State News

After serving the Nebraska Workers’ Compensation Court for 27 years, Judge Fitzgerald retired on May 31, 2023. In a fond farewell to a nearly three-decade long history of serving the bench, it’s fitting that Judge Fitzgerald’s last decision involved one of the most disputed and complex injuries in the workers’ compensation setting: complex regional pain syndrome (“CRPS”).

On May 26, 2023, Judge Fitzgerald authored an Award in Howell v. Transit Authority of the City of Omaha. The central dispute in the case was whether the employee had CRPS. At trial, the employer offered the live testimony of Dr. Massey. During direct examination, Dr. Massey pointed to the AMA Guides to the Evaluation of Permanent Impairment which he noted comprised the diagnostic criteria for CRPS. Dr. Massey testified that the employee did not have the necessary criteria to be diagnosed with CRPS. In contrast, the employee offered the deposition testimony and report of Dr. Carlo Ponti. Dr. Ponti alternatively found that the employee did have CRPS as a result of her work-related accident and injuries.

Before discussing Judge Fitzgerald’s ultimate decision, it’s important to note that CRPS, also known as reflex sympathetic dystrophy syndrome, is one of the most litigated injuries in workers’ compensation cases across the country, not just Nebraska. The difficulty usually lies in attempting to separate a true CRPS diagnosis from malingering. In the last five years alone, over 21 different cases have been decided by the Nebraska Workers’ Compensation Court involving CRPS. It is evident in these cases that the judges demand persuasive reports from medical providers that detail and explain the expert’s underlying rationale for believing that an employee’s condition is or is not CRPS. Unlike a fracture or disc bulge, CRPS isn’t typically confirmed or contradicted by objective imaging. It is therefore imperative in a disputed CRPS case to develop strong, persuasive evidence to present to the judge.

In case you’re still wondering about Judge Fitzgerald’s decision, he ultimately disregarded Dr. Massey’s opinion writing that “all patients do not read by the book.” Having found the employee suffered from CRPS, Judge Fitzgerald likewise held that she was entitled to ketamine as it had previously helped improve her function.

With Judge Fitzgerald’s retirement and the passage of LB 799, the number of Nebraska Workers’ Compensation Court judges has been reduced from seven to six. CPW Law wishes Judge Fitzgerald the best in his retirement and thanks him for his years of service.

If you have questions about a case involving CRPS, please contact any of the lawyers at CPW by phone or email. Want to ensure you don’t miss out on the next post in the CPW compendium series? Be sure to subscribe to our newsletter.

Written by: Lindsay Underwood

Every few years, a Pleasant claim makes its way to the Court of Appeals and almost always serves as a reminder that the facts must be particularly egregious to warrant such a claim. As a reminder, if an employee is injured on the job, filing a workers’ compensation claim is typically the exclusive remedy for recovery. In most cases, the employee cannot file a separate personal injury claim against the employer. However, there is an exception to that rule. The Pleasant case from 1985 established an exception to the exclusivity provision of the workers’ compensation system that allows employees injured by the willful, wanton, and reckless negligence of a co-employee to sue that co-employee or employer directly. For a Pleasant claim to survive a 12(b)(6) Motion to Dismiss, there must be evidence of wanton and reckless behavior equivalent to an intentional act. The burden of proof is on the plaintiff to show that the behavior is “so gross as to be equivalent in spirit to actual intent.” Our courts have held that even unquestionably negligent behavior rarely meets the high standard of “willful, wanton or reckless’ negligence.” Thus, the plaintiff faces a high standard and a difficult burden in these claims.

The most recent case from the Court of Appeals revisiting the Pleasant standard is Estate of Rodney Baker v. David W. Reinhart and Randy Reinhardt. In this case, the plaintiff worked as a bandsaw operator. On March 17, 2020, Plaintiff, without direction or instruction from the employer, was cleaning around a machine when he stepped into a partially enclosed area. After entering this area, an OSHA report later revealed that Plaintiff “was crushed between the Machine’s lower table arm and a steel support structure on the side of the building, suffering trauma to his chest.” Plaintiff sustained significant injuries, and ultimately passed away from his injuries. During OSHA’s investigation, other employees reported they were aware of the dangers of stepping into that specific area, were aware of the machine’s guarding hazard, and knew they could not be in the area where Plaintiff was found when the machine was running. OSHA cited the employer with a serious violation for failing to provide “one or more methods of machine guarding” which could have prevented the accident.

Plaintiff argued that the plant manager knew of the hazard, admitted in the past that the area would result in life-threatening harm, and claimed to be too busy to complete the necessary fencing that could have prevented injury. The claim against the plant manager was ultimately dismissed, and the Court of Appeals upheld the dismissal. The Court looked to the employer’s award-wining safety program, quarterly briefings, and well-documented and explicit instructions to turn machines off and come to a complete stop before bending over and cleaning around the machine. The Court also noted that in the 15 years of operation, all of which occurred during Plaintiff’s employment, (1) nobody was injured on the machine or its predecessor; (2) OSHA issued no violations related to the same; and (3) Defendant-Employer received no safety complaints from staff about the machines. Further, the defendants did not request or direct the plaintiff to clean around the machine.

This case continues to demonstrate that a plaintiff has a high burden to meet to survive a Motion to Dismiss when it comes to asserting a Pleasant claim. Even with the high standard and burden for plaintiffs, it is worthwhile to note some of the factors the Court considered in this claim. Specifically, employers should document and analyze any concerns regarding dangerous areas, machines that need safety improvements, or other hazards. Employers should then take the necessary steps to educate employees on the areas or machines at issue, provide PPE/remedy areas of concern, and provide sufficient ongoing trainings. The Court will also examine the employer/co-worker’s knowledge of the level of danger of the activity, whether the employer/co-worker was present at the time of such injury, and/or whether the employer/co-worker directed the employee to engage in the dangerous activity. The Court will also take past OSHA violations and safety records into account. Out of the above, it appears the most persuasive is the employers willingness to provide ongoing training/experience.

SOAH Rules Against DWC in Significant Enforcement Decision

A three-judge panel at the State Office of Administrative Hearings (SOAH) rejected numerous allegations made by DWC that the City of Baytown (a self-insured governmental entity) violated the law when it denied two first responder cancer claims.

DWC sought to fine Baytown $80,000 based on charges that it failed to adequately investigate and process claims by two firefighters diagnosed with cancer while working for Baytown.  However, in a 66-page decision the three judges found that Baytown committed no violations.

The decision bears a close read by system participants for the guidance it provides about what the law does and does not require when handling not only cancer claims but all claims.  Hopefully, DWC will consider the judges’ guidance in future cases.

Among the ALJs’ conclusions:

• The burden to prove the prima facie elements of the cancer presumption rests with the claimant seeking the benefit of the claimed presumption, and that the insurance carrier is not required to gather specific documents and evidence while investigating a claim.

• The reasonableness and thoroughness of Baytown’s investigations should be informed by the fact that they must be completed within 15 days before making an initial determination. And, in determining whether an investigation was reasonable, the scope of applicable information should be limited to what was available at the time, without the benefit of hindsight.

• The reasonableness and thoroughness of Baytown’s investigations should be informed by the uncertainty of the law at the time of the claims (i.e., the lack of precedent and DWC guidance regarding elements of the presumption such as what constitutes “regularly responded” to fires).

The ALJs also expressed concerns with DWC’s $80,000 penalty stating that “no evidence was presented to prove how Staff’s proposed penalty was calculated or allocated among the claims.” The ALJs stated that, as such, “imposition of an administrative penalty based on Staff’s proposed sanction may result in an arbitrary decision.”  DWC’s unwillingness to explain, in any meaningful fashion, how it arrives at its proposed fine amounts has been a source of ongoing criticism from system participants for many years.

Although DWC’s allegations focused on Baytown’s actions during the initial fifteen-day investigation period, Baytown’s denials seem to have been borne out by the fact that in the first claim, the employee and his family never challenged Baytown’s denials, and in the second claim, the employee signed an agreed judgment finding that his claim was not compensable.
  
First responders are often accorded special treatment in the workers’ compensation system and that was likely a factor in DWC’s decision to prosecute what seems like a questionable case based on the ALJs’ decision.  DWC’s enforcement action was also likely intended to serve as a “reminder” to carriers to be very cautious about denying first responder claims.

The ALJs’ decision highlights the lack of DWC guidance regarding elements of the law Baytown allegedly violated.  Advisories and bulletins are often a better tool for communicating agency policy to system participants than enforcement actions.  However, DWC has made little use of such tools in recent years.

Copyright 2023, Stone Loughlin & Swanson, LLP

Stimulating Topic

Every so often DWC gets around to looking into medical treatments which may or may not be effective.  That is to see if Texas injured workers can benefit or could be harmed, and to evaluate the economic benefits to certain physicians.  Case in point is DWC’s recently announced intent to audit the use of spinal cord stimulators to determine the appropriateness of a physician’s decision to install one into the body of an injured worker, and the effectiveness of the device once installed.  The review will be part of and conducted under the auspices of the DWC’s Medical Quality Review Process. We mention here that these devices require preauthorization under Rule 134.600 so that medical necessity is evaluated by qualified Utilization Review Agent (URA) physicians.  It is unclear whether the audit will scrutinize URAs, the information requesting doctors send to the URA to justify medical necessity, the treatment guidelines criteria for stimulators, or all of the above.  Apparently even our friends “down under” are taking a look at this issue: To hell and back: Devices meant to ease pain are causing trauma.
 

Copyright 2023, Stone Loughlin & Swanson, LLP  

You Just Had to Be There

DWC has for years hosted a conference for stakeholders.  This year the conference came around again on the August calendar in Austin. There was something a little different and refreshing this year– the tone and focus of one of the more memorable presentations.  The WorkCompCollege presenters went well beyond comp basics, calling for a paradigm shift in the way we view the role of workers’ compensation by suggesting the focus should shift from only compensating injured workers to focusing on helping them recover.  A new name could be the Workers’ Recovery System (this writer’s suggestion, not theirs). 
 
Their panel discussion addressed what a whole person recovery mind set can look like.  From rebranding to reflect the higher purpose of comp, to looking beyond the physical to consider psychosocial issues, to choosing words and attitudes carefully, the discussions included suggestions on best practices to enable this change in approach to take hold.  Perhaps if it does, less regulation would result and injured workers would be better served. Maybe the lawyers would be out of business. Definitely something to think about! If you want to know more about this new idea, contact Mark Pew at mpew@workcompcollege.com. Mark has a great work sheet he can send you called Establishing a Whole Person Recovery Mindset in Workers’ Compensation.

Copyright 2023, Stone Loughlin & Swanson, LLP

It is HOT in Texas
 

We couldn’t help but state the obvious.  Stay cool, and plan on supporting Kids’ Chance of Texas by coming to the Annual Kids’ Chance Golf Tournament in DFW.  We can’t guarantee cool weather on October 23rd, but we can guarantee that it will feel good to support our Kids!  Register NOW here.  All levels of players are welcome!

Copyright 2023, Stone Loughlin & Swanson, LLP

For Techies Only
 

EDI is thankfully something most of us never have to think about.  But if you are into compliance issues (as in, avoiding TDI/DWC penalties) you want to know the Implementation Schedule for Claims Electronic Data Interchange Release 3.1.4.  There are lots of DWC forms that have to be sent by way of EDI to DWC that give DWC a way to monitor insurance carrier performance and the delivery of benefits. We put this in the newsletter so that you can’t say we didn’t warn you.  For more info, check out the implementation guide here. 

Copyright 2023, Stone Loughlin & Swanson, LLP

Your Time Is Up!
 

Helpful reminder – July 31st is the last day-old versions of the following forms will be accepted by DWC: DWC Form-022; DWC Form-031; DWC Form-051; DWC Form-057.  More riveting information regarding the new forms (always check for revisions) can be found on the DWC website.  It isn’t clear what the consequence for using the old forms will be.  However, beware.

Copyright 2023, Stone Loughlin & Swanson, LLP

Speaking of the Past

If you have been around Texas comp for a while, you will remember some interesting treatments prescribed by Texas doctors under the umbrella of things that might relieve the effects of a work injury.  For example, the Theramed Bed, various iterations of electrical muscle stimulators (aka transcutaneous electrical nerve stimulators), Vax-D (a spinal decompression table), exercise bikes, recliners, mattresses, special shoes, hot tubs, and placebo treatments galore.  For those with an eye toward the lesson that the past predicts the future, an entertaining read is Quackery: A Brief History of the Worst Ways to Cure Everything.  Some of the treatments (as we see nowadays), seemed like good ideas at the time but were later determined either to be weird and useless or weird and harmful. The common theme, however, is generally profit, with the treatments often benefiting the doctor more than the patient.

Copyright 2023, Stone Loughlin & Swanson, LLP

Legal Update by Attorneys Alison Stewart and Jordan Gehlhaar and Law Clerk Darbi Spellman

The issues in Bryan Barry v. John Deere Dubuque Works of Deere & Company were (1) whether the Commissioner abused his discretion when he rejected an expert opinion for lack of credibility, and (2) whether the Commissioner could determine the AMA Guides were misapplied. The Claimant, Bryan Barry, suffered from bilateral carpal tunnel syndrome that arose out of and in the course of his employment with John Deere Dubuque Works. In the arbitration decision in 2017, the Deputy Commissioner determined that Barry sustained permanent partial disability of 11% to the body as a whole due to bilateral arm injuries. In 2019, Barry filed a review-reopening petition, claiming that his carpal tunnel syndrome had worsened since the arbitration decision. His petition was denied, and he appealed.

Following the arbitration award, Barry received medical care for shoulder pain he began to experience and reported some hand numbness. To support his review-reopening, Claimant had an IME with Dr. Stanley Matthew. He used Table 16-18 of the AMA Guides to evaluate Barry’s injuries and concluded that Barry had permanent impairment at “a 10% upper extremity rating to each of his elbows, a 15% upper extremity impairment of his wrists, and a 15% impairment rating as a result of loss of function of his finger joints.” Dr. Matthew further determined that Barry’s shoulder pain was separate from his other diagnoses, and he added further permanent restrictions.

Barry’s review-reopening petition was denied for failure to meet the burden of proof. The Deputy Commissioner specifically found that Dr. Matthew was not credible because he used “incorrect” sections of the AMA Guides to determine Barry’s impairment. On appeal, Barry argued the Commissioner abused his discretion by rejecting Dr. Matthew’s opinion.

Claimant first argued that the opinion should not have been rejected because it was the only opinion in the record. The Court of Appeals disagreed, stating that expert testimony may be rejected in whole or in part—even if the only opinion in the record—and the Commissioner as trier of fact is tasked with credibility determinations. However, it was found that the opinion of Dr. Sassman from the Arbitration Hearing was considered part of the record.

Barry also relied on Iowa Code Section 85.35(2)(x), which provides:

[W]hen determining functional disability and not loss of earning capacity, the extent of loss or percentage of permanent impairment shall be determined solely by utilizing the [AMA Guides], as adopted by the workers’ compensation commissioner by rule pursuant to chapter 17A. Lay testimony or agency expertise shall not be utilized in determining loss or percentage of permanent impairment pursuant to paragraph “a” through “u”, or paragraph “v” when determining functional disability and loss of earning capacity.

Claimant Barry argued this section prevents the Commissioner from finding a physician misapplied the AMA Guides. The Court of Appeals again disagreed. Dr. Matthews provided no explanation of how he reached his figures or why he relied on the portion of the AMA Guides he did. The Commissioner comparing this to Dr. Sassman’s detailed explanation, and weighing credibility, did not “run afoul of the statutory prohibition on determining ‘the extent of loss or percentage of permanent impairment’” in 85.34(2)(x).

Finally, it was found that Barry’s shoulder injury is new, and under Iowa Code § 86.14(2) for reopening an award, new injuries cannot increase the original impairment rating. New injuries are not to be deemed as a worsening of old injuries and are to be pursued in a separate proceeding.

Peddicord Wharton will continue to monitor case law on this issue.

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Peddicord Wharton Legal 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. ©2023 Peddicord Wharton. All Rights Reserved.