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.
Simon Law Group, P.C.
720 Olive Street, Suite 1720, St. Louis, MO 63101
314-621-2828
MISSOURI WORKERS’ COMPENSATION CASE LAW UPDATE
April 2023 – June 2023
Claimant Must Meet Burden to Show Job Duties, and Not Repetitive Activities at Home, are the Prevailing Factor in Causing Occupational Disease
Steinbach v. Maxion Wheels, Sedalia, LLC, Case No. WD85697 (Mo. App. 2023)
FACTS: On November 13, 2018, the claimant filed a Claim for Compensation asserting that she suffered an occupational disease to her bilateral upper extremities. The claimant worked as a rework coordinator. Employer kept production records for the work performed by the rework coordinators. The production report showed the maximum number of wheels reworked on the shift in one day was 265 wheels, but the average number of wheels reworked in a day was 48 and averaged less than 60 seconds.
In December 2017, Dr. Ellefsen sent a letter to Employer opining that the claimant’s condition could not be attributed to her work. He reviewed the production records for rework coordinators. He was also concerned about the welding she was doing at home.
Evidence of the claimant’s non work-related welding activities was also presented at the Hearing. She began welding in her basement in 2017 and purchased 4,154 pounds of scrap steel from Employer. She testified that she intended to start her own business, but that her plan did not work out.
The claimant built furniture, medieval-style weapons, toys, and other small items. A witness testified that her husband and some neighbors worked in the basement of her house along with her almost every night making items with the scrap metal.
In his report, Dr. Stuckmeyer noted that the claimant told him that “she would continuously grind wheels, up to 1,000 wheels per night.” He also noted that she had told Dr. Ellefsen that she used a large grinder at work and was exposed to vibratory and torquing tools eight hours a day, five to seven days a week, and did some welding at home but on a very occasional basis, describing it as “craft welding.” He opined that although the claimant did do outside welding at home, the intense repetitive nature of the occupational duties was prevailing factor” causing her bilateral carpal tunnel.
At the Hearing, the ALJ denied the case. The Judge found that the claimant’s testimony about her work activity and her welding activity at home was not credible, that Dr. Stuckmeyer’s opinion was not credible because she provided an inaccurate work history, and that Dr. Ellefsen’s opinions were more credible because they were based on a more accurate description of her work activities.
HOLDING: The claimant appealed to the Commission, which affirmed the ALJ’s opinion. She then appealed again. The Court noted that the claimant had the burden to show her injury was compensable. While she met her burden of production by introducing Dr. Stuckmeyer’s report, she failed to meet the burden of persuasion. The Commission rejected Dr. Stuckmeyer’s opinion and the Court affirmed the Commission’s decision.
Benefits Denied When Claimant Did Not Sustain an Accident or Fall but Instead Incurred Heat Exhaustion Which is a Risk He Would be Equally Exposed to Outside of Work
Baty v. Dairy Farmers of America, Injury No. 18-029696
FACTS: On July 9, 2019, the claimant was working at Employer’s warehouse. While performing very light duty work that mostly consisted of observing automated machinery and products moving through the machinery, the claimant began to feel ill, including sweating, hot, shortness of breath, and some chest pain. When the claimant could not cool down, he was transported in a supervisor’s personal vehicle to the emergency room.
On July 11, 2019, once again, even though the claimant indicated he was still not feeling well, he showed up for work for his afternoon shift, starting at 3:00 p.m. on a day where the reported high temperature was cooler at 86 degrees. After beginning his light duty work in the warehouse, within a few minutes, he indicated he was again feeling much worse and he was hot and sweaty. Subsequently, he was sitting on a ledge of a piece of machinery when coworkers noticed him slumping down to the floor. None of the witnesses observed the claimant fall or strike his head or sustain any trauma. In fact, it was the testimony of the claimant that no one witnessed the accident, and that no one knew how he ended up on the floor.
It was noted in the medical records, that several physicians, inaccurately, concluded that the claimant fell at work, hit his head, and was knocked unconscious.
At hearing, the ALJ denied benefits, finding that the claimant did not sustain an accidental injury or occupational disease which arose out of his employment. The claimant appealed.
HOLDING: The Commission noted that the burden of establishing entitlement to compensation is entirely upon the claimant. The Commission noted that the claimant was not performing strenuous work activity and was working in a warehouse on a day of normal summertime weather. It further noted that there was not any testimony that the heat inside the warehouse on either day was abnormally hot or significantly hotter or warmer than the outside temperature, meaning the claimant would have been equally exposed to the heat outside of the plant as he was inside the plant.
The claimant testified to a pre-existing issue involving heat related conditions in his 20’s. The claimant’s own medical expert, Dr. Schuman testified that because of a prior heat exhaustion or heat stroke, that it would make an individual more prone to having a lower threshold to sustain another heat related injury. However, Dr. Schuman was not aware that the claimant had in fact sustained a pre-existing heat related condition or possibly heat stroke.
The Commission found that the testimony of Dr. Lennard and Dr. Farrar was more credible than Dr. Schuman and therefore the decision of the ALJ was affirmed.
Section 287.780 Does Not Prohibit an Employer from Discriminating Against a Former Employee for Exercising Their Workers’ Compensation Rights
Lisle v. Meyer Electric Co., Inc., Case No. SC99670 (Mo. S. Ct. 2023)
FACTS: In May 2017, Meyer Electric hired the claimant, a commercial electrical contractor, to work on a construction project. On May 2, 2018, the claimant advised Mr. Mehrhoff, his foreman, that he was suffering from work related carpal tunnel syndrome and asked to complete an injury report. Mr. Mehrhoff allegedly replied, “If you ask for an injury report, they will lay you off.” Subsequently, Meyer Electric’s president, Leon Keller, became aware that the claimant wanted to file an injury report and a workers’ compensation claim, and therefore terminated the claimant’s employment. After his termination, the claimant filed a workers’ compensation claim and a lawsuit against Meyer Electric, alleging wrongful discharge under Section 287.780.
In June 2019, more than a year after Meyer Electric terminated the claimant’s employment, the claimant saw Meyer Electric’s job posting for a journeyman electrician. The claimant who was unemployed and pursuing his wrongful discharge claim against Meyer Electric at the time, applied for the job. Mr. Mehrhoff said he “would probably hire [the claimant] back.” The claimant received a union referral notice, a union-issued document that a member takes to the work site to begin work. After receiving the referral, however, his foreman texted the claimant that the president had instructed him not to hire the claimant.
In November 2019, the claimant filed this pending lawsuit against Meyer Electric. He alleged Meyer Electric violated Section 287.780 when it did not hire him in June 2019 in retaliation for exercising his workers’ compensation rights in May 2018. Meyer Electric filed a Motion for Summary Judgement in which it asserted the uncontroverted material facts affirmatively negated an element of the claimant’s claim because he was not an employee in June when Meyer Electric chose not to hire him. The Circuit Court sustained the Motion and entered summary judgment in Meyer Electric’s favor.
HOLDING: The claimant appealed arguing that the Circuit Court erred in sustaining Meyer Electric’s Motion for Summary Judgment because Section 287.780 prohibits employers from discriminating against former employees for exercising their workers’ compensation rights. He also claimed the Circuit Court erred in entering summary judgment because the evidence was sufficient to allow a jury to find Meyer Electric refused to hire him in retaliation for exercising his rights under Chapter 287 during their prior employment relationship.
Section 287.780 provides: “No employer or agent shall discharge or discriminate against any employee for exercising any of his or her rights under this chapter when the exercising of such rights is the motivating factor in the discharge or discrimination…”
However, the Court held that under strict construction, “Employer” and “Employee” are defined narrowly so that the protections and sanctions in Section 278.780 apply only to employers and employees in a current employment relationship. Because the claimant was not an employee of Meyer Electric when it refused to hire him in June 2019, Meyer Electric established its right to judgment, as a matter of law. Therefore, the Circuit Court’s judgment was affirmed.
Claimant Properly Awarded Benefits for PTSD When Evidence Demonstrated Actual Events Experienced Caused Extraordinary and Usual Stress
City of Clinton v. Dahman, Case No. WD85780 (Mo. App. 2023)
FACTS: Dahman worked as a patrol officer for the City of Clinton’s police department. On August 6, 2017, he was working an overnight shift. Officer Michael was a good friend of Dahman’s. Dahman heard Officer Michael report over the radio, “Shots fired. Officer hit.” Dahman responded to the scene. On his way, he heard over his radio that the suspect vehicle had fled. When he arrived, Dahman found Officer Michael unconscious on the ground. Dahman testified that he was in shock that Officer Michael had been shot, and later died. He was one of Officer Michael’s pallbearers.
Later, Dahman watched security camera video footage which showed Officer Michael conducting the traffic stop of the suspect’s vehicle. The manhunt for the suspect took several days. After the suspect was apprehended, Dahman was scheduled to be a witness at his trial.
Starting immediately after the August 2017 incident, Dahman began to experience adverse symptoms including fatigue, anxiety, tightness in the chest, insomnia, lack of motivation, and a sense of helplessness. He resigned from the police department in October 2017 since he felt he could not do his job due to his fear of being shot.
The City of Clinton had the claimant examined by a second psychiatrist, Dr. Khalid who diagnosed Dahman with PTSD. Dr. Khalid agreed that the prevailing factor causing Dahman’s PTSD was the August 2017 incident, and that the stress he experienced in connection with that incident was extraordinary and unusual. However, by June 2021, in light of the improvement in Dahman’s condition, Dr. Khalid concluded that he did not have a permanent partial disability associated with his PTSD and was not in need of further psychiatric treatment for that condition.
The ALJ issued a final Award finding that Dahman’s PTSD was a compensable occupational disease caused by the August 2017 incident. The Judge found that Dahman had 10% PPD. The ALJ’s Award specifically found by objective standards that Dahman’s work related stress was both extraordinary and unusual and met the requirements of Section 287.120.8. The City appealed the Judge’s award. The Commission affirmed the award.
HOLDING: The City of Clinton again appealed. The Court noted that three mental health experts, and the City’s Chief of Police, uniformly testified that the circumstances to which Dahman was exposed in August 2017 were extraordinary and unusual. To establish his right to compensation, the claimant need not show the subjective experiences of his fellow workers were not as severe as his experiences, but rather, he must demonstrate the actual events he experienced were such that a reasonable police officer would experience extraordinary and unusual stress. It was also noted that while Dr. Halfaker testified that some measure of danger and exposure to crime scenes is common in police work, he also testified that the particular stresses to which the claimant was exposed in August 2017 were extraordinary and unusual.
Therefore, the Court concluded that the Commission’s decision was supported by sufficient competent evidence that the claimant’s PTSD was caused by work related stress which was extraordinary and unusual, measured by objective standards and actual events.
Employer/Insurer Must Have Authorized the Treatment for Medical Provider to Have Standing in Medical Fee Dispute
Henry v. LZB Manufacturing, Inc., Injury No. 18-029696
FACTS: The claimant reported a minor incident to his left shoulder occurring in July of 2014. Employer denied any medical treatment. Instead of providing or directing the claimant for medical treatment, he was told by a supervisor, that he could utilize a massage therapist being paid for and provided by the employer. In Fall of 2017, the claimant testified the pain in his left shoulder and neck got so bad that he once again went and directly requested medical treatment from the employer.
Thereafter, the claimant went to the emergency room at Freeman Health System on his own. He had an injection to the left shoulder and an MRI which showed tears. In March 2018, Dr. Sweaney performed a two-level cervical fusion.
Dr. Koprivica opined that employee had 25% to 30% PPD of the body for the cervical spine and 15% for the left shoulder. Dr. Lennard did not believe his condition was work related.
Based on the evidence, the ALJ found Dr. Koprivica’s report and opinions more persuasive and credible. The Judge found that the claimant’s work injury was compensable and his treatment was related back to the work injury.
On the issue of the Medical Fee Dispute filed on behalf of Freeman Health System, the ALJ found that the medical care and treatment received by the claimant regarding the left shoulder and cervical spine, including the surgery, represented reasonable, usual and customary treatment necessary in an attempt to cure and relieve the effects of the work injuries based on the medical opinion of Dr. Koprivica. Therefore, the ALJ found the Employer liable for the Medical Fee Disputes for treatment provided by Freeman Health System, respectively $94,378.59 and $29,398.00.
HOLDING: The Employer/Insurer appealed the ALJ’s award to the Commission, in part, stating that the ALJ erred in awarding Freeman direct payment of $94,328.59 and $29,398.00 pursuant to the Medical Fee Disputes, because the Employer/Insurer did not authorize the treatment.
With respect to Medical Fee Disputes, it was noted that under Section 287.140.13(6) that a medical provider may file a Medical Fee Dispute regarding services that have been authorized in advance by the Employer or Insurer.
It was noted that no party disputed that the employer refused to authorize medical treatment. It was also noted that the Division has the power to reject an Application for Direct Payment if the Application does not pertain to a dispute relating to services that were authorized in advance by the Employer or Insurer.
Therefore, the Commission affirmed the ALJ’s finding, based on Dr. Koprivica’s opinion, that the charges of Freeman Health System represented reasonable, usual and customary treatment necessary to cure and relieve the effects of the claimant’s compensable claim. However, the Commission modified the Award finding that the Employer/Insurer was directly responsible for these charges and that the Medical Fee Disputes were dismissed without standing. The remaining portions of the ALJ’s award were affirmed.
For SIF PTD Liability, Claimant Must Meet 50 Week Threshold for Each Separate Body Part for Pre-existing Disability to Qualify
Casey v. Second Injury Fund., Injury No. 16-050548
FACTS: The claimant’s primary injury involved bilateral carpal tunnel releases and bilateral ulnar nerve transposition surgeries. The claimant settled his primary claim for 15% of each wrist, 15% of each elbow, a 10% loading factor, and eight weeks of disfigurement.
The claimant had sustained pre-existing disabilities prior to the primary injury. In 2006, he injured his right knee while working and settled this claim for 10% of the right knee in 2007.
In 2012, the claimant sustained an injury at work to his left wrist, left knee and left ankle. The claimant settled this claim for 10% of the left wrist, 20% of the left knee, and 22.5% of the left ankle.
The claimant obtained an IME from Dr. Volarich. Regarding the 2016 primary injury, Dr. Volarich provided PPD ratings of 35% of each wrist and 35% of each elbow. Regarding the pre-existing conditions, he provided PPD ratings of 15% of each wrist, 60% of the right knee, 35% of the left knee, and 40% of the left ankle. He opined that the claimant was PTD as a result of the 2016 primary injury in combination with his pre-existing medical conditions.
The claimant sought a vocational assessment from Ms. Shea. She opined that the claimant was not employable and his inability to be employed was the result of the primary work related injury and his pre-existing injuries and conditions.
The ALJ determined that the SIF was liable for PTD.
HOLDING: The SIF appealed the ALJ’s award for PTD benefits against the Fund.
The Commission disagreed with the Fund’s allegation that the ALJ erred in finding the claimant’s pre-existing 2006 right knee was equal to or greater than 50 weeks of PPD. The Commission explained that they must determine the extent of PPD that the claimant had in his right knee at the time of the June 2016 primary injury. They noted that the 2007 settlement may be evidence of PPD in the knee at the time of the settlement but it is not determinative of the PPD present nine years later in 2016. They found credible, persuasive evidence demonstrated that the claimant had 32.5% PPD of the right knee (52 weeks) pre-existing the 2016 primary injury.
However, the Commission did agree with the Fund that the ALJ erred in adding together three separate and distinct disabilities to different parts of the body as a result of one injury to reach the required threshold amount under Section 287.220.3. They did not find any authority to allow combining disabilities occurring to different parts of the body in order to reach the 50 week threshold in Section 287.220.3(2)(a).
Also, the Commission agreed with the Fund that the ALJ erred in awarding PTD benefits because the claimant’s total disability resulted from the combination of the primary injury and non-qualifying pre-existing disabilities. It was noted that the claimant’s experts, Dr. Volarich and Ms. Shea opined that the PTD was a result of a combination of the prior injury and the pre-existing conditions. The experts included the claimant’s non-qualifying pre-existing disabilities in arriving at their PTD opinions. As such, the Commission concluded that the claimant failed to meet the requirements of Section 287.220.3 to make a compensable PTD claim against the Fund.
Therefore, the Commission reversed the Award of the ALJ. The claimant’s claim against the Fund was denied because his evidence failed to satisfy the standard set forth under Section 287.220.3.
The April 2023 edition of The
Compendium outlined recent changes to the designated doctor rules,
which were presumably designed to incentivize those already on the DD list to
maintain their status while increasing the number of new applicants.
However, as we pointed out, the amendments omitted any updates to the
reimbursement rates for DD exams, perhaps the component most to blame for the
dwindling number of available designated doctors overall and certainly a reason
for the dearth of M.D.s and D.O.s currently on the list.
That oversight seems poised to change, as the DWC announced on June 26, 2023, a
new set of proposed amendments to Rules 133 (General Medical Provisions) and
134 (Guidelines for Medical Services, Charges, and Payments). Key
modifications would include adjusting fees via the Medicare Economic Index
(MEI) percentage adjustment factor for the period of 2009 through 2024, then
annually thereafter every January 1. Fees would be rounded to the nearest
whole dollar, and a $100.00 missed appointment fee would also be permitted when
injured workers neglect to attend their exams. (More on that in a
moment.) These provisions can be found in the new Rule 134.210(b)(4).
The DWC released a table of fee adjustment estimates (estimated because the MEI
percentage adjustment factor for 2024 is not yet set) for Designated Doctor
Exams, Required Medical Examinations, and treating/referral doctor impairment
rating certifications. Fees for extent of injury, disability, return to
work, return to work for SIBs, appropriateness of care (RMEs only), and “other
similar issues” jump from $500.00 to $640.00 per issue (again, estimated).
Maximum medical improvement issues would invite an increase from
$350.00 to $448.00, while the first musculoskeletal impairment rating
assessment rises from a range of between $150.00 and $300.00 to $384.00.
Fees for subsequent impairment rating areas would also increase from
$150.00 to $192.00, approximately.
New additions to some designated doctor bills will include a “Specialist Fee”
of $300.00. Specialist fees pertain to designated doctors (though not
RMEs) asked to evaluate injuries itemized in Rule 127.130(b)(9)(B-I): traumatic
brain injuries, spinal cord injuries, severe burns, complex regional pain
syndrome, multiple fractures, complicated infectious diseases, chemical
exposure, and heart/cardiovascular conditions.
Comments on the proposed changes can be sent via email to RuleComments@tdi.texas.gov.
The DWC advises that “Chapters 133 and 134 Informal Posting” should be
included in the subject line. Comments must be received in writing by
5:00 p.m. on the still-not-random-in-the-least date of July 26, 2023.
Now, about that “Missed Appointment Fee”…
Copyright 2023, Stone Loughlin & Swanson, LLP
While we’re on the
topic of proper Plain Language Notice protocol, the Appeals Panel issued
Decision No. 230503 on June 12, 2023. The case involved an injured worker
who initially reported to his employer—in writing—that his injury occurred in
June 2022. The employer dutifully alerted its work comp carrier to the
injury once it was reported. The carrier, in turn, filed a PLN-1 denying
the claim in full within sixty days following notice.
Thereafter, the claimant asserted that he had been mistaken about the date of
his injury, that it was not June
28 but rather July
28. The Division, operating under the assumption that this was an entirely
different injury, generated a new DWC number for the ersatz second claim.
Claimant and his attorney argued that the carrier waived into accepting the
July 2022 injury because no PLN-1 had been filed to combat it. The
Administrative Law Judge agreed that the carrier accepted the claim via waiver,
even after Claimant testified that he never sustained an injury in June, that
he had mistakenly reported the incorrect date to his employer, and that the two
dates of injury were actually one and the same.
The Appeals Panel reversed, reasoning that the carrier had disputed the claim
when first alerted to it. “Under these facts, to require the carrier in
this case to again dispute the injury it had previously disputed simply because
the claimant alleged a different date of injury due to a typographical error
would represent an elevation of form over substance.”
Copyright 2023, Stone Loughlin & Swanson, LLP
That may soon be the question. Ever since reporting back in February 2022
that changes to TDI’s Plain Language Notice forms were on the horizon, eager
system participants have been dying to know when they will be able to use the
new versions. The wait is almost over! The new PLNs become
effective on the not-at-all-random date of July 26, 2023.
The new PLN-2B (Notice of First Payment of Income Benefits on an Acquired
Claim) distinguishes itself from the rechristened PLN-2A (Notice of First
Temporary Income Benefit Payment) by apprising its recipient that his/her claim
administrator has changed and will be sending its first payment. Astute
readers will notice that 2A is limited to Temporary Income Benefits, while 2B
pertains to the first Income Benefit of any type paid by the new administrator
and omits any reference to the injured workers’ average weekly wage. Form
2B should only be used to report the first payment on an acquired claim.
Not to be outdone, the PLN-10 (Reinstatement of Indemnity Benefits) shall
henceforth be known as PLN-10A, while the sleek new PLN-10B alerts injured
workers or beneficiaries to expect a lump sum payment of workers’ compensation
benefits, with the type, amount, and reason for the benefit explained
therein. System participants will be seeing a lot of the PLN-10B, as it
is to be used whenever lump sum payments are issued pursuant to a DWC-24
agreement, a Decision and Order, an interlocutory order, an Appeals Panel Decision,
an advance/acceleration/commutation of benefits, or when past due benefits are
paid with interest.
The time-honored PLN-11 Notice of Disputed Issues and Refusal to Pay Benefits
comes with a new admonition in its instructions. If disability is in dispute,
the Carrier must file the requisite Electronic Data Interchange (EDI)
transaction before the notice of refusal to pay benefits will be considered
complete.
Other changes to the revised forms, including the PLN-8, PLN-10A, PLN-11, and
PLN-14 are more subtle, mostly involving the insertion of the word “Insurance”
before “Carrier” throughout each. This serves as a helpful reminder that
it is Insurance Carriers
who should be using these forms, not any of the following groups:
Copyright 2023, Stone Loughlin & Swanson, LLP
Yet more changes to
the Administrative Code. This one involves Rule 133.30, pertaining to
billing for Telemedicine and Telehealth Services. The proposed
modification adds “Teledentistry” to the list of reimbursable remote health
care and incorporates the (somewhat redundant) definition from the Texas
Occupations Code, Section 111.001: “ ‘Teledentistry dental service’ means a
health care service delivered by a dentist, or a health professional acting
under the delegation and supervision of a dentist, acting within the scope of
the dentist's or health professional's license or certification to a patient at
a different physical location than the dentist or health professional using
telecommunications or information technology.” Billing for teledentistry
services would follow applicable Medicaid payment policies. The DWC
invites feedback, again via RuleComments@tdi.texas.gov, this time by July
24, 2023.
We were all set to mock the very concept of “Teledentistry” until we happened
upon Marathon Man
on Turner Classic Movies last night.
https://youtu.be/GZayydR4DPs
If nothing else, at least teledentists can’t torture their patients remotely.
Congratulations, Teledentistry. You win.
Copyright 2023, Stone Loughlin & Swanson, LLP
SLS partner Jane Stone
will be the faculty member providing training in Texas law for
WorkCompCollege.com, which recently initiated a scholarship program for Kids’
Chance recipients, a cause dear to our hearts. Bob Wilson, a long-time
supporter of Kids’ Chance chapters, and Don Abrams and Mark Pew, all of whom
founded the College, have generously committed to providing the scholarships.
More information about that in the link below:
https://urldefense.com/v3/__https://workcompcollege.com/workcompcollege-com-opens-scholarship-program-for-kids-chance-recipients/__;!!Dsthdr1F7A!GuhY24LgRy20lccPSJCHHRbdrSDrdQxZe2xF8o2jTBISh-46psashw6h59YxHt1DYycv5-daXQQ6rA2W8VkoT-rhjUI$
It always amazes us what a small and supportive community workers’ compensation
system participants have established, not just in Texas, but all over the
country. We wish WorkCompCollege.com the best!
Copyright 2023, Stone Loughlin & Swanson, LLP
The DWC’s new
Austin-based Administrative Law Judge, Hsin-Wei Luang, started on June 26.
Judge Luang received a degree in engineering from the University of
Illinois, then her law degree from St. Mary’s School of Law in 1997. She
combined her legal acumen and engineering background for a career in
technology, business, and intellectual property.
Among her prior employment, Judge Luang served as senior counsel for Honda and
vice-president of IP at Lone Star Circle of Care. She owns a business
& technical writing service, and since May 2021 she has used her expertise
in technological and legal writing to produce a blog helping entrepreneurs
start and run small businesses. We congratulate her on accepting the
position with the DWC and certainly look forward to reading her decisions.
Copyright 2023, Stone Loughlin & Swanson, LLP
Further changes to the
Administrative Code were announced on June 21, 2023. Section 55.15(6),
pertaining to requirements for Compromise Settlement Agreements in old law
claims, contains the following instructions, held over from the Old Law days:
“all compromise settlement agreements submitted to the board must be submitted
in four parts--the original must be white, the second copy pink, the third copy
yellow, and fourth copy white. The forms must either be on NCR [no carbon
required] paper or be submitted with carbon left intact.”
For all future “old law” CSAs (of which there are likely to be few), system
participants have finally—finally—been
relieved of these onerous multichromatic paper specifications, which have been
cut from the rule, allowing for submission of settlement agreements “in the
form and manner prescribed by the DWC.” All further paper-related queries
can be directed here: https://youtu.be/6OlEEfvwXnA
Copyright 2023, Stone Loughlin & Swanson, LLP
As previously
mentioned, House Bill 2702 would have revised portions of the Labor Code by
tagging insurance carriers with an additional expense: a fee for a missed
medical examination. The bill failed to pass the Senate in May 2023, but
its most dubious component has found new life in the DWC’s proposed Rule
134.240(b).
Under the newly drafted rule, an injured worker who fails to attend an
examination by a designated doctor would endure the eternal ignominy of
subjecting his or her workers’ compensation carrier to an additional $100.00
fee. That’ll show ‘em!
You read that correctly—the insurance carrier would be subjected to what
amounts to a fine for an AWOL claimant’s missed DD exam. (And in case you
were wondering, no, the rule does not permit an insurance carrier to take a credit
for that fee from later benefits.)
This change to DD exam billing is intended, one assumes, to offset the lost
time from patients and the general inconvenience experienced by doctors whose
examinees are M.I.A. However, imposing an additional fee on the insurance
carrier for the injured worker’s truancy may invite challenges over the
perceived fairness of the measure, especially in instances where the missed
exam was requested by the Claimant or Claimant’s attorney; the proposed rule
does not take into consideration the party that sought the exam.
Copyright 2023, Stone Loughlin & Swanson, LLP
Tennessee Enacts Workers’ Compensation Statutory Changes Addressing
Penalties, Attorney’s Fees, Death Benefits, and PTSD for Firefighters
June 2023
On April 13, 2023, Tennessee Governor Bill Lee Signed Public Chapter
145, which brought about changes impacting several different areas of the
Tennessee Workers’ Compensation Law.
I.
Penalties for Failure to Pay Medical Expenses Pursuant
to Court Order
Under current law, Tenn. Code. Ann. § 50-6-118(d)(1) provides that if
an employer or workers’ compensation insurance carrier “wrongfully” fails to
reimburse an employee for medical expenses paid by the employee within 60 days
of a settlement or court order, or if an employer or workers’ compensation insurance
carrier fails to provide medical treatment pursuant to a settlement or court
order, then a penalty can be assessed in an amount up to 25% of the medical
expenses. Before this penalty is applicable, the employer or carrier must have
acted “in bad faith.” Public Chapter 145 will lower the standard necessary for
the imposition of this penalty. First, it changes the standard from
“wrongfully” to “unreasonably.” Second, it removes the requirement of “in bad
faith.” These changes should lower the standard for employers and carriers to
be penalized for these infractions. However, Public Chapter 145 did add
additional language relieving employers and carriers from liability for this
penalty if the medical expense/treatment is paid/authorized within 60 days after
receiving information and documentation reasonably necessary to determine
compensability and to issue payment.
II.
Court Approval of Attorney’s Fees
Under current law, the reasonableness of employee’s attorney’s fees is
subject to approval of the workers’ compensation judge. However, the current statute
also removes the judge’s discretion to reject an attorneys’ fee if the fee does
not exceed 20% of the award to the employee. This was confirmed by the Workers’
Compensation Appeals Board and Special Workers’ Compensation Appeals Panel in Henderson v.
Pee Dee Country Enterprises. Public Chapter 145 is clearly a response to
the Henderson ruling, since it removes the requirement that the workers’
compensation judge must approve an employee’s attorney fee as long as it does
not exceed 20% of the award. This effectively restores the judge’s discretion
to approve or reject an attorney’s fee, even if the fee is less than 20% of the
employee’s award.
III.
Attorney’s Fees for Failure to Provide Workers’
Compensation Benefits
Under current law, a workers’ compensation judge has the authority to
award reasonable attorney’s fees and reasonable costs when the employer
“wrongfully” denies a claim, or “wrongfully” fails to timely provide medical
benefits, temporary or partial disability benefits, or death benefits, if the
judge makes a finding that the benefits were owed at an expedited hearing or
compensation hearing. Public Chapter 145 retains this provision but changes the
applicable standard from “wrongfully” to “unreasonably.” Also, the
applicability of this authority is extended to dates of injury through June 30,
2025.
IV.
Admissibility of C-32 Medical Reports
Current Law requires that C-32 medical reports must bear the doctor’s
original signature to be admissible. A reproduced report is not admissible
unless accompanied by an originally signed affidavit from the doctor verifying
its contents. Public Chapter 145 will relax that standard by allowing the
report to bear either an original signature or electronic signature of the
doctor. It will also allow a reproduced copy to the same extent as the original
report unless a genuine question is raised as to its authenticity.
V.
Written Mediated Settlement Agreement
Under current law, if the parties reach a full and final settlement
through mediation, then the mediator must reduce the settlement to writing.
Public Chapter 145 will allow either the mediator, or one party’s legal
representative to draft a written settlement agreement.
VI.
Death Benefits Payable from the Uninsured
Employers Fund
Current law provides that the Uninsured Employers Fund may be used to
pay temporary disability benefits and medical benefits to any eligible employee
who suffered a compensable injury while working for an employer who failed to
properly secure workers’ compensation insurance coverage. Public Chapter 145
will expand the scope of that fund to also allow the payment of death benefits,
when applicable, and the maximum cap is raised from $40,000.00 to $60,000.00.
VII.
Certified Physician Program
Public Chapter 145 authorized the creation of a voluntary physician
education program that provides an additional reimbursement under the medical
fee schedule for Bureau-certified physicians. The two main goals of the program
are increasing access for injured workers to trained physicians and reducing
the number of days that injured workers are out of work.
VIII.
Effective Dates
The changes discussed above in section III, pertaining to Attorney’s
Fees for Failure to Provide Workers’ Compensation Benefits, went into effect
when Governor Lee signed the Public Chapter 145 on April 13, 2023. All other changes will go into effect on July
1, 2023.
On April 17, 2023, Tennessee Governor Bill Lee Signed Public Chapter
158, which brought about changes impacting death benefits.
I.
Remarriage of Surviving Spouse
Under current law, upon the remarriage of a surviving spouse, if there
is no child of the deceased employee, then periodic death benefits terminate. However,
Public Chapter 158 provides that in this scenario, the periodic benefits will
still terminate but the surviving spouse is entitled to a lump sum payment
equal to 100 weeks based on 25% of the deceased employee’s average weekly
wages.
II. Increased Percentage of Death Benefits
Under current law, there are certain scenarios where the qualifying
dependent is entitled to death benefits based on 50% of the deceased employee’s
average weekly wages – such as where there is a surviving spouse with no
dependent children, or a single dependent orphan. Public Chapter 158 increases benefits in each
of those scenarios to 66 2/3% of the deceased employee’s average weekly wage.
III.
Educational Requirements for Continued Periodic
Death Benefits to Orphans
Generally, periodic death benefits to dependent orphans will terminate
when the orphan reaches the age of 18. However, under current law, benefits can
continue until age 22 if the child is attending a recognized educational
institution. Public Chapter 158 clarifies that this includes completing
secondary education or a program leading to an equivalent credential, or
enrolled in a recognized institution that provides postsecondary career or
technical education.
IV.
Certification of Continued Eligibility
Public Chapter 158 creates a new right for employers/carriers who are
paying periodic death benefits, in that they can now periodically require a
dependent to provide information about whether the dependent continues to
qualify for benefits. Benefits may be suspended if the dependent fails to
provide the requested information within 15 days after receipt of the request.
V.
Effective Date
Public Chapter 158 takes effect July 1, 2023.
On May 17, 2023, Tennessee Governor Bill Lee Signed Public Chapter 465,
which creates a statutory causation presumption for firefighters with PTSD.
I.
Name of the Act
This law is known as the James “Dustin” Samples Act.
II.
Definition of “Firefighter”
For purposes of this act, “firefighter” means a regular or full-time,
paid employee of the fire department of a municipality, county, municipal form
of government, or other political subdivision of the state. It includes
employees whose previous duties required the employee to respond to and be
actively engaged in fire suppression, rescue services, or other emergency
response tasks.
III.
Presumption
If a firefighter is diagnosed with post-traumatic stress disorder
(PTSD) by a mental health professional because of one or more specified types
of incidents, then the injury is presumed to have been incurred in the line of
duty and is compensable under the workers’ compensation law, unless it is shown
by a preponderance of the evidence that the PTSD was caused by
non-service-connected factors. The types of incidents that may give rise to
this presumption are: (a) directly witnessing the death of a minor, or treating
the injury of a minor who subsequently died; (b) directly witnessing an individual
whose death involved a serious bodily injury of a nature that shocks the
conscience; (c) responding to an event where there was a victim with a serious bodily
injury that shocks the conscience; or (d) responding to an event where a
responder, co-worker of a responder, or family member of a responder sustained
a serious bodily injury or died.
IV.
Date of Diagnosis
This presumption applies to a firefighter who is diagnosed with PTSD
within one year of the firefighter’s final date of employment with the fire
department.
V.
Exception for Disciplinary Action
A mental condition resulting solely from disciplinary action, work
evaluation, job transfer, layoff, demotion, termination, or similar action
taken in good faith by the employer is not considered an injury sustained in
the line of duty.
VI.
Grant Program
Public Chapter 465 requires the Department of Labor and Workforce
Development to establish and administer a grant program to mitigate the costs
to an employer of providing workers’ compensation for firefighters diagnosed
with PTSD. The Department may award an employer a grant if the employer
provides mental health awareness training for its personnel.
VII.
Effective Date
This act takes effect January 1, 2024.
For any questions, please contact:
Fredrick R. Baker, Member
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
www.wimberlylawson.com