State News

January 2024

Tennessee Courts Clarify Notice Defense

In June of 2023, the Workers’ Compensation Appeals Board (the “Board”) decided Ernstes v. Printpack. The holding in this case resulted in a fundamental shift in the understanding of the notice statute and defense penned in T.C.A. § 50-6-201. Confusion arose surrounding the language in the statute regarding (1) failure to give notice; and (2) defective notice. Ernstes was appealed, remanded, and appealed again, before the Board clarified the issue. The Board’s decision was upheld by the Supreme Court of Tennessee, Special Workers’ Compensation Appeals Panel, on January 2, 2024.

The facts surrounding Ernstes are quite simple: an employee worked for a company for thirty-three years, where her job exposed her to loud noises; the employee retired and noticed issues with her hearing; the employee saw a physician who determined that she suffered from substantial hearing loss; the following year, the employee, while sitting with her husband’s workers’ compensation attorney for a hearing loss issue, connected the dots; the employee notified the employer and filed a petition. This notice was untimely.

The lower court battled back and forth over the correct answer to whether the notice given was acceptable, albeit late.  In the first appeal, the Board concluded that the notice was not timely, but remanded the case for determination of whether the employee had a reasonable excuse, and whether the employer had suffered any prejudice due to the lack of notice. This lower court held that the employee offered no reasonable excuse, but the employer had not shown prejudice, and the original award of benefits was reinstated. The case was again appealed.

After the second appeal, the Board caught on to the confusion. The lower court was applying subdivisions (a)(1) and (a)(3) of § 50-6-201 synonymously in this case. The Board clarified that these subdivisions are separated in the Code for a reason. Subdivision (a)(1) applies to failure to give timely notice. Conversely, subdivision (a)(3) applies to defective notice. These are wholly different scenarios. At this point, the Board stepped in to “[draw] a distinction between untimely notice and defective notice and the burden accompanying each notice deficiency.”

The Board held: Firstly, in cases involving the lack of timely written notice, the employee bears the burden of proving that (1) timely written notice was provided; (2) the employer had actual knowledge of the accident or injury; or (3) the employee has a reasonable excuse for the failure to provide timely written notice. Secondly, when an employer affirmatively asserts a defect or inaccuracy in the written notice, the burden shifts to the employer to prove prejudice. Therein lies the problem the court faced in the Ernstes case – defective notice was not asserted, no reasonable excuse was provided, and prejudice to employer was not applicable for this lack-of-timely-notice case.

The lower court could not ignore subdivision (a)(1) – requiring a reasonable excuse for failure to provide timely notice – and instead apply subdivision (a)(3), forcing the employer to show prejudice. This comingling of statutory burdens allowed the lower court to arrive at an incorrect result. This clarification from the Board recognizes an overlooked distinction that attorneys, adjusters, employers, and employees, must take into further consideration – and more acutely consider – for cases pending from this point onward.

For any questions, please contact:

Fredrick R. Baker, Member
Brendan Walsh, Associate
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
bwalsh@wimberlylawson.com
www.wimberlylawson.com

In Melton v. Clarksville Sch. Dist., 2023 Ark. App. 282, the Arkansas Court of Appeals considered an appeal and cross-appeal from a decision by the Arkansas Workers' Compensation Commission to award Judy Melton permanent disability benefits for a four percent impairment to her cervical spine and five percent wage-loss disability. On appeal, the claimant contended the Commission should have credited her treating orthopedist’s opinion that she suffered an eight percent cervical impairment, nine percent to her lumbar spine, and five percent for a brain injury. Her employer accepted the four-percent neck impairment, but controverted everything else, including the wage-loss award.

As to the wage-loss award, the Court noted that it reviews the Commission's findings about wage-loss disability for substantial evidence. It also noted that determining wage-loss disability is a “fact intensive” inquiry that calls for the Commission to consider a number of factors.  “As the number of factors the Commission can consider increases, the number of unique combinations of factors increases exponentially. Determining that "no fair-minded person" could have made the wage-loss award requires us to consider every combination of factors the Commission could have weighed and every combination of ways it could have weighed them.”  As such, the Court of Appeals found that unless the Commission recites an improper basis for its award, “the appropriateness of a particular award is beyond meaningful review.”

Total number of Weeks for PPD

 In a 23-page opinion, the Oklahoma Supreme Court made a major ruling regarding how many total weeks of permanent disability benefits an injured worker can receive under the Administrative Workers' Compensation Act (AWCA), the new comp law that has been in effect since February 1, 2014.

 The AWCA limits to 350 the number of weeks of benefits for 100 % permanent partial disability (PPD). However, under the old workers' law that covered injuries up to January 31, 2014, the maximum number of weeks for 100 % disability was 520. In Mr. Cantwell's situation, the Workers' Compensation Court had awarded him 71 % disability to the body for injuries that occurred before the AWCA took effect on February 1, 2014.

 One of Mr. Cantwell's new injuries was to his hip, an injury admitted by his employer. He underwent 3 surgeries culmination in a total hip replacement. A judge of the Workers' Compensation Commission awarded Mr. Cantwell more than $30,000 PPD but followed the letter of the new law and said the insurance company did not have to pay the award because Mr. Cantwell was already over 350 weeks. The full Commission affirmed the judge and Mr. Cantwell appealed to the Supreme Court and claimed that it was unconstitutional for him not to receive up to 100 % disability for his lifetime injuries.

 In Cantwell v. Flex-N-Gate, 2023 OK 116, the Supreme Court, in a 5-4 vote, agreed with Mr. Cantwell and reversed the Commission's decision. The Court repeated the holding in other cases interpreting the AWCA that the law in effect at the time of an injury controls all aspects of a claim. The Supreme Court held that the Commission cannot use the number of weeks of benefits under the new law to determine what 100 % is, but rather must use percentages when old law injuries are present.

 The majority opinion held that the Commission's interpretation that an injured worker is prohibited from being awarded up to 100 % PPD is "constitutionally impermissible." The Court further said that a claimant has a "substantive right" to 100 % PPD and that the Commission's interpretation of the statute would affect that substantive right. A retroactive application of the 350-week limitation would violate Art. 5, Sec. 54 of the Oklahoma Constitution. 

 The opinion summed up its holding:

 "We hold that the 100 % limitation on PPD benefits controls over the number of weeks when awarding compensation for PPD where a claimant has both compensable awards for job-related injuries that occurred before February 1, 2014, and compensable awards for job-related injuries occurring after February 1, 2014."

Claimant was involved in a work-related 9/24/20 motor vehicle accident resulting in injuries to his ribs, bilateral wrists, pelvis and right foot. Claimant had previously undergone two unrelated lumbar spine surgeries involving fusions, first at L4-5 and most recently at L3-4. After this work accident, the claimant underwent two lumbar spinal fusions, performed in February 2021 and May 2021, culminating in a combined lumbar fusion from T10-L5. The claimant filed a Petition to Determine Additional Compensation Due seeking acknowledgement of a low back injury, including payment of the surgeries, and recurrence of total disability. A Board Hearing was held on 12/8/23 at which time the Board appropriately denied claimant’s Petition, ruling the low back injury was not causally related to the work accident and claimant did not sustain a work-related recurrence of total disability.

The Board opined it found “most interesting” the “timeline and chronology of events and emergence of low back issues … in the context of [Claimant’s] preexisting condition.” The crucial facts included the claimant’s prior back injury, the claimant’s prior low back surgeries in 2013, and 6 months before the accident in 2020, as well as pre-accident CT scan images. The claimant’s lumbar spine was fused, with a “cage” inserted into his spinal column in 2013 and again in early 2020. CT scans from before the work accident revealed the surgical cage had migrated beyond the interior cortex of his spine before the work accident even occurred.

Claimant argued that his surgical hardware had failed because of the work accident, which created the need for the final two lumbar spine surgeries. Drs. Piccioni and Rushton testified for the Employer, stating that immediately after the car accident, the claimant identified no low back complaints during his nine-day stay in the hospital. The doctors agreed that if this car accident caused the hardware to fail, then the claimant would have felt similar or even more pain compared to his other factures. The doctors agreed the pre-accident CT scans showed the cage migrating already, and the “wheels were already in motion” for the claimant to need additional back surgery. Post-accident X-Rays were also compared to the pre-accident films, which clearly showed the surgical cage, implanted months prior to his work accident, had migrated but was stable after the trauma of the car accident. Finally, claimant’s surgical hardware failed again, this time between the third and fourth surgeries. If it could fail then with no trauma, then it could have failed previously even without the work accident, contrary to the opinions of claimant’s experts.

The Board agreed that there is no evidence that the work-related trauma accelerated or impacted the claimant’s pre-existing low back condition. The Board issued a Decision finding the low back injury was not causally related to this work accident but was an ongoing issue the claimant had had for many years pre-dating the accident. Finally, because claimant’s doctors linked disability to the low back, the Board found claimant did not sustain a work-related recurrence, and thus the Petition was denied outright.

Should you have any questions regarding this Decision, please contact Nicholas Bittner or any other attorney in our Workers’ Compensation Department.

Young v. IG Burton & Company, Inc., IAB Hrg. No. 1510414 (Dec. 20, 2023)

Can An Employer Face Liability For Providing And Paying For Cannibas Products To “Cure Or Relieve” From The Effects Of An Industrial Injury?

Provided by William Davis, Esq., Hanna Brophy Santa Rosa

An employer is required to provide medical treatment “that is reasonably required to cure or relieve the injured worker from the effects of the worker’s injury”.  (CA Labor Code sec. 4600) But, does this requirement include providing cannibals products, when doing so would require violating federal law? 

In California, treatment requests are evaluated for approval using the “evidence-based” medical (EBM) approach in Labor Code section 5307.27(a).  With this EBM approach in mind, is a request for cannabis reasonably required to cure or relieve an injured worker’s injury under LC 4600?  For now, there is no easy answer to that question for California employers.  However, that does not mean that no one has attempted this.

In California, a medical provider requests treatment modalities by using a Request for Authorization (RFA).  The employer can either approve the requested treatment or have it placed thru Utilization Review (UR).  IF UR non-certifies the RFA, the injured worker can appeal thru Independent Medical Review (IMR).  The IMR stage is where we pick up the issue of employer liability for cannabis.  It appears that, so far, there is just a single IMR decision on employer liability for cannabis to “cure or relieve”, Cm19-0016741, 84 Cal. Comp. Cases 465, 2019 Cal. Wrk. Comp. LEXIS 23.  For those without Lexi access (and really, who would that be), California IMR decisions can be found at https://www.dir.ca.gov/dwc/IMR/IMR-Decisions/IMR_Decisions.asp

The Cm19-0016741 case dealt with a RFA for a referral to a pain physician who specializes in prescribing cannabis for pain control. UR non-certified the request and the injured worker filed for IMR.

The reviewer in this case noted the difficulties in determining whether cannaboids fit within EBM.  It was noted that the Medical Treatment Utilization Schedule (MTUS) 2017 is silent in regards to cannaboids and the Official Disability Guidelines note “Not recommended for pain”.  The reviewer cited a study that noted “there are no quality studies supporting cannabinoid use, and there are serious risks. Restricted legal access to Schedule I drugs, such as marijuana, tends to hamper research in this area. It is also very hard to do controlled studies with a drug that is psychoactive because it is hard to blind these effects. At this time, it is difficult to justify advising patients to smoke street-grade marijuana, presuming that they will experience benefit, when they may also be harmed”.

Request for cannabis denied this time.

Apart from the question of an employer providing cannabis to an injured worker is the question about whether the employer can be made to pay for it.  Why would this be an issue?  Paying for cannabis could violate Federal law.  After all, as the IMR reviewer noted, marijuana is a federal schedule I narcotic.  The employer argument is that it is a violation of the Controlled Substances Act to reimburse or pay for cannabis for the treatment of an injured worker and that state laws to the contrary are preempted by this Act.

A case in Minnesota dealt with this very issue.  In Musta v. Mendota Heights Dental Ctr., 2022 U.S. LEXIS 1036, the Minnesota Supreme Court ruled that the Controlled Substances Act preempted a state order requiring reimbursement for medical cannabis.  The U.S. Supreme Court declined to review.  Other states may have reached contrary positions and it would appear that a federal case will be necessary to resolve this federal question.

A nine year old case in California dealt with the issue of a health insurance provider could be held liable for reimbursement for a claim of medicinal use of marijuana.  That case dealt with the Health and Safety Code sec. 11362.785(d), which notes “This section does not require a governmental, private, or any other health insurance provider or health care service plan to be liable for a claim for reimbursement for the medicinal use of cannabis”.  Cockrell v. Farmers Insurance, 2015 Cal.Wrk.Comp. P.D. LEXIS 95 was a WCAB panel decision that partially addressed this issue and the argument, by a defendant, of no liability. The defendant argued an Award finding liability for reimbursement was in error because of California Health and Safety Code sec. 11362.785(d).  On appeal, the Board sidestepped the issue of reimbursement by holding “[P]arties and the WCJ did not analyze the issue of whether a workers’ compensation insurer constitutes a “health insurance provider” for the purposes of Health and Safety Code section 11362.785(d)”.

So, is an employer required to provide and pay for cannabis products to “cure or relieve” from the effects of an industrial injury?  It appears that the answer is no.  But that no, must be qualified with a “not for now”.  This issue is certainly on the horizon. 

New Year – New Form

The Division has revised the DWC-42 and PLN12 in connection with amendments to the death benefits legislation out of the 88th Legislative Session.  The forms are designed to help eligible beneficiaries file claims for death benefits with the Division or the Carrier.  The new rule was effective December 11, 2023 and the forms are available on the Division’s website here.

Copyright 2024, Stone Loughlin & Swanson, LLP 

If You Pay Them, They Will Come: DWC Proposes DD Billing and Reimbursement Changes

The moment many designated doctors have long awaited and lobbied (dare we say begged) for has finally arrived.  The Division has proposed changes to the billing and reimbursement structure for certain workers’ compensation services that will also benefit RME providers as well as treating and referral doctors.  Who knows, maybe the promise of greater financial incentive is responsible for the recent bump in the number of designated doctors on the Division’s list that has swollen from the 238 reported in March to a whopping 288 in November (all but 12 of the 50 being chiropractors). 

The proposal includes adjusting fees once by applying the Medicare Economic Index (MEI) adjustment factor for examinations performed 2009-2024; adjusting the fees annually on January 1st by applying that factor in Section 134.203(c)(2); rounding the fees to whole dollars; creating a specialist fee of $300.00 and including the much longed for $100.00 missed appointment fee.  The proposal also eliminates the current tiering structure so that for DD and RME examinations, all issues addressed in one exam are paid at the established fee and not reduced.  An assignment number in the prior authorization field of medical billing forms will be required to identify DD-associated billing.   

For more information about the proposed rule amendments, click here.

You can view the proposed changes here: Chapter 133 and Chapter 134.

A public hearing on the rules is scheduled for 11:00 a.m. on January 23, 2024. 

Copyright 2024, Stone Loughlin & Swanson, LLP

AP “Decisions” in December

The Merriam-Webster Dictionary defines “decision” as an authoritative determination (as a decree or judgment) made after consideration of facts or law.  Each month, the Division posts to its website a comprehensive list of “decisions” made by the Division’s Appeals Panel and lists them by date filed and issue addressed. In December, you will find two such decisions on the issues of SIBs-Permanent Loss of Entitlement and Extent of Injury.  If you are hoping to find any insight or guidance on either of those topics, alas, you will have to look elsewhere.  Further investigation will reveal those decisions to be of the “affirmed as reformed” variety. In other words, the ALJ made a typographical error that was corrected by the Appeals Panel and no substantive change was made.  In AP No. 231626, the Appeals Panel corrected the name of the claimant’s county of residence and in AP No. 231546, the Appeals Panel corrected the name of the carrier’s registered agent. Perhaps a separate column entitled “clerical correction” or “oops I did it again” would save participants valuable legal research time.

Copyright 2024, Stone Loughlin & Swanson, LLP

Ten Year Health Care and Utilization Report – Costs are Looking . . . Down!

The Workers’ Compensation Research and Evaluation Group (REG) released a new report on health care cost and utilization in the Texas workers’ compensation system between 2012 and 2022 that shows total health care declined 30% during that period.  Key findings include claims are down 20%, professional service costs down 26%, hospital costs down 20%, and pharmacy service costs down 71%.  Click here for a drill-down analysis of the claim, provider, service and drug types, among other categories.
 

Copyright 2024, Stone Loughlin & Swanson, LLP

Carrier Quarterly Meeting

The Division will hold the first Carrier Quarterly Meeting of 2024 on January 10, 2024 from 2 to 3:30 p.m.  Updates will be provided from the usual departments including Claims and Customer Service, Health and Safety, Business Process and Operations and External Relations as well as a chance to hear from the new Deputy Commissioner of Compliance & Investigations.  For Zoom Info and Agenda, click here.

Copyright 2024, Stone Loughlin & Swanson, LLP