One of the most serendipitous work injuries in history befell a teenager in a Birmingham, England sheet metal factory circa 1965.  The youth, a welder by trade, was asked to fill in for an absent co-worker whose job was to cut pieces of flattened metal under a guillotine-like blade.  It was the boy’s last day of work, and during his lunch break he contemplated not bothering to finish out his final shift, but his mother convinced him to honor his commitment to his employer, so he returned. 

That afternoon, disaster struck. Lacking the proper training to operate the machine, the 17 year old sustained a grisly work injury, as the industrial blade sliced through the tips of his middle and ring fingers on his right hand.  Emergency medical attention was unsuccessful in reattaching the appendages, and the youth grew despondent—not merely due to the permanent disfigurement to his hand, but because of what it meant for his great passion in life: playing the guitar. 

The boy, it turns out, was left-handed, and therefore used his right hand to press down on the strings along the fretboard.  His work injury had presumably deprived him of the ability to play the guitar ever again. 

However, when the youngster’s foreman visited him in the hospital, he brought with him a record by renowned Belgian jazz guitarist Django Reinhardt, who, following a severe burn injury, had also lost the use of two fingers on his fretting hand.  Inspired by Reinhardt’s rise to international fame after teaching himself to fret his guitar with just two fingers, the boy grew determined that his work injury would not rob him of his nascent musical talent, either.

Necessity, they say, is the mother of invention.  Finding it too painful to press down on the strings with the bony ends of his fingers, and demonstrating an ingenuity far beyond his years, the young Brit engineered fake fingertips for himself by melting down a plastic soap bottle and covering them with bits of a leather jacket.  The homemade prosthetics relieved the pain, but compressing the tight guitar strings still proved too difficult due to loss of sensation. 

In a flash of genius, he decided to try down-tuning the strings, lessening the tension to make them easier to press and bend.  It worked.  Suddenly the boy could play his beloved guitar again.  However, down-tuning had an unavoidable consequence: it lowered the pitch of each string, giving the guitar a deeper, darker timbre, especially when amplified.  The newly-discovered tones intrigued the guitarist, but it was all wrong for his band, a folk-rock outfit named Earth. 

Fortunately his bandmates shared their guitarist’s fondness for his aggressive new sound.  Rather than eject him from the group, they forged an entirely new musical identity around the more foreboding tones emanating from the young man’s self-forged fingertips.   Shrewdly, they agreed that ‘Earth’ no longer suited the Wagner-esque rock music they were now writing.  Serendipity struck again when a Boris Karloff film playing in a movie theater across the street from their rehearsal space delivered the band a fitting new name.  The film was calledBlack Sabbath. 

Now 70 years old, Tony Iommi, the boy who thought he would never play guitar again, has sold over 70 million records worldwide since 1968, was inducted into the Rock & Roll Hall of Fame in 2006, and is widely credited for (pardon the pun) single-handedly inventing the subgenre of rock music known as heavy metal. 

Just think what he might have accomplished with a lumbar sprain.

Copyright 2018,Robert Greenlaw, Stone Loughlin & Swanson, LLP

In an effort to educate injured employees on the complexities of Texas workers’ compensation, the Division has produced seven brief instructional videos, viewable athttp://www.tdi.texas.gov/wc/employee/guide.html. The surprisingly not-terrible videos guide potential claimants through the labyrinthine Texas Work Comp system, providing instructions for how to file a claim, explaining differences in types of income benefits, and mapping out the stages of the dispute resolution process. 

In announcing the creation of the videos, then-Commissioner Brannan hoped that the videos would assist injured workers in better understanding the workers’ comp system, acknowledging that, “People are busy these days and are much more likely to watch a video to learn about something new.”  But there is value in the videos for even the most seasoned Texas Work Comp veteran: eagle-eyed system participants may spot San Antonio Benefit Review Officer Samuel Peralez as “Injured Worker at BRC.”  Spoiler alert: he’s only pretending to be injured.

Copyright 2018, Stone Loughlin & Swanson, LLP

Last month we reported on the Appeals Panel’s puzzling decision to distinguish “headaches” from “ongoing headaches” as separate conditions.  This month, a pair of Appeals Panel Decisions suggests an emerging trend that may itself become an ongoing headache for Carriers.

Appeals Panel Decision No. 180603, decided April 19, 2018, reversed the Administrative Law Judge by determining that headaches were indeed a part of the claimant’s injury, which already included a traumatic brain injury.  The case was remanded for an amended MMI/IR certification by the designated doctor with the newly compensable condition, even though a rating for headaches is (presumably) subsumed in a rating for a traumatic brain injury. 

Similarly, Appeals Panel Decision No. 180602, decided April 30, 2018, remanded the case for a new certification from the DD to incorporate the AP’s finding of headaches as part of the compensable injury.  Their reasoning: the claimant complained of head pain in “numerous medical records,” which is perhaps unsurprising given that the accepted injury was a scalp laceration that required repair with staples. 

And only on May 16, 2018, did the Appeals Panel issue Decision No. 180702.  Once again, the Administrative Law Judge excluded headaches from the compensable injury, only to suffer a reversal at the hands of the AP.  This time, “periodic headaches” resulted from a concussion.  As before, the judge was instructed to obtain a new certification from the designated doctor that includes a rating for “periodic headaches.”

With four of their most recent decisions focused on the addition of headaches to compensable injuries, each requiring case management and a new certification from the designated doctor, it would seem the Appeals Panel has a bit of a bee in its bonnet about this topic lately. (The Appeals Panel is respectfully cautioned that bonneted bees are also a known cause of headaches.)

Copyright 2018, Stone Loughlin & Swanson, LLP

Jammers Groundscapes, a landscaping company operating out of Pflugerville, Texas, just north of Austin, entered a plea of guilty in defrauding its workers’ compensation carrier by omitting the payroll from a non-covered ancillary business.  The omission was Jammers’ attempt to secure lower workers’ compensation premiums, which are calculated, in part, on an employer’s payroll.  The scam succeeded for six years until the carrier’s internal investigation uncovered it.  A Travis County District Court ordered Jammers to reimburse its carrier to the tune of $400,000.00. 

Copyright 2018, Stone Loughlin & Swanson, LLP

A healthcare provider who performed Functional Capacity Evaluations (F.C.E.’s), examinations designed to gauge employees’ abilities to perform their pre-injury job functions, has been sentenced to three years’ deferred adjudication and ordered to pay $10,000.00 in restitution by a Travis County District Court.  Marcus Ricoy of Rancho Viejo was found guilty of falsifying medical claims to an insurer for more time than the examinations required.  The Division of Workers’ Compensation’s unit in the Travis County District Attorney’s Office prosecuted the case. 

Copyright 2018, Stone Loughlin & Swanson, LLP

On 5/18/18, the Texas Department of Insurance, Division of Workers’ Compensation, informed system participants of its intent to amend the designated doctor rules.  The DWC identified three problem areas:  the DD assignment process, qualification standards, and certification requirements. 

The Division acknowledges the dramatic decrease in the number of designated doctors in the system overall and, even more alarmingly, the steep decline in the number of M.D.’s and D.O.’s assigned to perform such examinations.  Much of the blame for this phenomenon lies in in the automated system that assigns a designated doctor to a case, which relegates the most qualified doctors into rarely-needed specialization categories and excludes them from the far more common musculoskeletal examinations.  The unintended result is that the best doctors receive the fewest appointments.

The DWC intends to rectify that problem by implementing two separate DD lists in each county. One list will consist of all available doctors and chiropractors qualified to perform the most common musculoskeletal examinations; the other will be limited to medical doctors qualified to perform the more complex examinations, including those requested to address conditions requiring board-certification. 

The twin list system is intended to remedy the inequity of board-certified M.D.’s or D.O.’s being selected for one specialized examination, then dropping to the bottom of the list and missing out on four or five of the far more common musculoskeletal examinations thereafter.  The new process is intended to raise the number of exams available to M.D.’s and D.O.’s each year, thereby incentivizing the most qualified physicians to become—and remain—designated doctors.

The DWC also seeks to elevate training, testing, and qualification standards by narrowing the timeframe between training and applying for certification/recertification in order to ensure that designated doctors are always apprised of the most current information.  Limiting the number of times a prospective DD can take the qualification examination in a given time period has also been suggested to address problems with test security.   

Finally, the DWC is contemplating adding obligatory reviews of a designated doctor’s work product to the recertification process.  Factors that may be considered include complaint history, excessive requests for deferral from the DD list, a pattern of overturned or substandard reports, a demonstrated inability to apply the AMA Guides, the timeliness of submitted reports, maintaining patient record confidentiality, or participant’s willingness to identify potential disqualifying associations.

Visit http://www.tdi.texas.gov/wc/rules/proposedrules/documents/pr127dd0518.pdf to view the proposed rule changes. 

 Copyright 2018, Stone Loughlin & Swanson, LLP

On April 18, 2018, the Disciplinary Panel of the Texas Medical Board suspended the medical license of John Tai Dang, M.D., of Cleburne, Texas.  The suspension will remain in effect until superseded by an Order of the Board. 

Among the myriad violations of the Medical Practice Act, Dr. Dang was found to have prescribed dangerous drugs (Diazapam, Alprazolam, Opana, and Xartemis) after becoming aware of a patient’s history of substance abuse and her admission into a treatment facility.  While treating that same patient, Dr. Dang borrowed money from her totaling $20,000.00 and used a Care Credit account in her name and without her knowledge to bill another $5,000.00 in fraudulent services.  Worst of all, the doctor was found to have assaulted two patients during examinations. 

The Disciplinary Panel determined that Dr. Dang failed to maintain adequate medical records, failed to adhere to guidelines for treatment of pain, became financially involved with a patient, and engaged in sexual contact with a patient, among other infractions.  In suspending his licencse, the Board deemed Dr. Dang’s medical practice a “continuing threat to the public welfare.”

Copyright 2018, Stone Loughlin & Swanson, LLP

By order of the Commissioner, beginning July 1, 2018, the Iowa Division of Workers’ Compensation will impose a monetary late settlement sanction on parties in cases where settlements are reported to the Division less than 24 hours before the scheduled start time of the hearing. Settlements must be reported to both the Division and the Deputy Commissioner assigned to hear the case 24 hours or more before the hearing is scheduled to start to avoid imposition of the sanction. This sanction is modeled on the late settlement sanction which is imposed by the Iowa District Courts. The Division has recently experienced an increase in late settlements which places further strains on diminishing resources. This action is necessary to allow the Division to better serve the people of the State of Iowa. The late settlement sanction order is effective for all cases with hearing dates of July 1, 2018, or later.

Claims that have been assessed a late settlement sanction will not have the settlement approved until the sanction has been paid. The late settlement sanctions shall be paid to the Division of Workers’ Compensation and all funds received will be paid over to the Iowa General Fund.

The late settlement sanction will apply in cases filed using the Form 100. It will also apply in full and partial commutation cases filed before July 1, 2017. It is not applicable to alternate medical care, vocational benefits or compliance proceedings.

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NOTICE TO THE PUBLIC

The determination of the need for legal services and the choice of a lawyer are extremely important decisions and should not be based solely upon advertisements or self-proclaimed expertise. This disclosure is required by rule of the Supreme Court of Iowa.

Peddicord Wharton Legislative Updates are intended to provide information on current developments in legislation impacting our clients. Readers should not rely solely upon this information as legal advice. Peddicord Wharton attorneys would be pleased to answer any questions you may have about this update. ©2018 Peddicord Wharton. All Rights Reserved.

The failure to report a claim in a timely manner generally leads to powerful defenses that help employers prevail in workers’ compensation court.  But lack of timely notice is seldom one of those defenses in New Jersey.  That sounds like a conundrum.  Shouldn’t lack of timely notice be the first defense that jumps to one’s mind when a claim is not reported within 30 or 60 days?  It should, but unfortunately the way the New Jersey notice statute is written, employers almost never win on that limited defense.  Employers do often win cases that are not timely reported for completely different reasons discussed below.

Think of lack of timely notice under N.J.S.A. 34:15-17 as an ironclad rule.   A worker could legitimately have a work injury on January 1, 2018, but if that employee for whatever reason fails to report the work injury within a certain period of time the employer automatically wins.  Here’s the rub:  the New Jersey statute allows so many extensions on reporting that the notice defense is generally toothless.

The statute begins by stating that an employee must report a work injury within 14 days, and no compensation is due until the employer becomes aware of the injury.  That sounds good until you read the rest of the provision.  If the employee reports the claim after 14 days but before 30 days, the employer only wins on notice if it can show it suffered prejudice due to the late reporting.  But wait – the statute next proceeds to water down the previous language even further.  If the employer becomes aware of the injury within 90 days and there is no prejudice to the employer caused by the late notice, the employer cannot win on the notice defense.

In effect this notice provision has two meaningless stages:  14 days and 30 days.  Proving prejudice to the employer is not easy, so employers are effectively left with a 90-day notice rule.  Further, the statute does not define what the word “prejudice” means, and there are really no cases on it.  Frankly, it is unfair to employers that the statute allows up to 90 days to report a claim.  How can an employer investigate any claim that is reported one month or even several months late?  Memories fade, and potential witnesses forget.  This practitioner recalls only one trial in decades where the employee actually testified to not reporting the injury to her employer or anyone in supervision for more than 90 days and therefore lost her case.

Yet failure to report a claim in a timely manner should raise red flags and almost always leads to powerful defenses.  The two main defenses that should leap to an employer’s mind when a claim is not reported timely are first, that there is no evidence that an accident happened, and second that even if an accident did take place, it was not significant enough to account for the present pathology.  Most employers train their employees over and over to report work injuries within 24 hours.  So when an employee reports a work injury 35 or 40 days after it happened, it seldom makes any sense.  An employer will deny such a claim on the basis that there was no accident.  If it did happen, why would the employee who has been trained to report claims within 24 hours wait so long to notify the supervisor or HR representative? Often that same employee has promptly reported other work injuries that have occurred over the years, so the employee clearly knows the reporting procedures.

Suppose an employee says that he bumped his knee at work on July 1, 2017 and felt pain in his knee right away but it quickly diminished. He never treats in July or August. He does not lose any time at all from work.  In mid-September, he reports for the first time to his employer that he bumped his knee at work 75 days ago and needs to see a doctor.  The employer asks why the employee waited so long. The employee says he thought it was nothing at all, so he never mentioned it to anyone.  The pain went away and was barely noticeable for months.  But in the past week the knee has become very painful.   An MRI shows a medial meniscal tear that needs surgery.  The employer probably will not win on the technical notice defense because the notification came within 90 days and the employee will argue that there was no prejudice to his employer by the delay.  Yet this claim should be denied, and the employer may very well prevail.  Here is the issue:  how could the bumping incident on July 1^st that caused no lost time and led to no treatment for months be responsible for a meniscal tear that manifests in mid September?

Causation is often the dominant issue in delayed reporting cases. The employer will want to look into past medical treatment to see if the employee has a history of knee problems.  Perhaps this is a recurring issue with the employee.  The employer will look into activities between July 1^st and September which the employee engaged in as possible causes for the tear.  What sports or activities did the employee engage in during that bridging period?  Does the employee jog or work out at a gym?  A medical expert will be asked to give an opinion whether bumping the knee in July which led to no treatment for months was the likely cause of a meniscal tear that shows up in mid-September.  Was the mechanism of injury (bumping the knee) consistent with a torn medial meniscus?  Is it likely that a tear occurred on July 1^st with no need for initial treatment and caused minimal pain for months only to become very painful in mid-September?  These are valid questions for the expert.

This sort of fact pattern happens quite frequently.  Employers should not be dismayed when they learn that New Jersey allows notice sometimes up to 90 days. That does not mean delayed reporting cases are compensable.  It just means that the employer will not win on the defense of notice.  The stronger defense is not lack of timely notice but whether there is any causal relationship between the alleged injury and the present knee pathology.  Good discovery and investigation may also lead the judge to conclude that there is insufficient evidence of any work accident at all.

In short, employers should continue to stress the need to report injuries within 24 hours.  It doesn’t matter that the New Jersey notice statute is exceptionally weak.   A timely reporting policy is very important and helpful to both employers and defense counsel.  Such a policy helps win cases because when an employee waits 15, 30, or even 60 days to provide notice in the face of a prompt reporting policy, it often suggests that the incident may never have happened or that the incident was simply inconsequential.

Thanks to our friend, Scott Tennant, of Arthur J. Gallagher for bringing this topic to our attention.

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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.