State News

The policy for settlement of cases involving child support liens is set forth in the Mississippi Workers' Compensation Notice dated June, 2012.  The link for the notice is as follows: www.mwcc.state.ms.us/law-clms/Child%20Support%20Web%20Policy.pdf 

If you have any questions about this article or about Mississippi's workers’ compensation system, please feel free to contact Virginia S. Gautier, Andrew D. Sweat or Jennifer H. Scott at Wise Carter Child & Caraway, PA.  Information about the Wise Carter Child & Caraway PA law firm can be located at www.wisecarter.com.

Mississippi enacted legislation that became effective on July 1, 2012 that amended the Mississippi Workers' Compensation Act.  A brief summary of some of the changes to the Act include the following.  First, prior to the amendment to the statute, case law required the Mississippi Workers’ Compensation Act to be construed in a light most favorable to the claimant in situations where the Commission did not think the evidence clearly supported one side over the other. Miss. Code Ann. §　71-3-1 now requires the Workers’ Compensation Act to be impartially construed and applied according to the law and the evidence in the record.  Second, the Legislature added language to Miss. Code Ann. §71-3-7(1),which assists the employer and carrier in the event the claimant files a Petition to Controvert and the employer had absolutely no knowledge of the injury. Where no benefits of any kind have been paid, the claimant is now required to attach medical records supporting his claim when filing a Petition to Controvert for a date of injury after July 1, 2012. If the Petition is filed near the end of the two year limitation period, the claimant will have an additional 60 days after filing the Petition to file supporting medical records with the Commission.  Third, Miss. Code Ann. §71-3-7(2) contains a provision which assists the employer and carrier in seeking apportionment. Previously, apportionment was not available to the employer and carrier unless it could be shown that the pre-existing medical condition had rendered the claimant occupationally disabled in some form. The new statutory language states that the pre-existing condition does not have to be occupationally disabling for apportionment to apply. Additionally, pursuant to Miss. Code Ann. §71-3-15(1), if an employee has surgery for the injury at issue or treats with a physician for six months or longer, that physician is now deemed the employee’s choice of physician.

This article was written by Virginia S. Gautier, Esq. of the law firm of Wise Carter Child & Caraway PA.   If you have any questions about this article or about Mississippi's workers’ compensation system, please feel free to contact the author atvsg@wisecarter.com.  Information about the Wise Carter Child & Caraway PA law firm can be located atwww.wisecarter.com .

Our network is based upon personally referenced and extensively vetted defense firms with a reputation for excellence.  We are currently actively seeking a firm to represent our network in Montana, and value any suggestions you may have as either an employer or an adjuster/risk administrator dealing with workers' compensation claims in Montana.

If you have had an excellent experience with a firm or attorney that you trust as counsel in Montana, please let us know!  You can contact Kim Martens at: martens@hitefanning.com

Our network is based upon personally referenced and extensively vetted defense firms with a reputation for excellence.  We are currently actively seeking a firm to represent our network in North Dakota, and value any suggestions you may have as either an employer or an adjuster/risk administrator dealing with workers' compensation claims in North Dakota.

If you have had an excellent experience with a firm or attorney that you trust as counsel in North Dakota, please let us know!  You can contact Kim Martens at: martens@hitefanning.com

Pay me once, pay me twice, pay me thrice? Recent ruling from the Supreme Court of Appeals of West Virginia may open the door for an injured employee to recover medical bills three times over.

By:     Glen A. Murphy, Esquire

           Spilman Thomas & Battle, PLLC

           gmurphy@spilmanlaw.com

           On November 15^th the Supreme Court of Appeals of West Virginia issued the opinion ofJeffery Jenkins, et ux. v. City of Elkins, et al. (No. 11-1059). Factually, Mr. Jenkins was an employee of Bombardier Aerospace driving a company vehicle, within the course and scope of his employment, when he was struck by another vehicle owned by the City of Elkins and driven by its employee Stephen Stanton, likewise in the course and scope of his employment. Because Mr. Jenkins was on the job at the time, he received workers compensation benefits for his injuries. Mr. Jenkins sought to pursue a claim against the City of Elkins and Mr. Stanton. However, the City informed Mr. Jenkins that because he was covered by workers’ compensation, the City had statutory immunity under W. Va. Code § 29-12A-1et seq. (aka the “Tort Reform Act”).  The City’s insurer, National Union, likewise asserted its immunity as the City’s immunity was preserved in a provision of National Union’s policy.  This immunity has been previously recognized in the longstanding holding ofO’Dell v. Town of Gauley Bridge, 188 W. Va. 596, 425 S.E.2d 551 (1992). Suit was filed against the City and Mr. Stanton. Mr. Jenkins also filed suit against his employer’s insurer (Greenwich), as well as his personal insurer (Westfield), seeking either Under or Uninsured (UM/UIM) coverage. Greenwich and Westfield asserted exclusions of coverage under their policies because of a “governmental vehicle” exclusion.  Greenwich also asserted that Jenkins was not entitled to the Medical Payments coverage under his policy based upon an exclusion for injuries arising out of and in the course of employment.

           As there were no facts in dispute, the case was briefed for summary judgment before the Circuit Court of Harrison County.  Judge Bedell found in favor of the City and National Union’s assertion of immunity. He found that the “governmental vehicle exclusion” as asserted by Greenwich and Westfield, were valid exclusions, but only for amounts over and above the State’s mandatory minimum coverage ($20K/$40K/$10K).  Finally, he found that Greenwich’s “workers compensation” exclusion in its medical payments coverage section was valid. Mr. Jenkins appealed from this ruling.

           After review by the Supreme Court of West Virginia, the Court significantly upheld the immunity of the City (and thus its insurer) and reaffirmed its longstanding holding inO’Dell (Syl pt. 1); that if an individual is injured by a tortfeasor who is immune from liability, underinsured motorist coverage is triggered for the limits in place (Syl pt. 2); that the “government owned vehicle” exclusion is against the public policy of this State and is unenforceable; and, of most significance to those involved with workers compensation, held in Syllabus point 5:

5. An employer’s insurance policy that excludes coverage for auto medical payment benefits to an employee who sustained an injury arising out of and in the course of employment is only enforceable to exclude medical payment coverage for that part of a claimthat exceeds the amount subrogated by the employer’s workers’ compensation carrier.(Emphasis added.)

The Court, in reaching this holding, noted that it has previously held that:

 “an employee who receives workers’ compensation benefits for injuries that result from a motor vehicle collision with a third-party which occurs in the course and scope of the employee’s employment is entitled to assert, against his/her employer’s motor vehicle insurance carrier, a claim for underinsured motorist benefits, where the employee’s employer has in effect motor vehicle insurance providing underinsured motorist coverage and where the employee’s recovery against the third-party activates such underinsurance coverage.” Syl. pt. 4, Henry v. Benyo, 203 W. Va. 172, 506 S.E.2d 615 (1998). 

           This Court looked at Greenwich’s medical payment exclusion as essentially being a workers’ compensation exclusion. The Court noted that a majority of courts have upheld similar exclusions, but that “some courts have invalidated this exclusion when a workers compensation insurer successfully asserts its subrogation on third-party proceeds.”  [Citation omitted]. Therefore, our Court determined, both in reliance on its prior holding inBenyoand for public policy considerations, an employee should have equal application to the recovery of medical payment benefits under the employer’s policy.  Statutory subrogation rights for workers’ compensation payments are still in place for employers’ workers’ compensation insurers as provided under W. Va. Code § 23-2A-1(b)(1), but as for the employers’ auto insurers, they can now only exclude medical payments coverage under their policies for the amount that exceeds the amount subrogated by the employers’ workers’ compensation carrier.   Additionally, it must be remembered that W. Va. Code § 23-2A-1(e), in pertinent part, advises that the statutory subrogation described in this preceding section, “does not apply to uninsured and underinsured motorist coverage or any other insurance coverage purchased by the injured worker or on behalf of the injured worker.”(Emphasis added) Medical payments insurance is just such a coverage. This creates what appears to be an inconsistency which was noted by Justice Benjamin, of the Supreme Court of Appeals of West Virginia, in his dissent.  He noted his displeasure with majority’s ruling and suggested that the majority misunderstood and misquotedBenyo by stating:

“[t]he actual effect of the law created in the majority opinion is that the plaintiff will receive a windfall by virtue of having his or her medical bills paid more than once. For example, in the instant case, Mr. Jenkins has had his medical bills paid by the workers' compensation provider. Also, he will be able to collect uninsured benefits from his employer's auto policy which sum will include medical costs. Pursuant to W. Va. Code § 23–2A–1(e) (2009), the workers' compensation provider's statutory subrogation right does not apply to the uninsured coverage so that Mr. Jenkins will receive his uninsured benefits free and clear. Finally, as a result of the majority opinion, Mr. Jenkins will receive auto medical payment benefits from his employer's policy despite the fact that his medical bills have already been paid by the workers' compensation provider.It is unclear under W. Va.Code § 23–2A–1(e), whether the workers' compensation provider will have subrogation rights against these auto medical payment benefits.” (Emphasis added)

           Finally, Justice Benjamin stated that this ruling “potentially will have [Mr. Jenkin’s] medical bills paid three times over.  Such a result is inexplicable to me and has no basis in law.”  

           The ramifications of any court’s ruling that eliminates an insurers exclusions and/or expands coverages, typically results in an insurers reevaluating the premium received for the risks that are written. Medical payments coverage is usually a rather inexpensive addition to coverage under personal and commercial policies. It is a no-fault insurance that covers medical bills related to an occurrence (usually for a fixed period of time). Employers who maintain medical payments coverage on their commercial insurance policies may want to talk to their commercial agents about their limits of coverage. Worker’s compensation insurers will need to give additional scrutiny to subrogation claims involving employees who are involved in motor vehicle accidents, especially so when the employers Under, Uninsured (UM/UIM) or Medical Payments coverage comes into play as, at least according to Justice Benjamin’s dissent, there may no longer be a right of subrogation by the workers’ compensation carrier.

For further inquiries regarding this article contact Mr. Murphy at (304) 340-3840 or at gmurphy@spilmanlaw.com.

Usoro Nkanta v. Wal-Mart Stores, Inc. and American Home Assurance, No. 2-871 / 12-0475, Court of Appeals of Iowa

The Claimant was hired by the employer in 1999. He was employed unloading trucks. On November 15, 2008, the Claimant sustained a low back injury arising out of and in the course of his employment. He went to the doctor the next day and was diagnosed with a back strain. On November 19, the Claimant was seen by Dr. Boyett who diagnosed left lower back pain and spasm and took the Claimant off work. An x-ray on November 24 revealed mild degenerative spondylosis. The Claimant was then returned to work, sit down duties only.

The Claimant continued to describe pain in his lower back and weakness in his left leg to Dr. Boyett. Dr. Boyett noted symptom magnification and nonphysiologic findings. He was continued on restricted duty and physical therapy. He was also given a referral to Dr. Nelson, an ortho spine specialist. After an MRI on January 22, 2009, Dr. Nelson opined he could not attribute the Claimant’s complaints to his lumbar spine. He was then referred to physiatrist Dr. William Koenig.

After his exam on January 28, 2009, Dr. Koenig found the Claimant to have normal results from an EMG of the left back and left lower extremity. He opined the Claimant was not a surgical candidate and kept him off work until February 10, 2009. Based on the appointment with Dr. Koenig, the employer ceased payment for the Claimant’s medical care and scheduled him for an IME with Dr. McCaughey. Dr. McCaughey spoke with Dr. Koenig prior to his IME of the Claimant. After the IME, Dr. McCaughey opined that he could not contribute the Claimant’s complaints to “organic pathology” as a result of work activities on November 15, 2008 and was unable to identify a compensable injury. He further opined that he further treatment would be under the Claimant’s personal healthcare provider.

In May 2009, the Claimant of his own volition was seen by Dr. Chen. Dr. Chen found the Claimant suffered from myofacial pain with no MRI or EMG evidence of nerve root pathology and recommended physical therapy and a home exercise program. The Claimant then underwent a second IME of his choosing with Dr. Jones, who found the Claimant to have a low back strain and some depression. He assigned the Claimant 5% impairment to the body as a whole.

After hearing on the matter, the deputy concluded that the Claimant had failed to prove his November 2008 injury was a cause of permanent impairment. The deputy did not accept Dr. Jones’ opinion as convincing as he gave no analysis, nor did he address other experts’ discrepancies with his opinions. In contrast, there were three experts who had opined that there were no organic explanations for the Claimant’s continued pain complaints.

In its decision, the deputy also noted that prior to the hearing, the employer had filed a confidential sealed envelope with the commission that included an offer to confess judgment. The deputy determined the agency did not have the authority to accept sealed documents as all documents filed in a contested case are public unless specially made confidential by law. The deputy also stated he did not view the contents of the offer to judgment as it was not material to awarding costs in this case and that there were no procedures under the statutes and rules of the agency for awarding costs under an offer of judgment.

On appeal, the commissioner adopted the ruling of the deputy. The commissioner also expressly stated that pursuant to chapter 677 of the Iowa Code, offers to confess judgment are not available in workers’ compensation proceedings. The employer then sought to enlarge the appeal and avoid paying costs on the action as it was the successful party. However, the commissioner denied this request noting that the Claimant was partially successful as he won his claim for reimbursement of an IME fee. These rulings were affirmed on judicial review by the district court.

On appeal, the Court of Appeals found that the commissioner’s ruling that the Claimant had no sustained permanent impairment due to a work injury was supported by substantial evidence. Thus this finding was not disturbed on appeal. The Court next took up the issue as to whether chapter 676 or 677 allows for an offer to confess judgment in workers’ compensation proceedings. The Court first noted that the Commissioner’s finding in this regard would be given no deference as he had not been given the authority to interpret this particular statute.

Chapter 677 provides that a defendant may make an offer to confess judgment for a specific sum. If a plaintiff rejects the offer and subsequently does not recover a greater amount than that offered, the plaintiff is taxed with the Defendant’s costs following the offer to confess judgment. The Court took up the issue as to whether or not Chapter 677 was applicable to workers’ compensation proceedings. In finding that Chapter 677, and the offer to confess judgment, is inapplicable in workers’ compensation proceedings the court conducted a comprehensive review of the applicable Iowa statutes. More specifically, the Court examined the Iowa Administrative Procedure Act and the Workers’ Compensation Act to determine if Chapter 677 was applicable.

The Court held that the language of the Iowa Workers’ Compensation Act provided that no party may settle a controversy without the approval of the Workers’ Compensation Commissioner. The Court stated that settlements, which included the offer to confess judgment, were governed by the specific administrative provisions of the Iowa Workers’ Compensation Act and the Administrative Procedure Act. As these Acts did not provide for the applicability of offers to confess judgment to workers’ compensation proceedings, the Court found that the consequences for failing to adopt an offer of judgment, mainly the taxing of costs, directly conflicted with the discretion given to the Commissioner to approve settlements per the Workers’ Compensation Act. Based upon this interpretation, and the finding that the Commissioner did not abuse his discretion in awarding costs, the ruling that each party was to pay its own costs was affirmed.

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!

Supreme Court Approves Vacating Prior PTD Award

By: Dill Battle and Lindsay Smith

Summary

                      In Roy Justice v. West Virginia Office Insurance Commission and Lowe’s Home Centers, Inc., No. 11-0113 (W.Va. Nov. 14, 2012), the West Virginia Supreme Court of Appeals issued a significant decision impacting reopening and reevaluation of permanent total disability awards under the continuing authority over PTD awards established by West Virginia Code § 23-4-16. Under the language of West Virginia Code § 23-4-16(d)(2), which permits a self-insured employer to reopen a permanent total disability claim for the purpose of reevaluating the continuing nature of the disability, the inclusion of language directing that a claimant’s former employer “shall not be a party to the reevaluation” appears to be the result of legislative oversight according to the Court. Consequently, the Court held that notwithstanding statutory language that suggests otherwise, an order issued by the West Virginia Workers’ Compensation Board of Review which modifies or vacates a previous award of permanent total disability is not subject to challenge based on the involvement of a self-insured former employer in the reevaluation process given that the participation of the self-insured former employer is clearly anticipated and authorized by the provisions of West Virginia Code § 23-4-16(d). 

                      The Justice decision applies to PTD claims granted on or after April 8, 1993, the effective date of the 1993 amendments to W.Va. Code 23-4-16(d), and allows such claims to be reopened and reevaluated under the authority and timetable set forth in the statute. TheJustice decision should settle any reluctance to continuously monitor PTD claims and to reopen those awards after due notice to the claimant for reevaluation of the continuing nature of the disability and possible modification of the award. See West Virginia Code § 23-4-16(d)(1).

Facts and Procedural History

                      The claimant Roy Justice (“claimant”), suffered an injury while employed by Lowe’s Home Centers, Inc. (“Lowe’s”). During the process of loading a riding lawnmower with assistance from co-workers, claimant was injured on February 22, 1990. He was initially diagnosed with lumbar sprain but an MRI revealed herniated discs associated with degenerative changes. Claimant was initially granted a 5% permanent partial disability (“PPD”) award. Maintaining that he was unable to return to work, claimant filed a claim seeking a permanent total disability award. On December 7, 1994, claimant was granted a PTD award with an onset date of February 22, 1990.  The issue of claimant’s entitlement to PTD was litigated and the award was upheld under the now discarded liberality rule. 

                      In February 2006, Lowe’s reopened the PTD claim to evaluate whether claimant continued to be eligible for PTD benefits. SeeW. Va. Code § 23-4-16(d); 85 W. Va. C.S.R. § 5-5.  Lowe’s, through its claims administrator, referred claimant to various examiners who reached a conclusion that claimant could perform a sedentary level of work.  The claims administrator advised claimant that he had 120 days in which to submit evidence to support the continuation of his PTD benefits. After reviewing evidence submitted by the parties, the claim administrator vacated the PTD award and the benefits were immediately suspended. The claim administrator determined that the evidence demonstrated an ability to perform sedentary work level.

                      The Office of Judges upheld the ruling of the claim administrator, despite Lowe’s reopening the PTD claim for reevaluation — and seemingly being a party to that reevaluation — by finding that Lowe’s complied with the “letter and spirit” of West Virginia Code § 23-4-16(d). The Workers’ Compensation Board of Review affirmed the Office of Judges’ decision and claimant appealed to the West Virginia Supreme Court of Appeals.

Analysis

                      West Virginia Code § 23-4-16 establishes continuing authority over PTD awards. The Court acknowledged that, as the Legislature made clear, “whether it is the Commission, the successor to the Commission, a private carrier, or a self-insured employer – the applicable entity ‘has continuing power and jurisdiction over claims in which permanent total disability awards have been made after [April 8, 1993].’” Justice, at p. 6 (quoting W. Va. Code § 23-4-16(d)).

                      The Court noted that West Virginia Code § 23-4-16(d)(1) compels any of the four statutorily-identified entities, including the self-insured employer, to monitor PTD awards and “reopen a claim for reevaluation of the continuing nature of the disability and possible modification of the award.” The claimant sought to set aside a decision by the self-insured employer which vacated his PTD award, and argued that the language in West Virginia Code § 23-4-16(d)(2) barred the claimant’s former employer from being “a party to the reevaluation . . . .”  The claimant argued that Lowe’s involvement in the reopening and reevaluation process constituted a violation of the statute.

                      The Court found that reading the statute to disallow a self-insured employer from entitlement to invoke the provisions of West Virginia Code § 23-4-16(d) would be illogical and would nullify significant portions of the statute and create an absurd result. The Court noted that the proscription of former employers from being a party to the reevaluation process made arguable sense when the Commission was the entity who both assessed the requests to reopen PTD claims and then had responsibility for issuing rulings in conjunction with the reevaluation. To initially authorize the self-insured employer to reopen a PTD claim in one subsection of the statute but to disallow participation in the next subsection was paradoxical, in the Court’s words. In a footnote the Court noted that it was forced to interpret the “inherent inconsistency” in the statute’s language “in a manner that both makes sense and also prevents the remaining provisions of the statute from being rendered meaningless. If the Legislature disagrees with the interpretation, it can amend the statutory language that we were required to interpret through this opinion.”

                      The Court decided that to allow self-insured employers to initiate and be involved in the reevaluation process of PTD claims effectuates the purpose of the statute. The self-insured former employer’s involvement in the evaluation cannot be cited as a cause for challenge to an order issued by the West Virginia Worker’s Compensation Board of Review which modifies or vacates a previous award of PTD.

CONCLUSION

                      The West Virginia Supreme Court of Appeals held that the involvement of a self-insured employer in the reopening and reevaluation of a former employee’s PTD award is not a cause for challenge to an order that modifies or vacates a previous PTD award.

For further inquiries regarding West Virginia law contact Mr. Battle at (304) 340-3823 or at dbattle@spilmanlaw.com.

Merivic, Inc. and Zurich North America v. Enrique Gutierrez, Court of Appeals of Iowa, No. 2-722 / 12-0240

The Claimant was a 48 year old with a ninth grade education and a limited knowledge of English. His past job history included working as a mechanic, manual laborer and a welder.

While on the job, the Claimant fell from 10-12 feet and landed on a steel table injuring his left right and left rotator cuff. Both required surgery. He returned to light duty work in between the two surgeries; however following the second surgery the Claimant was only able to work three hours before he was told the work did not fit his restrictions. He never worked for the employer again and was unable to find other employment.

At hearing of the Claimant’s workers’ compensation case, the Claimant was found to have sustained a permanent and total loss of earning capacity as a result of his work injury. The deputy partially relied upon a report of a vocational expert who cited the Claimant’s limited fluency in English as an adverse effect upon his employability. The employer had urged the deputy to reduce the Claimant’s benefits due to an alleged lack of motivation to learn English. The deputy stated that the agency no longer penalized Claimants who failed to learn English while working for a U.S. employer.

On appeal to the commissioner, the employer urged that prior precedent regarding learning English be set aside; but the commissioner refused to do so. The commissioner affirmed the deputy’s decision and clarified that the disability determination was primarily based on factors other than lack of English fluency. The district court did not address the issue of overruling prior precedent with regard to learning English as they found substantial evidence supported the determination of total disability even without considering the language deficiency.

On appeal to the Court of Appeals, the employer again reiterated that prior case law with regard to a claimant’s inability to speak English should be overturned. The Court refused to address the issue as they found the assertion to be an impermissible collateral attack on an unappealed agency decision. The Court then stated that the issue was whether the finding by the commissioner of permanent total disability was supported by substantial evidence.

The Court found the finding by the commissioner was supported by substantial evidence. Specifically, the Court highlighted the opinion of the vocational expert retained by the Claimant which highlighted such factors as the Claimant’s advanced age, past work history of physically demanding jobs which his restrictions now prevent him from performing, limited education and his severe physical limitations. The Court noted the Commissioner’s finding of this vocational opinion as more convincing than the opinion of the Defendants’ vocational expert, and the underlying analysis distinguishing between the two based upon the use of a labor market survey.  

The Court then turned its attention to the consideration of the claimant’s limited proficiency with the English language. While noting the Commissioner’s assertion that this factor was not determinative in his decision, the Court confirmed that it had, in fact, been considered. They then went on to formally find that the inclusion of English proficiency in the industrial disability analysis was appropriate.  They also noted that substantial evidence did support the Commissioner’s finding that Claimant was deficient in his capacity to speak English, and his finding as to the impact of the deficiency on Claimant’s ability to find employment. 

Ultimately, the Court affirmed the decision of the Commissioner as supported by substantial evidence.

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!

New Deputy Commissioner Announced

On Friday, November 9, 2012, Commissioner Christopher Godfrey announced the hiring of William H. Grell, (Bill), as the new Deputy Workers’ Compensation Commissioner. Bill had previously been working primarily as a workers’ compensation defense attorney for Huber, Book, Cortese and Lanz, PLLC .,in West Des Moines, Iowa. Bill will commence his employment with the Division of Workers’ Compensation early in December.  For all of you interested, there is no word on Bill’s schedule for hearing cases yet.