NWCDN Members regularly post articles and summary judgements in workers’ compensations law in your state.
Select a state from the dropdown menu below to scroll through the state specific archives for updates and opinions on various workers’ compensation laws in your state.
Contact information for NWCDN members is also located on the state specific links in the event you have additional questions or your company is seeking a workers’ compensation lawyer in your state.
WORKERS' COMPENSATION LAW The Films Matter: Employer Beats Adjacent Segment Spinal Surgery |
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Claimant was involved in a 4/30/21 work accident. Employer accepted a C4-7 fusion surgery performed on 11/16/21. Following this procedure, Employer filed a Petition to Review seeking to terminate total disability benefits. Employer filed a cross Petition seeking payment of additional surgery done on 9/11/23, extending the fusion to cover the adjacent C3-4 level. Accepting the opinion of defense medical expert Dr. Kahanovitz over claimant’s treating surgeon Dr. Eskander, the Board found claimant’s more recent neck surgery not reasonable or necessary treatment, and also terminated total disability. The Board noted that Dr. Kahanovitz personally reviewed flexion extension x-ray and MRI films, and observed no changes to the C3-4 level or progression of Claimant’s condition. There was no evidence of instability or significant neurological compression. Without these factors, there was no indication to extend the fusion. The Board also agreed with Dr. Kahanovitz that it was questionable to extend the fusion when both doctors agreed that the level above at C2-3 had evidence of instability, putting the claimant at further risk down the road. As to the Petition to Review, the Board commented that even claimant conceded on cross examination that she was capable of doing a part time work from home job. In this context, the testimony of Dr. Kahanovitz as to return to work capability was deemed more credible. Should you have any questions concerning this Decision, please contact Greg Skolnik or any other attorney in our Workers’ Compensation Department. Patricia Abrams v. State of Delaware, IAB Hrg. No. 1510985 (Mar. 27, 2024). |
This month the 14th Court of Appeals in Houston agreed with
arguments by Stone Loughlin & Swanson, LLP and other firms that Harris
County District Court Judge Fredericka Phillips abused her discretion by (1)
refusing to abate a personal injury action pending judicial review of a TDI-DWC
decision on the worker’s employment status and (2) consolidating the two
actions.
In our law firm’s 20-year history we’ve seen some bizarre workers’ compensation
claims, but this one might just take the cake. It's through-the-looking-glass
procedural history began when, in September 2021, 16-year-old Romny Sanchez
joined his uncle, Leonel Yanez, on a job providing remediation services to
victims of Hurricane Ida in Louisiana. Both men were injured while riding as
passengers in a van driven by Joe Saavedra, who fell asleep and crashed into a
light pole. Saavedra was an employee of All Repair and Restoration, LLC, and
Sanchez and Yanez filed a personal injury suit against All Repair in Harris
County district court alleging everything but the kitchen sink -- asserting
claims for negligence, vicarious liability, fraud, civil conspiracy, gross
negligence, intentional infliction of emotional distress, and violations of the
Fair Labor Standards Act and the Texas Payday Act. All Repair asserted the
affirmative defense that Sanchez and Yanez were its employees and their
exclusive remedy is workers’ compensation benefits under All Repair’s policy
with National Casualty Company.
Sanchez and Yanez disputed that they were All Repair’s employees, so National,
represented by this firm, initiated dispute resolution proceedings at the
TDI-DWC to determine their employment status. Even though the facts were
largely the same for both men, the Division refused National’s request to hear
the cases together. Instead, it insisted on conducting two separate contested
case hearings by two different ALJs. And, as could be predicted, the ALJs
reached different conclusions. The ALJ presiding over Yanez’ case concluded
that he was All Repair’s employee, but the ALJ presiding over Sanchez’
case concluded that he was not All Repair’s employee. All Repair then
filed a petition for judicial review of the decision regarding Sanchez.
At Sanchez’ request, and over the objections of National and All Repair, Judge
Phillips consolidated the two actions and denied a motion to abate the personal
injury action pending resolution of the judicial review action. National and
All Repair then took the extraordinary step of filing a petition for writ of
mandamus with the court of appeals.
The court of appeals found that Judge Phillips abused her discretion on both
counts. It directed her to vacate her order of consolidation because, among
other things, “a vast portion of the evidence to be expected in the personal
injury suit is likely to be inadmissible in the judicial review suit due to the
limited nature of the proceeding.” It also directed her to abate the personal
injury suit pending the outcome of the petition for judicial review, citing its
prior decisions in In re Tyler
Asphalt & Gravel Co. and In re Luby’s Cafeterias, Inc. which
hold that abatement is required under such circumstances.
Copyright 2024, Stone
Loughlin & Swanson, LLP
In Appeal No. 240113, the TDI-DWC Appeals Panel has taken the unusual step of
reversing an ALJ’s decision and rendering a new one on the grounds that ALJ
abused his/her discretion by relieving a claimant from the effects of a
DWC-24.
In the DWC-24, the claimant and carrier agreed that the compensable injury
extends to include right wrist volar carpal ganglion cyst and they agreed to
adopt the date of MMI and the 2% impairment rating assigned by a designated
doctor. Later, however, the claimant argued at a contested case hearing that
she should be relieved from the effects of the agreement because she cannot
read English and the ombudsman assisting her did not fully explain the
agreement to her.
The ALJ found that no fraud or misrepresentation was involved in procuring the
agreement and the claimant was provided with sufficient time to review the
agreement before she signed it. However, the ALJ found that good cause existed
to relive the claimant from the effects of the agreement because the 2% IR
assigned by the designated doctor was a result of misapplication of the Guides to the Evaluation of Permanent
Impairment.
But the Appeals Panel concluded that the calculation of the claimant’s IR
required rounding, which requires medical judgement, so the evidence did not
support the ALJ’s determination that the 2% IR assigned by the designated
doctor was a result of misapplication of the Guides.
Accordingly, the Appeals Panel reversed the ALJ’s decision and rendered a new
decision that there is no good cause for relieving the claimant from the
effects of the agreement and it is final and binding.
Copyright 2024, Stone
Loughlin & Swanson, LLP
On April 23, 2024, TDI-DWC’s General Counsel, Kara Mace, issued
a memorandum to system participants regarding preventative treatment claims
handling. In it, Ms. Mace stated that the Division “would like to remind
insurance carriers of the rules associated with preventative treatment related
to a physical injury and workers’ compensation claims handling.”
The memo notes that preventative treatment “may include medications such as
rabies vaccines, tetanus shots, and post-exposure prophylaxis that are prescribed
by a health care provider.” It also states that “an insurance carrier must
follow treatment guidelines and pay for specified pharmaceutical services
sufficient for the first seven days following the date of injury, regardless of
issues of liability for or compensability of the injury,” citing Texas Labor
Code §413.011 and DWC rules 134.501 and 137.100.
Rule 134.501, titled Initial Pharmaceutical Coverage, provides in part that:
The insurance carrier . . . shall pay for specified
pharmaceutical services sufficient for the first seven days following the date
of injury, regardless of issues of liability for or compensability of the
injury that the carrier may have, if, prior to providing the pharmaceutical
services, the health care provider . . . obtains both a verification of
insurance coverage, and an oral or written confirmation that an injury has been
reported.
. . . Specified pharmaceutical services are prescription drugs and over-the-counter
medications prescribed by a doctor that cure or relieve the effects naturally
resulting from the compensable injury, promote recovery, or enhance the ability
of the employee to return to or retain employment.
Ms. Mace ends the memo by noting that “failure to properly
handle preventative treatment claims under these rules and other applicable
laws may result in the assessment of administrative penalties not to exceed
$25,000 per day per occurrence.”
Copyright 2024, Stone Loughlin & Swanson, LLP
We’ve learned that Angel Hendricks, a Proceedings Resolution Officer (PRO) in
the TDI-DWC Tyler field office, has been promoted to Benefit Review Officer
(BRO) and will replace Olivia Turner, who is embarking on a well-deserved
retirement.
Ms. Hendricks is to start in her new position on June 1, and we are delighted
to begin working with her in that capacity. Congratulations Ms. Hendricks!
Copyright 2024, Stone
Loughlin & Swanson, LLP
At SLS, we focus on news of workers’ compensation law in the great state of
Texas, but this news from California (of all places) is too good to pass up. A
big fish has gotten his just desserts.
Peyman Heidary, a chiropractor who reportedly referred to himself as “the
Godfather” and “Number One,” was sentenced this month to 54 years, 8 months in
state prison, and ordered to pay more than $23 million in fines, for his role
in overseeing a massive workers’ compensation fraud scheme in California.
Heidary reportedly owned and oversaw a network of sham medical clinics to
generate fraudulent billings to workers’ compensation insurance carriers. A
non-attorney, he also reportedly controlled the day-to-day operations of sham
law firms. His sham law firms would interview injured workers and direct them
to one of his sham clinics where they would be subjected to a barrage of
treatments, regardless of need, including massage, chiropractic manipulation,
acupuncture, and psychiatric evaluation. After the clinics wrung out the
maximum number of visits, they would discharge the patients regardless of their
medical status.
A jury convicted Heidary of 68 counts of insurance fraud, conspiracy, and money
laundering. During the sentencing hearing on April 12, 2024, Judge Charles
Koosed noted that Heidary possessed deep knowledge of the workers’ compensation
system, stating “[Heidary] took advantage of that knowledge based on
greed.”
Copyright 2024, Stone Loughlin & Swanson, LLP
Should you have any questions or wish to discuss any related matters, please contact us at your convenience.
H. Douglas Jones, Esq. – djones@jsbattorneys.com, 859.594.4200
Margo Menefee, Esq. – mmenefee@jsbattorneys.com, 859.594.4200
Employees Must Establish Causal Link to Employment In Workplace Violence Cases
Noah Vollmer, Esq. Bleakley Bavol Denman & Grace
In a case which received significant attention over the last year, the First District Court of Appeal, which hears all workers’ compensation appeals in Florida, held that an employee who was shot while at work did not meet his burden of proving that his injury arose out of his employment. In Normandy Insurance Company v. Bouayad, 372 So. 3d 671 (Fla. 1st DCA 2023), the Claimant, Mohammed Bouayad, worked as a general manager for a rental car business located in the Orlando International Airport Holiday Inn. Mr. Bouayad worked at a kiosk inside the hotel atrium. At the end of each day, Mr. Bouayad would carry rental car agreements and cash from the kiosk to an office located in a separate building roughly fifty feet away from the kiosk. On June 28, 2019, around midnight, Mr. Bouayad was walking from the kiosk to the office when an unknown assailant emerged and shot him seven times. Surveillance video of the shooting showed that the shooter shot Mr. Bouayad, turned to leave, then turned back around and shot Mr. Bouayad several more times before fleeing. The shooter did not make any attempt to rob Mr. Bouayad or take anything from him. Despite being shot seven times, Mr. Bouayad was able to make it back to the hotel. A hotel guest came over to assist Mr. Bouayad, at which time Mr. Bouayad told the guest “Robert shot me” and also that the police should look for his assailant in a blue Ford Mustang.
Mr. Bouayad petitioned for workers’ compensation benefits and his claim was subsequently denied by the Employer/Carrier who argued that the injuries Mr. Bouayad sustained did not arise out of his employment.[1] Specifically, the Employer/Carrier argued that there was reason to believe Mr. Bouayad was shot by Robert Aponte, and that the shooting stemmed from a dispute over an alleged debt between Aponte and Mr. Bouayad’s son. The day prior to the shooting, Mr. Aponte confronted Mr. Bouayad’s son and threatened to kill him. The Employer/Carrier argued that the shooting which occurred the next day was related to this dispute and confrontation rather than Mr. Bouayad’s employment. In support of this argument, the Employer/Carrier presented evidence that Mr. Bouayad told the hotel guest that “Robert” shot him and that the police should look for a blue Ford Mustang, that Mr. Aponte owned a blue Ford Mustang, and that the hotel where Mr. Bouayad worked was registered as a residence for Mr. Aponte.
In response, Mr. Bouayad, despite his statements made in the immediate aftermath of the shooting, subsequently claimed that Mr. Aponte was not the shooter and that his shooting was work-related. Notably, the police did not charge Mr. Aponte with the shooting, though this was based in part on several witnesses who knew Mr. Aponte (including Mr. Bouayad’s wife and son) viewing the surveillance video and denying that Mr. Aponte was the shooter.[2] In support of his contention that the shooting was work-related, Mr. Bouayad presented expert criminology testimony that his employment exposed him to increased risk of becoming a crime victim based on the inherent risks associated with his job responsibilities and work hours as well as the crime rate in the area where his employment was located compared to the area near Mr. Bouayad’s home. Further, Mr. Bouayad presented testimony from the company’s co-owner that several rental cars had been stolen and others had been vandalized in the few years preceding the shooting. Additionally, the co-owner testified that three employees had been fired in the weeks before the shooting, two for theft and one for a failed drug test. That said, the co-owner also testified that he was unaware of any violent crime on the hotel premises prior to the shooting and that none of the terminated employees had threatened violence.
After a trial, the Judge of Compensation Claims entered an order finding that Mr. Bouayad’s injuries were compensable on the grounds that his “employment substantially contributed to the risk of injury and to risks which [Mr. Bouayad] would not normally be exposed to during his nonemployment life.” After granting a motion for rehearing filed by the Employer/Carrier, the JCC entered an amended final order which still found that Mr. Bouayad’s injuries were compensable, but this time concluded that the shooting was “a targeted attack based upon inside information that [Mr. Bouayad] would be working late” and that “the reason for the targeted attack was more likely than not related to the termination of a prior employee[s] or other job related issue rather than the incident with Robert Aponte.”[3] The JCC held that Mr. Bouayad’s employment was the major contributing cause of the shooting and his related injuries because, but for Mr. Bouayad walking between the kiosk and the office as part of his employment, the shooting would not have occurred at the time and place it did.
For an accident and injury to be compensable under Florida law, it must “aris[e] out of work performed in the course and scope of employment.” § 440.09(1), Fla. Stat. Florida courts have held that the “arising out of” element refers to the origin of the cause of the accident. Specifically, “for an injury to arise out of and in the course of one’s employment, there must be some causal connection between the injury and the employment or it must have had its origin in some risk incident to or connected with the employment or that it flowed from it as a natural consequence.” Fid. & Cas. Co. of N.Y. v. Moore, 196 So. 495, 496 (1940).
On appeal, the First DCA held that Mr. Bouayad failed to meet his burden of proving that his injuries arose out of the work he performed. The Court first noted that, although the workers’ compensation system is a no-fault system and so an employee need not establish fault, for an accident and injury to be compensable, an employee still must establish occupational causation. The Court stated, “although workers’ compensation benefits are payable irrespective of fault, they are not payable irrespective of cause.” With respect to Mr. Bouayad’s case, the Court held that there was no causal link between Mr. Bouayad’s injuries and the work he performed. Mr. Bouayad did not present any evidence which identified the shooter, established their motive, or connected the shooter to the work Mr. Bouayad performed. It was not enough that the shooting happened while Mr. Bouayad was working. The Court stated “[t]he sole cause of his injuries was that he was shot. At most, the work he performed for [the employer] placed Bouayad in the wrong place at the wrong time. This is not enough to establish occupational causation.” The Court concluded its opinion by certifying the following question to the Florida Supreme Court: “[W]hen an act of a third-party tortfeasor is the sole cause of an injury to an employee who is in the course and scope of employment, can the tortfeasor’s act satisfy the occupational causation element, as defined by section 440.02(36), Florida Statutes, necessary for compensability under the Worker’s Compensation Law?”
The Bouayad case provides an employer friendly ruling with respect to acts of violence occurring in the workplace. Bouayad reiterates that the employee has the burden of proving both that an accident arose out of and occurred in the course and scope of their employment. An employee cannot meet this burden simply by showing that their accident occurred while they were at work. This ruling seemingly provides employers with protection against workplace violence accidents which have no connection whatsoever to the subject employment.
[1] The Employer/Carrier conceded that Mr. Bouayad’s injuries occurred in the course and scope of employment. Accordingly, the dispute was limited to whether Mr. Bouayad’s injuries arose out of his employment.
[2] According to the First DCA opinion, the shooter’s face was not clearly visible on the surveillance video.
[3] As grounds for the motion for rehearing, the Employer/Carrier cited several workplace violence cases and argued that no cases found a “mystery assault” to be compensable. This explains the JCC’s modified reasoning in the amended final order.
On January 27, 2023, the Commonwealth Court issued a memorandum opinion in City of Pittsburgh v. Ronald Dobbs (Workers’ Compensation Appeal Board), in which it expandedthe application of impairment rating evaluations to all injuries, including injuries that occurred prior to the enactment of Act 57. The Court noted that Act 57, in which the impairment rating evaluation (IRE) process was initiated, limited its application to injuries sustained prior to its enactment on June 24, 1996. Subsequently, however, the IRE process was declared null and void by the Pennsylvania Supreme Court in Protz v. Workers’ Compensation Appeal Board (Derry Area School District). In striking down the entirety of Section 306(a.2), the Supreme Court held that the IRE process of Act 57 violated the nondelegation doctrine of the Pennsylvania Constitution. The Pennsylvania General Assembly responded, and enacted the Act 111 Amendments to the Workers’ Compensation Act in 2018. However, unlike Act 57, there was no specific provision in Act 111 that limited it application to injuries suffered prior to a specific date. In Dobbs, the Court noted that Act 111 has since withstood several Constitutional challenges, and held that in the absence of any language within Act 111 limiting the date of injury, its application was extended to all injuries, including those injuries occurring prior to June 24, 1996.
Author: Melissa C. Petersen, Esquire
Due to the retirement of Judge James R. Coe on April 15th, there is a judicial vacancy on the Nebraska Workers’ Compensation Court. On Friday, March 29th, the Judicial Nominating Commission for the Nebraska Workers' Compensation Court submitted two names to Governor Jim Pillen: Jill K. Hamer Conway of Omaha and Brynne Holsten Puhl of Lincoln. Six Judges serve on the Nebraska Workers’ Compensation Court and hear cases across the State of Nebraska.