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.
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
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
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
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
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
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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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 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.
Claimant filed a Petition to Determine Compensation Due seeking acknowledgement of injuries to his back, neck, right hand/wrist and head, as well as payment of medical expenses and temporary total disability benefits. Employer disputed the entire claim and, in the alternative, argued for resolution of any work injuries. The Board granted the Petition in part, acknowledging a sprain and strain of the low back and of the right hand/wrist and payment of outstanding medical expenses to the right hand/wrist. The Board denied compensability for the neck and head injury as well as total disability benefits.
A key factor in the outcome involved issues with the claimant’s treating doctor, Dr. Cary. The Board expressed concern as to Dr. Cary’s treatment of the claimant and recordkeeping of same. Dr. Cary’s treatment violated 19 Del. C. Section 2322D(a)(1), which requires that a health-care provider providing treatment to an injured employee under the Delaware Workers’ Compensation Statute be a certified provider at the time of treatment or obtain preauthorization for each health-care produced, office visit, or health service. Dr. Cary was not certified when he started to treat the claimant. Another issue involved Dr. Cary referring the claimant to a work hardening program despite having released the claimant to full-duty work with no restrictions. If the claimant was released to full duty, then the Board found he would not have needed a work hardening program.
As for recordkeeping, the Board found Dr. Cary failed to comply with the requirements relating to prescribing medications, including narcotics. In discussing these requirements, the Board noted Dr. Cary failed to document checking the prescription drug monitoring program. He failed to document discussions with the claimant about the risks and benefits of the medications. When asked about this during deposition testimony, Dr. Cary responded stating he “could not possibly document every single thing that he says or does to a patient and every single thing the patient says to him.” The Board stated it was “alarming” that after Dr. Cary’s medical license was already suspended previously, he was again not in compliance with his obligations when prescribing medications. The Board explained Dr. Cary was demonstrating “the same types of cavalier and unprofessional recordkeeping and medical oversight he exhibited leading up to his suspended license.” Due to these findings, in addition to other evidence, the Board did not find Dr. Cary credible, which contributed to the denial of certain benefits and resolution of the remaining work injuries.
Should you have any questions regarding this decision, please contact Nick Bittner or any other attorney in our Workers’ Compensation Department.
Donald Savage v. Shoprite, IAB Hrg. No. 1518646 (May 26, 2023).
On June 4, 2023, L.D. 53 (An Act to Ensure Accountability for Workplace Sexual Harassment and Sexual Assault by Removing Certain Intentional Torts from Workers’ Compensation Exemptions) was enacted into law. This amendment to 39-A M.R.S.A. §104 provides that, notwithstanding exclusivity of the workers’ compensation remedy, an employee, supervisor, or officer or director of an employer may be individually liable for sexual harassment, sexual assault or an intentional tort related to sexual harassment or sexual assault. The law provides that workers’ compensation remains the exclusive remedy for intentional torts with respect to an employer itself, including intentional torts related to sexual harassment or assault but now co-workers may be individually liable for such torts. The provision also expressly states that it does not prohibit or limit an action alleging employment discrimination pursuant to the Maine Human Rights Act or Title VII of the federal Civil Rights Act of 1964, which seems obvious since Maine is a jurisdiction that has always allowed actions under the Maine Human Rights Act for sexual harassment or assault that arises out of the workplace, with recovery for non-pecuniary damages available to a successful claimant.
In practical terms, it is unclear what damages might be available to a claimant who successfully alleges sexual harassment or sexual assault from a co-worker, as presumably, co-workers would not have financial resources to pay any damages.
While there were not many changes to Florida’s workers’ compensation statute during our recent legislative session, there was one change which was significant and has already become law. In 1994 Florida passed a statute providing for the use of an expert medical advisor (EMA) in contested workers’ compensation cases. While there are a number of subsections which specify how the EMA process works, Fla. Stat. 440.13(9)(c) addressed when and how an EMA is to be appointed.
If there is disagreement in the opinions of the health care providers, if two health care providers disagree on medical evidence supporting the employee’s complaints or the need for additional medical treatment, or if two health care providers disagree that the employee is able to return to work, the department may, and the judge of compensation claims shall, upon his or her own motion or within 15 days after receipt of a written request by either the injured employee, the employer, or the carrier, order the injured employee to be evaluated by an expert medical advisor. The injured employee and the employer or carrier may agree on the health care provider to serve as an expert medical advisor. If the parties do not agree, the judge of compensation claims shall select an expert medical advisor from the department’s list of certified expert medical advisors. If a certified medical advisor within the relevant medical specialty is unavailable, the judge of compensation claims shall appoint any otherwise qualified health care provider to serve as an expert medical advisor without obtaining the department’s certification. The opinion of the expert medical advisor is presumed to be correct unless there is clear and convincing evidence to the contrary as determined by the judge of compensation claims. The expert medical advisor appointed to conduct the evaluation shall have free and complete access to the medical records of the employee. An employee who fails to report to and cooperate with such evaluation forfeits entitlement to compensation during the period of failure to report or cooperate.
Over the course of almost 30 years the word “shall” in the statute was interpreted to make the appointment of an EMA mandatory giving the judge of compensation claims very little discretion. Appointments of an EMA have been most common in cases where authorization of a surgery was disputed, whether MMI was reached and applicable permanent restrictions. A presumption of correctness is attached to the EMA’s opinion and the report of the EMA automatically comes into evidence. The “clear and convincing” evidentiary standard was difficult to overcome despite many attorneys doing their best in deposing the EMA and extensively probing his or her opinions. Because the parties rarely could agree on the appointment of an EMA the JCC was required to appoint one. It often was a difficult chore if a specialist outside of orthopedics, neurology or neurosurgery was necessary. It was also difficult to find a doctor in some of Florida’s more rural areas.
Effective May 25, 2023 the word “shall” was replaced with the word “may.” This gives the JCC almost complete discretion to appoint an EMA in a disputed case. Particular attention will be paid to when an EMA is requested and whether the medical issue is fairly routine as opposed to something arcane and unusual. Because Florida’s workers’ compensation statute requires a final hearing to take place no later than 210 days after a petition is filed, fewer cases will now go past that deadline. It is expected that there will likely be a dramatic drop in the number of EMA’s appointed by our JCC’s.