case against her employer should still proceed to hearing.

The Deputy Commissioner focused on the language of Iowa Code Section 85.35(9): “an approved compromise settlement shall constitute a final bar to any further rights arising under this chapter . . . regarding the subject matter of the compromise . . . .” The Iowa Supreme Court had previously interpreted this language broadly. Accordingly, a previous decision by the Commissioner found that as a matter of law, a settlement with the SIF operated to deprive the agency of jurisdiction, meaning a claimant cannot re-litigate the same injury against the employer that was the subject of the settlement. This is true even when the parties include language attempting to preserve further claims against other defendants.

Since the date of injury against the employer was part of the subject matter of the approved settlement with the SIF, Claimant Milbrandt had no further rights under the workers’ compensation code. Employers and their insurance carriers should be aware their liability may be affected if the SIF is a co-defendant. However, this holding may affect claimants’ willingness to enter into settlement negotiations.

Peddicord Wharton will continue to monitor case law on this issue.

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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.

Practical Advice in New Jersey Workers’ Compensation

Under N.J.A.C. 12:235-3.8, interrogatories are allowed in the following types of cases without motion (meaning, neither party is required to file a Motion for Leave to Serve Interrogatories with the Court): dependency cases (See N.J.A.C. 12:235-3.8(a)), re-opener cases (See N.J.A.C. 12:235-3.8(d)), and occupational exposure cases  (See N.J.A.C. 12:235-3.8(f); for sample occupational interrogatories, click here).

Pursuant to N.J.A.C. 12:235-3.8(g), interrogatories may be allowed in other cases, upon motion, for good cause shown. Examples of cases where a motion for interrogatories may be filed are COVID-19 cases, medical provider cases, or certain types of denied cases where further information is being sought by the Respondent due to a disputed issue in the claim.

Situations where Respondents may consider filing a Motion for Special Interrogatories are cases where there is a specific issue or dispute requiring further clarification and investigation. Special Interrogatories may be used to obtain critical information of a discovery or factual nature that either party needs to prove its case.

While interrogatories are only allowed without a Motion in dependency, re-opener, and occupational exposure cases, respondents can also file Motion for Leave for Special Interrogatories in other cases, and special interrogatories are under-utilized in New Jersey workers’ compensation. For a client and practitioner, one never wants to start trial without pinning down key facts that could make or break one’s case. Trial by surprise remains a risky endeavor. Practitioners should consider filing Motions for Leave to Serve Special Interrogatories in those cases where there is a factual dispute or issue worth investigating.

While most cases in New Jersey workers’ compensation involve traumatic accidents where interrogatories are not allowed without Motion (and granting of the Motion), consider a situation where the authorized treating physician notes that the injured worker had a skiing accident three years ago in Vermont. In this instance, Respondent should consider filing a Motion for Special Interrogatories seeking further, and specific information, from the injured worker about the prior out-of-state accident, including names and addresses of all treating physicians, the nature of the injury, etc.

Respondent may wish to investigate petitioner’s subsequent/ additional employment, and in that instance, a set of interrogatories could be served seeking information regarding a claimant’s second job, including job duties, earnings, and employment information.

Another example of where special interrogatories would be useful is a situation where there is a dispute over ownership and control of an area. In this instance, interrogatories could be served seeking to obtain deeds and/or tax records and other documents to demonstrate ownership and control, or lack of ownership or control.

In those cases with disputed coverage or policy issues, interrogatories could be served seeking policy documents, cancellation notices, and other documents regarding proper cancellation of coverage.

The ultimate goal with filing a Motion for Leave to Serve Special Interrogatories is to obtain a Court Order granting the Motion, and more importantly, having the Order provide that the requested answers to interrogatories be provided within a certain time frame, such as thirty, forty-five, or sixty days. Then, if the answers are not provided within that designated timeframe, Respondent can file an appropriate motion.  Parties and practitioners on both sides should be aware of how important interrogatories can be to centralize the issues.

Turning to those situations where answers to interrogatories are allowed without Motion, we first look at inquiries posed in dependency cases. These inquiries ask the alleged dependent to supply proof of dependency to the decedent, including the manner of relationship between the alleged dependent and decedent, as well as evidence that the decedent’s death was work related. These interrogatories also inquire as to the nature of any financial dependency the alleged dependent had with the decedent prior to the decedent’s passing. Dependency Claim Petitions and filing requirements are subject to N.J.S.A. 34:15-51, which require that a Dependency Claim Petition must be filed within two years of the decedent’s death.

In re-opener cases, inquiries are posed to petitioner regarding any treatment since the entry of the prior Award, including details regarding physicians and the nature of any treatment since the entry of the prior Award. Petitioners are asked to identify any subsequent employment held since the entry of the prior Award, including job duties at any new / subsequent positions. An inquiry is made regarding any new relevant accidents / injuries or claims and any new Awards or settlements. Essentially, these interrogatories are seeking information regarding any new injuries, incidents, or treatment since the entry of the prior Award. It is worth noting that any re-opener application must be filed within two years of the last date of payment made to petitioner, pursuant to N.J.S.A. 34:15-27. If the re-opener application is filed more than two years after the last date of payment or treatment date if treatment is rendered, Respondent should seek a dismissal of the matter pursuant to Section 27.

In occupational exposure cases, a standard set of respondent occupational interrogatories can be found on the NJ Department of Labor’s website, as noted above. In this practitioner’s opinion, the most important inquiry is Number 10: “Set forth the date and circumstances under which the petitioner became aware that the claimed injuries resulted from his employment”. Under N.J.S.A. 34:15-34, a petitioner in an occupational disease claim must file the petition within two years after the date on which the petitioner first knew the nature of the disability and its relation to the employment. For example, if petitioner files an occupational Claim Petition on January 1, 2022, and his response to Inquiry Number 10 states that he became aware of his claimed injuries and their alleged relationship to employment at any time prior to January 1, 2020, Respondent should utilize petitioner’s Answers to seek a dismissal of the claim pursuant to N.J.S.A. 34:15-34. Often, the Answer to Inquiry 10 is something along the lines of, “I became aware of my issues and their relationship to work upon consultation with my attorney”, but if a specific date is noted, Respondent should compare the date listed in Inquiry 10 to the date of the filing of the Claim Petition.

With the increase of COVID-19 cases, this practitioner has seen interrogatories being posed both on petitioners and respondents. Often the interrogatories served by petitioner asks respondent to identify whether petitioner was an essential worker. There is very little guidance on who is an essential employee, so this is actually a complex legal question as proximity to the public is not defined in the Essential Employee Law.

Practitioners should not limit interrogatories to those cases where interrogatories are allowed without Motion, and should consider filing Motions for Leave for Special Interrogatories in cases where further information is needed to flesh out disputed issues.

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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.

One recurring question which adjusters and practitioners are often asked is this:   in computing the workers’ compensation lien, does the employee get to reduce the employer’s lien by the amount the injured worker had to pay for costs and expenses in the third party action? Further, does the employee get to reduce the employer or carrier’s lien by the amount the injured worker paid in counsel fees in the workers’ compensation case?

Let’s deal with costs first.   Many third party law suits are complex and require a substantial outlay of funds for depositions, experts and investigation.  When it comes time to repay the workers’ compensation lien, some plaintiffs’ counsel will send the subrogation adjuster a ledger of all expenses paid in the third party case.  Sometimes those costs can amount to many thousands of dollars.

Nonetheless, N.J.S.A. 34:15-40 only allows a reduction in the employer’s lien for costs up to $750.  If the costs are only $300, then $300 is the reduction. But if the costs are well over $750, then the lien is only reduced by a capped amount of $750.   Before the 2007 amendments to N.J.S.A. 34:15-40, the cost cap was only $250!

What about counsel fees in the workers’ compensation case paid by the employee to his or her own attorney?  Let me provide a scenario to make this situation clearer.  Suppose Employer pays $150,000 in workers’ compensation benefits, consisting of $50,000 in medical and temporary disability benefits and eventually $100,000 in permanent partial disability benefits.  In New Jersey the petitioner’s attorney is entitled to a fee of 20% of the gross workers’ compensation award.  So on a $100,000 workers’ compensation award, the legal fee will be $20,000.  Who pays the $20,000 in petitioner’s counsel fee on a percentage award?  The answer is that the employer pays 60% of the injured worker’s legal fee and the injured worker pays 40% of that fee.  In the above scenario, that means that petitioner is paying her attorney $8,000 from her award and the employer or carrier in the workers’ compensation case is paying $12,000 toward petitioner’s attorney’s fee for a total of $20,000.

The third party case settles for $400,000 before the permanency aspect of the case settles.  The attorney in the third party sends a check to the employer for two thirds of $50,000 minus $750 for costs.  That takes care of the lien on the medical and temporary disability benefits.  The statutory costs have also been resolved. The permanency award settles next for $100,000.  Does the employer have a lien on $100,000 or on $92,000.  (Remember, the employee paid her lawyer $8,000 from the $100,000 compensation ward).  The employee may argue that she did not receive $100,000 in the workers’ compensation award and therefore should not have to pay back two thirds of $100,000.  Suppose the plaintiff’s attorney only offers to pay back two thirds of $92,000. Who is right here?

This issue was decided in 2021 in Panckeri v. Allentown Police Department, A-2015-19 (App. Div. March 2, 2021), reaffirmed, (App. Div. August 19, 2022).  While this is an unreported case, the case is useful because the Appellate Division answered this very question head on.  It affirmed the ruling of the Honorable Christopher B. Leitner, Judge of Compensation, who found that the permanency lien is based on the gross award in the compensation case.  So the employer gets back two thirds of $100,000, not two thirds of $92,000.  The Appellate Division said, “We further agree with the judge that had the Legislature intended to include the petitioner’s fees and costs in Section 40, it could have done so through the 2007 amendment or at any other time in the Act’s one-hundred-and-ten-year history.”

The Appellate Division made one other important point based on a prior case called Kuhnel.  It said the employer cannot lien what it paid toward the workers’ compensation counsel fee of petitioner.  In our example above, even though the employer paid $12,000 toward the injured workers’ counsel fee, the employer cannot add that $12,000 to its lien and seek repayment of $112,000 in our scenario above.  The employer’s lien is based on the gross permanency award, which was $100,000 in our scenario.  It is not reduced by what the injured worker had to pay her attorney nor increased by what the employer had to pay toward the legal fee of petitioner’s attorney.

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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.

Practical Advice in New Jersey Workers’ Compensation

A reader reached out asking about the terms and abbreviations often used in the workers’ compensation practice. Below is a glossary of these abbreviations and phrases often used (listed generally in the order in which they may appear as a case progresses).

“CP” – Claim Petition:  This pleading is filed by the injured worker in workers’ compensation court when benefits (most often, permanency) are being claimed by the injured worker.

“MPC” – Medical Provider Claim Petition:  In New Jersey, medical providers have the right to file their own petitions.

“FRI/FROI” – First Report of Injury:  This form is completed by the employer after an accident. It generally outlines how the accident occurred and the injured workers’ injury(ies). This form gets filed with the Division. (For suggestions regarding what types of inquiries and items may be incorporated into an FRI/FROI and could be asked of the injured worker, please contact the undersigned at mburk@capehart.com or John H. Geaney, Esq. at jgeaney@capehart.com.)

“IW” – Injured Worker                      

“TTD” – Temporary Disability Benefits:  For more information regarding TTD issues, please read our prior blog post entitled, Advice To Employers In Dealing With Complex TTD Scenarios.

“TDB” – Temporary Disability Benefits:  These are benefits issued by the State of New Jersey. This is also an abbreviation for “New Jersey Temporary Disability Benefits.” In certain circumstances, an employee may receive State TDB benefits instead of TTD from the employer. In these cases, a lien will likely be filed by the Division of Temporary Disability Insurance in the workers’ compensation case.

“ROC” – Rate of Compensation:  This refers to petitioner’s rate of TTD and the amount which is paid weekly while petitioner is out of work and receiving TTD benefits.

“RTW” – Return to Work:  This is often used in conjunction with TTD (discussed above).

“LD” – Light Duty:  Practitioners may also see the terms “mod duty,” “MD” or “modified duty.” “AD” – Alternative Duty may be used as well.

“FD” – Full Duty

“FCE” – Functional Capacity Evaluation:  This may also be referred to as a fitness for duty examination. An FCE may be ordered by a treating physician to better assess return to work status and return to work potential/abilities.

“MA” – Medical Authorization:  An MA signed by the injured worker is needed in order to obtain medical records from prior physicians during respondent’s investigation.

“ISO”:  Refers to a New Jersey-based national company that searches for prior claims information. This used to be called a “CIB”.

“NCM” – Nurse Case Manager:  In certain circumstances, a nurse case manager may be assigned to an injured worker’s case to assist with medical scheduling, appointments, exams, and treatment.

“CMS” – Center for Medicare Services:  Medicare’s interests must be considered and protected in workers’ compensation claims and settlements.

“MSA” – Medicare Set Aside:  An MSA must be obtained in certain types of settlements if the employee is a Medicare recipient or Medicare-eligible.

“CPL” – Conditional Payment Lien:  MedicareCPL information must be obtained in settlements if the employee is a Medicare recipient or Medicare-eligible.

“HMS” – Health Management Systems:  This is the Medicaid counter-part to Medicare’s CMS.

“Rogs” or “Roggs” – Interrogatories:  Interrogatories may be served seeking additional information in occupational exposure, re-opener, dependency, and certain other types of cases.

“MMT” – Motion for Medical and/or Temporary Disability Benefits:  This may be filed by an injured worker during a case if he is seeking additional TTD or treatment.

“RMI” – Request for Medical Information OR “DMI” – Demand for Medical Information:  When one party seeks medical discovery from another party.

“IME” – Independent Medical Evaluation:  This generally refers to an exam by either petitioner or respondent where a physician will address causation and treatment issues (often during treatment) or address causation and permanency issues (once treatment has concluded).

“PPD” – Permanent Partial Disability:  These are benefits which are awarded to a petitioner at the end of the case depending on the amount of permanency petitioner is able to demonstrate. This may also see this abbreviated as “perm.”

“OAS” – Order Approving Settlement:  This is one of two ways a case may settle. In Orders Approving Settlement, the petitioner’s case resolves for a specific percentage of disability and the petitioner retains the right to reopen for future benefits. Corresponding with the level of disability, the percentage award is paid over a certain number of weeks.

Readers with questions regarding workers’ compensation terms and phrases, or general questions about practical guidance and workers’ compensation tips may contact the undersigned at mburk@capehart.com.

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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.

Fresh on the heels of COVID-19, reports of monkeypox outbreaks in the United States are starting to get the attention of employers.  Monkeypox is a rare disease caused by infection with the monkeypox virus. Monkeypox symptoms are like smallpox symptoms, but milder and rarely fatal.

Monkeypox will not rise to the level of a pandemic because it does not transmit as quickly as the coronavirus and stopping it will not require dramatic interventions like the COVID-19 lockdowns.

The White House recently declared the virus a public health emergency with over 7,000 confirmed cases in the U.S.  A county in California declared monkeypox a public health emergency earlier this week with 59 probable/confirmed cases within that county.

A news release from the Alabama Department of Public Health said as of August 8, 2022, there were 19 cases of monkeypox in Alabama. 

As with COVID-19, it is conceivable that workers’ compensation claims will be made for monkeypox.  For the same reasons that COVID-19 WC claims were denied in Alabama, claims for monkeypox will also likely be denied.

In Alabama, an occupational disease is defined as “a disease arising out of and in the course of employment… which is due to hazards in excess of those ordinarily incident to employment in general and is peculiar to the occupation in which the employee is engaged but without regard to negligence or fault, if any, of the employer.”

Therefore, for the monkeypox virus to be considered compensable in Alabama, the employee would have to be able to prove that contracting it was due to hazards in excess of those ordinarily incident to employment in general and that it is peculiar to the employee’s occupation. 

It will be difficult for an employee to show that contracting the virus resulted from a risk of employment.  The reason being that, like the flu, you face the same sort of risk when you go home or when you walk about in public.  Some state laws have presumptions for health care workers or first responders.  Alabama is not one of those states.  Without a statutory presumption in place, it would be nearly impossible to prove causation. 

About the Author

This blog submission was prepared by Mike Fish, an attorney with Fish Nelson & Holden, LLC, a law firm dedicated to representing self-insured employers, insurance carriers, and third-party administrators in all matters related to workers’ compensation. Fish Nelson & Holden is a member of the National Workers’ Compensation Defense Network. If you have any questions about this submission or Alabama workers’ compensation in general, please contact Fish by e-mailing him at mfish@fishnelson.com or by calling him directly at 205-332-1448.

Attorney Alison Stewart has been appointed to serve a second term on the Workers’ Compensation Section Council of the Iowa State Bar Association (ISBA) for 2022-2023. The ISBA is a vibrant organization due in large part to its volunteers. This will be Alison’s second term of service on the Council.

The purpose of this ISBA Section is to provide an organization in which members who have an interest in workers' compensation can meet for discussion and exchange of ideas; to provide an opportunity for discussion and exchange of ideas leading to improvement of the abilities of its members to practice in this field; and to assist the Worker's Compensation Commissioner in establishing rules and procedures for the more certain and expeditious disposition of matters coming before the Commissioner.

Written by: Matt Marriott

Over the last year, we have seen an uptick in claimant attorneys requesting a second opinion on treatment options under N.C. Gen. Stat. § 97-25(b) and that defendants 1) issue a prepayment for that visit and 2) pay beyond the NCIC fee schedule amount for the visit.

Claimant attorneys argue there are not any medical providers in North Carolina who will accept payment of just the fee schedule amount for second opinion visits and do not require any prepayment.  Therefore, they contend they are being deprived of their right to a second opinion on treatment options under N.C. Gen. Stat. 97-25(b) if defendants do not pay a prepayment as well as more than the fee schedule amount for the visit.  Additionally, many attempt to argue that the NCIC Fee Schedule does not specifically lay out a billing code for second opinion on treatment options visits under N.C. Gen. Stat. 97-25(b).

While there is no binding case law from the NC Court of Appeals or Supreme Court on these issues, the Full Commission issued a decision in May 2022 that provides a comprehensive analysis explaining:

• Defendants do not need to pay any kind of prepayment for a second opinion under N.C. Gen. Stat. 97-25(b),
• Defendants do not need to pay beyond the fee schedule for that visit, and
• The fee schedule amount for a N.C. Gen. Stat. 97-25(b) second opinion is $301.23.

Commissioners Taylor, Phillips, and Goodman explained in Wyatt v. The Golden Mint, Inc., I.C. No. 20-038523 (May 2022), that N.C. Gen. Stat. § 97-90 continues to prevent medical providers from forcing defendants to pay any kind of prepayment for a visit.  The Commission specifically stated:

The charges assessed by healthcare providers for medical compensation under the Act are subject to the approval of the Commission.  N.C. Gen. Stat. § 97-90(a) (2021).  No “physician or hospital or other medical facilities shall be entitled to collect fees from an employer or insurance carrier until he has made the reports required by the Commission in connection with the case.”  Id.  “[A] request for a specific prior approval to charge shall be submitted to the Commission for each such fee or charge.”  Id.  Any health care provider who willfully or intentionally undertakes to submit charges for health care that was not furnished is subject to an administrative penalty, assessed by the Commission, not to exceed ten thousand dollars.  N.C. Gen. Stat. § 97-88.3(a)(1) (2021).  The clear intent of N.C. Gen. Stat. §§ 97-26 and 97-90 “is to assure that medical and related expenses incurred by an injured employee for which the employer or his insurance carrier is to be liable shall be kept within reasonable and appropriate limits, and the responsibility for the enforcement of these limits rests upon the Industrial Commission.”  Morse v. Curtis, 20 N.C. App. 96, 99, 200 S.E.2d 832, 834 (1973), cert denied, 285, N.C. 86, 203 S.E.2d 58 (1974). Wyatt at 9-10.

In addition to confirming in Wyatt that N.C. Gen. Stat. § 97-90 prevents defendants from being compelled to pay a prepayment for a second opinion, the Commission also confirmed N.C. Gen. Stat. § 97-26 prevents defendants from having to pay beyond the fee schedule for a N.C. Gen. Stat. § 97-25(b) second opinion evaluation on treatment options.  The Commission held:

N.C. Gen. Stat. § 97-26(a) requires the Commission to adopt by rule a schedule of maximum fees for medical compensation.  The Commission, pursuant to that mandate and in compliance with the North Carolina Administrative Procedure Act, 150B et seq., has adopted 11 NCAC 23 Subchapter J Fees for Medical Compensation.  11 NCAC 23J .102(b)(1) sets the maximum reimbursement rate for professional services for evaluation & management at 140 percent of the Medicare base amount.  While the Act also contemplates instances in which the fee schedule does not apply to a particular type of service and in those instances, the maximum reimbursement to which the provider is entitled is “the usual, customary, and reasonable charge for the service or treatment rendered,” this option is only available when the Fee Schedule does not apply.  See N.C. Gen. Stat. § 97-26(c) (2021).  The Commission, in its discretion, takes judicial notice of American Medical Association, Current Procedural Terminology (CPT®) (4th ed. 2019) and specifically the full description of CPT code 99456.  Id. at 43.  Pursuant to the North Carolina Rules of Evidence, the Commission concludes that this information is capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.  See N.C. Gen. Stat. §8C-1, Rule 201(b) and (c).  In this instance, the fee schedule’s enumeration of services for “evaluation & management” and the CPT code 99456 description in its entirety contemplates examination by a non-treating physician with a medical history, exam with a diagnosis, assessment of capabilities and impairment, “development of future medical treatment plan; and completion of necessary documentation . . . .”  A 97-25(b) second opinion examination encompasses an extensive medical history, a physical exam, diagnosis, assessment of capabilities and impairment, and development of future medical treatment plan.  Thus, the Medical Fee Schedule and specifically CPT code 99456 contemplate and encompass the professional services involved in a second opinion examination. Wyatt at 8-9.

After verifying that defendants do not have to pay beyond the fee schedule for a second opinion evaluation on treatment options under N.C. Gen. Stat. § 97-25(b), the Commission established that $301.23 was the correct amount under the fee schedule for a second opinion under N.C. Gen. Stat. § 97-25(b), as laid out in CPT code 99456.

Practice Pointers and Takeaways

A decision from the Full Commission is not binding case law in the same way an opinion from the NC Court of Appeals or Supreme Court would be.  With that said, Wyatt establishes that the Full Commission sides with defendants about not being responsible for any kind of prepayment when a plaintiff requests a N.C. Gen. Stat. § 97-25(b) second opinion evaluation on treatment options, and about not being responsible for payment beyond the fee schedule for such a visit.

While this issue remains a hot topic and could evolve in the future once the appellate courts address the issue, for now, defendants are within their rights to not issue any prepayment or pay beyond the fee schedule when a plaintiff attorney is demanding that those conditions be met.

Finally, based on Wyatt, CPT code 99456 is the correct billing code to apply to a second opinion evaluation under N.C. Gen. Stat. § 97-25(b), and the correct fee schedule amount is $301.23 for such a visit.

While litigation is by nature adversarial, reaching a settlement agreement can be one of the most rewarding moments. However, several recent decisions in the Nebraska Workers’ Compensation Court have been a gentle reminder that reaching a dollar figure in terms of a settlement agreement is only the first step of an entire process, a process which deserves equal attention by the defense attorney.

There are essentially two methods by which the parties can memorialize a full and final settlement: a Release of Liability or a Lump Sum Settlement. Regardless of which filing is applicable, both must be filed with, and approved by the Court. Until the Court enters an order dismissing the claim with prejudice, settlement has not been perfected. In several recent cases, the Court has addressed disputes over the settlement process. This article explores those decisions.

(1) Pay Settlements Timely

Pursuant to Neb. Rev. Stat. § 48-139(4), once the Court enters an order of dismissal with prejudice, the defendant must pay the settlement value within thirty days of the date the Release of Liability was filed with the Court. Failure to pay the settlement within 30 days results in a 50% penalty on the total amount owed. By way of example, if a defendant fails to pay a $50,000.00 settlement, the employee is entitled to an additional penalty of $25,000.00. The same 50% penalty applies to lump sum settlements which are not paid within 30 days of the date the Court enters an Order approving the same. Neb. Rev. Stat. § 48-125(3).

Every year, the Court addresses a handful of claims where the defendant fails to pay the settlement within the allotted 30 day time period. In February of 2021, Judge Hoffert awarded a penalty for a staggering $57,500.00 when the employer paid a settlement 40 days after a Release of Liability had been filed. The employer attempted to excuse its tardiness by saying a “series of unfortunate circumstances,” led to the late payment including the insurer inadvertently sending the check to the wrong firm, the attorney who received the check had COVID and was in quarantine, and the check again being sent to the wrong person from there. While sympathetic, Judge Hoffert highlighted that the law is mandatory in nature, and he had no discretion in the decision.

Because the law is not flexible, several recent cases have questioned how exactly to calculate thirty days. In February of 2022, Judge Fridrich had to answer that very question when presented with the argument that a settlement check, albeit received by the employee on the 32nd day, was still timely because of Martin Luther King Day. Citing Herrington v. P.R. Ventures, LLC, 279 Neb. 754, 781 N.W.2d 196 (2010), Judge Fridrich highlighted that if the 30th day is either a Sunday or a holiday for which the Compensation Court is closed, then the employer must pay the injured worker the next day which is not either a Sunday or a day the Court is closed. In the case at bar, the 30th day was a Sunday and the 31st day was a holiday (Martin Luther King Day). Therefore, despite the fact the payment was received on the 32nd day, the payment was not late, and no penalty was awarded.

Judge Stine was also recently asked to answer when to start counting the 30 days. As it frequently happens, an employee will sign a Release of Liability several days before the document is actually filed with the Court. In June of 2022, an employee attempted to argue that the 30 days to pay a settlement runs from the date the employee signed the release rather than the date it was filed with the Court. Quickly overruling that argument, Judge Stine highlighted that the 30 days only runs when the Release is filed with the Court.

(2) Scope of Settlements

While the vast majority of settlements in Nebraska are for “full and final settlements” meaning the employee waives all of his or her rights to benefits, there are times when the employee only waives a portion of his or her claim. For example, an employee may waive their future indemnity benefits but will keep his or her right to future medical care open. In cases where less than the entire claim is going to be resolved, it’s important to pay careful attention to ensure the settlement documents details the scope of benefits being waived.

On one end of the spectrum, in March of 2022, an employee filed a Motion asking the Court to enforce the settlement demand and require the defendant to pay certain outstanding medical bills and vocational rehabilitation. Contrary to that argument, Judge Fridrich highlighted that nowhere in the settlement agreements were those terms exempted (meaning, they were forever waived when the Court approved the settlement documents).

Contrast this with Judge Fridrich’s decision in a May of 2019 when he held that, by leaving open the employee’s right to future medical care, the employee was entitled to any and all treatment which resulted by virtue of the accepted back injury.

(3) Settlements Aren’t Perfected Until Filed

It sometimes happens that the parties agree to a settlement figure, only for one of the parties to thereafter change his or her mind. At least once a year, the Court is asked to enforce a settlement agreement that had not yet been approved by the Court.

In July of 2019, Judge Block was asked to enforce a settlement agreement against a defendant who, for whatever reason, decided to withdraw its agreement to settlement. The evidence showed that neither a Lump Sum Settlement Application nor Release was signed by the parties. Judge Block very clearly stated the Court does not have the authority to enforce a settlement agreement unless the same had been approved by the Court.

Judge Martin made the exact same holding in the May of 2021 case of Brayman v. Packaging Corporation of Amercia. In that case, no settlement documents had been filed with the Court. Judge Martin wrote, “While the Court understands plaintiff’s frustration by defendant’s action, or rather inaction, what she is seeking is specific performance of the settlement agreement. Specific performance is an equitable remedy. The Nebraska Workers’ Compensation Court does not have equity jurisdiction… Therefore, the Court has no alternative but to deny plaintiff’s Motion.”

These cases serve as a reminder that agreeing to a settlement figure isn’t the ending step. Until the correct documents are filed and approved by the Court, a settlement is not yet final. If you have questions about a settlement issue, 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.

On April 28, 2022 the West Virginia Supreme Court of Appeals released its opinion in James A. Moore, Jr. v. ICG Tygart Valley, LLC creating a new rebuttable presumption for claimants in workers’ compensation claims involving the compensability of preexisting disease or injury.

The Court issued a new Syllabus Point in this reported decision: “A claimant’s disability will be presumed to have resulted from the compensable injury if: (1) before the injury, the claimant’s preexisting disease or condition was asymptomatic, and (2) following the injury, the symptoms of the disabling disease or condition appeared and continuously manifested themselves afterwards. There still must be sufficient medical evidence to show a causal relationship between the compensable injury and the disability, or the nature of the accident, combined with the other facts of the case, raises a natural inference of causation. This presumption is not conclusive; it may be rebutted by the employer.”

In Moore, the claimant was a shuttle car operator in the employer’s coal mine.  In November 2016, he was operating the shuttle car when the brakes locked up and he was thrown upward, hitting his head on the canopy of the car.  The claim was held compensable for right shoulder sprain, upper back strain, and neck pain.  He was initially treated conservatively for his neck pain and started physical therapy.

The next month, December 2016, the claimant had an MRI of the neck which showed degenerative disc disease (spondylosis) and disc abnormalities in his cervical spine, but he had no history of neck injuries or cervical radiculopathy.

In January 2017, the claimant’s treating physician diagnosed him with cervical sprain and cervical radicular pain.  The physician opined the injury exacerbated the preexisting cervical degenerative disc disease causing new symptoms, but she believed the condition was not compensable because there was no change in pathology.

In February and March 2017, the claimant continued to complain of constant neck pain with radiation to the right arm and right arm numbness.

In April 2017, the claimant saw a pain management physician who diagnosed C6 cervical radiculopathy.  The claimant received treatment for that condition through 2017 and into 2018.

In October 2017, the claimant’s treating physician said he was at maximum medical improvement (“MMI”) for neck pain so the claim was closed for temporary total disability (“TTD”) benefits and a 0% permanent partial disability (“PPD”) award was entered.

In March 2018, the claimant’s pain management physician wrote a letter stating the cervical radiculopathy was directly related to the compensable injury.  He said it was probable that the cervical radiculopathy would have occurred even in the absence of degenerative disc disease.

In May 2018, the claimant was evaluated by an orthopedic surgeon who assessed C6 cervical radiculopathy, and he performed an anterior cervical discectomy and fusion at C5-6.  The surgeon completed a diagnosis update form asking that C5-6 spondylosis with C6 radiculopathy (diagnosis code M47.22) be added as a compensable condition of the claim.[1]

The request was denied.

Dr. Guberman performed an independent medical examination (“IME”) in November 2018 and diagnosed chronic post-traumatic strain of the c spine with C6 cervical radiculopathy (diagnosis code M54.12).  He stated that the claimant’s cervical radicular symptoms and surgery were directly related to the compensable injury.

The West Virginia Workers’ Compensation Office of Judges of Judges (“OOJ”) affirmed the claim administrator’s denial of the request to add C5-6 spondylosis with C6 radiculopathy as a compensable condition.  The West Virginia Workers’ Compensation Board of Review affirmed.

The West Virginia Supreme Court of Appeals noted that the claimant had asked the OOJ to add cervical radiculopathy as a compensable diagnosis.  The Court noted that the OOJ had the statutory authority to rule on the request and modify the order of the claims administrator pursuant to W. Va. Code § 23-5-9(d)[2], but the OOJ abdicated its responsibility and defaulted to the diagnostic code listed on the form ignoring the reference to the physician’s notes that supported the claimant’s request.

The Court found that the claimant’s work injury aggravated his degenerative disc disease, which was previously asymptomatic, causing cervical radiculopathy.  The Court held that a claimant’s disability will be presumed to have resulted from the compensable injury if: (1) before the injury, the claimant’s preexisting disease or condition was asymptomatic, and (2) following the injury, the symptoms of the disabling disease or condition appeared and continuously manifested themselves afterwards. There still must be sufficient medical evidence to show a causal relationship between the compensable injury and the disability, or the nature of the accident, combined with the other facts of the case, raises a natural inference of causation. This presumption is not conclusive; it may be rebutted by the employer.

In the Moore case, the Court found the evidence showed that the claimant’s degenerative disc disease was asymptomatic, and that the compensable injury caused him to develop cervical radiculopathy, a new distinct injury.  The Court also noted that three (3) physicians opined the cervical radiculopathy was causally connected to the compensable injury.  Also, the claimant’s own treating physician stated that the injury triggered the condition leading to cervical radicular pain.

As a result, the Court reversed and remanded the case to add C6 cervical radiculopathy (diagnosis code M54.12), reopen TTD, and determine whether Claimant was entitled to a PPD award.

Although the Moore case creates new law, it does not significantly change the way a claim should be handled.

West Virginia claimants will have to meet certain threshold showings before the new rebuttable presumption is invoked.  Now, a claimant is going to have to show that before the injury, the claimant’s preexisting disease or condition was asymptomatic and that, following the compensable injury, the symptoms or disability first manifested and continuously manifested.  The Court distinguished the situation of when the claimant had been chronically symptomatic from the situation of new onset of radiculopathy that had not manifested previously. The Court also distinguished between the condition/diagnosis vs. the disability.  The condition/diagnosis of spondylosis was not compensable, it was just the disability/radiculopathy that was compensable.

This case raises several questions and issues that must be considered in the future.  First, the definition of “continuously” will likely be litigated as the Court did not define it.  What is “continuously?”  Is it 24 hours a day, 7 days a week?  Is it every week?  Does it mean the new symptoms must be noted at every physician appointment, or will a medical record notation once every few months suffice? 

Second, how soon must the new symptoms appear after the injury in order to be compensable?  Does the onset have to be simultaneous with the injury?  What if the new disability does not arise until a week later?  A month later?  The Moore case did not specify whether the onset of the claimant’s radiculopathy was simultaneous with the initial injury.  If it was simultaneous, there is a risk for future cases that a delayed onset could expand the Court’s holding.  Part of the path forward for defense strategies is to ensure the invocation of the new rebuttable presumption does not neglect the required medical showing of a causal relationship between the compensable injury and the disability.

In the post-Moore world of workers’ compensation, it will be as important as ever to look for any prior symptoms for degenerative conditions when considering the compensability of radiculopathy after a strain.  Claimants may be able to establish that their preexisting degenerative conditions were asymptomatic by testifying they never had previously complained about those symptoms.  This is why it is imperative to collect claimants’ medical records (both current and past) after receiving a WC-1.  Not only do medical records often show claimants had pre-existing degenerative changes, but they also often show treatment for similar symptoms that claimants’ claim only manifested after the compensable injury

If a claimant requests a new condition be added as a compensable condition and the claimant is able to meet (1) and (2) of the rebuttable presumption but there is concern about medical causation, withhold a decision on compensability and send the claimant for a medical evaluation or obtain a medical record review.  It is important to remember the Moore decision does NOT prevent the employer from obtaining an expert opinion that the incident described could not have caused the claimant’s further disability.  Obtain a physician opinion to show there is no medical evidence of a causal relationship between the compensable injury and the disability.

If a claimant requests to add “spondylosis with radiculopathy” and you know that spondylosis is a degenerative condition but it was asymptomatic and the radiculopathy only began after the work injury, and medical causation is present, then it will be helpful to tailor the compensability decision to state that spondylosis is a degenerative condition that preexisted the compensable injury and the only accepted compensable condition is radiculopathy.  When future claims on point with the Moore decision enter litigation, practitioners must argue that the degenerative condition cannot be added to the claim, just the new condition.

By:

Charity Lawrence

304-720-4056

clawrence@spilmanlaw.com

Dill Battle

304-340-3823

dbattle@spilmanlaw.com

Spilman Thomas & Battle, PLLC

300 Kanawha Blvd, E.

Charleston, WV 25301

Spilman Thomas & Battle, PLLC is the West Virginia member of the National Workers' Compensation Defense Network. The NWCDN is a nationwide network of defense firms specializing in protecting employers and carriers in workers' compensation claims and regulatory matters. For more information, visit www.nwcdn.com.