State News

Oklahoma Trends April 2024

Covid Appeal

 The Workers' Compensation Commission will hear an employer's appeal of an order by an administrative law judge finding that a claimant's contraction of COVID-19 is compensable as an on-the-job injury. The claimant also is appealing the order because the judge limited TTD in the case to eight weeks.

The claimant worked for a hospital in Tulsa. As an RN, she was treating a COVID patient who tore the nurse's A-95 mask off, screamed at her, and spit in her face and mouth. The claimant reported the incident. Ten days later, she had a high fever and tested positive for COVID, was sent home from work, and grew progressively worse. 

The claimant now has LONG COVID and has developed diabetes, high blood pressure,  lung issues, and heart problems. An Independent Medical Examiner appointed in the case found that all these conditions were a result of the COVID infection.  The judge followed the report and found a single event injury of contracting the COVID with a consequential injury to the heart, lungs, and diabetes.

The judge found that the claimant was required to have blood tests and other diagnostics every 90 days as an ICU nurse and that she did not have diabetes, high blood pressure, or heart problems before COVID. The judge ordered the employer to pay for medical treatment for the consequential injuries.

The judge also found that COVID is NOT an "ordinary disease of life" to which the general public is exposed. 85A O.S. Sec. 65(D)(3) provides that ordinary diseases of life are not compensable under workers' compensation law. The judge wrote, "The facts of this case certainly are not ordinary and the exposure was not the same as that of the general public. Claimant's job placed her at increased risk of contracting COVID-19."

After finding the injury compensable, the judge awarded only eight weeks of TTD, citing Section 62 of the AWCA that limits TTD to eight weeks in "soft tissue" injuries. 

DWC Enforcement Actions

On February 14, 2024, the Commissioner signed a consent order concerning disciplinary action against Rhema Medical, a provider of durable medical equipment and hospital supplies. The Commissioner found that Rhema failed to timely comply with a refund request from an insurance carrier by either refunding the requested amount or submitting an appeal to the carrier within 45 days of receiving the refund request. Rhema further failed to timely comply with the Division’s order for production of documents. The Commissioner found that Rhema violated Tex. Lab. Code §§408.-271(b) and (c)415.003(5) and (6); and 28 Tex. Admin Code §133.260(c) by failing to comply with a refund request and Tex. Lab. Code §§415.0035(e); 415.003(5) and (6); 415.021(a); and 28 Tex. Admin Code §102.9 by failing to comply with a DWC order to produce documents. Rhema was assessed an administrative penalty of $5,500.00 to be paid within 30 days from the date of the order.  Rhema Medical certainly appears to have lived up to its Better Business Bureau rating of F and customer reviews averaging 1.38 out of 5 stars.

On February 24, 2024, the Commissioner signed a consent order concerning disciplinary action against DJO LLC, a provider of medical devices and services. The Commissioner found that DJO improperly billed an injured employee for health care services in violation of Tex. Lab. Code §§413.042 and 415.003(6) and assessed an administrative penalty of $500.00 to be paid within 30 days from the date of the order.
 

Copyright 2024, Stone Loughlin & Swanson, LLP

Hearings Happenings

 
We have recently learned that Benefit Review Officers Laila Johnson, assigned to the Fort Worth Field Office, and Olivia Turner, in Tyler, are retiring. We are sorry to see these knowledgeable and effective BROs leave the Division.
 
It is our understanding that Ms. Johnson will spend time living the country life out west and we suspect Ms. Turner might be spending more time enjoying the breeze on her Harley-Davidson.
 
We extend them our best wishes in whatever new adventures they choose to pursue.

Copyright 2024, Stone Loughlin & Swanson, LLP 

Well, I Have Good Days and I Have Bad Days . . . You Just Caught Me On a Good Day . . .  

Although not a workers’ compensation case, 36-year-old Irish lass, Kamila Grabska, has had her $820,000.00 injury claim dismissed after having a really good day with cameras present.

It seems Ms. Grabska sued RSA Insurance for damages after the vehicle in which she was a passenger was rear-ended while she was on her way to work. She recently told a High Court sitting in Limerick** that the accident left her often bedridden with constant debilitating cervical, thoracic, and lumbar pain. She also claimed she was unable to perform household chores or even to play with her young children.

She further swore in an affidavit that she was unable to work in any capacity and had past and future lost wages totaling more than $500,000.  

In an unfortunate twist of fate for Ms. Grabska, photos recently surfaced showing her participating in and winning a local Christmas tree throwing competition, apparently a very popular event in County Clare, Ireland. Furthermore, the competition took place just two days after she had reported to a doctor that she was unable even to lift a bag of groceries.

When asked in court why she did not inform her doctors of the Christmas tree throwing competition, she said she “forgot.”

Some of the other riveting testimony:

Counsel for RSA:         “Did it hurt you to throw the Christmas tree?”

Grabska:          “I had a pain, yeah.”

Counsel:          “You had a large smile on your face as you threw the tree.”

Grabska:          “I was smiling but that doesn’t mean I didn’t have a pain.”

Counsel:          “You were also smiling when you received your prize.”

Grabska:          “I can say I was trying to live a normal life.”

Following review of a photo showing Ms. Grabska’s award winning Christmas tree toss, described as a “very graphic picture,” as well as video footage of Ms. Grabska play-wrestling with a “large and strong” Dalmatian for an hour and a half, Judge Carmel Stewart stated:

“I am afraid I cannot but conclude the claims were entirely exaggerated. On that basis, I propose to dismiss the claim.”

A spokesperson from RSA Insurance indicated they were “very pleased with the outcome of the case and it sends out a clear message that we will robustly challenge any attempt to pursue claims that are not genuine.”

**         Another Limerick:

            There was a young woman from Clare
            Whose claim of bad pain proved unfair
            Her suit was undone
            By some Christmas-time fun
            When she tossed a large tree through the air

Copyright 2024, Stone Loughlin & Swanson, LLP 

DWC Also Seeking Comments on Proposed Rule Amending TAC Section 180.2

The Division is also accepting public comments on a proposed rule amending 28 TAC § 180.2 to ensure that no health care provider or agent can use the DWC’s complaint process to bypass the medical fee dispute resolution filing deadline in 28 TAC § 133.307(c).
 
The proposed rule was published in the March 22, 2024 issue of the Texas Register and is available at http://www.sos.state.tx.us/texreg/index.shtml. A copy of the proposed rule is also posted on the Division website at http://www.tdi.texas.gov/wc/rules/2024rules.html.
 
A public hearing on the proposed rules will be held at 11:00 a.m., Central time, on April 16, 2024.
 
Written comments on the proposed rule may be submitted to RuleComments@tdi.texas.gov.
 
The deadline to submit comments is 5 p.m., Central time, on April 22, 2024.

Copyright 2024, Stone Loughlin & Swanson, LLP 

DWC Seeks Comments on Proposed Rule Amending TAC Chapter 147

The Texas Department of Insurance, Division of Workers’ Compensation is accepting public comments on a proposed rule amending TAC Chapter 147 concerning dispute resolution through agreements and settlements.
 
The rulemaking will amend 28 TAC §§ 147.4, 147,5, 1247.7, 147.10 and 147.11. Sections 147.1, 147.2, 147.3, 147.6, 147.8, and 147.9 will be repealed and a new § 147.1 added.
 
The amendments are calculated to streamline the agreements and settlements process and eliminate unnecessary work for DWC staff.
 
The proposed new rule will be published in the April 5, 2024 issue of the Texas Register and available at http://www.sos.state.tx.us/texreg/index.shtml. A copy of the proposed rule is also posted on the Division website at http://www.tdi.texas.gov/wc/rules/2024rules.html.
 
Comments may be submitted to RuleComments@tdi.texas.gov.
 
The deadline to submit comments is May 6, 2024.

Copyright 2024, Stone Loughlin & Swanson, LLP  

Appeals Court Addresses Issues of First Impression Concerning Presumption in Favor of Firefighters under Tex. Gov’t Code § 607.055

In an opinion filed March 7, 2024, the 11^th Court of Appeals (Eastland) reversed the trial court’s summary judgment that Michael Belew developed pancreatic cancer during his employment as a firefighter and emergency medical technician with the City of Stephenville. Mr. Belew passed away in 2014.
 
Following a contested case hearing, the hearing officer relied upon Appeals Panel Decision Nos. 150098-s and 151156 in determining that the statutory presumption created by Section 607.055 (as it existed prior to its amendment effective June 10, 2019) applied to the pancreatic cancer developed by Mr. Belew, thereby relieving Appellees of the burden to prove causation, i.e. that Mr. Belew’s cancer arose out of the course and scope of his employment as a firefighter. The Appeals Panel adopted the hearing officer’s decision without issuing a written decision.
 
The Eastland Court, however, determined that, in the decisions listed above, the Appeals Panel “simply misapplied the effect of the statutory presumption.”
 
Section 607.055 that is applicable to this case provides:
 

   (a)  A firefighter or emergency medical technician who suffers from cancer resulting in death or total or partial disability is presumed to have developed the cancer during the course and scope of employment as a firefighter or emergency medical technician if:

   (1)  the firefighter or emergency medical technician:
     (A) regularly responded on the scene to calls involving fires or firefighting; or
     (B) regularly responded to an event involving the documented release of radiation or a known or suspected carcinogen while the person was employed as a firefighter or emergency medical technician; and

   (2)  The cancer is known to be associated with fire fighting or exposure to heat, smoke, radiation, or a known or suspected carcinogen, as described by Subsection (b). 

   (b)  This section applies only to a type of cancer that may be caused by exposure to heat, smoke, radiation, or a known or suspected carcinogen as described by the International Agency for Research on Cancer (IARC).
 
The IARC conducts critical reviews and evaluations on the carcinogenicity of a wide range of human exposures and publishes the results of its evaluations in monographs. The 98^th Monograph evaluated the occupational cancer hazards of painting, firefighting, and shift work. The authors of the monograph found limited evidence of the development of cancer as it relates to exposure as a firefighter; however, after considering a variety of studies, as well as large meta-analyses, the authors concluded that the only cancers statistically significant for cancer risks in firefighters were testicular, prostatic, and non-Hodgkin’s lymphoma. Pancreatic cancer is not a type of cancer that is connected to or may be caused by firefighting.
 
The Court agreed with the City that Mr. Belew’s pancreatic cancer does not meet the requirements of section 607.055 and therefore the presumption of causation does not apply. The court reversed the trial court’s judgment that Mr. Belew sustained a compensable injury and rendered judgment in favor of the City.

Copyright 2024, Stone Loughlin & Swanson, LLP

It remains a popular preference for plaintiffs and plaintiffs’ attorneys to attend mediation virtually despite the default rule at the Commission being in-person mediations. From the defense counsel perspective, virtual mediations can prove more difficult than in-person mediations for several reasons. First, it is easier to engage in small talk before mediation when the parties are in-person, and that advantage can make plaintiff more comfortable with the process. Additionally, it is easier to read opposing counsel’s and plaintiff’s body language when attending mediation in-person. Whether mediations are in-person or virtual, they are an important step in the litigation process. When virtual mediation is the only choice, these five steps can help you prepare effectively:

1.      Over prepare.

We all know that preparation can be the difference between a successful mediation and an unsuccessful mediation. It is important to not only know the basic facts in a case, but also to create a story. Creating a story out of the facts means identifying the theme of the case, highlighting key facts and singling out the issues you are trying to resolve. If the defense is not familiar with the case facts and issues it inevitably upsets plaintiff and hampers the ability to resolve the case.

2.      Remain flexible.

Even though you can prepare as much as possible for mediation and have a strategy laid out, mediation involves other parties’ feelings which can change your strategy and the ultimate outcome of the mediation. When this happens, being flexible will help you move the case forward, even if it does not resolve through mediation.

3.      Be familiar with opposing counsel and the mediator.

Choosing the right mediator can be key to having a successful mediation, whether it is virtual or in-person. You want to agree to mediate with a mediator that is knowledgeable in your area of law, has experience, and has the negotiation style you are looking for. Being familiar with opposing counsel’s personality will help you select the right mediator, determine your mediation strategy, anticipate their responses and maintain composure during mediation. If you are not familiar with opposing counsel, try reaching out to your colleagues to determine their reputation and negotiation style in advance.

4.      Make eye contact as much as possible.

Many times, a plaintiff will come into mediation nervous or defensive. This is likely because they are unfamiliar with the mediation process or because they believe that opposing counsel is out to “get them.” Maintaining eye contact with plaintiff will help you display empathy and will give plaintiff the feeling of being heard. If the mediation is virtual, always explain to plaintiff that you will be taking notes during the mediation, so they do not assume you are distracted during the process.

5.      Apologize, if appropriate.

Not every case requires an apology. Obviously when you are dealing with a denied case where causation or credibility are at issue, an apology is not necessary. However, if you have an admitted case and plaintiff was seriously injured and cannot return to his or her pre-injury employment, an apology goes a long way to ease plaintiff’s tension and defensiveness. It also puts plaintiff in the right frame of mind to resolve his or her case. Often, the defense counsel’s apology is the first-time plaintiff has heard a representative of the employer acknowledge the severity of the injury and the lasting effects it may have on plaintiff.

While remaining focused on the objective facts of the case is imperative, defense counsel must keep in mind that subjective nuances, such as those outlined above, can make or break a successful outcome for mediation. 

An employer’s right to direct medical treatment, long recognized as a staple of the Workers’ Compensation Act, is not total. The Court of Appeals’ January 2024 decision in Horsey v. Goodyear Tire & Rubber Co. is a reminder of that fact. Id. at 2024 N.C. App. LEXIS 61 * | 2024 WL 158256 The Plaintiff in Horsey injured his neck and shoulder while working as a tread booker. He treated with Dr. Brian Szura, who performed three surgeries on Plaintiff’s left and right shoulders. Plaintiff completed an FCE which indicated he could not return to work as a tread booker but could perform other jobs for Defendant-Employer that were within his permanent restrictions. Thereafter, Plaintiff returned to work in the “green tire” position, which was a new position. The written job description for the green tire position did not list any job demands outside of his permanent restrictions. Plaintiff alleged he was asked to do work outside of his restrictions and left the position. Plaintiff reported to the onsite medical clinic in the fall of 2018 reporting pain in both shoulders as a result of the new position. He returned to Dr. Szura in March of 2019, reporting pain, exhibiting limited range of motion, and Dr. Szura maintained the work restrictions and offered no additional orthopedic treatment.

Plaintiff, shortly thereafter and on his own initiative, sought treatment with Dr. Wilson regarding his complaints of shoulder pain, neck pain, and numbness in his hand. Dr. Wilson did not review Plaintiff’s prior medical records and relied only on Plaintiff’s description of his medical history, which was not fully accurate. Dr. Wilson opined Plaintiff’s ongoing complaints were related to the original workers’ compensation injury and recommended an MRI of the neck and right shoulder. He did not suggest any job restrictions. The parties entered into a Consent Order on February 3, 2020, whereby Defendants agreed to authorize the MRI evaluations and corticosteroid injection recommended by Dr. Wilson with the explicit caveat that such authorization was made without prejudice and did not constitute a formal selection of Dr. Wilson as the authorized treating physician. On March 31, 2020, Dr. Wilson provided restrictions of sedentary work only and no use of the right arm.

Plaintiff continued to work in the green tire position until the Defendant-Employer’s facility was closed down in late March 2020 as a result of the COVID-19 pandemic. When the facility reopened on May 26, 2020, Plaintiff presented the sedentary work restrictions assigned by Dr. Wilson. Defendant-Employer could not accommodate the restrictions, so Plaintiff remained out of work. Defendants subsequently filed a Form 61, Denial of Claim, denying the causal relationship of Plaintiff’s cervical and radicular complaints to the original work-related injury; Plaintiff’s claim of disability; Plaintiff’s request for medical compensation; and the causal relationship of Plaintiff’s right shoulder.

On August 13, 2020, Plaintiff returned to Dr. Szura and continued to complain of shoulder pain. Dr. Szura opined Plaintiff’s symptoms were consistent with myofascial pain, and he did not recommend additional surgical intervention. He also observed Plaintiff was experiencing limitations in both his right and left shoulder range of motion.

The parties litigated the issue of a change in treating physician, among other issues, with the Full Commission finding Plaintiff sustained an exacerbation of his work-related injury as a result of being instructed to perform tasks outside of his restrictions. The Full Commission further ordered that Plaintiff’s future medical care should be provided by a provider other than Dr. Szura or Dr. Wilson. It noted as well that Plaintiff had reasonably relied upon Dr. Wilson’s sedentary work restrictions. However, the Full Commission concluded that Plaintiff failed to establish that such restrictions continue to be medically necessary. Defendants appealed to the Court of Appeals and one of the issues was whether the Full Commission erred in determining Plaintiff was entitled to a change in treating physician.

The Court of Appeals, in finding that the Full Commission did not err in determining Plaintiff was entitled to a change in treating physicians, noted first that the employer’s right to direct medical treatment (including the right to select the treating physician) was not unlimited. The Court noted that subject to approval of the Industrial Commission, an employee, even in the absence of an emergency, had the right to choose their own physician. They then also had the burden of demonstrating that the change was reasonably necessary to effect a cure, provide relief, or lessen the period of disability. The Court added that the Industrial Commission had broad discretion in approving a request for change of treating physician. It also noted that adequate justification warranting a change of treating physician existed when an employee continued to experience pain that the approved treating physician was unable or unwilling to treat.

In Horsey, the Court found competent evidence of record existed to support the Full Commission’s ruling that Plaintiff was entitled to a change in treating physicians by pointing to Dr. Szura’s failure to adequately address Plaintiff’s ongoing pain and limited range of motion. The Court further highlighted that Dr. Wilson did not review any of Plaintiff’s prior medical records before recommending surgery and had relied instead solely on Plaintiff’s recitation of his medical history, which was inaccurate. As a result, the Full Commission did not err in determining Plaintiff was entitled to a change in treating physicians or in its decision to order Plaintiff’s care be transferred to a physician other than Dr. Szura or Dr. Wilson.

Practice pointer for Defendants: if you have a Plaintiff who is continuing to complain of ongoing pain and issues, and the treating physician you have selected does not offer additional solutions, then you may want to consider sending your Plaintiff to another physician or risk your Plaintiff obtaining his own physician who provides more restrictive restrictions. In this case, Defendants also ended up being liable for TTD for the period of time when Plaintiff had sedentary restrictions from Dr. Wilson that Defendant-Employer could not accommodate as the Full Commission found, and the Court of Appeals agreed (competent evidence existed standard), that Plaintiff had reasonably relied on Dr. Wilson’s sedentary work restrictions.