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.
We are grateful to all of you who have supported the Firm all these years. The practice of workers’ compensation law has changed a lot over the years– as have we. Workers’ compensation system participants comprise a relatively small group. Untangling and deciphering agency regulation has made the jobs of insurance adjusters, ombudsmen, doctors, lawyers and claimants more difficult by the day. We try to keep up for you with developments as they occur. This issue of the Compendium continues that tradition. We learn from and welcome your favorable comments and your criticisms and thank you for the time you take to read about what we think it is important to know.
Copyright 2024, Stone Loughlin & Swanson, LLP
The opinion piece
below describes events that should make us all pause. The point is that
although it is admirable that cooler heads prevailed at the Division and they
withdrew their case, in regard to the actual costs to the doctor the relief is
too little, and far too late. The greater cost is to the system that can ill
afford to lose qualified doctors willing to travel across the state to provide
quality examinations and reports that benefit all system participants at every
stage of the dispute resolution process. Excellence is rarely rewarded.
One Girl’s Opinion – Editorial by Erika Copeland
As we begin the new year, we all tend to do some reflection and I am no
exception. I certainly had not intended to make the editorial a permanent
fixture when my number was up for newsletter contribution, but I felt compelled
to take at least one more stab at it when we at SLS received a bit of a
surprise “gift” in the form of the Division’s Motion to Dismiss a disciplinary
action before the State Office of Administrative Hearings against Dr. Steven
Doores.
First a little context. For those of you who know me only as lawyer at
SLS, my first exposure to Texas workers’ compensation was working for the
Division back when they called Administrative Law Judges “Hearing Officers.”
I did that job for almost 15 years in Abilene and San Angelo. As an
ALJ in hundreds of cases I regularly read peer review, RME and DD reports from
Dr. Doores. By 2011, I had moved to Austin and headed a team of people
charged with making sweeping changes to the designated doctor program as part
of a legislative mandate. As part of that process, we enlisted the help
of several subject matter experts– which is just a fancy way of saying
“doctors” – one of whom was Dr. Doores.
At that time, Dr. Doores was no stranger to the eagle eye of the Division,
having been called on the carpet (via letter of education) – along with
numerous other doctors performing MMI/IR certification examinations – following
a performance-based audit. Following that audit, rather than getting his
proverbial knickers in a twist, Dr. Doores went to great lengths to meet
personally with staff at the Office of the Medical Advisor (OMA) to find out
what exactly the Division wanted and expected with regard to MMI/IR
examinations at a time when the Division had farmed out all training and
testing to an outside vendor, not bothering to oversee the curriculum or
testing administered by the vendor. Determined to make sure he knew
exactly what the Division wanted, Dr. Doores had numerous discussions and
meetings with OMA staff to ensure he knew how to evaluate MMI and impairment
ratings in accordance with the Division’s expectations.
With that backdrop, it should come as no surprise that when the Division took
over development, implementation and oversight of designated doctor training
and testing, Dr. Doores was on the top of the list of providers tapped to
provide his expertise. To be clear, those experts were “compensated” by
the Division much like the Hearing Officers and lawyers were compensated – at a
much lower rate than anyone doing the same kind of work in the private sector.
As the Director of that program at the Division, I personally witnessed his
participation meetings in Austin to develop a completely new three-day training
program for designated doctors that had never been undertaken by the Division
before. I was also there when he attended meetings in Austin with a
private test development company that put us through the rigorous process of
writing, vetting and approving hundreds of test questions for those doctors
seeking to be certified by the Division. (Dr. Doores was responsible for
personally writing the lion’s share of the upper extremity and MMI questions
and there were hundreds needed for the question bank). I was there in the early
stages when we took our show on the road and provided the Division training to
doctors in Houston and Dallas for three days at a time. I was there when
Division executives decided we needed to include some supplemental training
that involved the Hearing Officers in other locations around the state to teach
extent of injury to a larger number of doctors who had never heard of that concept,
much less been tested on it or written a meaningful report addressing
it. I was also there for phone conferences and in-person meetings too
numerous to count with other Division staff, subject matter experts and
attorneys in which Dr. Doores spent hours for which he received no compensation
from the Division. I was NOT there for what could only have been hundreds
of hours Dr. Doores spent developing training materials and test questions,
traveling and meeting with various Division employees and system participants
and doctors for which he received no compensation at all.
What I can speak to personally is the fact that Dr. Doores was a dedicated
colleague and true believer in the necessity to make designated doctor training
and testing better for the doctors, the Division and the system as a whole. It
is with that context that you could have knocked me over with a feather when I
became aware that the Division launched a campaign to remove Dr. Doores from
participating in the system that he worked so hard to improve.
It started slowly – after I left the Division. Dr. Doores was not asked
to speak at as many training sessions and stopped being asked to provide test
questions for the new versions of the certification examination.
Eventually he was politely uninvited to participate in any of his prior
Division duties, including his role as an MQRP arbiter – but that was only the
beginning.
Soon, Dr. Doores found himself on the receiving end of numerous complaints and
investigations – with no notice or knowledge of the source of the complaints.
Each time, Dr. Doores was able to show he complied with applicable
rules.
The latest disciplinary action began as an incomprehensible laundry list of
wrongs Dr. Doores received through the Division’s Medical Quality Review
“process.” What started with a seemingly shotgun approach was eventually
whittled down to five
allegations stemming from one
examination that took place almost eight years ago.
At its core the Division’s position involved its disapproval of Dr. Doores’
opinion and conclusions in an addendum post-DD RME report (which had been
mislabeled a peer review due to a typographical error). For example,
although the document was clearly NOT a peer review the Division fashioned a
series of allegations against Dr. Doores for doing things he could not – under
the Act or Rules – do as a peer reviewer – even though a plain reading of his
report made it clear that it was not, in fact a peer review. At the
Contested Case Hearing, the Administrative Law Judge admitted Dr. Doores’
post-DD RME addendum, with an explanation by the attorney offering it that it
was mislabeled. Every participant in the workers’ compensation system – with
the exception, apparently, of the people involved in the Division’s MQRP process
– understood the nature and intent of that report. The right hand, in this
particular case, definitely had no idea what the left hand was doing.
This action was just the final step in a concerted effort to get Dr.
Doores out of the system by any means available and – unfortunately it has for
all intents and purposes been successful.
If you have been doing this work for a while you know there are very few
qualified doctors who provide quality examinations and reports as either a
designated doctor or post-DD or treatment RME provider in the Texas workers’
compensation system. Even fewer are willing to travel to under-served or
hard to get to counties. Dr. Doores was a provider who would travel to
almost any location and provide quality examinations, reports and testimony if
necessary. Due, in no small part, to the relentless harassment by those in
charge of the system he worked so hard to help improve, Dr. Doores has taken
the target off his back by declining to provide certifying examinations for MMI/IR.
For anyone who may take the position that Dr. Doores is a Carrier-paid
mouthpiece and the system is better off without him, I say: 1) you have an
agenda that needs further scrutiny; or 2) you are not aware that the number of
cases that actually end up disputed, much less in a contested case hearing, in
the Texas workers’ compensation system is actually quite small. The
reports penned by Dr. Doores you may have seen from our office likely support
the Carrier’s position. There are, I assure you, any number of reports
from Dr. Doores in which he found injuries compensable, conditions caused by a
work incident and impairment ratings well in excess of 0% - in fact, well in
excess of 15%. Those reports, do not end up in dispute – so you won’t see them in
hearings, AP Decisions or PLN-11s.
This latest barrage by the Division has taken an unforgiveable toll in this
girl’s opinion. Full disclosure, I consider Steven Doores a friend and am
deeply troubled by the financial and personal cost to the man who gave so much
of himself and his time to a project that also meant so much to me. Most
frustrating is that we may never know the real reason agency personnel were
willing to spend so much time and money on a case that from the start clearly
had no legal merit.
Copyright 2024, Stone Loughlin & Swanson, LLP
On January 23, 2023, The Supreme Court of North Carolina adopted the Rules for Mediated Settlement Conferences and Other Settlement Procedures in Superior Court Civil Actions, superseding the existing set of rules in its entirety, that went into effect on May 1, 2023. Rule 4, which governs attendance at Superior Court mediations, was amended.
Rule 4 was amended to state that if all parties and the mediator agree that the mediation will occur remotely, in-person, or a mixture of the two, then the mediation will be held using the agreed-upon attendance method. If the parties cannot reach an agreement regarding the attendance method of the mediation, the mediation will automatically occur in person. However, the mediation will not automatically occur in person if the mediator has stated in the Dispute Resolution Commission’s Mediator Information Directory that they will only conduct remote mediations.
If a party that is required to attend the mediation would like an attendance method that was not agreed upon by the parties and the mediator, then that party may file a motion with the Industrial Commission Dispute Resolution Coordinator asking that a different method of attendance be ordered.
Rule 104 of the Industrial Commission’s mediation rules (11 NCAC 23G .0104) concerns mediation attendance and paragraph (b) specifies that the attendance method for Industrial Commission mediations shall be the same as the attendance method set forth in Rule 4 of the Rules for Mediated Settlement Conferences and Other Settlement Procedures in Superior Court Civil Actions. Accordingly, the Rule 4 amendments directly affect the way the Industrial Commission determines mediation attendance methods. To help understand this concept, the Industrial Commission created a flowchart, which can be viewed on our website at: https://teaguecampbell.com/mediation-update-2024/.
Although some mediations are quite successful when held remotely, others seem to be more successful if the parties are physically present. Sometimes, when the mediation is held remotely, the participation of the parties can be less predictable. Further, in workers’ compensation cases, mediation is normally the only time defense counsel is able to see the injured worker, and it can be more difficult to judge credibility or to get an accurate impression of injury or level of disability if the parties are appearing remotely. This is especially true in denied cases where credibility and the extent of the injury may be in dispute. If you have any questions or would like to discuss the best method of attendance at your mediations, please reach out to a member of our Teague Campbell Workers’ Compensation team.
Our Legislative Session for 2024-2025 has kicked off and I am pleased to report that, at this time, there are no proposed changes that currently impact our WC system. In Georgia, our Advisory Council is generally the body that presents any proposed uniform changes to the Legislature but this year there are no changes being presented. Of course, each session presents the possibility for surprises, and we will keep you informed of those. For now, however, it appears that smooth sailing lies ahead from Georgia’s employers regarding Statutory changes.
The minimum compensation rate was increased as a result of legislation signed by Governor Hochul (S1161-A/A2034-A). The new law provides that the minimum compensation rate in workers’ compensation claims will increase according to the following schedule:
- 01/01/2024—$275
- 01/01/2025—$325
- 07/01/2026—increased to one-fifth of the state average weekly wage
Maximum Compensation Rate: Effective 7/1/23 the maximum weekly indemnity rate under WCL §15(6) increased to $1,145.43 based on annual indexing of the state average weekly wage.
Board Offices Remain Closed to the Public. Hearings in New York workers’ compensation matters continue on a virtual basis only, with all parties, attorneys and witnesses appearing via computer and mobile phone connections from their offices or homes employing the Board’s statewide Virtual Hearing System. The Board closed all of its offices and hearing sites to the public on 3/17/20 as a public safety measure in response to the COVID-19 pandemic. The Board recently advised that it plans to reopen hearing sites to the public again, but as of this writing it still has not provided a date when in-person hearings will resume.
Certain other changes to Board procedure instituted during the COVID-19 pandemic remain. For example, the requirement for original handwritten signatures on several Board forms was suspended as a result of the pandemic and remains in effect.
On January 2, 2024, the Pennsylvania Commonwealth Court issued what may be a decision that has significant effect upon workers’ compensation liability for insurers and self-insured employers, the pharmaceutical industry and may for injured workers as a consequence of the Decision. In Federated Insurance v. Summit Pharmacy, the Court set aside the Bureau of Workers’ Compensation’s regulatory adoption and use of Red Book values as setting the Average Wholesale Price (AWP) to resolve payment disputes for pharmaceuticals. It noted that doing so was inconsistent with the phrase AWP as utilized in Section 306(f.1)(3)(vi)(A) as has been interpreted by the Court. If an agency’s regulations are inconsistent with the legislative intent of the statutory provisions, the regulations are invalid. Thus, the Court invalidated utilizing Red Book values as to AWP when determining what amount needs to be paid under the Pennsylvania Workers’ Compensation Act and corresponding Medical Cost Containment Regulations when remitting payment for prescription medications. The Court ordered the Bureau to promptly identify a “Nationally recognized schedule” of AWP which is to be utilized as being the basis of payment for prescriptions.
This case had its genesis in a dispute over an alleged underpayment of approximately $72,500.00 for prescription medications. The prescription bills submitted from 04/15/21 – 09/08/22 totaled $74,011.81 and payment was made by the carrier using the AWP of the drugs are reported in the National Average Drug Acquisition Cost Index (NADAC), which totaled $1,511.93. The Bureau’s Fee Review Section issued determinations apply the costs per Red Book, based upon the cost containment regulations promulgated under the Act. See 34 Pa. Code §§127.1 – 127.755; see also Section 306(f.1)(3)(vi)(A) of the Act, 77 P.S. §531(3)(vi)(A), which limits reimbursement for drugs and professional pharmaceutical services to “one hundred ten per centum of the … [AWP] of the produce, calculated on a per unit basis, as of the date of dispensing.”
The Carrier argued that Red Book pricing was artificially inflated and did not accurately represent the actual AWP, which is what the Act required to determine pricing for pharmaceuticals. It was noted that Red Book is a privately published, electronic compendium of pharmaceutical and over-the-counter “AWPs” available online. The publisher of Red Book is IBM Watson, which has changed over the years. It the statement policy, even IBM Watson indicated that, in most cases, the manufacturer’s AWP does not reflect the actual AWP charged by the wholesaler. The values used in Red Book were what was reported by the manufacturer and IBM Watson did not independently analyze the data to ascertain the amounts paid by pharmacies to wholesalers. Accordingly, it was asserted that Red Book values were inconsistent with the Act and cost containment provisions. The Court looked to prior case law, Indem. Ins. Co. of N. Am. v. Bureau of Workers’ Comp. Fee Rev. Hearing Off. (Insight Pharm.) 245 A.3d 1158 (Pa. Cmwlth. 2021) to conclude that the plain meaning of AWP is a price which is an industry average and not one “charged by a single manufacturer,” and “is a number derived by averaging the wholesale prices of all manufacturers or wholesalers.”
While the Bureau adopted Red Book as AWP to be used in payment disputes, it was noted that an insurer may introduce evidence challenging the “accuracy” of the Red Book pricing. Here the carrier challenged the use of Red Book on the basis that its values can never reflect an accurate AWP. It was noted that NADAC pricing was based on the aggregated and averaged prices pharmacies typically pay for a drug at wholesale nationally. Whereas, Red Book pricing was chosen unilaterally by a drug’s manufacturer and was not a mathematical average. It was not based upon an prices in actual wholesale transactions. The prices under Red Book and NADAC differed considerably, especially for generic drugs. An example was the acquisition price of a bottle of Prozac, which was $9.00. The Red Book price for reimbursement was $2,000.00. Thus, at payment of 110% of AWP, the carrier’s payment could be $2,200 under Red Book or $9.90 under NADAC.
The Court agreed that the Bureau’s regulatory adoption of Red Book’s values as to AWP to resolve payment disputes was inconsistent with the phrase AWP as used in the Act and that an administrative agency’s regulations cannot conflict with the statutory intent. Thus, they held as a matter of law that Red Book’s values could not be used as to AWP because they are inconsistent with the Act. The Court however, did not indicate that NADAC is to be utilized. Instead, it remanded and directed the Bureau to “promptly identify and publish” in the Pennsylvania Bulletin a “National recognized schedule to determine the AWP of prescription drugs” to be used to resolve payment disputes.
Thus, we are now left with a situation in which there is uncertainty as to what amount is payable for any prescription submitted for reimbursement. It is uncertain as to when the Bureau may publish a new National recognized schedule. Does this excuse or toll the payments to now be issued for prescription medications for which bills are submitted. If payment is not made within 30 days of receipt of the bills, typically statutory interest is to start to accrue on the payment to be issued. Should carriers now start to pay under NADAC and then if a different schedule is implemented, pay any difference in the amount payable along with interest on the additional payment. The Bureau may well adopt NADAC. However, it is not bound to do so. It should be noted that with the drastic difference in the amount payable, pharmacies may elect to not fill some drugs for workers’ compensation claims. In the Decision, the expert for the pharmacy indicated that the cost to fill a prescription is $12.50 per prescription such that the pharmacy would be losing money any time they fill a script for a mediation that has an AWP that does not provide for payment above this amount. This could be problematic for injured workers if they are no longer able to secure certain mediations if pharmacies do not find it cost effective to provide. However, with how inflated Red Book values are, it is obvious that pharmacies have been significantly profiting to the detriment of insurers and self-insured employers for years relative to the cost of prescription medications. More likely than not there will be more comment and discussion about how to come up with a schedule that makes sense for all stakeholders.
The Medical Cost Containment Regulations were enacted back in 1994. They may no longer be adequate in a number of ways in terms of addressing issues that arise in the workers’ compensation and fee review forums. It may be time for the General Assembly of Pennsylvania to revisit the regulations, seek commentary from all stakeholders and to address any and all deficiencies that are arising either from the regulations not accurately reflecting the times as to payment for medical treatment and pharmaceuticals as well as addressing cases that have been rendered over time that appear inconsistent with the Act and regulations that have led to even further confusion over implementation and interpretation of the Act and Regulations. This case is most likely going to have a significant financial impact upon carriers in Pennsylvania as well as pharmacies and injured workers’ may also feel the fallout. However, other than simply forms the basis for determining the cost of prescription mediations moving forward, perhaps, it will provide the impetus for even more broad and sweeping changes regarding the payment of medical treatment under the Pennsylvania Workers’ Compensation Act.
Minnesota Case Law Update—January 2024
Post-Traumatic Stress Disorder
Tea v. Ramsey County et al., No. WC22-6493 (W.C.C.A. July 28, 2023).
The employee was a licensed social worker working as an adult mental health case manager who learned that in February 2020, one of her clients murdered his girlfriend. The employee initially heard about the incident over the telephone and subsequently through work meetings and conversations where the details of the criminal act were discussed in depth. The employee also conducted her own independent research outside of work via the internet and other news outlets.
The employee filed a First Report of Injury alleging work-related secondary trauma stemming from the violent act committed by her client. She underwent a psychiatric evaluation and was diagnosed with PTSD based on the DSM-5.
The employer and insurer initially accepted primary liability and began administering the claim. They made arrangements for an independent psychological evaluation and their expert opined that the employee did not meet criteria for PTSD under DSM-5. The employer discontinued benefits based upon that opinion.
The employee underwent a third psychological evaluation with a plaintiff’s expert who agreed with the first doctor that the employee met the DSM-5 criteria for PTSD as a result of her repeated exposure to the details of the murder. He also diagnosed major depressive and anxiety disorder. He specifically opined that Criteria A4 was met when the employee initially learned of the murder and with subsequent repeated exposure to the details for the next several days.
At hearing, the compensation judge found the employee sustained work-related PTSD and major depressive disorder and awarded workers’ compensation benefits. The employer appealed.
On appeal, the employer argued that the adoption of the third doctor’s opinion was erroneous and not supported by the evidence. The Minnesota Workers’ Compensation Court of Appeals held that it could not consider arguments as to whether the expert physicians misapplied the DSM requirements to the facts of the case pursuant to the holding in Smith v. Carver County (2019). On that basis, the WCCA affirmed the compensation judge’s findings that the employee’s expert physicians rendered credible medical opinions.
The W.C.C.A vacated the findings that the employee had major depressive disorder. That condition was not pled as consequential to the PTSD claim and major depressive order standing alone is not compensable. So, the judge could not find that as a work-related, compensable condition.
Arising out of and in the Course and Scope (safe ingress/egress)
Chad Olson v. Total Specialty Contracting, Inc., et al., No. WC23-6510 (W.C.C.A. November 9, 2023)
The employee was working as a journeyman heat and frost insulator for an employer who was subcontracted to work on a construction project on the University of Minnesota campus. He was scheduled to meet with another subcontractor to discuss the job. The meeting was set to take place in an area enclosed by a chain link fence and gates because it was closed to the public. The employee was instructed to park nearby, walk across the street and between two buildings, following the fence until he reached the gate and then enter the gate and the building.
When he arrived for the meeting, the employee was already wearing his vest, work boots, pants, hard hat and safety glasses. He arrived for the meeting at 5:45 a.m. and followed the directions for entrance. The chain link fence encroached upon the cement walkway which was covered with wet, frosty leaves and the area was dimly lit. Within five to ten feet of the gate entrance, the employee slipped and fell, sustaining injuries to the back and ankle. He could not explain the cause of his fall but testified that he assumed he slipped and fell due to the wet leaves.
The employer and insurer denied that the injury arose out of and in the course and scope of employment because the employee didn’t know what caused the injury and there was no evidence connecting the injury to the employment. The employer and insurer also took the position argued that the injury occurred outside the perimeter of the construction site and occurred 15 minutes prior to the meeting, so did not meet the time and place requirements of a compensable claim. Similar to the Dykhoff case, the asserted that it was an unexplained fall on a flat surface prior to the work day and outside the work premises and therefore, not compensable.
The compensation judge found the employee’s injury was compensable and arose out of and in the course and scope of employment because the location where he fell was “used as an extension of the job site” and the walkway was not well lit and was covered in wet leaves immediately adjacent to the fence surrounding the site.
On appeal, the Minnesota Workers’ Compensation Court of Appeals affirmed the compensation judge, explaining that while the employee was not certain what caused the fall, the court could not conclude that the injury was unexplained and that the set of circumstances (wet leaves covering the walkway, poor lighting, unfamiliarity with the area, limited entry and fence encroaching on the walkway while wearing PPE to attend a meeting necessary to begin his work for the employer) increased the employee’s exposure to injury and established a causal connection between the work injury and employment.
Injuries Caused by a Third Party
Profit v. HRT Holdings d/b/a Doubletree Suites and CNA Claim Plus, et. al., No. WC21-6438 (W.C.C.A. April 14, 2022).
The employee was in the course of his employment when he was attacked by an assailant who had checked into the hotel where the employee worked. The employee and the assailant were acquainted and the assailant believed the employee had poisoned his uncle. The compensation judge determined that the assailant assaulted the employee solely for personal reasons entirely unconnected to the employment and that therefore, the employee’s claims were barred by the intentional act defense set forth in Minn. Stat. § 176.011, subd. 16. In doing so, the compensation judge concluded there is no exception to the intentional act defense where the assailant’s motivation arises from mental illness. On appeal, the denial of benefits was affirmed by the Workers’ Compensation Court of Appeals and the Minnesota Supreme Court.
Notice Requirements for Repetitive Use (Gillette) Claims
Schmidt v. Walmart, No. WC21-6437 (W.C.C.A. May 16, 2022)
The employee suffered from chronic left knee pain that required surgical intervention twelve years before her employment began with employer. She maintained that she was symptom-free and working without restriction leading up to the alleged work injury. She was hired by the employer in 2005 and worked full time in a variety of different roles until 2011. In September 2011, she reported constant aggravations of her knee at work although she didn’t seek medical treatment until May 2015.
When seen by a physician in 2015, she was diagnosed with left knee arthritis and recommended for a total knee arthroplasty. The physician opined that the condition was not due to the alleged work-related incident from September 2011. A revision surgery was performed on January 16, 2019, but the employee found it difficult to work when she resumed her duties with the employer. She sought legal counsel in March 2019 a filed a claim for a repetitive use (Gillette) injury to the left knee.
The medical expert for the employer and insurer opined that the condition was not work-related but instead, due to preexisting osteoarthritis. The treating doctor opined that the employee’s preexisting condition had been accelerated by her work for the employer.
At hearing, the workers’ compensation judge found that the employee suffered a Gillette injury on October 27, 2015, that she provided proper notice of the injury to the employer, and that she did not withdraw from the labor market. The employer and insurer appealed.
On appeal, the employer and insurer argued that the employee knew her work activities were causing left knee symptoms in September 2011, and that said date triggered the statutory obligation to give notice of injury to the employer. They also argued that by giving notice to the employer in March 2019, the claim was barred by the statute of limitations.
The court rejected that argument and felt that it was reasonable to conclude that the Gillette injury culminated around the time the employee’s work activities caused her to be disabled from work during surgery and recovery. Moreover, the court reasoned that notice was properly given in March 2019 because prior to retaining legal counsel, the employee was unaware that repetitive minute trauma culminating in an injury could be a compensable work-related injury.
In late October of 2023, legislation was passed temporarily extending emergency legislation from 2022 that previously barred the payment of an award or compensation in the District if the Claimant had received benefits under the laws of any other states. Titled the Parity in Workers’ Compensation Recovery Emergency Amendment Act of 2023, the Act extended the amendment that now allows the payment or award of compensation in the District of Columbia even if the Claimant has received benefits from workers’ compensation claim in any state. The total benefit received, however, will be reduced by any amount received previously. Thus, if the Claimant received any benefits in Maryland and now brings the claim into the District of Columbia, any further awards of compensation will be reduced by any amount received in Maryland. This Act applied to claims pending as of June 28, 2022 and all claims filed after June 28, 2022. Overall, this likely led to an increase in DC workers’ compensation claims as claimants were no longer barred from recovery in DC if they received any form of benefits in other states.
Moving forward, with this temporary legislation only in effect for 90 days with an expiration date of January 24, 2023, Employers and Insurers should continue to monitor for additional legislation as it is likely further temporary legislation will be enacted to extend the benefits associated with this Act. While the Act is no longer in effect, it is unknown what the courts will do for any claims of benefits during the period that is no longer covered if additional legislation is signed into effect.
In the case of Cramer v Transitional Health Services of Wayne, the Michigan Supreme Court recently upended several decades of legal precedent concerning the evidence required to properly assess and establish compensability for work-related psychiatric injuries. Pursuant to Section 301(2) of the Michigan Workers’ Disability Compensation Act, “mental disabilities…are compensable if contributed to or aggravated or accelerated by the employment in a significant manner.” Further, the statute provides that, “mental disabilities are compensable if arising out of actual events of employment, not unfounded perceptions thereof, and if the employee’s perception of events is reasonably grounded in fact or reality.”
The previous evidentiary standard to assess the statute's “significant manner” requirement was established by the Workers’ Compensation Appellate Commission in the 2001 case of Martin v Pontiac School District. However, the Supreme Court explicitly overturned the Martin test in its recent Cramer decision, finding that the lower courts’ application of the Martin test had evolved over the years to erroneously construe the statutory language of “a significant manner” to mean “the most significant manner.”
In place of the Martin test, the Supreme Court is reverting to a previous totality-of-circumstances standard which was laid out in its 1993 decision from Farrington v Total Petroleum, Inc. Under the Farrington standard, the plaintiff must now demonstrate that the alleged psychiatric injury and resulting mental disability were “significantly caused or aggravated by employment considering the totality of all the occupational factors and the claimant’s health circumstances and non-occupational factors.”
Thus, when evaluating the statutory “significant manner” requirement under the Farrington standard, the Supreme Court held that finders-of-fact in lower courts should now consider: “the temporal proximity of the injury to the work experience, the physical stress to which the plaintiff was subjected, the conditions of employment, and the repeated return to work after each episode.” Further, depending on the specific circumstances of a given case, other relevant factors to consider might include: “the natural history of any underlying or preexisting condition and whether the condition would have worsened naturally in the absence of occupational contributors.” The Court also noted the factors provided in its Farrington decision were “not all inclusive.”
January 2024
Tennessee Courts Clarify
Notice Defense
In June of 2023, the
Workers’ Compensation Appeals Board (the “Board”) decided Ernstes v.
Printpack. The holding in this case resulted in a fundamental shift in the
understanding of the notice statute and defense penned in T.C.A. § 50-6-201. Confusion
arose surrounding the language in the statute regarding (1) failure to give
notice; and (2) defective notice. Ernstes was appealed, remanded, and
appealed again, before the Board clarified the issue. The Board’s decision was
upheld by the Supreme Court of Tennessee, Special Workers’ Compensation Appeals
Panel, on January 2, 2024.
The facts surrounding Ernstes
are quite simple: an employee worked for a company for thirty-three years,
where her job exposed her to loud noises; the employee retired and noticed
issues with her hearing; the employee saw a physician who determined that she suffered
from substantial hearing loss; the following year, the employee, while sitting
with her husband’s workers’ compensation attorney for a hearing loss issue,
connected the dots; the employee notified the employer and filed a petition. This
notice was untimely.
The lower court battled back
and forth over the correct answer to whether the notice given was acceptable,
albeit late. In the first appeal, the
Board concluded that the notice was not timely, but remanded the case for
determination of whether the employee had a reasonable excuse, and whether the
employer had suffered any prejudice due to the lack of notice. This lower court
held that the employee offered no reasonable excuse, but the employer had not
shown prejudice, and the original award of benefits was reinstated. The case
was again appealed.
After the second appeal, the
Board caught on to the confusion. The lower court was applying subdivisions
(a)(1) and (a)(3) of § 50-6-201 synonymously in this case. The Board clarified
that these subdivisions are separated in the Code for a reason. Subdivision
(a)(1) applies to failure to give timely notice. Conversely, subdivision
(a)(3) applies to defective notice. These are wholly different
scenarios. At this point, the Board stepped in to “[draw] a distinction between
untimely notice and defective notice and the burden accompanying each notice
deficiency.”
The Board held: Firstly, in
cases involving the lack of timely written notice, the employee bears
the burden of proving that (1) timely written notice was provided; (2) the
employer had actual knowledge of the accident or injury; or (3) the employee
has a reasonable excuse for the failure to provide timely written notice.
Secondly, when an employer affirmatively asserts a defect or inaccuracy in
the written notice, the burden shifts to the employer to prove prejudice.
Therein lies the problem the court faced in the Ernstes case – defective
notice was not asserted, no reasonable excuse was provided, and prejudice to
employer was not applicable for this lack-of-timely-notice case.
The lower court could not
ignore subdivision (a)(1) – requiring a reasonable excuse for failure to
provide timely notice – and instead apply subdivision (a)(3), forcing the
employer to show prejudice. This comingling of statutory burdens allowed the
lower court to arrive at an incorrect result. This clarification from the Board
recognizes an overlooked distinction that attorneys, adjusters, employers, and
employees, must take into further consideration – and more acutely consider –
for cases pending from this point onward.
For any questions, please
contact:
Fredrick
R. Baker, Member
Brendan
Walsh, Associate
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
bwalsh@wimberlylawson.com
www.wimberlylawson.com