State News

Effective February 1, 2016, Fentanyl transdermal patches and MS-Contin will have their status
changed to “N.” Beginning February 1, 2016, prescriptions for either of these drugs will require
preauthorization.

Many companies in Texas elect to opt out of workers’ compensation. Oklahoma recently allowed
companies to do the same, and both South Carolina and Tennessee are considering similar statutory
changes. A Dallas attorney, along with a coalition of executives from some of the country’s biggest
employers, is campaigning for similar changes in a dozen states.
An investigation by NPR and ProPublica found that the employee benefit plans of the opting-out
employers lower worker benefits, with little to no oversight. Gone is the lifetime medical care
promised by the workers’ compensation system. Many injuries that are covered under workers’
compensation, such as infections and carpal tunnel syndrome, would receive no benefits under the
employee benefit plans. Under these plans, employers are able to direct medical care by selecting
the treating doctor, and in some cases, accompany the injured worker to all treatment appointments.
Reporting deadlines can be shortened to as little as end-of-shift or 24 hours, versus the 30-day
reporting window under workers’ compensation.
If any of this sounds familiar, it should; this is the broken system that worker’s compensation was
created to fix.

The Division of Workers Compensation has brought on a few new Hearing Officers. Travis Dupree
has joined the Midland Field Office, and will be covering Abiline and San Angelo as well. Mr.
Dupree is a 2007 graduate of the Mississippi College School of Law and has been licensed to
practice law in Texas since November of 2008. Amanda Barlow has joined the Dallas and Fort
Worth Field Offices. Ms. Burgess earned her J.D. in 2007 from Texas Wesleyan University. Three
new Hearing Officers will be joining the Houston West Field Office and assisting with the
Beaumont Field Office. Robin Burgess, a 2004 graduate of the City University of New York School
of Law, has been licensed in Texas since April of 2012. Early Moye finished law school in 1987
at the University of Houston. Francisca Okonkwo attended Texas Southern University and comes
to the Division from the Texas Attorney General.

A Houston area practitioner, Dr. Rezik Saqer, has been charged with operating illegal pill mills. Dr.
Saqer runs two pain management clinics in the Houston area. One of Dr. Saqer’s patients was
charged with intoxication manslaughter for a fatal crash that killed a family of four in Montgomery
County, Texas. An investigation into the crash, where oxycodone and valium were found, led
investigators to Dr. Saqer.
When searching Dr. Saqer’s clinic, Integra Medical Clinic, they found illegal quantities of opiates.
Investigators also found evidence that he would pre-sign prescriptions and treatment notes, allowing
his patients to be seen by unlicensed individuals. Dr. Saqer’s license to practice medicine has been
suspended due to this continued practice, on the basis that it poses a risk to public welfare.

The Division is accepting comment through November 9th on proposed Rule changes to Labor Code
Section 408.103 from the 84th legislature. Now, to be eligible for the higher (75%) rate of TIBs
during the first 26 weeks, a worker’s wages must be below $10.00 per hour instead of the current
$8.50. The proposed changes to Rules 129.3 and 129.11 implement this statutory change. The
amended rules will apply to injuries on or after September 1, 2015.

In a ruling that many might find counterintuitive, a New Jersey court has ruled that an adult dancer
is an employee of the establishment where she danced, and not an independent contractor, for
purposes of workers’ compensation. The court found that the establishment had the right to exercise
control over the injured worker. Despite the fact that the injured worker was free to set her own
schedule and worked solely for tips, she “was not free to come and go as she pleased” once her shift
began, and she “was required to perform both pole and couch dances.”

A controversial deal between the Travis County District Attorney’s Office and Texas Mutual
Insurance Company has been suspended. Going back to at least 2000, Texas Mutual has paid the
DA’s office to prosecute “crimes committed against the company,” such as fraud. Under the
arrangement, investigators directly employed by Texas Mutual gather information and provide a
referral to the DA. The controversy surrounds the fact that only crimes committed against Texas
Mutual, and not all insurers, are being pursued. In 2014, payments from Texas Mutual to the DA’s
office totaled $430,000.

The Wisconsin Worker’s Compensation Advisory Council was created to advise the Department and Legislature on policy matters concerning the development and administration of Wisconsin’s worker’s compensation system. The Advisory Council is comprised of an equal number of voting members from labor and management, along with non-voting representatives from the insurance industry, a representative from the Department and liaisons from the medical community. In 2014, for the first time in the history of the Advisory Council, the agreed-upon bill that it submitted to the Legislature did not pass.

On July 12, 2015, Governor Walker enacted the 2015 Budget Bill which included the transfer of 18 worker’s compensation administrative law judges from the Department of Workforce Development to the Department of Administration.  This was the first change to the worker’s compensation field that has occurred without the Advisory Council’s input.  Since that time there have been many rumors regarding the intent of various groups to circumvent the Advisory Council and introduce bills directly to the Legislature that would significantly change the landscape of Wisconsin’s worker’s compensation system.

The Advisory Council recently met last Wednesday, October 21, 2015, and authored a draft bill that has been negotiated and agreed upon by both labor and management to be introduced in the 2015-2016 session. Per notes taken at the most recent meeting, below are some of the main items that are set to be listed in the final agreed-upon bill that is scheduled to be drafted and submitted to the Legislature later this year. As you will see, the changes proposed appear to favor employers and insurance carriers.

• Reduce the statute of limitations for traumatic injuries from 12 years to 6 years (the SOL for occupational injuries remains unchanged)
• Allow apportionment of permanent partial disability – require employees to disclose all previous permanent disabilities or impairments to the alleged injured body parts so that liability for employees’ conditions can be apportioned between the prior impairments and the injuries resulting from the alleged work event.  Employers/carriers would then only be held liable for the portion of the condition directly caused by the work event or occupational exposure.
• Update the permanent partial disability minimum ratings to reflect medical advancements (i.e. lower minimum ratings for joint repairs and total joint replacements)
• Eliminate wage escalation so temporary disability benefits are paid based upon actual earnings at time of injury rather than an escalated rate
• Eliminate benefits to workers who violate an employer’s drug and alcohol policy if the use of the drugs/alcohol are shown to be the cause of the injury
• Allow the employer/carrier to deny benefits if a worker is brought back to work on light duty and they subsequently are fired for good cause
• Increase the maximum permanent partial disability benefits by $20 in 2016 to $342 and $20 in 2017 to $362 weekly
• Allow prospective orders for vocational retraining
• Fund a position at the Department of Justice to fight worker's compensation fraud

In addition to the Advisory Council’s agreed-upon bill, Representatives Spiros (R-Marshfield) and Knodl (R-Germantown) and Senator Stroebel (R-Saukville) circulated a reform proposal last week which includes many provisions that are even more employer-friendly than those in the agreed-upon bill.  Highlighted below are some of the most significant changes included in this recent bill:

• Bar recovery of work comp benefits to an employee who knowingly falsifies their physical condition on an employment application if the employer relies upon this false information to hire the employee and there is a causal connection between the injury and the false information<
• Allow for reduction of benefits if an injury is caused by negligence attributed to the employee
• Allow for an offset of benefits by old-age social security income, not just social security disability income
• Allow for the denial of benefits during a healing period if an employee is brought back to work light duty and they are subsequently suspended or terminated for misconduct or substantial fault, as defined by unemployment insurance law
• Eliminate the escalation of wages during a renewed period of disability and, instead, use the date of injury wage to calculate benefits owed
• Eliminate minimum permanent partial disability ratings when it is shown that no actual impairment resulted from the procedure or injury
• Allow prospective retraining orders
• Require employees who the Department have found suffered permanent partial disability to resubmit to a medical re-examination every three years at which time the Department will re-evaluate the case and issue a new order as to permanent partial disability based upon the updated medical opinion
• Require employers with health benefit plans to provide employees covered by the plan their choice of practitioner within the plan
• Allow employers to direct care for employees not covered by an employer health benefit plan

This bill is set to be introduced to the Legislature jointly by Rep. Spiros and Sen. Stroebel on October 29, 2015, to be voted on yet this year.

At this time, it is yet to be seen whether either bill will be adopted by the Legislature in its entirety or in part.

Please feel free to contact Chelsie Springstead by email atcspringstead@lindner-marsack.com, or any member of the Lindner & Marsack Worker’s Compensation Defense Practice with any questions.

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ABOUT THE AUTHOR

Chelsie Springstead is an attorney at Lindner & Marsack, S.C., a law firm located in Milwaukee, Wisconsin that is dedicated to representing employers, self-insured employers, and insurance carriers in workers’ compensation cases, along with all facets of labor, employment and employee benefits law. The firm is a member of The National Workers’ Compensation Defense Network (NWCDN), which is a national network of reputable law firms organized to provide employers and insurers access to quality representation in workers’ compensation and related employer liability fields. If you have questions about this article or Wisconsin workers’ compensation issues in general, please feel free to contact the author atcspringstead@lindner-marsack.com, or (414) 273-3910.

Peter v. Paylor, v. Dee Zee Incorporated And Travelers Indemnity Company Of Ct., Court of Appeals of Iowa, No. 14-1570

On November 10, 2010, Claimant, Peter Paylor, suffered a work related injury to his lower back for which he sought medical care on November 12, 2010. Claimant’s employer, Dee Zee Incorporated, stipulated the injury caused temporary disability. Claimant underwent back surgery in April 2011. He claimed the surgery was causally related to the work injury and filed a claim for permanent disability benefits. The employer denied causation and denied Claimant sustained a permanent disability related to his work injury. The deputy commissioner found Claimant did not prove the April 2011 surgery and subsequent treatment were related to his work injury. The commissioner affirmed the decision. The district court affirmed the agency’s action.

On appeal, Claimant contends the agency’s finding that his surgery and subsequent treatment were unrelated to his work injury is not supported by substantial evidence. He contends, for the same reason, the agency’s decision is irrational, illogical, and wholly unjustifiable. 

The Court of Appeals concludes the agency’s decision is supported by substantial evidence and is not irrational, illogical, or wholly unjustifiable. The Court notes that the agency carefully assessed the medical evidence as reflected in Claimant’s medical records and the opinions of different physicians. The agency credited some of the medical professionals’ opinions over others based on their respective training, experience, and area of practice and based on whether the opinions jibed with Claimant’s symptoms. The agency further took into account the quality of the opinion based on the medical history, or lack thereof, Claimant provided to the respective medical professional. 

Medical causation presents a question of fact that is vested in the discretion of the workers’ compensation commission. While there may be evidence in the record contrary to the agency’s findings and conclusions, “[e]vidence is not insubstantial merely because it would have supported contrary inferences.” Wal-Mart Stores, Inc. v. Caselman, 657 N.W.2d 493, 499 (Iowa 2003). The question is not whether the evidence would support a different finding, the question is whether the evidence supports the finding actually made. Accordingly, the Court of Appeals affirms the district court’s decision on judicial review.

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! 

The Clayton County School District in Atlanta, Georgia employed Edith Hill as a bus driver.  During the school year 2009-2010 Hill was assigned a non-air-conditioned bus for special needs students.  The temperatures inside the bus rose above 100 degrees and Hill found she was experiencing serious difficulty in breathing.  She filed an “Employee Request for Reasonable Accommodation” on August 11, 2009 stating that extreme heat impaired her ability to breathe.

Hill attached two doctors’ notes, one from a pulmonologist who said she had an airway-related physical impairment that limited her breathing abilities.  If she were provided with an air-conditioned bus she could do the job, according to the pulmonologist.

On August 13, 2009, the School District placed Hill on unpaid leave while it considered her request.  On August 28, 2009, the School District sent Hill a letter denying her request because all air-conditioned buses had already been assigned to other drivers.  The letter did not mention that the District was in the process of obtaining more air-conditioned buses. 

There was a dispute at trial whether the School District offered Hill one of these new air-conditioned buses.  Hill said it never happened; several employees of the School District said that the offer was made.  Hill remained out of work through 2009 and into early 2010. The School District terminated her employment on March 2, 2010.  Hill then sued under the ADA for discrimination.

The District Court ruled in favor of the School District and dismissed Hill’s law suit, but the Eleventh Circuit Court of Appeals reversed in favor of Hill on the disability discrimination issue.  The Court first noted that there was conflicting evidence on whether the School Board ever made an offer to Hill about using one of the new air-conditioned buses.  None of the School Board’s witnesses actually recalled making the offer to Hill.  The Court added:

Even assuming the School District did make such an offer, there is still a dispute as to whether making Hill wait two months was reasonable.  In its motion for summary judgment, the School District argued that providing an air-conditioned bus any earlier would have constituted an undue hardship, but does not provide sufficient evidence of what the hardship would be.  All the School District said was that it would have had to upset its seniority-sensitive bus-allocation process.

The Court reviewed prior case law where employers had made employees wait a few months before making an offer of reasonable accommodation.  It said that in all of the prior cases, the employer paid the employee during the waiting period before a decision was made on the offer or allowed the employee to work during the waiting period.  The Court said, “Here, by contrast, two months was more than enough time for the School District to overcome any administrative hurdles in providing Hill with an air-conditioned bus.”

What this means is that Hill has an opportunity to present her case before a jury.  The lesson in a case like this is that employers must act promptly when it comes to requests for reasonable accommodation.  In this case it was hard for the School Board to argue that Hill had no right to the accommodation request.  Hill had in years past driven an air-conditioned bus. The case also shows the importance of making a written offer of accommodation.  Throughout the hearing process the parties fought over the issue of whether an offer of accommodation had been made, even though this could have easily been resolved by documenting this in a written offer letter. The case can be found atHill v. Clayton Sch. Dist., No.13-14951, (11^th Cir. 2015).

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