There are surprisingly few appellate division cases focusing on the employer’s obligation to provide continuing opioid treatment.  Martin v. Newark Public Schools, A-0338-18T4 (App. Div. October 4, 2019) is therefore one case practitioners should study closely. 

The case involved a reopener of an award for Samuel Martin of 15% permanent partial disability for aggravation of a pre-existing lumbar disc herniation and bulging disc.  Several years after the award was entered, respondent stopped paying for ongoing Percocet prescriptions.  Petitioner then filed a motion for medical benefits seeking reimbursement for continued prescription opioid medication that he was paying for himself.

The initial award occurred in November 2014. The treating physician, Dr. Patricio Grob, oversaw petitioner’s treatment from 2011 to 2017.  Petitioner was using opioids for much of this time.  In a note from his June 2016 examination of petitioner, Dr. Grob said that Percocet was controlling Mr. Martin’s pain poorly. He added that “prolonged narcotic use would not manage his radicular complaints … and can complicate recovery.”   Dr. Grob did suggest surgery, but petitioner declined surgery due to an unrelated blood condition which might cause complications. 

In Dr. Grob’s final medical note dated September 13, 2017, he wrote, “I would recommend an attempt to wean from Percocet and if we are unsuccessful, Martin would then need to consider having a discussion with a pain management specialist to see if there is any palliative standpoint that may be needed from a chronic management of Martin’s discomfort.”  It was the opinion of Dr. Grob that Percocet was not relieving Martin’s condition and would never improve it. 

On January 8, 2018, Martin saw Dr. Harris Bram, a pain medicine physician, for a one-time evaluation in support of petitioner’s motion for medical benefits.  Dr. Bram noted that petitioner’s MRI showed disc desiccation at L4-5 and L5-S1, and a disc herniation at L5-S1.  Dr. Bram noted that petitioner self-reported that Percocet abated his pain by about 60% and that he was more active on the medication.  However, Dr. Bram also reviewed petitioner’s history and noted that petitioner reported his Percocet provided only “small pain relief.”

Dr. Bram found only a few positive physical findings on physical examination.  Martin’s lower extremities were neurologically intact and his gait was normal.  Nonetheless, Dr. Bram found petitioner had low back pain, lumbar radiculopathy, and sacroiliitis.  He said “it was reasonable that Martin be on opioid medication on a long term basis for his pain.  I thought that was reasonable for him.”

The Judge of Compensation found that Dr. Grob was more persuasive than Dr. Bram, who was a one-time evaluator. The Judge commented that Dr. Bram “did not provide any medical evidence that such treatment will permit the petitioner to function better.” The Judge also found no evidence that continued opioid medication would relieve Martin’s pain.

Petitioner appealed and argued that the Judge misapplied the standard governing an application for palliative care.  The Appellate Division first noted that treatment is compensable if competent medical testimony shows that it is “reasonably necessary to cure or relieve the effects of the injury.” Hanrahan v. Twp. of Sparta, 284 N.J. Super. 327 (App. Div. 1995). The Court added that the Hanrahan case required that the treatment would “probably relieve petitioner’s symptoms and thereby improve his ability to function.”  The Court finally reflected that the Hanrahan decision concluded that there may be a point at which “the pain or disability experienced by the worker is insufficient to warrant the expense of active treatment.” Hanrahan at p. 336.

The Appellate Division suggested that Dr. Grob was in a much better position to opine on reasonable and necessary treatment in this case because he had treated petitioner for six years and had concluded that Martin’s pain had not been alleviated with medication or therapy. Petitioner argued that Dr. Grob had referred petitioner for pain management. The Court disagreed, “It was Dr. Grob’s medical opinion that if petitioner was unsuccessful in weaning himself from prescription opioid medication, Martin ‘would then need to consider having a discussion with a pain management specialist.’”  The point the Court was making was that the referral would only be needed if petitioner could not wean himself off opioid medication.

The Appellate Court was not impressed with the testimony of Dr. Bram because there were few objective physical findings on examination and no testimony that continued opioid use would reduce Martin’s pain symptoms and return him to better function.  The Court did not believe it was sufficient to order continued opioid medication with a mere assertion by Dr. Bram that continued opioid use was “reasonable.”

One other side issue in this case is worth noting as well.  Shortly before Dr. Grob was scheduled to testify at trial, petitioner’s counsel sought an opportunity to interview Dr. Grob ex parte.  Dr. Grob was not returning phone calls from petitioner’s counsel about a meeting.  The Judge of Compensation allowed the interview but only if respondent’s counsel was present since respondent’s counsel had made clear that Dr. Grob would be his witness in the motion trial.  The Judge of Compensation denied the request for an ex parte interview without respondent’s counsel.  Petitioner’s counsel argued that  his client had a patient-physician privilege and therefore he should have the right to an ex parte interview.

The Appellate Division found that the Judge of Compensation exercised proper discretion in requiring that both counsel be present for the interview.  This ruling is significant because it is the appellate case in workers’ compensation that comments on such an issue.

This case is very interesting for a number of reasons.  Paying for opioid medications – even after awards are entered – occurs with greater frequency in the last decade.   There seems to be a great deal of disagreement on when such continued opioid use is required past the point of MMI.  This case suggests a very practical solution:  there must be proof that the opioid medications are providing curative relief and proof that the continued use of opioids is improving the function of the injured worker.  This emphasis on function comes from the Hanrahan case.  In this case the surgeon made clear that opioid use would not improve function, would not relieve pain and might even create more complications.   The problem in this case was that petitioner could not present proof of improvement of function caused by continued opioid use over the many years the petitioner had been on Percocet.

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

The New Jersey workers’ compensation system has one glaring drawback for employers, namely the absence of any formal discovery in traumatic injury cases.  There are no standard interrogatories in traumatic claims and no depositions.   The consequence of this is that claims sometimes get passed through workers’ compensation that really involve long-standing and preexisting conditions which no one asked the worker about.   There are many cases where preexisting conditions that may have been highly relevant are discovered only in the final IME for permanency long after surgery has taken place.  The defense IME physician will often question causation at this point, but it is too late to recover payments made by that time.

What should adjusters and treating physicians ask about when new claims arise?  There are numerous areas of inquiry that are important, but this blog will focus on only five main areas.  Before delving into past medical and life history, remember that knowing the mechanism of injury is the starting point in every case.  Best practice is to have the injured worker write down in his or her own words how the injury occurred and where the pain is located.  Once that is done, we move on to the past medical history.  Certainly in all states, particularly densely populated states like New Jersey, an important question is about past motor vehicle accidents.  If the answer is that the worker has been involved in prior motor vehicle accidents, this should be narrowed down to accidents which led to treatment along with the names of the treating physicians so that the adjuster or defense counsel can take steps to obtain prior records.  Yes, ISO reports are helpful but there are many cases where the ISO report does not reference a prior motor vehicle accident that the employee talks about.  Remember that the focus should not be just on prior car accidents but on prior accidents in general, such as slip and fall injuries, sports injuries and the like. 

Another critical area to inquire about for spine and shoulder cases concerns prior chiropractic history.  Why is this important?  Because prior chiropractic treatment records will often bear directly on any claim involving the shoulders or spine.  The records themselves often reference preexisting injuries, prior x-rays and prior MRI scans.  This information may be from many years ago or may be fairly recent.  If it is from many years ago, the information may still help the employer obtain credits for preexisting disability under N.J.S.A 34:15-12(d).  That may mean a cost savings for employers.  If the prior chiropractic treatment was close in time to the accident, the records may raise causation issues that may result a denial of the case or a Section 20 settlement.

That leads to our third important area of inquiry:  prior x-rays, prior MRIs, prior CT scans, and prior EMGs.  These are the studies that Judges of Compensation must focus on because the emphasis in New Jersey, when it comes to permanency, is on “objective medical evidence.”  All of these studies are considered to be objective evidence.  Employers are often surprised that their treating doctors do not ask specifically about these prior studies, but experienced workers’ compensation physicians will routinely ask about prior studies.   Defense counsel can write to opposing counsel and ask about prior studies and scans, yet there is no formal rule in New Jersey for exchange of such information.  That means that adjusters who do initial interviews are often in the best position to ask these questions, and initial treating physicians should also be asking questions along these lines. 

Prior and current hobbies and recreational activities are paramount.  Consider, for example, a worker who reports that many years of standing and lifting at work caused severe knee degeneration leading to a need for bilateral knee replacements.  As we know, total knee replacement surgery is performed because of a painful bone-on-bone condition that takes years to develop.  Yet seldom does one see specific questions about long-distance running, jogging or martial arts in the medical records.  These are activities that can cause or contribute to knee problems. 

Last but not least in the top five areas of inquiry (there are many more areas of importance, of course) are second jobs and other employment involving physical activities.  Many New Jersey residents have second jobs.  The state is an expensive place to live in, and a surprisingly large percentage of workers has secondary employment.  Many police officers and firefighters have second jobs because they have shift work with several days off in a row.   If a worker files a claim for carpal tunnel syndrome from occasional typing and answering phones at work, the adjuster and treating doctor should be asking about typing activities in any other job, Facebook and social media keyboard activities, and certainly part-time jobs such as working as a deli clerk or playing music professionally.    

Many years ago this practitioner had a bewildering case in which a worker with a sedentary job filed for a hernia claim from some minor physical effort at work.  The employer did not want to accept the traumatic claim and subsequent surgery because the accident seemed so minor.  The case went to trial.  In the course of testimony, the worker admitted to having a second job which he conceded was very physical: namely, tree climbing for 20 hours per week.  He admitted to having abdominal pain while performing this activity.  No one knows anything about this second job!  Why? Because the New Jersey compensation system does not have formal discovery.  This puts employers at a huge disadvantage.   The lesson is that sometimes the second job is much more physical than the full-time job for which the claim has been filed, but you won’t know about the second job if no one asks.

A recorded statement taken by an adjuster at the start of the case is invaluable to defense counsel, as are employee accident forms filled out by injured workers and detailed medical histories obtained by occupational and treating physicians.  We generally know what happened after the work accident, so there must be some time spent on taking a history of the injured worker’s prior injuries, jobs and recreational activities.  Without this information employers are often at a loss to make an intelligent decision on whether to accept or deny a case.  Causation is the threshold issue in workers’ compensation:  if it is not a work-related condition, the case should not be going through workers’ compensation.

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

Employers are responsible for “accidents arising out of employment” under most state workers’ compensation laws.  What does this language really mean?  The easiest way to interpret this language is to consider whether the accident has a genuine connection to work or just happens to occur at work.

Take for example someone who is sitting at work talking to a colleague about a work matter when suddenly her jaw locks, causing severe pain and leading to treatment.  Would this be a work accident covered under workers’ compensation? It happened at work, yes, but what is the connection to work? The answer is that there is no bona fide connection to work activities.  Talking is something we do all day and does not amount to an accident.  If you consider the same scenario to have happened at home, where a husband is speaking to his wife when his jaw locks, one would certainly not call this a “home accident.”  Just as the home did not cause this to occur, neither would work be the cause of such an incident.  Some events just happen to occur at home or at work because we spend most of our time in these two locations.  These kinds of events could just as easily happen at the local supermarket or at a museum.

In much the same way, if one is walking from his den to his kitchen at home when his knee locks, leading to a visit to a knee surgeon for treatment, few would call this a “home accident” unless there was a fall on the floor or a collision with an object.  The same would be true at work: feeling leg pain while just walking is not an accident absent a fall or some other force acting on one’s body.  Yet we all know that claims like this get accepted all the time by employers because of a mistaken belief that something is compensable in workers’ compensation just because it happened at work.   The part of the equation that is often missed is that there must be some genuine connection to work, such as a slip and fall on a hard surface, a trip and stumble on a torn carpet, or a collision with an object at work.

The definition of an accident is “an unexpected event.”  So if a teacher is walking and a student comes barreling down the hallway, not paying attention, and slams into the teacher causing a hard fall and damage to the knee, that is an unexpected event clearly connected to work.  It both happens at work and arises out of work and is therefore compensable.

It remains this practitioner’s opinion that many cases get accepted in workers’ compensation that really have no connection to work other than that the event just happens to occur at work.  If you are at home, and you put on your overcoat on a cold day to go outside, when you feel a tear in your shoulder, you would not think that the home caused the tear in the shoulder.  The same is true if this happened to occur at work.  The reason such events often get accepted is that the employer sends the employee to a doctor, thinking the compensability decision depends on a doctor’s opinion.  It doesn’t.  The doctor then prepares a report and states the obvious: that putting on the coat caused a tear in the shoulder.  But the issue is a legal one not a medical one:  does it arise out of work, or is there a true work connection?  We all put our coats on during cold weather several times a day.  As a matter of law, not medicine, this tearing one’s shoulder while putting on one’s coat to go home is not an accident covered by workers’ compensation.  There is no work connection at all, and it just so happens that at this point in one’s life a tear occurred while from a personal action.

We all know this concept is true because we all have heard of cases where someone is driving a car and suddenly has a stroke.  Or someone is sitting at a chair at home or work when the stroke occurs.  Where the stroke happens to occur is simply pure coincidence because there is just no way for medicine to predict when a person who has risk factors will have such a cerebrovascular event.  But we do know that having a stroke sitting at one’s desk is not work related.  Those claims get denied and are won by the employer.  So think of “arising out of work” as meaning that there is a genuine “work connection.”

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

OKLAHOMA TRENDS:

New Law

On May 28, 2019, the Governor of Oklahoma signed into law HB2367. An emergency provision made
the changes to the Oklahoma Workers’ Compensation Act effective at the time the Bill was signed at
2:51 p.m. The Bill deleted or modified 64 provisions of the Oklahoma Workers’ Compensation Act.

Changes to TTD and PPD

Due to space limitations, it would not be possible to cover all of the changes to the Oklahoma Workers’
Compensation Act. The rates awarded for injuries were increased to $867.71 for temporary total
disability (“TTD”.) The maximum number of weeks for TTD was also increased, in most cases, from
104 weeks to 156 weeks. The rate for permanent partial disability (“PPD”) was increased to $350.00.

Termination of TTD and Claims for Employment Retaliation or Discrimination

Employers are allowed to terminate benefits if an injured worker abandons medical treatment for 60
days or refuses to comply with an Order from the Judge. Jurisdiction for retaliatory discharge claims
had been in the Workers’ Compensation Commission since February 1, 2014, but the latest version of
the Act moved jurisdiction for those cases back to the district courts.

New Limitations Periods

The Statute of Limitations was shortened to 1 year from the date of injury or 6 months from the date of
last benefits paid, whichever is longer. A claim may be dismissed if after 6 months without payment of
benefits, no request for a hearing has been filed. An injured worker now has 6 months following an
Order for Permanent Partial Disability to file a request to reopen a claim based on a change of condition
for the worse.

Revivor

The changes create a revivor action for permanent partial disability after the death of an injured worker,
which was unclear under the previous law. Benefits are limited to the spouse and/or dependent children.

Limitation on Overpayment Credit for Wages Paid in Lieu of TTD

The previous version of the law allowed an employer which paid wages in lieu of TTD to collect an
overpayment back at the time of trial on permanent disability for any money paid in excess of the
maximum allowable amount of TTD, apparently based on the period of time or the maximum rate.
However, the latest Act does not allow the employer to collect the overpayment if the payments were
made pursuant to a collective bargaining agreement.

Jurisdiction

Oklahoma jurisdiction was not mentioned in the previous version of the law, which appeared to be a
glaring oversight. The current version clarified that the Act covers injuries in which the employee was
hired in the state or the accident occurred in the state. It does prevent double recovery in Oklahoma if
injured worker has received benefits in another state. It further extends jurisdiction to injuries that occur
on federal land.

© Copyright 2019 by John Valentine, Lott and Valentine, PLLC. Reprinted with permission.

Oklahoma-Trends-2019.pdf

La petite mort is more than a mere expression in France; it turns out it may actually constitute a compensable work injury. 

According to aNew York Post article of September 10, 2019, an engineer working for a Paris railroad construction company was on a business trip in February 2013 when he suffered a fatal heart attack in his hotel.   His death was determined to be an“accident du travail”—a work accident—thus allowing the deceased man’s family to claim benefits from the state and the employer.  Benefits were deemed payable in the amount of 80% of the decedent’s salary until his would-be retirement age, after which his beneficiaries would be entitled to a portion of his pension. 

The employer fought the determination, citing the non-work-relatedness of the married man’s activities at the time of his death, which occurred during a spontaneous round of adulterous intercourse with a local woman he had just met. 

However, an appeals court decided that the victim was under continuous coverage during his business trip, thus entitling him to benefits sustained via a work-related injury.  The Court equated the sexual encounter to any other “act of normal life like taking a shower or eating a meal.” Such romantics, the French.

(Editor’s note: alternate titles for this entry included “Really Dangerous Liaisons” and “French Kiss of Death”.)
 
Copyright 2019,Stone Loughlin & Swanson, LLP

The Division is once again bypassing public discourse in its latest effort at ad hoc rule-making. During the DWC’s August Workers’ Compensation seminar in Austin, Benefit Review Officers were instructed that an insurance carrier representative in a Benefit Review Conference must do more than merely state the conditions thus far accepted by their clients, he or she will be required to sign a Form DWC024 agreement to that effect.  In other words, a party’s assurance that a given set of conditions is not in dispute will no longer suffice; a formal and legally-binding agreement must be entered into instead.  

This new policy has yet to be circulated in writing to system participants for comment or questions, so much of what is known of it has been obtained anecdotally.  According to those we have spoken with, the Benefit Review Officer will ask the parties to sign a DWC024 accepting as compensable any conditions listed as such in a PLN-11 or DWC032 completed by the Carrier.  If the Carrier representative will not agree, he or she may be subject to a violation referral, and the heretofore undisputed conditions would then become part of an extent of injury issue. 

The goal of having the parties enter into such an agreement is ostensibly to minimize the number of previously accepted conditions that suddenly become disputed ones.  The Division has been silent as to why this policy does not create the very problem it was intended to solve.

The purported authority for this rule change is Section 415.002(a), which states that “[a]n insurance carrier or its representative commits an administrative violation if that person: (9) attends a dispute resolution proceeding within the division without complete authority or fails to exercise authority to effectuate agreement or settlement.”  Thus far presiding officers have not been swayed by protestations that PLN-11’s and DWC032’s are not legally-binding documents, that stipulated conditions can simply be memorialized in a Benefit Review Officer’s Report, or that accepted injuries may change as the medical evidence develops. 

In the meantime, Carrier representatives are faced with a difficult choice: either sign an agreement that is perhaps not in their clients’ best interests, or subject themselves to potential violation referrals if they refuse.
 
Copyright 2019, Stone Loughlin & Swanson, LLP

Two medical practitioners have run afoul of the Division’s Medical Quality Review Panel in recent months, both for having made unnecessary referrals. 

On September 3, 2019, Wilson A. Cochrane, a Physician Assistant, was the subject of an audit pertaining to nine cases in which he ordered lumbar MRI’s.  The Panel determined that in 100% of those cases, the ordered MRI was not reasonable or necessary, as at least one month of conservative therapy had not yet been administered.  Mr. Cochrane’s failure to apply the Official Disability Guidelines appropriately resulted in an administrative violation and a fine of $3,000.00.

In August 2019, Al Jameson, D.C., was scrutinized for his tendency to refer work comp claimants out for further testing in his capacity as a designated doctor.  In ten audited cases, he was found to have made unnecessary referrals 100% of the time.  It was determined that Dr. Jameson had not adequately explained in any of his designated doctor reports why the referrals for additional testing were necessary to resolve the questions posed to him.   The Panel concluded that he had committed a violation each time he made unnecessary referrals to other healthcare providers for additional treatment or testing, and for failing to explain as much in his DD reports. Dr. Jameson was removed from the Designated Doctor List for two years.
 
Copyright 2019, Stone Loughlin & Swanson, LLP

Recently enacted by the 86th Legislature, House Bill 29 permits some qualified physical therapists to treat patients without a referral from a doctor.  A therapist with a doctoral degree in physical therapy, or one who has been licensed for at least one year and has completed a minimum of thirty hours of specific continuing education, will be allowed to treat a patient for up to ten consecutive business days without a referral.  Those with a doctoral degree and a completed residency or fellowship may treat for up to fifteen consecutive business days. 

However, HB 29 does not apply to treatment rendered for a work comp injury.  A physical therapist does not meet the definition of a treating doctor under Section 401.011 of the Texas Workers’ Compensation Act, and Section 408.021(c) specifies that a work comp claimant’s health care must be approved by the injured worker’s treating doctor. 

Copyright 2019,Stone Loughlin & Swanson, LLP

In September 2019, the Legislature amended Section 504.019(b) and added Section 504.019(c) in House Bill 2143.  For injuries occurringbefore September 1, 2019, the former provisions remain applicable, but for any injury claimedon or after September 1, 2019, the new law will apply. 

Until recently, Section 504.019(b) of the Texas Labor Code stated that, “Post-traumatic stress disorder suffered by a first responder is a compensable injury…only if it is based on a diagnosis that: 1) the disorder is caused by an eventoccurring in the course and scope of the first responder’s employment; and, 2) the preponderance of the evidence indicates that the event was asubstantial contributing factor of the disorder.”

In other words, section (b)(1) required a first responder’s claim for PTSD to have derived from asingular incident, not multiple occurrences.  That meant that for a first responder’s PTSD to be compensable, it must have developed suddenly, not gradually or cumulatively, such as might be found in a repetitive mental trauma injury.  Likewise, section (b)(2)’s requirement that the work event be a “substantial contributing factor” leading to the emergence of PTSD raised the burden of proof placed upon a first responder seeking to establish compensability of the condition. 

As of September 1, 2019, however, Section 504.019(b) now states: “Post-traumatic stress disorder suffered by a first responder is a compensable injury…only if it is based on a diagnosis that:  1) the disorder is caused byone or more events occurring in the course and scope of the first responder’s employment; and, 2) the preponderance of the evidence indicates that the event or events werea producing cause of the disorder. 

HB 2143 also added a new provision to establish the date of injury for such a claim, echoing the language of Section 408.007 pertaining to occupational diseases.  Section 504.019 (c) states:

“For purposes of this subtitle, the date of injury for post-traumatic stress disorder suffered by a first responder is the date on which the first responder firstknew or should have known that the disorder may be related to the first responder’s employment.”

Taken together, the amendments to subsection (b) and the addition of subsection (c) drastically improve a first responder’s ability to claim PTSD as a compensable diagnosis successfully.  No longer must such a claim be predicated on a lone traumatic event with a precise date of origin.  Now, a claim for PTSD may be based on the cumulative impact that traumatic work events have on a first responder’s mental health, and the date of injury is whenever the injured worker had reason to believe that such a diagnosis might have been caused by his/her work duties. 

-  Copyright 2019, Stone Loughlin & Swanson, LLP