State News

NC Risk Handling Hint: Waiver of Commission Rules; Sufficiency of Medical Evidence

Fri, 17 May 2013 13:32:00 GMT

On April 8, 2004, Katherine Williams, a customer service representative for Bank of America, injured her back, arm and neck when a chair was pulled out from under her. Williams sought medical treatment, particularly for headaches and neck pain, and continued to work for Bank of America until she was laid off in 2008. In the Fall of 2009, her neurologist determined that she was unable to work in any capacity due to cervical disc disease and intractable post-traumatic headaches. At a subsequent hearing before the Deputy Commissioner, Williams was awarded temporary total disability benefits and ongoing medical treatment.

Defendants appealed to the Full Commission on November 15, 2011 and on December 8, 2011, the transcript of the hearing was transmitted electronically to the parties by the Industrial Commission. After receiving no further filings from Defendants, Williams filed a Motion to dismiss Defendants’ appeal on January 16, 2012 for failure to timely file a Form 44 Application for Review and a brief. On January 24, 2012, Defendants responded to Plaintiff’s Motion and also filed their Form 44 and brief. The Full Commission denied Williams’ Motion to Dismiss the appeal, but sanctioned Defendants by waiving their opportunity for oral argument. The Full Commission subsequently entered an Opinion and Award affirming the Deputy Commissioner’s decision with minor modifications. Both parties appealed.

On April 2, 2013, in Williams v. Bank of America, the Court of Appeals held that the Full Commission did not err in allowing Defendants’ appeal to go forward despite their failure to strictly comply with the time limitations set for filing a Form 44 and brief in Industrial Commission Rule 701. The Court noted that although Industrial Commission Rule 801, which allows the Commission to waive its rules in the interest of justice, does not allow the Commission to waive total noncompliance with Rule 701, in this instance, the Commission’s decision to waive strict compliance with Rule 701 was not abuse of discretion.

The Court next addressed the Full Commission’s conclusion that Williams’ headaches were causally related to her work injury and that she was disabled as a result. The Court rejected Defendants’ contention that the opinion of Williams’ treating neurologist, that her headaches were causally related to her work accident, was speculative and that he failed to rule out other potential causes of the headaches. The Court noted that the neurologist’s affidavit and deposition testimony established that he did consider other possible causes of Williams’ headaches and, ultimately, testified to a reasonable degree of medical certainty that her work related injury caused her headaches, which was sufficient to support the Commission’s determination.

Defendants also contended that Williams failed to meet her burden of proving an ongoing disability, particularly when she was able to continue working after her accident for more than four years, an assertion the Court rejected. It noted that Williams’ testimony regarding the debilitating effect of her post-traumatic headaches was sufficient, in itself, to establish her disability. However, Williams also offered the testimony of her neurologist that her post-traumatic headaches prevented her from being a "reliable employee" due to the fact that she could not maintain "consistent performance." In addition, her vocational expert testified that it would be futile for Williams to seek employment because he did not believe she could maintain it. As a result, the Court upheld the Full Commission’s determination that Plaintiff’s headaches were related to her on-the-job injury and that she continued to be disabled as a result.

Risk Handling Hint:

Williams is another reminder that the Full Commission may rely on an injured worker’s own testimony regarding their incapacity for work and that such testimony, by itself, can be sufficient to meet the injured worker’s burden of proof.

Bipartisan Medicare Legislation Introduced to the House of Representatives

Wed, 15 May 2013 19:35:00 GMT

Reps. Dave Reichert (R-WA) and Mike Thompson (D-CA) introduced the Medicare Secondary Payer and Workers’ Compensation Settlement Agreement Act (H.R. 1982) into the House of Representatives May 15, 2013.

The bill establishes clear and consistent standards for the administrative process which provides for reasonable protection of the injured worker and Medicare. Supporters indicate that it will benefit injured workers, employers and insurers by creating certainty as well as allowing the settlement process to move forward without the delays that parties are currently presented with.

The legislation is supported by the American Insurance Association, the American Bar Association, the National Council of Self-Insurers, Property Casualty, Insurers Association of America, UWC- Strategic Services and the Workers Injury Law and Advocacy Group (WILG).

The bill will likely be referred to the Ways & Means Committee for consideration.

___________________________________

ABOUT THE AUTHOR

The article was written by Joshua G. Holden, Esq. a Member of Fish Nelson, LLC, a law firm dedicated to representing employers, self-insured employers and insurance carriers in workers’ compensation and related liability matters. Mr. Holden is AV rated by Martindale-Hubbell, which is the highest rating an attorney can receive. He is Chair of the ABA/ TIPS Workers’ Compensation and Employers’ Liability Committee. He is also on the board of the Alabama Workers Compensation Organization and a member of numerous other associations and organizations. Holden has been selected as a "Rising Star" by Super Lawyers.

Holden and his firm are members of The National Workers’ Compensation Defense Network (NWCDN). The NWCDN is a national and Canadian network of reputable law firms organized to provide employers and insurers access to the highest quality representation in workers’ compensation and related employer liability fields.

If you have questions about this article or Alabama workers’ compensation issues in general, please feel free to contact the author atjholden@fishnelson.com or 205-332-1428.

NC Risk Handling Hint: Disability; Compliance with Vocational Rehabilitation

Tue, 14 May 2013 18:08:00 GMT

Mary Frances Powe sustained a compensable injury to her low back and left hip in 2001 for which she received weekly indemnity benefits and vocational rehabilitation provided by Defendants. In 2005, those benefits were suspended due to non-compliance with vocational rehabilitation, a decision which was affirmed by the Full Commission and Court of Appeals (Powe I). Defendants continued to provide vocational rehabilitation through February 22, 2008, when the vocational case manager terminated those services. Although Powe attended vocational meetings, she consistently failed to follow through on the case manager’s suggestions and recommendations.

At a hearing in 2009, the Deputy Commissioner determined that Powe continued to be non-compliant with vocational rehabilitation, but held that since Defendants had stopped offering vocational rehabilitation, Powe was entitled to reinstatement of her indemnity benefits. On appeal, the Full Commission concluded that Powe had not "fully complied" with vocational rehabilitation, but affirmed the Deputy Commissioner’s Order to reinstate Powe’s indemnity benefits as of the date vocational services ceased. Both parties appealed and the Court of Appeals remanded the case to the Full Commission for further findings regarding whether Powe was substantially compliant, and not significantly interfering with, the vocational case manager’s efforts to assist her in returning to suitable employment (Powe II). (See Risk Alert Vol. 13, No. 9, Oct. 2011) The Court also directed the Full Commission to address in more detail why vocational rehabilitation was not being provided.

On remand, the Full Commission found that Powe misrepresented her true physical capacity to the vocational case manager; her attendance at vocational meetings, alone, was insufficient to constitute substantial compliance with vocational rehabilitation; Powe failed to make a genuine effort to locate employment and comply with vocational rehabilitation; she interfered with her case manager’s efforts to assist her and willfully refused vocational rehabilitation through February 22, 2008; the cessation of vocational rehabilitation was not entirely the result of Powe’s failure to comply; Powe would have benefitted from continued vocational rehabilitation which Defendants should have provided; and Powe’s failure to comply with vocational rehabilitation ceased when those services stopped in February 2008. As a result, the Full Commission reinstated Powe’s indemnity benefits as of that date. Both parties appealed.

On April 2, 2013 in Powe v. Centerpoint Human Services (Powe III), the Court of Appeals affirmed in part the Full Commission’s decision and again remanded for further findings of fact on the issue of Powe’s disability. The Court noted that while the Commission is not required to make findings as to each fact presented by the evidence, it must make specific findings as to crucial facts on which the injured worker’s right to compensation depends. Because Powe’s disability affected her right to compensation, the Court held that the Commission was required to make specific findings as to both the existence and extent of her disability.

The Court also held the Full Commission did not err in reinstating Powe’s benefits as of February 22, 2008. It is well established in North Carolina that an appellate court is bound by the Full Commission’s findings of fact so long as there is any credible evidence to support them, even when the record contains evidence to the contrary and even though the Court disagrees with the Commission’s findings. Therefore, although the evidence Powe presented was minimal, at best, it was competent to support the Commission’s finding that vocational rehabilitation was ended prematurely and due, at least in part, to factors other than Powe’s noncompliance.

Risk Handling Hint:

Powe III cautions risk managers to carefully consider ending vocational rehabilitation efforts when the injured worker retains some wage earning capacity and the cessation of services is, even in part, for reasons other than the injured worker’s noncompliance.

04/24/2013 Iowa State News Update

Tue, 14 May 2013 15:03:00 GMT

Brenda Hernandez f/k/a Brenda Flores v. Osceola Foods, Court of Appeals of Iowa, No. 3-269/12-1658

The Claimant was employed at Osceola Foods from January 2003 to April 2008. On May 7, 2004 she injured her back while at work. A settlement agreement was entered into by the parties on May 22, 2006. She was awarded permanent partial disability for a fifteen percent loss of earning capacity. At the time she had a permanent thirty pound lifting restriction.

She continued working for the employer for almost two years after the settlement, at which point, she was terminated dishonesty as she had improperly filled out an employment application for her husband and intentionally misrepresented his employment history. The next day, the Claimant went to a temp staffing agency and filled out an application for Farley’s and Sathers Candy Company, acknowledging she was able to perform all duties as set forth in the job description. This included lifting up to fifty pounds. She was hired through the agency and eventually hired permanently by Farley’s on September 15, 2008. On January 9, 2009, Farley’s learned of her lifting restriction and terminated the claimant’s employment for misrepresenting her ability to do the job.

Following this, she filed a review-reopening petition based upon an allegedly greater loss of earning capacity. The deputy commissioner found that the Claimant did have a change in actual earning but it was due to her dishonest conduct resulting in the loss of her job rather than the work injury. This finding was affirmed by both the commissioner and the district court. The Claimant then appealed to the Court of Appeals.

On appeal, the Court stated the correct standard of review was for errors at law, but also noted that if substantial evidence supported the factual findings of the commissioner these would be upheld. The Court went on to state that while the Claimant attempted to frame the issue as an error at law, the Court agreed with the district court that the “crux of her argument is whether she proved by a preponderance of the evidence there has been a compensable change in her economic circumstances.” The review was thus limited to whether the conclusion reached by the agency was supported substantial evidence.

The Court went on to find that the Claimant’s initial job loss was due to her dishonesty rather than any physical impairment. Her subsequent job loss at Farley’s was also found to be due to her dishonesty rather than any lifting restriction she had. She had apparently been told by Farley’s that if she had been honest about her restriction, she would not have been offered the job. The Court found however that the agency was correct in determining that any loss of access to the labor market she now has is no different than the loss of access she had when the agreement for settlement was approved. The Court ultimately found that no facts about the Claimant’s employability attributable to her injury have changed since her settlement. Substantial evidence supported the findings of the agency and the Court affirmed the decision.

Call Mark Bosscher or Lee Hook with any questions @ 515-243-2100. We’d be happy to help, whether it be a quick or a complex issue!

05/14/2013 Iowa State News Update

Tue, 14 May 2013 14:56:00 GMT

Charles Coffey v. Mid Seven Transportation Company and Great West Casualty Company, Supreme Court of Iowa No. 11-1106

The claimant, Charles Coffey, worked for the Defendant employer, Mid Seven Transportation Company, as an over the road trucker. On February 8, 1994, the Claimant fell on an icy parking lot while working in Missouri. His left leg and foot were then run over by an eighteen wheel tractor-trailer. He sustained a medial malleolar fracture and suffered from compartment syndrome in the leg.

The Claimant was motivated to begin working again, but was unable to return to full time employment. He was placed at maximum medical improvement in August 1994 following several surgeries. The Claimant also suffers from post polio syndrome which causes whole body fatigue, weakness, pain and cramping in the legs, pelvis and lower back.

The Claimant had been found by physicians to be incapable of returning to work as a truck driver. He did work part time as a substitute school bus driver in 1996, 1997 and 1998, however the most he ever earned was $7,800 per year, and he eventually terminated that employment due to complications with his right shoulder. He also was awarded social security disability benefits starting in December 1997. He receives approximately $1,192 per month.

Prior to filing his workers’ compensation claim, the Claimant settled his third party claim for $275,000 on December 22, 1997. After attorneys fees and reimbursement to the employer/insurer, the Claimant pocketed $134,786.95. The Claimant instituted his workers’ compensation action in January of 1998 alleging injury to the back, leg and head as well as PPS. The employer admitted the work injury occurred on the date set forth in the petition.

Prior to arbitration, the employer had made workers’ compensation payments to the Claimant of $70,783.19 which included payment for healing period, permanent partial disability, medical expenses and mileage. Also before arbitration, the Claimant and his wife entered into another third party settlement for $100,000. His wife was allocated $60,000 of the settlement for loss of consortium. The Claimant received $24,634.14 after payment of legal fees.

At arbitration on September 5, 2002, the deputy found the Claimant was entitled to workers’ compensation benefits and that his injury caused his PPS, which resulted in a 75% industrial disability. However, it was found that the Claimant’s pulmonary, cardiac, vascular, thyroid problems, bladder cancer, spinal and shoulder issues were not work related.

The employer was ordered to pay 375 weeks of permanent partial disability benefitsat the benefit rate of $472.18 which had been being underpaid at the rate of $392.33. The employer was ordered to satisfy the underpayment by paying $79.85 per week. The employer was also ordered to pay certain disputed medical expenses, including the cost of travel for PPS care.

The decision of the deputy was affirmed on intra-agency appeal, as well as on appeal to the district court and court of appeals. Following the denial of further review, counsel for the employer wrote to the Claimant’s attorney stating that the Claimant’s third party recoveries covered the Claimant’s workers’ compensation claim, but asked whether the Claimant’s attorney claimed any further amounts were due on the award. The Claimant’s attorney responded indicating at lease one third of the amount awarded was due.

The employer’s attorney then responded that they had calculated the amount owed under the agency’s decision to be $154,719.26, however it appears this did not take into account mileage, medical payments or interested owed. It was stated that because the third party statements exceeded the calculated amount, the employer contended all they owed was a payment of the attorney fees for the claimant’s attorney in establishing their credit. This amount was deemed to be $51,573.09, which was paid to the Claimant and his attorney. Claimant’s attorney corresponded back indicating that he believed Claimant was owed more than the calculation done by the employer’s attorney.

The Claimant then filed a review reopening petition on April 2, 2008 seeking additional disability benefits, reimbursement for medical expenses and an order requiring the employer to pay the amount still due under the agency decision as well as a calculation of the credit to which they were owed. On hearing, the deputy found the claim for additional benefits was untimely under the statute of limitations. It was determined the date that the statute began to run was the date of the intra-agency appeal decision, March 23, 2004. The deputy however did award the payment of the medical expenses sought by Claimant, but the deputy did not determine the amount still due under the award, if any, or the amount of credit to which the employer was entitled. The deputy found the payment of $51,573.09 made by the employer was not intended as benefits but rather as a reimbursement of the Claimant’s attorneys in achieving third party settlements.

On intra agency appeal, the Commissioner upheld the finding that the claim for benefits was untimely. However, he reversed the finding that the employer should pay the medical expenses sought by the Claimant as he did not believe they were proved to be related to the work injury. He also affirmed the decision of the deputy that no order was need compelling the employer to make payment as the Claimant could seek a judgment. The decision was then appealed to and affirmed by the district court.

On appeal to the Supreme Court, the Court stated that in regards to the issue of the statute of limitations, such would be reviewed for errors at law as the legislature did not clearly vest the Workers’ Compensation Commissioner with the authority to interpret the statute. The issue as to whether the medical expenses were related to the Claimant’s work injury would be reviewed under the substantial evidence standard.

The Court took up the issue of the statute of limitations and indicated that there was no disagreement between the parties that the review reopening petition must be filed within three years from the date of the last payment of weekly benefits. The employer argued that the statute began to run from the date the commissioner issued the arbitration award, whereas the Claimant challenged the argument on two grounds; 1) that the payment of $51,573.09 constituted payment of weekly benefits, and 2) the statute did not begin to run until the Court denied further review of the arbitration decision.

The Court determined that the commissioner did not determine whether any further benefits were owed under the award, and as such, it could not be determined by the court whether or not the credit of the third party settlements covered all the weekly benefits under the award. The Court held that the Commissioner must first decided whether any further benefits were owed, as the Claimant contended, before determining what the last date of payment of weekly benefits was. The Court then remanded the issue to the Commissioner for a determination whether benefits were still owed. And following the decision of that issue, the Commissioner must then determine whether the last installment of weekly benefits has been paid and on what date if that has occurred.

The Court went on to state that if it is determined that the employer paid all weekly benefits prior to the arbitration award via the credit afforded to it by the third party settlements, the date the statute began to run must still be determined. The Court rejected the Claimant’s argument that the payment of $51,573.09 was payment of weekly benefits. This was based on the logic that 1) the obligation to pay weekly benefits would have already been completely fulfilled prior to the payment, and 2) the Code makes clear that the payment of attorneys fees to the injured party’s attorney for amounts recovered in third party settlements is not considered payment of weekly benefits.

The Court then held that the statute is not tolled pending final appellate review of the arbitration award. Rather, in a situation where the obligation to pay benefits is satisfied before the entering of an arbitration award, the statute begins to run when the award is entered.

Finally, the Court took up the issue of the payment of medical expenses and determined that based upon the review of the record, substantial evidence supported the Commissioner’s finding that the Claimant had failed to prove by a preponderance of the evidence that the sought after medical expenses were related to the work injury. The Court then remanded the case as to the statute of limitations issue, but affirmed the finding in regards to payment of medical expenses.

Call Mark Bosscher or Lee Hook with any questions @ 515-243-2100. We’d be happy to help, whether it be a quick or a complex issue!

Tennessee Governor Signs Workers' Compensation Reform Bill

Mon, 13 May 2013 14:37:00 GMT

May 2013

Tennessee Governor Signs Workers’ Compensation Reform Bill

On April 29, 2013, Governor Bill Haslam signed Senate Bill 200 – House Bill 0194. Self-titled as “The Workers’ Compensation Reform Act of 2013,” this legislation brings about the most sweeping changes of Tennessee Workers’ Compensation Law since it was first codified in 1919.

The bill has been enacted as Tennessee Public Chapter 289. Please see our posting of April 26, 2013, for more detail as to the specific elements of this reform.

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

TO RETIRE OR NOT TO RETIRE

Mon, 13 May 2013 13:48:00 GMT

TO RETIRE OR NOT TO RETIRE

Jeffrey D. Snyder and Kevin L. Connors

Yes, genuflecting in the general direction of T. S. Eliot:

“April is the cruelest month,

Lilacs of the dead land, mixing

Memory and desire, stirring

Dull roots with spring rain.

And, indeed, there will be time for us to determine the burden of proof in cases where an employer claims that an employee, post-retirement, has voluntarily withdrawn from the workforce, entitling the employee to the magis hubris of a suspension of indemnity compensation benefits.

What are we talking about, and why do we care?

Burdening all with the instructive yet pedantic ruling recently issued by the Pennsylvania Supreme Court inCity of Pittsburgh UPMC Benefit Management Services, Inc. v. WCAB (ROBINSON), we are nevertheless constrained to consider its analysis of the burden of proof in cases when an employer claims that an employee, allegedly post-retirement, has voluntarily withdrawn from the workforce, presumptively entitling the employer to the conceit of a suspension of indemnity compensation benefits.

What presumption are we talking about, and why should we read with relish on?

Poetic liberties aside, the Supreme Court has concluded in the City of Pittsburgh, decided on March 25, 2013, that the employer carries the burden of proof, under a “totality of circumstances” test, to establish an employer’s basis to suspend a Claimant’s workers’ compensation benefits, with the Court finding that the employer must prove, in a withdrawal from the labor force case, that the Claimant’s election and receipt of an employment-based pension establishes that the Claimant has voluntarily withdrawn from the workforce, effectively constituting a post-working motif, not to be confused with a paradigm, of making no effort to seek re-employment.

Will this result in higher cable TV charges, we wonder?

Da Facts

In the City of Pittsburgh, the Claimant was a Pittsburgh Police Officer, who had sustained a work-related injury in 1997.

Subsequent to that workers’ compensation claim, she sustained new injuries in 2001, when she was involved in an automobile accident, as she was driving to treatment for the original work injury.

Following her car accident, the Claimant was not able to continue working in a light-duty capacity, and she was not offered any subsequent employment by the employer.

Three years after the car accident, the Claimant applied for and received a disability pension from Pittsburgh. Pensions are awarded to police officers, who, due to a work injury, are unable to perform the duties of their position.

Da Ruling

The Supreme Court held that the Claimant’s entitlement to receive the pension simply meant that she was unable to perform her pre-injury employment as a police officer, but that did not mean that she was precluded from performing any employment whatsoever.

Another three years fly by, as often happens in our squirrely compensation universe, and the Claimant was referred for an independent medical examination, with the IME doctor, bless his board-certified credibility, finding that the Claimant was unable to perform the pre-injury job as a police officer, but that she certainly could perform modified-duty work, as we all know that even Christopher Reeves was able to do that in a wheelchair, post-Superman.

As the Act requires, a Notice of Ability to Return to Work was issued, with the employer shortly thereafter filing a Suspension Petition, under which it was alleged that the Claimant was capable of working, but that the Claimant had voluntarily removed herself from the workforce, as she was not looking for work, had not looked for work, and was not seeking employment in the general labor market.

Yes, they subpoenaed her cable company bills to prove her inactivity (not).

Oddly enough, the Claimant responded, alleging that she remained umbilically attached to the workforce, having registered for work with the Pennsylvania Job Center, and she also claimed that she was not presently working because of the unavailability of work, as her light-duty position had been eliminated, negating the availability of immediate work for her.

Litigated before the workers’ compensation judge, the Claimant was able to establish, through testimony from a senior claims examiner, that the light-duty position that she had previously held had, yes, been terminated.

Proof positive that April is the cruelest month.

Notwithstanding the employer presenting the expert medical testimony of the IME doctor, evidencing that the Claimant was physically capable of performing modified-duty work, the workers’ compensation judge, bizarrely enough, denied the Suspension Petition, concluding that the Claimant had not voluntarily removed herself from the workforce.

The workers’ compensation judge concluded that the Claimant had been forced into retirement when her light-duty work was taken away from her, cruelly eliminated by her employer.

The workers’ compensation judge also accepted the Claimant’s testimony that she had reported to the Pennsylvania Job Center, after receiving the Notice of Ability to Return to Work.

Da Appeals

Ascending through the appellate ranks, the employer eventually appealed the judge’s decision to the Commonwealth Court, which affirmed the judge’s decision in a bearish polarity opinion, finding that it was constrained by prior holdings, to include the infamousKachinski case, decided in 1987 by the Pennsylvania Supreme Court, forever establishing an employer’s burden of proof, when seeking a suspension of compensation benefits under Section 306, based on the ability to perform some level of work post-injury.

So, before the Supreme Court, the appellate issue turned on the question of when a Claimant has actually “retired” so as to invoke the suspending powers of the “withdrawal” cases, as the Commonwealth Court had concluded that the acceptance of any type of pension does not create a presumption of retirement, nor does it necessarily establish a complete withdrawal from the labor force.

Granting allocator, which is like getting dessert at your favorite diner, the Supreme Court recognized that to establish that a Claimant was withdrawing from the labor force, requires the tortured analysis of a Claimant’s state of mind, further requiring the interpretation and analysis of various subjective facts, to determine if the withdrawal was voluntary, as well as being presumptively total.

In shorthand, the Supreme Court held that the receipt of a pension, any type of pension, is not sufficient evidence, in and of itself, to establish an employer’s burden of proof, that a Claimant has voluntarily removed themselves from the workforce.

Presumptive v. Permissive

To establish that fact, as a legitimate basis for suspending a Claimant’s workers’ compensation benefits, there must be an unequivocal admission of no further attachment to or connection with the workforce, such as had been in the case ofDugan v. WCAB, 569 A.2d 1038 (Pa. Cmwlth. 1990).

The analytical paradigm being, in City of Pittsburgh, that an employee’s receipt of a disability pension only entitles the employer to a “permissive inference that the Claimant has retired”.

That inference, alone, is insufficient to establish that the worker has fully retired from the workforce, such that a suspension of compensation benefits would be inappropriate under the Pennsylvania Workers’ Compensation Act.

Other relevant and credible evidence must be introduced by the employer, to sustain its burden of proving a withdrawal from the workforce.

In short, to be disabled is not necessarily to be retired, nor does it with any prima facie likelihood, mix the memory of working with the desire to do so.

Practical Tips

The Supreme Court’s ruling in City of Pittsburgh certainly clarifies the burden of proof and burden of production in cases of voluntary withdrawal from the workforce, while effectively reinforcing the standards of proof that had been applied in prior withdrawal cases, to include Dugan, with the predicate test for a “retirement/withdrawal” case, as basis for a suspension, being a “totality of the circumstances”, effectively begging the presidential, as opposed to precedential, question, “what is the meaning of the word, is?”.

Get it in writing!

ConnorsLaw LLP

Trust us, we just get it! It is trust well spent!

Defending workers’ compensation claims throughout Pennsylvania for employers, self-insureds, insurance carriers, and third party administrators, our 100+ years of cumulative experience defending our clients against compensation-related liabilities, empowers our workers’ compensation practice group attorneys to be more than mere claim denials, entrusting us to create the factual and legal leverage to expeditiously resolve claims, in the course of limiting/reducing/extinguishing our clients’ liabilities under the Pennsylvania’s Workers’ Compensation Act.

With every member of our workers’ compensation practice group being AV-rated, our partnership with the NWCDN magnifies the lens through which our professional expertise imperiously demands that we always be dynamic and exacting advocates for our clients, businesses, corporations, and insurance carriers, seeking our trial and compensation acumen, navigating the frustrating and form-intensive minefield pervasive throughout Pennsylvania workers’ compensation practice and procedure.

SUMMARY OF PENNSYLVANIA WORKERS’ COMPENSATION LAW

Mon, 13 May 2013 13:22:00 GMT

SUMMARY OF PENNSYLVANIA

WORKERS’ COMPENSATION LAW

Kevin L. Connors, Esquire

The following is a broad summary of practices and procedures under Pennsylvania’s Workers’ Compensation Act, 77. P.S. § 1-1031,

I. Filing Deadlines:

Employee required to report injury to employer within 21 days of occurrence, for notice provisions of WCA; notice must be to management.

If not report within 120 days of injury, claim is time-barred under WCA. The same is true whether alleging physical injury, psychological injury, or occupational disease.

Report of Injury required to be filed with the Bureau of Workers’ Compensation by employer within 48 hours of fatal injury, and within 7 days of other injuries.

There is a 7 day waiting period for the payment of wage loss disability benefits following injury.

Beyond the 7 day waiting period, the injured employee is entitled to be paid wage loss disability benefits. Benefits are payable back to the first date of disability, if disability exceeds 14 days post-injury.

Wage loss disability payments must be made on the same schedule as the payment of wages pre-injury. If benefits, inclusive of wage, medical, interest, attorneys’ fees, and/or penalties, are awarded to injured employee, under a Bureau-circulated WCJ decision, the benefits must be paid within thirty 30 days of issuance of the award/decision.

II. STATUTE OF LIMITATIONS:

A 3 year statute of limitations applies to the filing of a Claim Petition, seeking workers’ compensation benefits for an alleged work injury.

If workers’ compensation benefits are terminated, either by agreement or by decision, the injured employee has a 3 year statute of limitations to seek reinstatement of compensation, and to strike the effective termination of compensation benefits.

If compensation benefits have been suspended, and/or modified, based upon an injured employee again being able to return to work at wages equal to or greater than the pre-injury average weekly wage, or, if the injured employee is earning less than the pre-injury average weekly wage, the injured employee has a 500 week statute of limitations to reinstate temporary total disability benefits, to strike a suspension or modification.

Any employer or insurer seeking to limit an injured employee’s receipt of wage loss disability benefits in reliance upon an impairment rating evaluation cannot seek to convert a temporary disability claim to a permanent disability claim, until the injured employee has received 104 weeks of total disability benefits; the total disability benefits need not be cumulative, but they cannot be partial disability benefits.

The statute of limitations for an occupational disease claim is 300 weeks from date of last exposure.

Appeal from a decision circulated by a workers’ compensation judge must be filed within 20 days of the circulation date of the decision. The appeal must be filed with the Workers’ Compensation Appeal Board; a party seeking Supersedeas from a decision issued by a WCJ must file the Supersedeas Petition within the same timeframe as the appeal, being 20 days from decision circulation date.

Any appeals from the Appeal Board to the next appellate level, the Pennsylvania Commonwealth Court, must be filed within 30 days of the decision circulation date.

III. COMPENSATION BENEFIT RATE SCHEDULES:

2011 – 2012 - 2013

Maximum: $858.00 01/01/11	Maximum: $888.00 01/01/12	Maximum: $917.00 01/01/13
$1,287.00/$643.51 = 66 2/3%	$1,332.00/$666.01 = 66 2/3%	$1,375.50/$687.76 = 66 2/3%
$643.50/$476.67 = $429.00	$666.00/$493.33 = $444.00	$687.75/$509.44 = $458.50
$476.66/Less = 90%	$493.32/Less = 90%	$509.43/Less = 90%

A. AVERAGE WEEKLY WAGE CALCULATION:

The injured employee’s average weekly wage is calculated using the gross wages of the employee over the 52 weeks prior to the work injury.

The 52 weeks are divided into 4 – 13 calendar quarter periods. The 3 highest 13 week periods are added together, and divided by 3, resulting in the average weekly wage.

If the injured employee has worked less than a full calendar quarter, wages are based upon the “expectations of the parties”.

IV. SCHEDULE/SPECIFIC LOSSES:

The following schedules apply to specific losses, either as total/partial amputations, or as “complete loss of use for all practical intents and purposes”:

Member	Weeks

Thumb	100
First Finger	50
Second Finger	40
Third Finger	30
Fourth Finger	28
Hand	335
Arm	410
Big Toe	40
Others Toes	16
Foot	250
Leg	410
Eye	275
Eye and Leg	710
Eye and Hand	630
Eye and Foot	450
Two (2) Arms	TTD
Two (2) Hands	TTD
Two (2) Legs	TTD
Two (2) Feet	TTD
Disfigurement	0-275 (left to Judge’s discretion).

V. MOST COMMONLY USED WC FORMS:

Title	WC Bureau Number
Medical Report Form	LIBC-9
Appeal from Judge’s Findings	LIBC-25
Agreement for Compensation	LIBC-336
Supplemental Agreement	LIBC-337
Employer’s Report of Injury	LIBC-344
Answer to Claim Petition	LIBC-374
Answer to Petition to	LIBC-377
Statement of Wages	LIBC-494
Notice of Compensation Payable	LIBC-495
Notice of Compensation Denial	LIBC-496
Physician’s Affidavit of Recovery	LIBC-497
Notice of Temporary Compensation Payable	LIBC-501
Notice Stopping Temporary Compensation	LIBC-502
Utilization Review	LIBC-601
Compromise & Release Agreement	LIBC-755
Notice of Ability to Return to Work	LIBC-757
Notification of Suspension/Modification	LIBC-751

VI. GENERAL PRINCIPLES:

Injuries occurring in the course and scope of employment and related thereto are compensable under the Act.

Pennsylvania utilizes the AMA Guidelines to determine impairment ratings, although the same guidelines have no application whatsoever to a disability claim.

Appeals of decisions have three levels, from WCJ to Appeal Board, from Appeal Board to Commonwealth Court, and from Commonwealth Court to Supreme Court.

The Commonwealth Court averages about four compensation decisions per month.

The Supreme Court averages about three or four compensation decisions per year.

A. COMPENSATION BENEFITS:

There are six compensation benefits available under the Pennsylvania WCA.

The compensation benefits are:

· Temporary compensation benefits;

· Temporary total disability benefits (total disability wage loss);

· Temporary partial disability benefits (difference between pre-injury wages and post-injury wages – subject to 500 week limitation);

· Specific loss benefits (payable for amputation, complete loss of use of body part, or facial scars);

· Death benefits, payable if the fatality is work-related;

· Medical compensation benefits (payable for reasonable, necessary and related medical care for work injuries);

Compensation benefits are payable for work-related injuries occurring in the course and scope of employment, excluding intentionally self-inflicted injuries, injuries occurring as a result of a violation of law, such as when incapacitated due to intoxication or drugs, when violating a positive work order of the employer, when injury is caused by “personal animus), or where there is no employer/employee relationship.

Temporary total disability benefits are payable when an injured employee is disabled from performing pre-injury job.

Partial disability benefits are payable if the injured employee is capable of working, with some presumption of continuing disability, and earning less than pre-injury wages.

Permanent partial disability is recognized in the context of specific loss claims and claims governed by impairment rating evaluations, but only where the impairment rating is less than 50% of a whole man threshold.

Permanent partial disability is compensable if an injured employee loses two appendages.

Death benefits are payable as long as the fatality is related to the work injury.

Workers’ compensation is regarded as an exclusive remedy, providing the employer with statutory immunity from tort-based liability, so long as the employee is insured for workers’ compensation.

The WCA is regarded as being both humanitarian, and an affirmation of public social policy.

B. CLAIM PROCEDURES:

Pennsylvania Workers’ Compensation procedures are form-intensive, as every change in the compensation status of a claim requires that the change be recognized with the filing of the appropriate compensation form.

Most commonly used compensation forms are:

Report of Injury (when injury is reported to employer);

Notice of Compensation Payable (claim being accepted with injury and wage rates identified);

Notice of Compensation Denial (when claim being denied, requiring basis be identified);

Notice of Temporary Compensation Payable (temporary compensation benefits are payable for ninety (90) days without admission of liability as to injury or disability);

Notice Stopping Temporary Compensation Payable (required to be filed before expiration of ninety (90) day temporary compensation period);

Supplemental Agreement (post-claim acceptance form evidencing employee change in status, either as to return-to-work, or as to reinstatement, if work is stopped);

Notice of Ability to Return to Work (form advising employee that they are medically released to return to work); (with mandatory issuance prior to any employer job offer being extended);

Statement of Wages (provides basis to calculate pre-injury average weekly wage and compensation payable rate);

Compromise & Release Agreement by Stipulation (document used to settle workers’ compensation claims, subject to approval by WCJ);

Utilization Review (challenge to reasonableness and necessity of medical care);

Physician’s Affidavit of Recovery (attesting to full recovery post-injury);

Notification of Suspension/Modification (used to suspend or modify wage loss benefits within 7 days of return to work.

Reporting of injury claim with disability requires acceptance, denial, or agreement to pay temporary compensation benefits, within 21 days of first day of claimed disability from work injury.

Claim acceptance requires payment on weekly/biweekly schedule of temporary total disability benefits (TTD) to employee, without specific statutory time limitation, subject to change if the employee’s disability/ability to return to work status.

Claim acceptance results in the employer/insurer obligation to continue paying workers’ compensation benefits for both wage loss and medical expenses until:

· Employee dies from non-work-related causes;

· Employee sufficiently recovers from work injury to be able to return to some level of work;

· If employee returns to work at pre-injury wages, wage loss benefits are suspended, and medical compensation benefits continue;

· If employee returns to work at wages less than pre-injury wages, the employee receives temporary partial disability benefits, payable as 2/3 of the difference between pre-injury wages and post-injury wages, subject to 500 week limitation;

· Impairment rating evaluation determines, after the Claimant has received 104 weeks of temporary total disability benefits, that the Claimant’s impairment rating is less than 50% under a whole person impairment standard, resulting in wage loss benefits being paid as temporary partial disability benefits, subject to the 500 week limitation;

· An employee returns to work and the employer/insurer suspends or modifies wage loss benefits with the filing of a Notification of Suspension/Modification within 7 days of return-to-work;

· An employee executes a Supplemental Agreement, evidencing a suspension, modification or termination of wage loss compensation benefits;

· A WCJ orders wage loss benefits to suspend, modify, or terminate, in reliance upon evidence from the employer/insurer that the Claimant’s compensation status has changed, either due to full recovery from work injury, or due to employee sufficiently recovering from work injury to be capable of working with “earning power”;

· The employee and employer/insurer settle the claim under a Compromise & Release Agreement, required to be approved by WCJ, with the WCJ’s jurisdiction over the Compromise & Release Agreement limited to determining whether the employee understands the “legal significance” of the settlement agreement.

Employers/insurers are entitled to credits for unemployment, employer-funded pension distributions, and a 50% credit for old age social security payments.

C. LITIGATION PROCEDURES:

Disputes over workers’ compensation claims are litigated before the Office of Adjudication, an office within the Bureau of Workers’ Compensation, a division of Pennsylvania Department of Labor and Industry.

The web portal to the Office of Adjudication is www.portal.state.pa.us.

This portal includes facts and information on filing claims, litigating claims, as well as information regarding hearing procedures before WCJs.

Several workers’ compensation petitions are utilized to litigate claims, to include:

· Claim Petition (filed by employee alleging injury and seeking workers’ compensation benefits);

· Review Petition (filed by either employee or employer, seeking administrative review of compensation claim);

· Reinstatement Petition (filed by employee seeking reinstatement of wage or medical compensation benefits);

· Termination Petition (filed by employer, seeking termination of compensation benefits, both wage and medical, with evidence that employee is fully recovered from work injury);

· Suspension Petition (filed by employer, with evidence that the employee is sufficiently recovered from work injury to be able to return to work at wages equal to pre-injury wages);

· Modification Petition (filed by employer, with evidence that the employee has sufficiently recovered from work injury to be able to return to work at wages less than pre-injury wages);

· Petition to Seek Approval of a Compromise & Release Agreement (filed by either employee or employer, seeking WCJ approval of a settlement agreement);

· Penalty Petition (filed by employee, seeking penalties against employer/insurer for alleged violation of the Act) (maximum penalty equals 50% of benefits that were payable in absence of alleged violation).

Petitions are filed electronically with the Bureau, which assigns the petitions to WCJs, with assignments typically based on the employee’s hearing district residence.

Following petition assignments to WCJs, the WCJs conduct hearings on either a serial hearing scheduling basis, or on a 1 day trial scheduling basis, with WCJs directed to follow the Special Rules before WCJs, in terms of all case management scheduling guidelines, as well as to seek closure of the evidentiary record within 12 months of the date of assignment to the Judge.

Closure of the record by the WCJ results in WCJ directing the submission of Proposed Findings of Fact and Conclusions of Law.

Petition-filing party typically charged with the burden of proof as to the allegations raised, either in terms of the benefits or change in status sought.

Decisions issued by WCJs are circulated by the Bureau, and are appealable for 20 days post-circulation.

Statutorily-mandated mediation is required for all litigated Pennsylvania Workers’ Compensation claims.

Appeals from WCJ decision are filed with the Workers’ Compensation Appeal Board which permits the employee and employer to argue the appeal orally as well as in briefs.

The Appeal Board typically rules on appeals within 6-12 months of the appeal being filed.

Appeals from Appeal Board ruling are subject to appeals for 30 days post-issuance.

Appeals from the Appeal Board are filed, via Petition for Review, with the Commonwealth Court.

The Commonwealth Court has jurisdiction over all appeals from Pennsylvania administrative agencies.

The Commonwealth Court typically rules on appeals within 6-12 months of their filing, permitting argument both orally and by briefs.

Commonwealth Court rulings are appealable to the Pennsylvania Supreme Court within 30 days of issuance, subject to allocator being petitioned for before the Supreme Court.

The Pennsylvania Supreme Court typically only averages between 1-4 workers’ compensation decisions per year, typically denying allocator, in the absence of the following:

· Cases of first impression;

· Cases involving public policy consideration;

· Cases involving precedential uncertainty or confusion at the Commonwealth Court level.

D. SETTLEMENTS:

Since 1996, Pennsylvania has permitted workers’ compensation claims to be settled, utilizing a Compromise and Release Agreement.

The settlements must be approved by a WCJ.

The procedure for settling a workers’ compensation claim, after the settlement agreement has been negotiated, is to either amend a pending petition to be a Petition to Seek Approval of a Compromise and Release Agreement, or to file a petition seeking approval of C&R.

The WCA specifically prohibits settlements of workers’ compensation claims, absent a WCJ approving the settlement under a C&R.

For a WCJ to approve a C&R, the WCJ must determine that the employee settling their workers’ compensation claim understands the “legal significance” of the settlement agreement, with the WCJ having no responsibility to determine if the settlement agreement is in the “best interest” of the employee.

The parties are permitted to settle all workers’ compensation benefits, to include wage loss, specific loss, death benefits, medical benefits, penalties, attorneys’ fees, and any other benefit or claim under the jurisdiction of the WCJ, and within the scope of the WCA.

Typically, settlement agreements are also conditioned upon resignations, although the WCJ has no authority to rule on any employment law issues, to include resignations, as well as any issues with respect to the ADA, the FMLA, EEOC, and/or ADEA.

E. LIENS:

Pennsylvania recognizes the right of the employer to subrogate against an employee’s third-party personal injury/tort recovery.

Subrogation is empowered under Section 319 of the WCA.

Relevant factors are:

Employer payment of workers’ compensation benefits;

Work injury caused by third-party negligence;

Employee recovers third-party settlement/award;

Employer/insurer entitled to recover payments of wage loss and medical compensation benefits, subject to pro rata attorneys’ fees and expenses.

The BWC requires the filing of a Third Party Settlement Agreement (LIBC-380) to record the following for subrogation lien recoveries:

· Third-party recovery;

· Workers’ compensation lien;

· Expenses of recovery;

· Balance of recovery;

· Pro rata attorneys’ fees and expenses;

· Reimbursement percentage rate;

· Net subrogation lien recovery;

· Grace period reimbursement rate.

Pennsylvania permits employer/insurers to intervene via interpleader in third-party action, and the Supreme Court has recognized direct subrogation actions by employers/insurers against third-parties.

VII. MAJOR REFORM TIMELINES:

1915: WCA enacted.

1972: Requirement of proving a work accident eliminated, with post 1972 focus on proving a work-related injury, opening the door for repetitive/cumulative trauma injury claims.

1993: Overhaul of provisions dealing with medical compensation benefits, implementing utilization review and medical fee schedules based on Medicare reimbursements. Instituted concepts of panel providers, temporary compensation benefits without formal acceptance of claim.

1995: Reform of hearing loss provision, implementing baseline testing and utilization of AMA Guidelines to prove binaural hearing loss.

1996: Established temporary compensation period at 90 days, true also for panel treatment. Instituted Compromise & Release Agreements, Special Supersedeas, and Notification of Suspension/Modification provisions.

2007: Mandated Mediation, instituted security fund for uninsured employers.

VIII. LINKS:

National Workers’ Compensation Defense Network: www.nwcdn.com
Workers’ Compensation.com: www.workerscompensation.com
Pennsylvania Department of Labor & Industry: www.dli.state.pa.us
Pennsylvania Office of Adjudication: www.portal.state.pa.us
Risk Insurance Management Society: www.rims.com

IX. CONTACTS:

· Kevin L. Connors: kconnors@connorslawllp.com

· Kate A. O’Dell: kodell@connorslawllp.com

· Jeffrey D. Snyder: jsnyder@connorslawllp.com

· John J. Muldowney: jmuldowney@connorslawllp.com

· Lisa A. Miller: lmiller@connorslawllp.com

ConnorsLaw LLP

Trust us, we just get it! It is trust well spent!

VIRGINIA WORKERS’ COMPENSATION UPDATE

Thu, 09 May 2013 05:00:00 GMT

VIRGINIA WORKERS’ COMPENSATION UPDATE

New compensation rates as of July 1, 2012:

As of July 1, 2012, the new maximum compensation rate is $935.00 and the new minimum compensation rate is $233.75. The mileage reimbursement rate remains $.555 per mile. On October 1, 2012, the COLA rate was set at 3.1%.

Commission Update:

New Member of the Full Commission

Effective March 1, 2013, R. Ferrell Newman, Esq. became the “neutral” representative on the Full Commission. The Virginia Workers’ Compensation Commission is comprised of one employers’ representative, one claimants’ representative and one “neutral” member. Before his appointment, Commissioner Newman was a longtime workers’ compensation attorney who has represented both claimants and employers.

Commission announces Alternative Dispute Resolution Pilot Program

The Commission has announced an Alternative Dispute Resolution (“ADR”) pilot program. This program will, initially, only apply to change in condition applications where both parties are represented by counsel. If a claim meets this criteria, Commission staff may contact the parties in order to determine whether the dispute, if any, can be promptly resolved. As part of this process, the parties can agree to a joint telephone conference call where they outline their respective positions or have a Commission staff member act as a “go-between” and the parties will not speak directly to one another. If this avenue is not successful, the next step is an “Issue Mediation.” At mediation, Deputy Commissioner Blevins will, similarly, attempt to find common ground and broker an agreement. This mediation can be done either telephonically or in-person. If successful, this program is likely to be expanded to cover initial Claim for Benefits applications and other contested issues in order to reduce the time and expense of proceeding to hearing.

Expedited Review Pilot Program

Starting with Requests for Review filed on or after January 2, 2013, the Commission will ascertain whether the parties agree to participate in the Expedited Review Pilot Program, provided the parties are represented by counsel. If the parties agree, a Notice of Written Statements and Oral Argument will be promptly issued and the appealing party will have twenty days to file its position statement with the Commission. The responding party will, then, have ten additional days to file its responsive pleading. Briefs submitted by either party are limited to ten pages. After position statements are filed, the Commission will set oral argument for no later than twenty days after the deadline for the last written statement and will aim to issue a decision within twenty days following argument.

Recent Case Law Developments

Prince William County School Board v. Rahim, 284 Va. 316, 733 S.E.2d 235 (2012), is a

case that has generated much interest throughout the workers’ compensation community and concerns the statute of limitations for change in condition applications. InRahim, the claimant filed a Claim for Benefits on November 15, 2007 asserting that she suffered a workplace accident on January 17, 2007, but did not seek any specific benefits with that filing. On September 8, 2008, she filed an Amended Claim for Benefits in which she sought both wage loss benefits and an award for lifetime medical benefits. On June 18, 2009, the parties entered into a Stipulated Order which agreed to the compensability of the workplace accident and a lifetime medical award, but which stated that the claimant suffered no wage loss since she had been provided light duty work by the employer at a wage rate equal to or greater than her pre-injury weekly wage. Accordingly, a “Medical Only Award” was entered.

Subsequently, on October 7, 2009, the claimant filed a change-in-condition application in which she sought temporary total disability benefits from August 11, 2009 to the present and continuing. The defense defended the application on the grounds that since there had not been a previous award of compensation by the Commission, the claimant’s wage loss claim was time-barred as it was filed more than twenty-four months after the workplace accident. The Supreme Court of Virginia unanimously affirmed the Court of Appeals’ 5-4 decision and found that the change-in-condition application was timely filed. In its decision, the Court held that, starting from the date of the medical award, the claimant had two years from the date compensation was last paid to file a change-in condition application. In this case, since the medical award was entered on June 18, 2009, the claimant had until at least June 17, 2011 to file her application. More specifically, the Court found that the language in Va. Code Sec. 65.2-708(a), which governs change in condition applications, encompasses medical only awards because the section states that “any award” can be reviewed, not just those awards which order payment of wage loss benefits. Importantly, the Court also noted that under Va. Code Sec. 65.2-708(c), the payment of light duty wages by the employer after the June 18, 2009 medical award would constitute payment of compensation and could act to toll the statute of limitations until compensation ceased.

2012 Legislative Changes

HB 137- Revises the language contained in § 65.2-105 regarding the statutory presumption that certain injuries arose out of and in the course of the claimant’s employment. The legislative enactment applies to situations where the injured worker is physically or mentally unable to testify and there is un-rebutted prima facie evidence that the injury arose out of and in the course of the claimant’s employment. In these instances, there is now a presumption that the injury “arose out of and was in the course of employment,” even though the claimant is not able to testify as to causation, unless there is a preponderance of the evidence to the contrary. The revised language strikes the previous statutory provision which presumed that the injury was “work related.”

HB 153- Any employee who suffers an injury on or after July 1, 2012 is excluded from coverage under the Virginia Workers’ Compensation Act if there is jurisdiction under the Longshore and Harbor Workers’ Compensation Act or the Merchant Marine Act of 1920.

HB 453- Excuses the Commonwealth of Virginia from penalties associated with failure to pay wage loss benefits pursuant to an Award if the Commonwealth has made a payroll payment to the injured worker in lieu of compensation for at-issue disability period.

HB 1169- The Virginia Workers’ Compensation Commission will retain jurisdiction over claims in connection with disputes over partially paid medical bills even in instances where partial payment has been made by an entity other than the employer, insurer, guaranty fund or uninsured employer’s fund.

SB 576- Until July 1, 2015, the maximum .5 percent tax rate may be assessed against uninsured employers or self-insured employers. The revenue generated by said tax funds benefits that are awarded against employers from the uninsured employer’s fund.

SB 577- States that a majority of Commissioners constitutes a quorum enabling the Virginia Workers’ Compensation Commission to take judicial and legislative action when there is a vacancy on the Full Commission. The Chairman of the Full Commission has the discretion to appoint a deputy commissioner to hear a review request when all Commissioners are unable to hear a review request.

For more information, please contact Lynn Fitzpatrick at 703-793-1800 or lfitzpatrick@fandpnet.com

07-Oct-2012-2

Thu, 09 May 2013 05:00:00 GMT

NWCDN VIRGINIA WORKERS’ OMPENSATION UPDATE

New compensation rates as of July 1, 2012:

Commission Update:

New Member of the Full Commission

Commission announces Alternative Dispute Resolution Pilot Program

Expedited Review Pilot Program

Recent Case Law Developments

Prince William County School Board v. Rahim, 284 Va. 316, 733 S.E.2d 235 (2012), is a

2012 Legislative Changes

For more information, please contact Lynn Fitzpatrick at 703-793-1800 or lfitzpatrick@fandpnet.com

Texas Workers' Compensation Update (April 2013)

Thu, 02 May 2013 20:19:00 GMT

STONE LOUGHLIN & SWANSON, LLP

TEXAS LAW ADVISORY

jstone@slsaustin.com jloughlin@slsaustin.com dswanson@slsaustin.com eshanley@slsaustin.com

eholmes@slsaustin.com dprice@slsaustin.com sgatlin@slsaustin.com

512-343-1300

April 2013 Workers’ Compensation Law Update
More Bills Related to Workers’ Compensation

Last month, we provided you with a summary of the more important bills the Legislature is considering which make substantive changes to comp. And keep your eye on the following additional bills—

• SB 1550/HB 2787 - Allows claimants to recover attorneys’ fees if they prevail on judicialreview of a medical necessity dispute, irrespective of whether the appeal was filed by the claimant or the carrier.

• HB 1762 - Provides that a certificate of insurance showing a temporary employment service maintains comp insurance constitutes proof of workers’ compensation coveragefor both the service and all employees of the service assigned to a client company.

• HB 287 - Requires an IRO or URA, on written request by a party to a reviewed medical dispute, toprovide the name and qualifications of the healthcare providerwho performed the review.

In Addition, Bill Would Make Use of Name or Symbols Related to "Texas" and "Workers’ Compensation" Illegal Only When Used in Deceptive Manner

Currently, the Texas Labor Code makes it illegal to use the terms "Texas" and "Workers’ Compensation" in a business name or document when related to a product or service concerning workers’ compensation coverage or benefits. SB 381 would amend Texas Labor Code §§419.001 and 419.002 and only make the use of the terms illegal if they are used in a "deceptive manner." The amendment explains that "deceptive manner" means a person knows the use of the terms would or could convey the "false impression" that someone, something, or some speech is endorsed or authorized by the DWC.

OIEC Budget on the Chopping Block?

In a recent floor amendment, freshman State Rep. Craig Goldman sought to eliminate $8.2 million of yearly funding to the Office of Injured Employee Counsel. While the signs indicate the amendment will not pass, it is interesting to see that OIEC is again the target of budget cuts.

Tip on Filling Out Form DWC 32: Multiple Certifications

A recent article by Erika Copeland at DWC reminded system participants that multiple certifications taking into account different outcomes for an extent of injury determination will only be provided by a designated doctor when the doctor is ordered to address MMI, IR, and extent of injury. If only MMI and IR is requested, multiple certifications will not be provided. This means adjusters should request the DD address extent of injury, in addition to MMI and IR, if multiple certifications are desired. It is not clear whether the opinion on extent and the opinion on MMI/IR have to be by the same doctor, or can be different doctors, or if the reviews have to be at the same time.

Workers’ Compensation? Worker’s Compensation? Or Workers Compensation?

There is an ongoing debate among pedantic system participants like us about the proper use of an apostrophe in the term, "worker[’]s[’] compensation." We invite you to join the debate. Stone Loughlin & Swanson will provide a $25 Starbucks gift card to the first person to e-mail Jane Stone at

jstone@slsaustin.com with the correct punctuation. Twitter-speak not allowed.

NC Risk Handling Hint - Subrogation rights; N.C.G.S. § 97-10.2; Choice of Law

Wed, 01 May 2013 14:44:00 GMT

Bobby Anglin, a South Carolina resident, suffered a compensable automobile accident while working for his North Carolina employer, Dunbar Armored, Inc. Anglin received benefits pursuant to the North Carolina Workers’ Compensation Act from Defendants and later settled his third-party claim against the other driver in the South Carolina accident for $92,712.55. After this settlement, Defendants agreed to resolve their workers’ compensation lien against the liability settlement for one third of the lien value or $10,613.16. Anglin also reached a settlement with his under insured motorist (UIM) carrier; however, Defendants were not aware of the UIM settlement when the workers’ compensation lien was settled.

Subsequently, Anglin filed suit in Superior Court seeking a declaration eliminating Defendants’ workers’ compensation lien pursuant to N.C.G.S. § 97-10.2. He contended that South Carolina law applied to the determination of Defendants’ subrogation interests in the UIM settlement because it was paid pursuant to a South Carolina policy. He also contended that since South Carolina law does not allow subrogation of UIM funds, Defendants’ lien should be eliminated. Finally, Anglin argued that Defendants lien was already satisfied by their previous agreement to accept one third of the lien value. The trial court disagreed, applied North Carolina law, held there was no accord and satisfaction of the lien with the previous settlement as Defendants were not aware of Anglin’s UIM settlement at the time of the previous lien settlement, and awarded Defendants the remaining $21,206.31 of their workers’ compensation lien. Anglin appealed.

On April 2, 2013, in Anglin v. Dunbar Armored, Inc., the North Carolina Court of Appeals affirmed the decision of the trial court, upholding the award to Defendants in satisfaction of their workers’ compensation lien. The court noted that where a party seeks a determination of a workers’ compensation lien pursuant to N.C.G.S. § 97-10.2 it is seeking "remedial" or "procedural" relief and, as such, the law of North Carolina, as the forum state, applies. Since North Carolina law does not prohibit subrogation of UIM funds, the trial court did not improperly award Defendants a portion of Anglin’s UIM settlement in satisfaction of the remainder of their workers’ compensation lien.

Risk Handling Hint: Where Defendants have a particular interest in recovering from an injured workers’ third-party settlement to satisfy their subrogation lien, special consideration should be given to bringing an action in North Carolina’s courts, pursuant to N.C.G.S. § 97-10.2, to avoid the potential application of unfavorable subrogation laws in other states.

Zheng v. New Grand Buffet, Inc., 03/20/13

Tue, 30 Apr 2013 22:59:00 GMT

Rayford H. Taylor
Of Counsel
Casey Gilson P.C.
Six Concourse Parkway, Suite 2200
Atlanta, Georgia 30328
770-512-0300 -Ext. 529
770-512-0070 -Fax
rtaylor@caseygilson.com
www.caseygilson.com

Zheng v. New Grand Buffet, Inc., (03/20/2013)

The appellate court ruled the employee could not unilaterally change her treating physician before asking the State Board for such authority when there is a valid physician panel in place for that employer

Zheng sustained a compensable injury on May 27, 2010, and began receiving medical care and income benefits. Her employer suspended Zheng's income benefits on October 1, 2010, asserting that Zheng underwent a change in condition for the better based on a regular duty work release from her authorized treating physician ("ATP"). Zheng disputed that she had undergone a change in condition for the better and sought reinstatement of her income benefits, payment of certain medical expenses, permission to change her ATP, a late penalty, and an assessment of attorney fees.

The administrative law judge ("ALJ") found the employer's suspension of benefits "was not improper" in view of an August 24, 2010, statement from the ATP that he anticipated she would be able to return to work on August 31, 2010. The work release was prospective, however, depending on test results and an evaluation, and Zheng did not return to the doctor on August 31, 2010, as scheduled. Instead, Zheng elected to see another physician of her own choosing. After reviewing evidence from the physicians who saw Zheng before and after, the ALJ reinstated Zheng's income benefits as of October 1, 2010, concluding that the employer did not establish by a preponderance of the evidence that she had a change in condition for the better that allowed her to return to work without restrictions.

The ALJ also found the employer had a panel of physicians and that the employer's manager had explained the panel's function to Zheng when she had been rehired two months before she was injured. Zheng had received treatment from the three physicians on the panel: Dr. Chang, Dr. Wu, and Dr. Armstrong. However, instead of returning to Dr. Armstrong, she changed physicians on her own without Board approval. Because the employer had been providing appropriate medical treatment, it did not lose control of her treatment and was not responsible for paying the new physicians' expenses. The ALJ denied Zheng's request that one of her new physicians be designated as her ATP, finding that the employer should first have the opportunity to offer treatment by another physician of the employer's choice. Finally, finding that the case was closely contested on reasonable grounds, the ALJ denied the employee's request for attorney fees and penalties.

Both sides appealed the ALJ's decision to the Appellate Division of the State Board of Workers Compensation, which adopted the ALJ's findings of fact and conclusions of law. Both parties appealed this decision to the superior court, which conducted a hearing. The superior court did not issue an opinion within 20 days of the hearing, and thus the Board decision was affirmed by operation of law.

On appeal, the appellate court affirmed the ALJ's rulings because there was evidence of a valid panel, the panel had been explained to the employee, and she went to an unauthorized physician without permission of the employer/carrier. The employee's remedy was to petition the State Board for a change, rather than seeking treatment on her own.

720425-1

SunTrust Bank v. Travelers Prop. Cas. Co. of America 03/28/13

Tue, 30 Apr 2013 22:57:00 GMT

Rayford H. Taylor
Of Counsel
Casey Gilson P.C.
Six Concourse Parkway, Suite 2200
Atlanta, Georgia 30328
770-512-0300 -Ext. 529
770-512-0070 -Fax
rtaylor@caseygilson.com
www.caseygilson.com

SunTrust Bank v. Travelers Prop. Cas. Co. of Am., (03/28/2013)

An insurer cannot have its timely workers' compensation lien extinguished merely by the employee and the tort defendant agreeing the employee was not fully compensated

The worker was injured in the course of his employment following a motor vehicle collision. He received workers' compensation benefits before filing suit against two third-party tortfeasors. Although the insurer timely intervened in the suit to protect its workers' compensation subrogation lien, the worker and the tortfeasors settled the case for a confidential lump sum without the insurer's knowledge, participation or consent. Among other terms, the settlement agreement included a conclusory statement that the proceeds of the settlement did not fully and completely compensate the worker for his injuries. The insurer filed its motion to enforce its subrogation lien, which the trial court granted.

On appeal, the estate administrator contended the trial court erred in finding the terms of the settlement agreement did not extinguish the insurer's right to enforce its subrogation lien. The court disagreed and held the insurer had the right to intervene and the trial court was required to conduct a hearing on whether the worker was fully compensated, so that the insurer could attempt to enforce its subrogation lien.

720428-1

Garcia v. Shaw Indus. Inc. 03/29/13

Tue, 30 Apr 2013 22:56:00 GMT

Rayford H. Taylor
Of Counsel
Casey Gilson P.C.
Six Concourse Parkway, Suite 2200
Atlanta, Georgia 30328
770-512-0300 -Ext. 529
770-512-0070 -Fax
rtaylor@caseygilson.com
www.caseygilson.com

Garcia v. Shaw Indus., Inc., (03/29/2013)

Employer found not liable for intentional infliction of emotional distress and defamation for reporting employee's possible fraud to State Board of Workers' Compensation

A former employee filed an action against a former employer for intentional infliction of emotional distress (IIED) and defamation.

The employee was not a citizen of the United States, but entered the country legally with a border-crossing card. The employee was not authorized to work in the United States, but obtained employment using the name, Social Security number, and personal information of another person, whose identity the employee paid to use.

The employee fell and injured her back at work. After treatment, she returned to light duty work and filed a claim for benefits. During that period, the employer became aware of the employee's situation and immigration status. The employer terminated the employee, but continued to provide medical treatment and TPD benefits.

The employer filed a complaint with the State Board's fraud and compliance unit. The employee was later arrested on warrants for forgery and possession of fraudulent documents after her deposition in the workers' compensation case was completed. The employer cooperated with the State Board, and arranged for the State Board to arrest her after the deposition. The employee filed her IIED suit, which was dismissed.

On appeal, the employee contended the trial court erred in granting summary judgment to the employer on her IIED claim, because there was evidence the employer set her up for arrest causing her severe emotional distress. The appellate court concluded the employer's conduct did not rise to the level of extreme and outrageous conduct necessary for an IIED claim. Even if the employer knew the employee was operating under an alias, it was not malice for the employer to want to bring the illegal behavior to an end. In addition, when the employer filed an administrative fraud complaint with the Georgia State Board of Workers' Compensation, it truthfully and accurately related the facts.

720424-1

NC Risk Handling Hint: Expert Testimony

Tue, 30 Apr 2013 16:04:00 GMT

David Gray was working as a truck driver for UPS when he suffered a fatal heart attack. The claim was denied and, after a hearing, the Deputy Commissioner found the death compensable. The Full Commission affirmed. InGray v. UPS, 713 S.E.2d 126 (2011), the Court of Appeals affirmed in part and remanded the case to the Full Commission to enter findings on whether Defendants had successfully rebutted thePickrell presumption. Decedent’s widow filed a Petition for Discretionary Review and Petition for Writ of Certiorari to the North Carolina Supreme Court, both of which were denied. The Full Commission then entered an Opinion and Award denying the Mrs. Gray’s claim for death benefits and she appealed.

On March 19, 2013, in Gray v. United Parcel Service, Inc.,the Court first considered whether the Full Commission erred in concluding that decedent’s death was not compensable. In rejecting this argument, the Court found that the decedent’s autopsy listed the cause of death as coronary atherosclerosis, and Defendants’ expert witness opined that decedent’s fall from his work truck did not cause or contribute to his heart attack. The Court also noted that no evidence was presented that a fall was an accepted cause of a heart attack and as such, the evidence supported the Commission’s finding and conclusion that Mrs. Gray failed to carry her burden of proof to show that her husband’s death was the result of an accident arising out of the course and scope of his employment.

The Court also addressed the issue of whether the Full Commission applied the correct medical causation standard in concluding that Mrs. Gray’s medical expert’s testimony was speculative. The Court recounted that Mrs. Gray’s medical expert admitted that he did not have a medical explanation for Decedent’s fall and the Commission, therefore, reasonably concluded that her expert testimony was speculative and properly relied on medical evidence presented by Defendants.

Risk Handling Hint:

While the Court initially remanded the Gray case back to the Full Commission to consider whether Defendants had successfully rebutted thePickrell presumption, their subsequent holding inGray is yet another reminder that the Full Commission can weigh evidence and make credibility determinations that will not be disturbed on appeal so long as there is some evidence to support the Commission’s findings and conclusions.

NC Risk Handling Hint - Written Notice; Reasonable Excuse; Actual Knowledge

Mon, 29 Apr 2013 14:52:00 GMT

Risk Handling Hint - Written Notice; Reasonable Excuse; Actual Knowledge

In the course of bringing coffee and doughnuts to a morning meeting in 2006, James Yingling’s car was hit by another driver who ran a red light. Yingling called his supervisor and the branch manager, who both came to the scene of the accident, and later reported the accident to his manager in Charlotte. However, Yingling never gave Bank of America any written notice of the accident. Later that day, Yingling began feeling back pain and sought treatment, but continued to work for Bank of America. Two years later, Yingling suffered another work-related injury when he slipped and fell on a recently waxed floor. He did not return to work after that accident. Shortly thereafter, Yingling filed a written notice of a claim for both the 2008 slip-and-fall accident and the 2006 car crash. Defendants denied both claims, on the basis that Yingling failed to give written notice without reasonable excuse and that Defendants were prejudiced by the two year delay.

The case was heard by Deputy Commissioner James C. Gillen, who entered an Opinion and Award in favor of Yingling. Defendants appealed to the Full Commission, which affirmed the Deputy Commissioner’s decision. Defendants appealed.

On March 5, 2013, in Yingling v. Bank of Am., the Court of Appeals considered the case and upheld the Full Commission’s Opinion and Award. The Court first considered whether the Full Commission erred in rejecting Defendants’ lack of notice argument. Recounting the details of the case, the Court found Yingling provided actual notice to his supervisor, branch manager and manager in Charlotte, on the day of the accident. The Court further noted that although Yingling did not immediately seek medical treatment, he did soon thereafter and he notified Bank of America of his need to be absent from work to attend medical appointments. N.C.G.S. § 97-22 states the employer must have "knowledge of the accident"; but the Court found that it does not require knowledge of a "work-related injury" as argued by Defendants.

The Court then addressed the second prong of N.C.G.S. §97-22; prejudice to Defendants. In rejecting this argument, the Court held that Defendant had received sufficient notice of the accident, and so any prejudice it suffered was its own fault, so to speak. If Defendants had properly investigated the accident at the time it received actual notice and accepted the claim as compensable, it could have directed Yingling’s treatment and filed a third-party claim against the driver of the other vehicle.

The last argument addressed by the Court was whether the Full Commission erred in approving Yingling’s treating physician in light of the 2011 changes to N.C.G.S. § 97-25. The 2011 amendments only changed the word "physician" to "health care provider." The Court admonished that the change did not indicate that the Legislature intended to alter the long-standing rule that the Industrial Commission can approve a health care provider chosen by the employee. Moreover, the right to direct medical treatment is triggered only when the employer has accepted the claim as compensable. Nothing in the revised statute suggested to the Court that the Legislature intended to allow the employer to enjoy the benefits of choosing a treating physician without bearing the associated obligations, i.e., paying for medical treatment.

Risk Handling Hint:

Where the employer has some notice of a work-related injury,Yingling suggests that it is not enough to rely on an employee to report any ongoing medical issues. Risk managers must take affirmative steps to determine whether subsequent absences or medical treatment are due to the work-related incident.

Kleinschmidt Presented at Workers’ Compensation Institute

Mon, 29 Apr 2013 14:36:00 GMT

The 28th Annual Workers’ Compensation Institute was held on April 19 & 20 at the Minnesota CLE Conference Center. This content rich event featured sessions on significant cases, legislative changes, updates from OAH and DOLI, workplace violence, aging workforce, and more subjects covered in multiple break-outs.

Cousineau McGuire’s Mark Kleinschmidt presented Landmines in Drafting Stipulations for Settlement.

Minnesota Workers' Compensation Symposium

Mon, 29 Apr 2013 14:33:00 GMT

Thomas Kieselbach is speaking on a panel at this year's Minnesota Workers' Compensation Symposium. He will be joined by others from SECURA Insurance and US Bank discussingRun Away Litigation Cost.

Cousineau McGuire will also be exhibiting at the event which draws hundreds of claims adjusters annually. This Symposium will take place Wednesday, May 8 at the Minneapolis Marriott Southwest. For more information on this conference, please visit the website for the Minnesota Workers' Compensation Symposium.

President Obama Signs SMART Act into Law

Mon, 29 Apr 2013 14:32:00 GMT

On January 10, 2013, President Obama signed the SMART Act into law. The SMART Act revises the Medicare Secondary Payer Act and penalties associated with Section 111 Reporting. It creates a framework to simplify the process of resolving conditional payment liens. The Act sets a three-year statute of limitations for conditional payment recovery lawsuits. It also revises the mandatory $1,000.00 a day penalty for late reporting and orders the Secretary of HHS to publish new rules on penalties for late reporting. The Act further requires an exception to penalties when the responsible reporting entity has made “good faith efforts to identify a beneficiary. . . for reporting information.”

Please contact Whitney Teel for further information.

Minnesota State News - Case Updates for April, 2013

Mon, 29 Apr 2013 14:29:00 GMT

Medical Expert Opinion

Scott Polzin v. Canterbury Park and SFM, slip op.
WCCA, filed February 20, 2013 ~ reviewed by Tom Atchison

The W.C.C.A. affirmed the compensation judge’s Findings and Order denying the employee’s claim for wage loss benefits and request for authorization for surgery. In doing so, the W.C.C.A. held that it was reasonable for the compensation judge to accept Dr. Friedland’s opinion who performed an IME on behalf of the employer and insurer. The treating doctor, Dr. Falconer’s opinion, the W.C.C.A. noted, lacked a sufficient basis to conclude that a diagnostic midcarpal arthroscopy would identify or resolve the Employee’s symptoms.

In July 2007 the Employee sustained a left hand injury while working as poker dealer at Canterbury Park. Ultimately, the Employer and Insurer accepted liability for the Employee’s left hand injury. Over the following months and years, the Employee underwent multiple treatments to diagnose the cause of his left hand symptoms. Multiple doctors were unable to identify the etiology of the Employee’s symptoms, including a Mayo Clinic doctor who offered an opinion that he employee could engage in any activities without jeopardy to the left hand. In light of the unknown etiology, Dr. Falconer recommended a diagnostic midcarpal arthroscopy. Dr. Falconer did acknowledge that previous MRIs and scans should have revealed joint irritation or arthritic damage and, further, that the surgery might not provide lasting therapeutic benefits if it did not identify the cause of the Employee’s symptoms. The Employee filed a Claim Petition claiming entitlement to wage loss benefits, a vocational rehabilitation consultation, and approval of the surgery recommended by Dr. Falconer.

The Employee underwent an independent medical examination with Dr. Mark Friedland. Dr. Friedland concluded that the Employee’s symptoms were without objective anatomic etiology. Further, he opined that the Employee was not in need of any additional medical care and that he had no work restrictions. Dr. Friedland also concluded that Dr. Falconer’s surgical recommendation was not reasonable or necessary. The compensation judge adopted Dr. Friedland’s opinion that the Employee had no work restrictions effective June 1, 2010, that the Employee was not entitled to wage-loss benefits as alleged, and that Dr. Falconer’s surgical recommendation was not reasonable or necessary. The WCCA affirmed, reiterating the long held view that the compensation judge’s choice of competing medical opinions will be upheld unless there is a foundational defect.

Subdivision 7 Fees

Lann v. Stan Koch & Sons Trucking, Inc.
WCCA, filed March 6, 2013 ~ reviewed by T. Zachary Chalgren

In case of first impression, the WCCA, over the dissent of Judge Wilson, reversed the compensation judge’s calculation of an award under MS 176.081, subd. 7. The employee’s attorney requested payment of attorney fees, including subd. 7 fees, after successfully representing the employee with respect to a medical issue. There had been an award of attorney fees and subd. 7 fees after an earlier dispute, where the subd.7 fees were calculated at 30% of the attorney fees awarded in excess of $250. In the present case, the employee calculated the subd. 7 fee at 30% of the fee awarded. The employer and insurer calculated the subd. 7 fee at 30% of the fees awarded in excess of $250. The difference was $75.00. The compensation judge agreed with the employer and insurers calculation. The majority of the 3 Judge panel disagreed and reversed, awarding subd. 7 fees as calculated by the employee. The basis for the reversal was that MS 176.081 states that attorney’s fees for the same dates of injury are cumulative; therefore the statute contemplates deduction of the $250 only once.

Judge Wilson dissented, holding that other provisions of Minn. Stat. § 176.081 contemplate evaluation of fees on a claim-by-claim basis. Wilson argued that the majority’s analysis would apply not only to Subdivision 7, but to calculation of contingent fees under Minn. Stat. § 176.081, subd. 1(a).

Electronic Filing at Minnesota Department
of Labor and Industry

The Minnesota Department of Labor and Industry (DLI) has launched a new online process enabling employees, insurers, attorneys, rehabilitation providers and medical providers to complete and submit Medical Request, Medical Response, Rehabilitation Request and Rehabilitation Response forms electronically to the department. The process is intended to reduce delays caused by manually processing paper requests and responses. Use of this online filing process is optional; parties can continue to file these forms with the department in the conventional paper format.

The process is available to use beginning April 19, 2013. All applicable statutes and rules regarding the filing of Medical Request and Rehabilitation Request forms apply to the forms available electronically from DLI’s website. Data submitted electronically will be accepted as received only during regular DLI business hours, 8 am to 4:30 p.m. (Central Time), Monday through Friday (excluding holidays). Data received after 4:30 p.m. or on a Saturday, Sunday or state holiday will be electronically date-stamped for the next business day DLI is open for business.

The form can be accessed at https://secure.doli.state.mn.us/adrforms/main.aspx. General instructions and directions for completion and submission of Medical Request and Rehabilitation Request forms can be accessed at www.dli.mn.gov/WC/PDF/mq03.pdf or www.dli.mn.gov/WC/PDF/rq03.pdf. If you have questions regarding the submission of these forms, call the Alternative Dispute Resolution unit at (651) 284-5032 or 1-800-342-5354.

Two New Attorneys Join Work Comp Practice

Mon, 29 Apr 2013 14:24:00 GMT

Prior to joining the Workers' Compensation Practice Group, T. Zachary Chalgren, was a law clerk at two local law firms and a private business. He performed legal research and wrote analysis of state and federal issues, memoranda, pleadings, discovery and assisted with court filings. He obtained his J.D. from William Mitchell and his undergrad from University of St. Thomas.

Denise E. Heinemeyer, a seasoned veteran of the insurance industry where she held multiple positions for over 14 years, has also joined the Workers' Compensation Practice. She later became an attorney and worked for various local law firms handling legal research, writing, document review, depositions, mediations, motion hearings and no-fault arbitrations. In addition, she worked in the healthcare insurance industry as a legal and regulatory compliance professional. She obtained her J.D. from William Mitchell and her undergrad from Moorhead State University.

Tennessee Legislature Passes Major Workers' Compensation Reform Bill

Fri, 26 Apr 2013 21:07:00 GMT

April 2013

Tennessee Legislature Passes Major Workers' Compensation Reform Bill

After several years of gathering steam, the Tennessee workers' compensation reform movement has culminated in arguably the most significant change in the law since the statute was enacted in 1919. The driving force behind this reform movement was the sentiment among many that rising workers' compensation costs in Tennessee was driving away business. The reform bill (SB 0200/HB 0194) easily passed both the state senate and house, and it has been transmitted to the governor for signature. Once signed by the governor, the new law will go into effect July 1, 2014.

The reform bill drastically changes several aspects of Tennessee workers' compensation law. Perhaps the most visible change is that an administrative system will be adopted. Under current law, Tennessee claims are handled by a hybrid system where the first part of the claim (e.g. temporary disability benefits, medical benefits, mediation) is administered by the Tennessee Department of Labor. The second part of the claim (e.g. the adjudication of permanent disability and future medical expenses) is handled by the trial courts. Under the new system, the trial courts will no longer have a role. All issues of temporary and permanent workers' compensation benefits will be decided by the new Court of Workers' Compensation Claims, whose judges will be appointed by the Administrator of the Division of Workers' Compensation. The Tennessee Supreme Court will remain as the ultimate level of appeal.

Another significant change in the law involves statutory construction. The current law provides that the Tennessee workers' compensation statute is remedial in nature and is to be construed equitably. In effect, this means that close issues are typically decided in favor of the injured worker. However, under the reform bill the remedial construction has been eliminated. The new workers' compensation statute states that it shall not be remedially or liberally construed, but shall instead be applied impartially favoring neither the employee nor employer.

The calculation of permanent indemnity benefits is also significantly changing under the new law. Currently, permanent partial disability (PPD) benefits are based on either scheduled injuries (whose maximum value is determined by statute) or whole person injuries (whose maximum value is 400 weeks). The amount of those benefits is generally determined by a multiplier system. If the employee makes a meaningful return to work for the pre-injury employer, then PPD benefits are capped at 1.5 times the impairment rating. If there is no meaningful return to work, then PPD benefits are capped at up to 6 times the impairment rating. Under the new law, the determination of PPD benefits will be completely different. For instance, all injuries will be examined as whole person injuries, and the maximum value will be increased to 450 weeks. PPD will be calculated based solely on the impairment rating regardless of whether the employee has returned to work. However, the employee might be eligible for additional benefits if certain conditions are subsequently present. For instance, the PPD award may be increased by a factor of 1.35 times if the employee is not returned to work with any employer or is earning less than the pre-injury wages. The award may be further increased by multiplying the award by the product of the following factors: (a) 1.45 times if the employee lacks a high school diploma or GED; (b) 1.2 times if the employee is more than 40 years of age; and (c) 1.3 times if the employee lives in a Tennessee county with at least 2% higher unemployment rate than the state average. Finally, additional benefits might also be available to the employee if at the time of the award or settlement, the employee can prove by clear and convincing evidence at least three of the following four factors: (1) the employee lacks a high school diploma or GED, or cannot read and write at the 8th grade level; (2) the employee is 55 years of age or older; (3) the employee has no reasonably transferrable job skills; and (4) the employee has no reasonable employment opportunities available locally considering the employee's permanent medical condition.

Since this new system is brand new and untested, it is difficult to determine with any certainty how it will ultimately affect exposure for PPD. Undoubtedly, some of these various factors have an element of redundancy. In addition, it remains to be seen how these different factors might work together on a single claim. However, according to the sponsors of the bill the end result of these changes is intended to be lower average indemnity awards for workers' compensation claims. That is probably accurate, though an interesting open question is how this will affect the return-to-work analysis. Under the current multiplier system, employers have a tremendous financial incentive to return injured workers back to work. However, it would seem that there would be significantly less incentive to do so under the new system.

The causation analysis will also be affected by the new law, which changes the definition of injury to include an injury by accident, a mental injury, occupational disease, or cumulative trauma condition arising primarily out of and in the course and scope of employment. Two years ago, the "primarily" standard was introduced for repetitive trauma conditions and the new law will now apply it to all injuries. "Primarily" is defined to mean that the employment contributed more than 50% percent in causing the injury, considering all causes, as established by a preponderance of the evidence. The opinion of the treating physician shall be presumed correct on the issue of causation, but this presumption may be rebutted by a preponderance of the evidence.

Another change in the law concerns panels of physicians. Under the current law, the employer is required to provide a panel of three physicians or surgeons, not associated in practice, located in the employee's community, from which the employee may select the treating physician. For back injuries, the panel must be expanded to four, including one chiropractor. If the treating physician refers the employee for specialist care, the employer must then provide a new panel of three specialists, not associated in practice, located in the employee's community. Under the new law, employers will still be required to provide an initial panel of three physicians, surgeons, chiropractors, or specialty practice groups, if available in the employee's community, from which the employee will select the treating physician. If three or more providers are not available in the employee's community, then the panel may include providers from a 100 mile radius of the employee's community. If the treating physician makes a referral to a specialist, the employer shall be deemed to have accepted the referral unless, within three business days, a new panel is provided to the employee. It is important to note that both under the current law and the new law, "community" remains undefined.

The issue of medical expenses is a huge issue in Tennessee workers' compensation. According to recent testimony in the Tennessee Workers' Compensation Advisory Council, medical costs account for approximately 67% of all costs associated with Tennessee workers' compensation claims. This issue is also addressed in the reform act through the creation of a Medical Advisory Committee. This committee shall consult with the Administrator, who must adopt guidelines by January 1, 2016, for the diagnosis and treatment of commonly occurring workers' compensation injuries. Any treatment that follows the guidelines will be presumed reasonable and necessary, and this presumption may only be rebutted by clear and convincing evidence.

In summary, big changes are on the horizon in Tennessee. Proponents of the bill claim that these reforms will result in fairer, faster, and more efficient resolution of Tennessee workers' compensation claims. Opponents of the bill have questioned the ability of the Tennessee Department of Labor to effectively administer such a system, the perceived drastic reduction of workers' compensation benefits, and possible chilling effect on the filing of new claims in the future. Note that since the new law will not go into effect until July 1, 2014, the Tennessee legislature will have another legislative session to further tinker with the bill if they choose. So, stay tuned for more developments.

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

NC Risk Handling Hint - Disability; Two Separate Injuries; Compensation Rate

Fri, 26 Apr 2013 20:57:00 GMT

David Helfrich suffered four work-related injuries while working for Coca-Cola Bottling. Helfrich’s third accident occurred on March 12, 2008, when he injured his right foot on a truck lift gate. The compensation rate for this injury was $672.98. Helfrich’s final injury occurred on May 20, 2009, when he hurt his right knee and ankle while stepping off a forklift. The compensation rate at that time was $634.28. Following a for-cause termination on March 15, 2010, Helfrich filed a Form 33 alleging entitlement to indemnity benefits of $672.98 per week from and after March 16, 2010.

The case was heard by Deputy Commissioner Victoria M. Homick who entered an Order finding that Helfrich was entitled to receive temporary total disability payments at the rate of $634.28 per week from and after March 15, 2010. Helfrich appealed. The Full Commission affirmed, concluding that as a result of Helfrich’s third and fourth injuries, he was disabled from March 15, 2010 and continuing and entitled to temporary total disability compensation of $634.28 per week. Helfrich appealed that determination as well.

On March 5, 2013, in Helfrich v. Coca-Cola Bottling Co.,Consolidated, the Court of Appeals addressed the issue of the applicable compensation rate after March 15, 2010 and concluded that the Full Commission erred in basing the rate on the fourth injury exclusively. According to the Court, the Commission never determined whether Helfrich had received an injury for which compensation was payable while still receiving or being entitled to compensation for a previous injury in the same employment and, if so, which of the applicable compensation rates would cover the longest period and provide the largest amount payable as required by N.C.G.S. §97-34. Instead, the Commission simply found that Helfrich was disabled as a result of his March 12, 2008 and May 20, 2009 injuries, collectively, and was entitled to temporary total disability compensation at the lower May 20, 2009 rate. The Court remanded the case to the Commission for the entry of a new order which addressed the application of N.C.G.S. § 97-34, and analyzed which injury covered the longest period and provided the largest amount payable to Helfrich.

Risk Handling Hint: In situations of multiple, over-lapping, compensable injuries, risk managers are reminded to consider the application of N.C.G.S. § 97-34 in addition to the medical evidence of work limitations.

Test

Wed, 24 Apr 2013 14:46:00 GMT

Test

Alabama Court of Civil Appeals Addresses Several Issues in Affirming Permanent and Total Award

Sun, 21 Apr 2013 19:35:00 GMT

On April 19, 2013, the Alabama Court of Civil Appeals released its opinion in McAbee Construction, Inc. v. Elvin Allday. At trial, the employee presented evidence that he had worked as a boilermaker since 1986. During that time, he had sustained multiple work related injuries to his back and shoulders. However, the evidence revealed that the employee had fully recovered from those injuries and was working without restriction. During a temporary shutdown of the mill operated by his regular employer, the employee took a job with McAbee Construction and claimed a work accident resulting in injury after only 5 days with his new employer. Initially, the employee claimed only arm and shoulder problems but, a few days later, also claimed back pain. Eventually, the employee underwent a two-level lumbar fusion and a decompressive laminectomy. At trial, the judge considered medical testimony stating that the employee could have experienced the same problems even without a new accident based on his medical history. There was also evidence that the FCE was rendered invalid by symptom magnification. Ultimately, the judge determined that the back injury was compensable and awarded permanent and total benefits for the lifetime of the employee.

On appeal, the Court of Civil Appeals determined that there existed substantial evidence to support the permanent and total verdict and, therefore, affirmed that aspect of the judgment. In doing so, it addressed a few issues of interest.

Notice

On appeal, the employer asserted that the employee did not provide proper notice of his back injury. The Court of Civil Appeals noted that only notice of the accident is required and that notice of the exact nature of the injury that flows from the accident is not required.

Depression

the employer also asserted that the judge improperly related the employee’s claims of depression to the accident because the employee had failed to allege depression in his complaint. The Court of Civil Appeals noted that, while the judge’s order made reference to the testimony of a psychologist, it was for the purpose of explaining the symptom magnification referenced in the FCE. Specifically, it was the opinion of the psychologist that depression can cause or contribute to symptom magnification.

AWW

At trial, the employee testified that he chose to work only 40 weeks a year in order to spend more time with his family. As a result, the judge elected not to use one of the three predesignated methods set forth in the Alabama Workers’ Compensation Act for computing AWW. Rather, the judge took the amount earned by the employee in the one week he worked for his employer, multiplied it times 40 weeks, and then divided it by 52 weeks. The Court of Civil Appeals agreed that judge’s method was equitable to both parties and was an acceptable deviation from the standard three methods.

Lifetime Benefits

The employer asserted and the employee conceded that it was improper for the order to state that benefits were owed for the employee’s lifetime. Therefore, the case was remanded to the judge to revise the order to state that benefits were only owed for the duration of the employee’s permanent disability.

_________________________________________

About the Author

This article was written by Michael I. Fish, Esq. of Fish Nelson LLC, a law firm dedicated to representing employers, self-insured employers and insurance carriers in workers’ compensation matters. Fish Nelson is a member of The National Workers’ Compensation Network (NWCDN). If you have any questions about this article or Alabama workers’ compensation issues in general, please feel free to contact the author atmfish@fishnelson.com or any firm member at 205-332-3430.

04/10/2013 Iowa News Update

Thu, 18 Apr 2013 16:23:00 GMT

Thomas Millenkamp v. Millenkamp Cattle, Inc. and Nationwide Mutual Ins. Co. d/b/a Allied, No. 3-047 / 11-2068 The Claimant sought review of the decision affirming the denial of the Claimant’s alternate medical care petition. The Claimant, Thomas Millenkamp, suffered a traumatic brain injury in February 2001. Compensability was accepted following the agency’s findings in a contested case proceeding. The Claimant was treating with neurologist Dr. Sterrett until Dr. Sterrett retired in 2007 or 2008. The employer never received notification of this retirement. The Claimant continued to receive the same medication he had been receiving, though the prescription was written by his primary care physician, Dr. Compton. When the medication began to be ineffectual, the Claimant requested Dr. Compton refer him to another neurologist; a doctor Neiman. The employer paid for the initial prescription written by Dr. Neiman and then informed the Claimant that Dr. Neiman was not an authorized treating physician and that future care would be handled by Dr. Rizzo, who was the employer’s liability expert at the previous hearing. The Claimant objected to this and the employer instead referred care to Dr. Young. Following the designation of Dr. Young, the Claimant filed a petition for alternate medical care with the workers’ compensation commissioner seeking to have Dr. Neiman designated as the authorized treating physician. Following the hearing on the matter, the deputy determined that the Claimant had failed to carry his burden of proof that the authorized care was not effective. The deputy determined that “The choice of a board certified neurologist that is relatively close to the claimant’s residence appears very reasonable. The employer is permitted to choose the care provided, and changing authorized physicians (particularly where mandated by a physician’s retirement) does not itself establish unreasonableness.” Following the denial, the claimant filed a petition for judicial review. In the meantime, the claimant filed a second petition for alternate medical care about a month after his first petition. Dr. Young had apparently refused to treat the Claimant and the employer referred care to Dr. Cullen, another board certified neurologist. At this second hearing, the deputy took notice of the prior alternate medical care hearing. The deputy then found that Dr. Neiman’s care had been helpful and determined it was unreasonable for the Claimant to see Dr. Cullen when Dr. Neiman was available, willing to treat the Claimant and had provided some effective care already. The employer then filed a petition for judicial review of this decision. While that decision was pending, it was discovered that the first hearing was not properly recorded. Thus as the deputy at the second hearing had taken notice of a proceeding that did not exist, the district court remanded both alternate medical care decisions back to the agency for rehearing. The Claimant dismissed his first petition for alternate medical care and only the second then remained for rehearing in November 2010. At rehearing, the deputy found the evidence did not support the claimant’s claim that the employer had abandoned care, nor was the employer trying to avoid treatment recommendations of an authorized doctor or interfere with the recommendations of Dr. Neiman. The deputy found the employer was simply exercising its statutory right to select care after the retirement of Dr. Sterrett. The deputy concluded the employer has offered care with a board certified neurologist and the evidence showed the employer had provided reasonable care. On appeal, the District Court affirmed the decision of the agency. The Court found the Commissioner was not arbitrarily based on a failure to follow agency precedent. Finally, the Court determined that the employer had not abandoned care as they made a prompt response once they learned of Dr. Sterrett’s retirement. The Court also found the record devoid of any evidence that Dr. Cullen would not provide reasonable treatment. The Claimant then appealed to the Court of Appeals. The Court first looked to the various claims made by the claimant to determine the proper standard of review. Based upon the claims brought, the Court determined that the claims challenged the substantial evidence to support the factual findings, the agency’s application of law to those facts, and the agency’s interpretation of the applicable law. In regards to factual findings, the Court stated those could only be disturbed if not supported by substantial evidence. The application of law to those facts would only be disturbed if it was irrational, illogical or wholly unjustifiable. Finally, the review of interpretation of law depends upon whether the agency was clearly vested with the authority to interpret the statute in question. The Court turned its attention to the issue of alternate medical care and noted that “[w]hile the employer has the obligation to provide and the right to choose the medical care an injured worker receives for compensable injuries under the statute, the employee retains the right to request alternate medical care if he is dissatisfied with the care being offered.” The Claimant however has the burden of proof to show that the authorized care is unreasonable. The Court first examined the Claimant’s argument that the employer did not have the right to change his medical provider. The Court examined the opinions of both the agency and district court and concluded that in neither was it asserted that the employer had the absolute right to choose or change the medical care of an injured employee. Rather, the Court noted that the decisions correctly quoted the applicable Iowa statutes which state the employer is obliged to furnish reasonable services and supplies to treat and injured employee and has the right to chose the care, and that the right to choose the care limited to care being offered promptly and without undue convenience to the employee. The Court then turned its attention to the next argument made by the Claimant that the factual finding that the employer took prompt action to authorize other physicians upon the retirement of Dr. Sterrett was in error. The Court concluded this was not an improper factual finding but a summary of the factual findings of the agency. The next argument put forth by the Claimant was that the employer lost the ability to change providers due to more than four years of inattentiveness and inactivity. However, the Court found the evidence did not support this argument and that substantial evidence supported the conclusion that the employer did not abandon the Claimant’s care. The Claimant then argued that the agency ignored applicable agency precedent regarding the employer’s ability to change medical providers and failed to give an adequate explanation of why it did not follow that precedent. The Court rejected this argument stating that the Iowa Administrative Code does not establish a requirement that the Commissioner identify other agency rulings and explain possible inconsistencies between those rulings and the agency’s decision in a case not reviewable under an abuse-of-discretion standard. The Court also rejected the Claimant’s precedent argument on the grounds that he failed to satisfy his burden of proof to show that the agency’s decision was inconsistent with the precedents he contended were ignored. The Court ultimately determined that the agency decision was not unreasonable, arbitrary, or capricious because it failed to distinguish this case from all alternate care decisions that found in favor of the injured worker. Based on the foregoing analysis, the Court rejected the Claims of the Claimant and upheld the decisions denying the Claimant’s petition for alternate medical care.

Vermont Quaterly WC Update

Sat, 13 Apr 2013 18:31:00 GMT

VERMONT WORKERS' COMPENSATION UPDATE
JANUARY TO MARCH 2013
by Keith J. Kasper Esq.

DEPARTMENT OF LABOR HEARING DECISIONS

LeClaire v. Ford of Brattleboro Inc., Opinion No. 1-13WC (Jan. 3, 2013).
Defendant's attempt to terminate TTD benefits due to concurrently disabling heart condition denied. "As it was in Wood, the critical fact here is that during the time when Claimant's non- work-related condition precluded treatment, his work-related injury continued to be totally disabling. Given the express language of the statute, which mandates that temporary total disability benefits be paid for so long as the work injury 'causes total disability for work,' 21 V.S.A. §642, sufficient grounds for discontinuing them in this case do not yet exist."

Roy v. The Howard Center, Opinion no. 2-13WC (Jan. 10, 2013).
Claimant's mental-mental claim found compensable as finding dead co-worker satisfies unusual stress standard. Treating psychiatrists' opinion found more credible than that of IME doctor's opinions as more objectively based.

Kibbie v Killington/Pico Ski Resort, Opinion No. 3-13WC (Feb. 5, 2013).
Request for Summary judgment denied as prior settlement agreement which left open treatment for TBI did not necessarily foreclose proposed physical therapy recommendation.

Pawley v Booska Movers, Opinion No. 4-13WC (Feb. 5, 2013)
Attorney fees awarded to Claimant for one carrier initially denying claim compensable but then retracting that defense after depo of Defendant's expert witness. "Were this the first time Claimant had sought to establish the compensability of either incident, I likely would conclude that Dr. Pulde's report provided a reasonable basis for his employer to deny his claim for benefits. The fact is that Claimant's employer previously had accepted compensability, however. True, this occurred while another carrier was on the risk. But the statute equates employer with insurer, so both are thereby bound. 21 V.S.A. §601(3); Workers' Compensation Rule 2.1190. Given this particular circumstance, I conclude that Vanliner had no reasonable basis for denying the compensability of Claimant's August 2011 DVT on the grounds that it was not related to his employment."

Puzic v Huber + Suhner, Opinion No. 5-13WC (Feb. 5, 2013).
Defendant's IME opinion found credible even though Hearing Officer did "not accept as credible his conclusion that Claimant's ongoing symptoms were most likely due to rheumatoid arthritis or to her 2009 fall while shopping. However, I do accept as credible his conclusion that there is no medical basis whatsoever for relating Claimant's symptoms back to her 2002 work injury. That injury, which was diagnosed at the time as a myofascial strain caused by repetitive shoulder activities, resulted in no permanent impairment, no documentable structural defects, no objectively verifiable range of motion limitation and only minor functional restrictions. I conclude that there is no medical process by which Claimant's ongoing symptoms, which in the nine years since have both worsened and become more diffuse, reasonably can be attributed to her initial work-related insult."

Maluk v Plastic Technologies of Vermont, Opinion No. 6-13WC (Feb. 5, 2013).
Pro se Claimant fails to qualify for TTD benefits. "Here, the uncontradicted medical evidence establishes that claimant was capable of working, albeit with modified duty restrictions, at all times subsequent to his November 30, 2011 injury. The credible evidence further establishes that Defendant was providing suitable modified duty work. By first calling in sick and then abandoning his job, Claimant removed himself from the work force without a medical basis for doing so. Whatever wages he lost thereafter were a function of that decision, not his work injury."

Simmons v Landmark College, Opinion No. 7-13WC (Feb. 28, 2013)
Defendant's IME doctor's opinion as to reasonableness of fourth neck surgery found more credible than that of treating surgeon. Symptoms found compensable as related to issues covered by Form 22, but not surgery to correct said symptoms.

DeChantal v Sears, Opinion No. 8-13WC (Feb 28, 2013)
Claimant's low back injury found compensable based upon Claimant's IME opinion that work activities caused a "'classic presentation'...[as] Claimant's symptoms progressed from feeling a 'twinge' or pop while engaged in a vehicle repair job at work on July 19th to being unable to get out of bed on July 21st."

Randall v Health Services Group, Opinion No. 9-13WC (Mar. 12, 2013).
Treating physician's opinion as to proposed cervical surgery found not as persuasive as treating surgeon's opinion as to causation of cervical condition and reasonableness of proposed cervical surgery. IME doctor "has not explained adequately h ow it is that the benefit Claimant derived (or not) form her shoulder surgeries is likely to be an accurate predictor of whether she will (or will not)benefit from cervical surgery."

Haskins v Green Mountain Coffee Roasters Opinion No. 10-13WC (Mar. 18, 2013)
IME expert's opinion rejected over that Claimant's treating physician. "Had there been evidence from which he could determine, to the required degree of medical certainty, that the carpal tunnel symptoms Claimant was exhibit form September through November 2011 were due to a burgeoning systemic inflammatory response or autoimmune disorder, I might have found his opinion persuasive." However, DOL accepts IME doctor's opinion that chiropractic treatment of CTS was not reasonable.

JANUARY 2013 - MARCH 2013 MISSOURI QUARTERLY CASE LAW UPDATE

Thu, 04 Apr 2013 19:51:00 GMT

MISSOURI WORKERS’ COMPENSATION

CASE LAW UPDATE

JANUARY 2013 – MARCH 2013

Percentage of Disability Alleged in Claim Not Deemed Admitted if Employer Does Not File

Answer Timely

Ray Taylor v. Labor Pros, LLC, Case No. WD75174 (Mo. App. 2013).

FACTS: The claimant was striking a wooden block with a sledge hammer when a piece of wood broke off and struck him in his left eye. The claimant was seen by Dr. Becker at the request of the employer, who opined he had 30% PPD to his left eye. The claimant offered no medical testimony regarding the percentage of disability he sustained to his eye. He filed a Claim for Compensation and in the box titled "parts of body injured," he put 75% disability to the left eye. At the hearing, the claimant objected to the admission of any evidence regarding the percentage of disability to his eye based on the fact that the employer failed to file a timely Answer, and therefore, all factual issues alleged in the Claim were deemed admitted, specifically, that he sustained 75% disability to his left eye. The Commission rejected this argument and a warded the claimant 30% PPD to his left eye consistent with medical evidence. The claimant appealed.

HOLDING: The Court noted that the issue in this matter was whether a percentage of disability added to a Claim should be considered a "statement of fact" subject to being deemed admitted when an employer fails to timely file an Answer. The Court noted the failure to timely answer results in the factual statements in the claim being admitted, but does not result in the admission of a legal conclusion such as whether the injury arose out of or in the course of the employment. The Court further noted that it was well established that "the determination of a specific amount or percentage of disability awarded to a claimant is a finding of fact within a special province of the Commission." Furthermore, the Commission may consider all evidence including the testimony of a claimant and draw reasonable inferences in arriving at a percentage of disability, and in fact, Appellate Courts have affirmed disability ratings made by the Commission which exceeded the highest of the percentages expressed in medical opinions. Therefore, the Court noted that a disability determination alleged within the Claim is not to be deemed admitted, nor is the Commission bound by it. The Court, therefore, affirmed the Award of 30% disability.

Commission Has Authority to Review Temporary Award of ALJ and Issue Final Award if

Employer Initially Denied ALL Liability

David Johnson v. Land Air Express, Inc., and Franklin Trucking Company, Case No. WD74821 (Mo. App. 2012).

FACTS: The claimant sustained an injury to his lower back on December 1, 2008, while working for Land Air Express. On January 1, 2009, Land Air Express sold its operation to Franklin Trucking Company, and the two companies had common ownership and were both covered by the same workers' compensation insurer. The claimant continued to perform his job duties, however, eventually was diagnosed with a disc herniation and underwent a discectomy at L5-S1.

The claimant filed two Claims for Compensation. The first was for a specific injury on December 1, 2008 and the second was for an occupational disease occurring on December 1, 2008, and every day he worked before and after that time. Both employers deniedall liability. The claimant requested a hardship hearing and the ALJ found that he sustained a work injury on December 1, 2008, but did not suffer from an occupational disease. The ALJ issued a Final Award finding that Land Air Express was liable for the claimant's medical treatment and TTD benefits. Land Air Express provided medical treatment and TTD benefits, but appealed the ALJ's Decision to the Commission. The Commission overturned the ALJ's Decision, and issued a Final Award denying all compensation and medical treatment to the claimant. The claimant appealed the Commission's reversal.

The issues before the Court were whether the Commission had authority to render a Final Award on an appeal from the ALJ's Temporary Award and if the Commission did have that authority, was the Commission's Award actually a Final Award since there was still the question of who was responsible for the claimant's medical expenses that Land Air Express was ordered to pay pursuant to the ALJ's Temporary Award.

HOLDING: The Court found that the Commission had authority to enter a Final Award. The Court noted that nothing in the Statute indicates that the Commission does not have the authority to issue a Final Award after an appeal from a Temporary Award by an ALJ, or that another hearing after the hardship hearing is required to enter a Final Award. The Court did note that the Commission will not review an ALJ's Temporary Award unless the employer has deniedall liability, and has asked for a review as to whether there is liability under the Statute. There was no dispute that Land Air Express denied all liability, and therefore, the Commission had authority to review the award even though the ALJ issued a Temporary Award.

Furthermore, the Commission had the statutory authority to issue a Final Award. The claimant argued that the Commission's Award was not final because the Commission did not determine whether the claimant or the employer/insurer was responsible for payment of medical services provided pursuant to the ALJ's Temporary Award. The claimant argued that the issue of who is responsible for paying the already-incurred medical expenses prevents the Commission from issuing a final award. The Court disagreed.

The Court noted that the Statute and Regulations allow a final award to be issued by the Commission even if medical providers might still be owed money for the services provided to the claimant. Medical providers have a separate avenue to collect, which is through Medical Fee Disputes.

The Court further found that it is not relevant that the employer/insurer authorized treatment between the ALJ's Temporary Award and the Commission's Final Award. The Court found that Land Air Express simply complied with the Temporary Award. The Court noted that if Land Air Express would have failed to provide the treatment and the Commission would have issued an awarding affirming the ALJ's Temporary Award, its liability would have doubled for the unpaid portions of the awarded compensation. The claimant equates the making of payments as establishing that Land Air Express authorized the treatment. However, the Court did not agree. After the ALJ entered his award they continued to deny liability for the ordered medical treatment by seeking the Commission's review of the award.

The Court also noted that it understood that the Regulations allow for medical providers to pursue either the employer/insurer or employee for fees for "medical treatment that is found by award or settlement not to be compensable." The Court did understand the difficult position that the claimant was in, which was that medical providers that remained uncompensated could come after him for payment of medical services. However, the Commission found no clear legal basis to say the Commission's Award was not final. Therefore, the Court affirmed the Final Award of the Commission.

SIF Cannot Be Compelled to Pay a Claimant Benefits Because the SIF is Insolvent

Skirvin v. Treasurer of the State of Missouri et. al., Case No. WD75541 (Mo. App. 2013).

FACTS: On May 11, 2011, the Commission awarded PTD benefits to the claimant against the SIF. On July 8, 2011, the SIF wrote the claimant acknowledging his Award, but advised that it was unable to make a payment due to its current balance and projections for the remainder of the fiscal year. It further advised that he would be notified in the event the SIF is able to make a payment in the future. On September 27, 2011, the claimant filed a Petition in the Circuit Court, seeking to compel payment of the Award. A hearing was held before the Court who ruled that the SIF must pay the claimant his benefits. The SIF filed a Motion to Reconsider for a New Trial arguing that the judgement would wreak havoc on the SIF by promoting a "run on the bank," making it impossible to attempt to orderly pay claimants out of the SIF's limited funds. The Motion was denied. The SIF filed an appeal.

HOLDING: The Court noted that the question in this case is can the SIF be compelled to pay PTD Awards on a first come first served basis when the SIF is admittedly unable to pay all present and future PTD awards. The Court found that because the SIF is legally insolvent, it cannot be compelled to make full payment to the claimant. The Court did transfer this case to the Missouri Supreme Court because of the general interests or importance of the question involved.

Injury in Parking Lot Compensable because Employer Owned, Maintained and Controlled

Lot

In Jackie Maize v. Preferred Family Healthcare, Inc., Injury No. 11-006324, the claimant was a residential care technician whose job duties included cleaning rooms, checking on residents and doing the laundry. He had completed his work shift and prepared to go home. He walked outside to his pick-up truck, which was parked in the employer's parking lot under an overhead light that was surrounded by a circular concrete curb and filled with river gravel. He stepped up onto the curb and his right foot slipped on the gravel that was on top of the curb, at which time he fell sustaining an injury to his right knee. The claimant testified that the employer owned the lot and controlled and maintained it, and employees were allowed and encouraged by the employer to park their vehicles in this area. There was no evidence to the contrary. The ALJ found that the claimant's injury did arise out of and in the course of his employment because it occurred on the parking lot which the employer owned, and the employer controlled and maintained the area. The Commission affirmed the Award of the ALJ.

Fall on Employer's Parking Lot Curb Not Compensable

In Hemenway v. North American Montessori Child Care,Injury No. 10-107564, the claimant, a teacher, slipped and fell on an icy curb in the employer's parking lot. The ALJ denied the claim finding that the claimant sustained an injury but concluded it did not arise out of and in the course of her employment. The Commission agreed and found that the claimant's injury occurred on the edge of the employer's parking lot while she was"off the clock" and returning from her smoke break. The claimant had to smoke in the parking lot next door because smoking was not allowed on school property. The Commission noted that the claimant was not in the icy parking lot as a direct function of her employment, and was there due to the fact that she was taking an unpaid smoke break. The Commission further noted that the claimant's injuries did not arise out of and in the course of her employment because the fall did not occur at a place where she was reasonably fulfilling the duties of her employment or engaging in something incidental to her employment.

Doctor Not Credible because Changed Opinion on Cross-examination

In John Shelton v. Missouri Department of Public Safety/Missouri Veterans Home, Injury No. 09-065061, the claimant was a CNA and sustained an injury to his lower back while lifting a patient. The claimant presented the medical testimony of Dr. Musich, who in both his report and on direct-examination failed to rate any permanency resulting from the work injury. On cross-examination, Dr. Musich changed his testimony and opined that the claimant had 35% disability referable to the injury, as well as two subsequent injuries. The employer presented expert testimony of Dr. Randolph, who did not rate any permanency resulting from the injury. The ALJ found Dr. Randolph to be credible and found that the claimant did not sustain any permanent disability as a result of the injury. The Commission agreed and noted that Dr. Musich's testimony was little help in this matter as he waited until he was prompted on cross-examination to correct an apparent error in his opinions which demonstrated that he paid little attention to detail. Therefore, his opinion was found to lack credibility.

Costs Awarded Against Employer Because Employer Denied Claim Without Any

Investigation

In Patricia Nouraie v. Missouri Baptist Medical Center,Injury No. 10-111746, the claimant reported to her employer that she was having back problems on February 4, 2010. She also advised that she believed that it was because of her work duties. The employer's occupational health nurse told the claimant to apply ice and take Ibuprofen.

The next day, February 5, 2010, the employer acknowledged that the claimant reported a work injury. That same day the manager of the employer's Workers' Compensation Administration sent the claimant a letter noting that she reviewed "the claimant's report of injury of 12/22/09 and multiple unknown dates of injury and the records of Occupational Health" and based on review of those records the claimant was denied workers' compensation benefits.

The Commission reviewed the records that the employer's Workers' Compensation Administration relied on to deny benefits and found no "report of injury" but simply an "Employee Report of Work-Related Injury, Illness or Exposure" from BJC Healthcare signed by the claimant on February 4, 2010, the day she reported her back pain to the employer. In this report, it is noted that the claimant had back pain for about a month which began after moving a heavy resident. However, the Commission noted that there was no date of 12/22/09 in the record or any other record. There was also a handwritten note from the claimant noting that she had back pain for about a month after helping move a large resident. Then she had two other incidents at work when she felt a strain in her back. In light of this information, the claim was denied by the employer's Workers' Compensation Administration.

The claimant was seen by her own doctor on February 19, 2010, and she was taken off work until March 8, 2010. The claimant called the employer on numerous occasions asking to be taken off the schedule. Eventually, the claimant obtained an attorney and demanded medical care. Two weeks later she was fired for not timely returning an Application for Personal Leave. The employer did not have the claimant examined until April 2011, more than a year after learning of her injury. The ALJ concluded that the employee sustained a work-related injury by occupational disease. The ALJ also found that the employer did not act unreasonably in denying the claim.

The Commission agreed that the claimant had an occupational disease. However, the Commission found that the employer acted unreasonably in denying the claim. The employer argued that its denial of benefits before sending the claimant for examination was appropriate conduct because the Statute imposes no obligation on an employer to provide medical treatment to a claimant until the claimant proves her claim is compensable. The Commission rejected the employer's suggestion that an injured worker must prove her injury is compensable before the employer has any obligation to provide medical examination or treatment. The Commission noted that the employer should provide medical treatment to cure and relieve the effects of the injury, and the Statute does not make the employer's obligation to provide such medical treatment contingent upon a medical opinion finding the injury compensable. The Commission noted that it is clear that employers have an obligation to investigate alleged work injuries before denying benefits.

Furthermore, where the claimant is available to discuss the injury, the Commission believes that any reasonable employer conducting an investigation regarding an injury would discuss the alleged injury with the worker, which was not done in this case. The Commission found that the employer's act of denying workers' compensation benefits to the claimant before even discussing the alleged injury constituted an egregious offense. Therefore, the employer denied this claim at the outset without reasonable ground and costs were awarded.

If Doctor Doesn't Address Future Medical Treatment Cannot Assume that Doctor Does Not

Believe Future Treatment is Needed

In Carol Herrington v. Cedar Ridge Manor, Injury No. 08-051320, the ALJ found that the employer was liable for future medical treatment. Dr. Volarich, the claimant's expert, opined that it was reasonable and probable that the claimant would need future medical care for her pain syndrome. Dr. Mirkin, the employer's expert, was silent on the issue of future medical treatment. The ALJ found that Dr. Volarich was credible, and therefore, the employer was liable for future treatment. On appeal, the employer/insurer argued that Dr. Mirkin's silence regarding future medical care should be treated as if the doctor did not recommend any future treatment. The Commission did not agree, and noted that the ALJ found Dr. Volarich's opinion credible and so did they. Furthermore, Dr. Mirkin's silence had no probative value in the face of a credible affirmative expert opinion on the issue of future medical care. The Commission agreed that the claimant was entitled to future medical treatment.

Claimant Found Not Credible Therefore Examining Doctors Not Credible

In Tammy Stroud v. Poplar Bluff Regional Medical Center,Injury No. 06-022475, the claimant alleged she was PTD due to a combination of her primary injury and her pre-existing conditions. All of the experts except Dr. Bassett, the psychiatrist for the employer, rendered the opinion that the claimant was PTD due to a combination of her pre-existing conditions and her work injury. The ALJ, however, found these opinions lacked credibility on the rationale that the claimant was not credible with respect to her own limitations and abilities. Therefore, the experts who relied on the claimant's subjective reports of her limitations and abilities did not have an accurate factual basis from which to form their opinions on the issue of PTD.

The Commission agreed and noted that the claimant changed her testimony about activities before and after her injuries. Specifically, she initially described doing jumping jacks, step aerobics, tight rope balancing and going from a squatting to a standing position quickly all while playing the Nintendo Wii Fit before her work injury. However, on cross-examination she did admit that this game did not come out prior to her injury, and therefore, she must have played it after her work injury. The Commission noted that the claimant's testimony was not reliable about her present abilities and limitations, and although the evaluating doctors found the claimant's subjective complaints to be inconsistent with their objective findings, none of the experts diagnosed any conscious or deliberate symptom magnification on the claimant's part. The Commission found that the claimant's inconsistent testimony regarding her physical abilities was due to her psychiatric difficulties rather than a deliberate attempt to misrepresent the nature or extent of her disability. In any event, the Commission found that the claimant's testimony as to her post-injury abilities and limitations was demonstratively unreliable, and therefore, the Commission questioned the true nature and extent of her disability and agreed with the ALJ that she was not PTD despite the doctors' opinions.

Employer Not Entitled to Reduction for Safety Violation Because Did Not Make Effort to

Insure Rule was Followed

In Dennis Carver v. Delta Innovative Services, Inc., Injury No. 07-134522, the claimant was a roofer who sustained an injury carrying an item up a ladder. The ALJ awarded the claimant compensation, however, reduced his award by 50% because he willfully violated a safety rule. The ALJ noted that the claimant was the foreman, was aware of the rule and was responsible for making sure that the rules were followed. However, he went to work and specifically violated a rule which resulted in his injury. Therefore, in this instance the employer was entitled to a 50% reduction in benefits, which is the maximum allowed by Statute. The Commission affirmed the decision of the ALJ. The claimant appealed and the Court found that the Commission's findings were insufficient for the Court of Appeals to determine whether there was sufficient evidence that the employer was entitled to a reduction in benefits. Therefore, the Court of Appeals remanded the case to the Commission to make that determination.

Before remanding this matter back to the Commission the Court identified four elements that must be proven by the employer to take a reduction: 1) Employer adopted a reasonable rule for the safety of employees; 2) Employee's injury was caused by the failure of the employee to obey the safety rule; 3) Employee had actual knowledge of the rule; 4) Prior to the injury, the employer made a reasonable effort to cause employees to obey the rule.

The relevant facts follow: the employer required employees to watch safety videos and also required them to attend an initial safety orientation and ongoing periodic "toolbox talks." The employees who testified were aware of the "three point contact" rule, which precluded employees from carrying anything up the ladder. There was testimony that this rule was well known throughout the roofing industry, and although the record lacked evidence of the specific content of the safety video, orientation or toolbox talks, the Commission believed there was sufficient evidence to find that the employer made its employees aware of the existence of the "three point contact" rule. The record also revealed that the employees misunderstood and routinely violated the rule.

There was also evidence that the owner knew the employees broke the rules all the time. An employee did testify that employees violating the rule would be reprimanded by a foreman. However, this employee was found to be not credible, and therefore, the Commission found no credible evidence that the employer ever warned, sanctioned or took any disciplinary steps against employees who broke the rule. Therefore, the Commission found that although the employer took steps to make its employees aware of the three point contact rule, the employer did not take any steps or make any effort to insure that the rule was actually followed. Thus, the employer was not entitled to a reduction in benefits.

Claim Denied Because Claimant Found Not Credible

In Kristine Gibbons v. St. Louis University Hospital, Injury No. 07-130590, the claimant alleged that she sustained an injury to her low back on May 15, 2007, when she was helping restrain a combative patient. She testified that she twisted and turned to the left, and she heard a pop. She also admitted that she did not report the alleged injury that same day. The claimant also testified that at one point she told her supervisor that her back was hurting. However, she admitted she did not say it was work-related. The claimant did have prior back problems. The claimant also testified that she left work early the day of her injury. However, the records showed she left for a "family emergency."

The ALJ found that the claimant failed to meet her burden of proving she had an accident. The ALJ noted that he did not believe the claimant was credible. He noted that her testimony at the hearing with respect to how she was injured differed from the descriptions she provided to evaluating physicians. The ALJ further noted that the symptoms she reported to various physicians also differed. Also, the experts for both the employer and the claimant noted that her physical complaints were magnified. The ALJ further found that she attempted to minimize her pre-existing issues and problems, and that she testified inconsistently with the medical records which pre-existed her injury.

Therefore, the Judge found that he could not rely on the claimant's testimony or statements, and also could not rely on the physicians' opinions, due to the fact that they relied heavily on the claimant's statements, descriptions and complaints in reaching their conclusions. Therefore, their opinions and conclusions were also flawed. The ALJ concluded that the claimant failed to meet her burden of proof that she sustained an accident arising out of and in the course of her employment, and that any disability was medically causally connected to that alleged accident. The Commission affirmed the decision of the ALJ.

Claimant Found to Be Employee Not Independent Contractor Because Employer Had Right

to Control Work

In John Cutsinger v. Area 151 Nightclub, Injury No. 10-082553, the claimant worked for the employer, a nightclub, on five occasions in 2010 customizing lighting for MMA fights. The last time he worked he sustained an injury to his ankle. The issue in this case was whether he was an employee or independent contractor. The ALJ noted that the Court has considered the following factors to determine whether a claimant is an employee or independent contractor: 1) is the work part of the regular business of the employer; 2) is the job a distinct occupation requiring special skills; 3) could the alleged employee hire assistants or must the work be performed by the individual personally; 4) is there supervision; 5) whose tools were used; 6) the existence of a contract for a specific piece of work at a fixed price; 7) the length of time the person is employed; 8) the method of payment, whether by time or by the job; and 9) who controls the details of the work.

The ALJ found that the claimant was an employee. She noted that although the MMA fights only occurred a few times a year, the evidence indicated that the employer regularly conducted special events. The Judge did note that while the claimant was called to work because he possessed knowledge necessary to customize lighting, she found that this was not an occupation that required special skills. The Judge also found there was no evidence that the employer would have allowed the claimant to hire assistants or substitutes. Furthermore, the employer had the right to hire, discharge and determine the claimant's pay. The employer also owned all of the equipment including the lights, microphones and computers. The Judge also noted that the claimant was paid by the hour, which was indicative of an employment relationship. The ALJ also found that there was a continued relationship since the employer regularly called the claimant to perform these services, despite the fact that he only worked five separate occasions. The Judge did note that the details of the work were controlled by the claimant suggesting independent contractor status. The Judge also noted that the claimant was paid by a 1099 which would also suggest independent contractor status. However, after reviewing all of the evidence in the record, the Judge noted that the weight of the evidence supported that the claimant was an employee. The Commission affirmed.

No Evidence for ALJ's Award of TTD and ALJ May Order a Change in Provider But Cannot Direct

Employer to Use Specific Provider

In Lisa Bush v. West Chester House, Injury No. 10-109482, the ALJ issued a Temporary or Partial Award in which he opined that the claimant was entitled to 6 weeks of TTD benefits as a result of a carpal tunnel release which was performed on November 12, 2010. The ALJ based his Award on Dr. Crandall's testimony that a surgery such as the one performed on the claimant generally requires 6 weeks of recovery. The Commission noted that there was no testimony in the record regarding the claimant's ability to compete in the open labor market or the total amount of time she missed from work due to her surgery. Therefore, the claimant failed to meet her burden of proving her entitlement to 6 weeks of TTD benefits awarded by the ALJ.

The Commission also addressed the ALJ's decision to award treatment with a specific physician. The ALJ ordered a change in provider to Dr. Glogovac. The Commission first noted that the claimant did not prove that the employer waived its right to direct her medical treatment, and the ALJ did not even make that finding in his Award. Second, the claimant failed to prove that her health and recovery had been endangered by the medical treatment provided by the employer. Furthermore, the Commission noted that even if the claimant met this burden, the only relief provided under the statute was that the Division or Commission may order a changein physician, surgeon, hospital or other requirement. The statute does not authorize the Division or Commission to appoint a specific doctor to provide the claimant's medical treatment. Therefore, the Commission found that the ALJ erred in ordering the claimant's medical treatment to be provided specifically by Dr. Glogovac.

Texas Workers' Compensation Update (March 2013)

Tue, 02 Apr 2013 15:15:00 GMT

The Legislature is Back in Town - Take Heed!

The Legislature is considering a number of bills involving changes to comp – some minor, somenot so minor. The bills which would have the greatest impact on system participants if passed include:

• HB 3022 - Creates a deadline for disputing extent of injury, requiring the carrier to dispute the treating doctor’s determination of the extent of the compensable injury by requesting a DD exam or BRC within 90 days of receiving the treating doctor’s report.

• HB 2630 - Provides that the right to dispute extent of injury is waived if not contested within 60 days of the date that the carrier receives written noticeof a "new manifestation of the original injury, an additional injury, or an additional diagnosis." The bill does not clarify what constitutes written notice for the purposes of this section. If passed, this will have a huge impact on carriers, as every medical bill and report received will need to be carefully reviewed immediately upon receipt for any mention of a new diagnosis or condition.

• HB 2627 - Provides that a party need only "contest" the first valid certification of MMI and IR within 90 days to prevent it from becoming final, clarifying thatcontesting the certification only requires the party to file a written notice with the Division, which shall not serve as a request for a BRC, and expressly stating that a BRC should be requested when the party is fully prepared to enter into the dispute resolution process.

• HB 2660 - Provides that a party may not call an expert to testify on an issue during a CCH or in court unless the party exchanged a report of the expert witness in accordance with the exchange rules.

• HB 2629 - Provides that the Division shall use the range of motion model from the 4^th edition of the AMA Guides to determine impairment for all lumbar injuries, instead of the injury or diagnosis-related estimates model.

• HB 1468 - Provides that communications between the carrier and the employer are confidential and privileged if the communication is: (1) in furtherance of the employer’s rights under chapter 408, 409, or 410; (2) in anticipation of an administrative or judicial proceeding; or (3) for the purpose of facilitating the provision of professional services by the carrier to the employer.

• HB 1155 - Removes the word "temporary," so that the statute would allow a carrier to suspend payment of any kind of income benefits if an employee fails to submit to a designated doctor exam.

• HB 2249 - Provides that a claimant is also entitled to LIBs for a whole person IR of 85% or higherbased on the 6^th edition or a subsequent edition of the AMA Guides that is the result of compensable injuries suffered in a single incident.

• HB 3280 - Provides that a health care provider cannot seek reimbursement for health care from the injured worker unless the injury has been finally adjudicated not compensable,or the employee fails to request a BRC to dispute the carrier’s denial of compensability within 45 days after receipt of the denial.

Participants Weigh In On Proposed Change To Rule 130.1

WorkCompCentral.com reports that based on the comments received by the Division, carriers and defense attorneys are largely supportive of proposed changes to Rule 130.1, which would clarify that certifications of impairment ratings based on dates other than the date of MMI are barred from evidence. The Division proposed the changes in response to a ruling by the Court of Appeals for the 6^th Appellate District inSORM v. Joiner that a hearing officer could consider a doctor’s report that based the claimant’s IR on his condition as of July 5, 2006, even though the claimant did not reach MMI until five days later. The OIEC is opposing the proposal.

A Reminder Never Hurts - Medical Fee Dispute Process

For medical fee disputes filed on or after June 1, 2012, a party may appeal the decision by requesting a BRC within 20 days of receipt in accordance with 133.307(g). In the absence of a timely request for a BRC, the decision becomes final. If the dispute is not resolved at the BRC, a party may elect to resolve the dispute through binding arbitration, or the party can request a SOAH hearing by filing a written request with the Division’s Chief Clerk of Proceedings no later than 20 days after the BRC. However, the losing party is required to reimburse the Division for the costs of SOAH’s services and any applicable interest. Information on SOAH costs can be found athttp://www.tdi.texas.gov/wc/mfdr/documents/soahmfdcchcosts.pdf.

2013 Disciplinary Actions

Disciplinary orders were entered against doctors John Gray Andrew, Howard Thomas Douglas III, George Howell Johnson, Sr., Charles W. Kennedy, Jr., and Asra Oberoi for failure to comply with requirements for designated doctor examination and reporting. Dr. Darey Allen Philbrick was removed from the workers’ compensation system and no longer has a medical license.

Another system participant, Dr. Ernest Roman, permanently surrendered his license to practice medicine per the terms of an agreed order in lieu of further disciplinary proceedings against him before the Texas Medical Board for alleged improper operation of a pain management clinic.

Governmental Immunity May...Or May Not Cover Third-Party Administrators

The Amarillo Court of Appeals recently affirmed the trial court’s summary judgment disposing of claims for damages alleged by the injured worker to be the result of tortious conduct by MHMR, the Risk Management Fund, and the Division. The Court of Appeals agreed that the trial court lacked subject matter jurisdiction because the defendants are immune from suit, finding no clear or unambiguous waiver of that immunity in the Labor Code or Texas Tort Claims Act that would permit suit against them for intentional torts. However, the Court reversed the judgment with respect to defendant JI Specialty Services, holding that the record did not establish that governmental immunity precluded the trial court’s jurisdiction over the claims against MHMR’s third party administrator. The Court found the cases relied on by Specialty Services inapplicable, as they were decided on other grounds rather than any finding that the third-party administrator shared the government entity’s immunity. The Court noted that an Austin Court of Appeals opinion not cited by either party holding that the third party administrator for a state agency was entitled to assert sovereign immunity was based on the relationship between the administrator and the agency as defined by the terms of their contract, while there was no contract in evidence in this case, but cautioned the parties not to read into the discussion any suggestion of the Court’s opinion regarding whether a more developed record might support Specialty Services’ claim of immunity.Taylor v. Lubbock Regional MHMR, JI Specialty Services, Inc., Texas Council Risk Management Fund and TDI-DWC, issued January 8, 2013.