The New Jersey workers’ compensation system has one glaring drawback for employers, namely the absence of any formal discovery in traumatic injury cases.  There are no standard interrogatories in traumatic claims and no depositions.   The consequence of this is that claims sometimes get passed through workers’ compensation that really involve long-standing and preexisting conditions which no one asked the worker about.   There are many cases where preexisting conditions that may have been highly relevant are discovered only in the final IME for permanency long after surgery has taken place.  The defense IME physician will often question causation at this point, but it is too late to recover payments made by that time.

What should adjusters and treating physicians ask about when new claims arise?  There are numerous areas of inquiry that are important, but this blog will focus on only five main areas.  Before delving into past medical and life history, remember that knowing the mechanism of injury is the starting point in every case.  Best practice is to have the injured worker write down in his or her own words how the injury occurred and where the pain is located.  Once that is done, we move on to the past medical history.  Certainly in all states, particularly densely populated states like New Jersey, an important question is about past motor vehicle accidents.  If the answer is that the worker has been involved in prior motor vehicle accidents, this should be narrowed down to accidents which led to treatment along with the names of the treating physicians so that the adjuster or defense counsel can take steps to obtain prior records.  Yes, ISO reports are helpful but there are many cases where the ISO report does not reference a prior motor vehicle accident that the employee talks about.  Remember that the focus should not be just on prior car accidents but on prior accidents in general, such as slip and fall injuries, sports injuries and the like. 

Another critical area to inquire about for spine and shoulder cases concerns prior chiropractic history.  Why is this important?  Because prior chiropractic treatment records will often bear directly on any claim involving the shoulders or spine.  The records themselves often reference preexisting injuries, prior x-rays and prior MRI scans.  This information may be from many years ago or may be fairly recent.  If it is from many years ago, the information may still help the employer obtain credits for preexisting disability under N.J.S.A 34:15-12(d).  That may mean a cost savings for employers.  If the prior chiropractic treatment was close in time to the accident, the records may raise causation issues that may result a denial of the case or a Section 20 settlement.

That leads to our third important area of inquiry:  prior x-rays, prior MRIs, prior CT scans, and prior EMGs.  These are the studies that Judges of Compensation must focus on because the emphasis in New Jersey, when it comes to permanency, is on “objective medical evidence.”  All of these studies are considered to be objective evidence.  Employers are often surprised that their treating doctors do not ask specifically about these prior studies, but experienced workers’ compensation physicians will routinely ask about prior studies.   Defense counsel can write to opposing counsel and ask about prior studies and scans, yet there is no formal rule in New Jersey for exchange of such information.  That means that adjusters who do initial interviews are often in the best position to ask these questions, and initial treating physicians should also be asking questions along these lines. 

Prior and current hobbies and recreational activities are paramount.  Consider, for example, a worker who reports that many years of standing and lifting at work caused severe knee degeneration leading to a need for bilateral knee replacements.  As we know, total knee replacement surgery is performed because of a painful bone-on-bone condition that takes years to develop.  Yet seldom does one see specific questions about long-distance running, jogging or martial arts in the medical records.  These are activities that can cause or contribute to knee problems. 

Last but not least in the top five areas of inquiry (there are many more areas of importance, of course) are second jobs and other employment involving physical activities.  Many New Jersey residents have second jobs.  The state is an expensive place to live in, and a surprisingly large percentage of workers has secondary employment.  Many police officers and firefighters have second jobs because they have shift work with several days off in a row.   If a worker files a claim for carpal tunnel syndrome from occasional typing and answering phones at work, the adjuster and treating doctor should be asking about typing activities in any other job, Facebook and social media keyboard activities, and certainly part-time jobs such as working as a deli clerk or playing music professionally.    

Many years ago this practitioner had a bewildering case in which a worker with a sedentary job filed for a hernia claim from some minor physical effort at work.  The employer did not want to accept the traumatic claim and subsequent surgery because the accident seemed so minor.  The case went to trial.  In the course of testimony, the worker admitted to having a second job which he conceded was very physical: namely, tree climbing for 20 hours per week.  He admitted to having abdominal pain while performing this activity.  No one knows anything about this second job!  Why? Because the New Jersey compensation system does not have formal discovery.  This puts employers at a huge disadvantage.   The lesson is that sometimes the second job is much more physical than the full-time job for which the claim has been filed, but you won’t know about the second job if no one asks.

A recorded statement taken by an adjuster at the start of the case is invaluable to defense counsel, as are employee accident forms filled out by injured workers and detailed medical histories obtained by occupational and treating physicians.  We generally know what happened after the work accident, so there must be some time spent on taking a history of the injured worker’s prior injuries, jobs and recreational activities.  Without this information employers are often at a loss to make an intelligent decision on whether to accept or deny a case.  Causation is the threshold issue in workers’ compensation:  if it is not a work-related condition, the case should not be going through workers’ compensation.

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John H. Geaney, Esq., is an Executive Committee Member and a Shareholder in Capehart Scatchard's Workers’ Compensation Group.  Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at jgeaney@capehart.com. 

Employers are responsible for “accidents arising out of employment” under most state workers’ compensation laws.  What does this language really mean?  The easiest way to interpret this language is to consider whether the accident has a genuine connection to work or just happens to occur at work.

Take for example someone who is sitting at work talking to a colleague about a work matter when suddenly her jaw locks, causing severe pain and leading to treatment.  Would this be a work accident covered under workers’ compensation? It happened at work, yes, but what is the connection to work? The answer is that there is no bona fide connection to work activities.  Talking is something we do all day and does not amount to an accident.  If you consider the same scenario to have happened at home, where a husband is speaking to his wife when his jaw locks, one would certainly not call this a “home accident.”  Just as the home did not cause this to occur, neither would work be the cause of such an incident.  Some events just happen to occur at home or at work because we spend most of our time in these two locations.  These kinds of events could just as easily happen at the local supermarket or at a museum.

In much the same way, if one is walking from his den to his kitchen at home when his knee locks, leading to a visit to a knee surgeon for treatment, few would call this a “home accident” unless there was a fall on the floor or a collision with an object.  The same would be true at work: feeling leg pain while just walking is not an accident absent a fall or some other force acting on one’s body.  Yet we all know that claims like this get accepted all the time by employers because of a mistaken belief that something is compensable in workers’ compensation just because it happened at work.   The part of the equation that is often missed is that there must be some genuine connection to work, such as a slip and fall on a hard surface, a trip and stumble on a torn carpet, or a collision with an object at work.

The definition of an accident is “an unexpected event.”  So if a teacher is walking and a student comes barreling down the hallway, not paying attention, and slams into the teacher causing a hard fall and damage to the knee, that is an unexpected event clearly connected to work.  It both happens at work and arises out of work and is therefore compensable.

It remains this practitioner’s opinion that many cases get accepted in workers’ compensation that really have no connection to work other than that the event just happens to occur at work.  If you are at home, and you put on your overcoat on a cold day to go outside, when you feel a tear in your shoulder, you would not think that the home caused the tear in the shoulder.  The same is true if this happened to occur at work.  The reason such events often get accepted is that the employer sends the employee to a doctor, thinking the compensability decision depends on a doctor’s opinion.  It doesn’t.  The doctor then prepares a report and states the obvious: that putting on the coat caused a tear in the shoulder.  But the issue is a legal one not a medical one:  does it arise out of work, or is there a true work connection?  We all put our coats on during cold weather several times a day.  As a matter of law, not medicine, this tearing one’s shoulder while putting on one’s coat to go home is not an accident covered by workers’ compensation.  There is no work connection at all, and it just so happens that at this point in one’s life a tear occurred while from a personal action.

We all know this concept is true because we all have heard of cases where someone is driving a car and suddenly has a stroke.  Or someone is sitting at a chair at home or work when the stroke occurs.  Where the stroke happens to occur is simply pure coincidence because there is just no way for medicine to predict when a person who has risk factors will have such a cerebrovascular event.  But we do know that having a stroke sitting at one’s desk is not work related.  Those claims get denied and are won by the employer.  So think of “arising out of work” as meaning that there is a genuine “work connection.”

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John H. Geaney, Esq., is an Executive Committee Member and a Shareholder in Capehart Scatchard's Workers’ Compensation Group.  Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at jgeaney@capehart.com. 

OKLAHOMA TRENDS:

New Law

On May 28, 2019, the Governor of Oklahoma signed into law HB2367. An emergency provision made
the changes to the Oklahoma Workers’ Compensation Act effective at the time the Bill was signed at
2:51 p.m. The Bill deleted or modified 64 provisions of the Oklahoma Workers’ Compensation Act.

Changes to TTD and PPD

Due to space limitations, it would not be possible to cover all of the changes to the Oklahoma Workers’
Compensation Act. The rates awarded for injuries were increased to $867.71 for temporary total
disability (“TTD”.) The maximum number of weeks for TTD was also increased, in most cases, from
104 weeks to 156 weeks. The rate for permanent partial disability (“PPD”) was increased to $350.00.

Termination of TTD and Claims for Employment Retaliation or Discrimination

Employers are allowed to terminate benefits if an injured worker abandons medical treatment for 60
days or refuses to comply with an Order from the Judge. Jurisdiction for retaliatory discharge claims
had been in the Workers’ Compensation Commission since February 1, 2014, but the latest version of
the Act moved jurisdiction for those cases back to the district courts.

New Limitations Periods

The Statute of Limitations was shortened to 1 year from the date of injury or 6 months from the date of
last benefits paid, whichever is longer. A claim may be dismissed if after 6 months without payment of
benefits, no request for a hearing has been filed. An injured worker now has 6 months following an
Order for Permanent Partial Disability to file a request to reopen a claim based on a change of condition
for the worse.

Revivor

The changes create a revivor action for permanent partial disability after the death of an injured worker,
which was unclear under the previous law. Benefits are limited to the spouse and/or dependent children.

Limitation on Overpayment Credit for Wages Paid in Lieu of TTD

The previous version of the law allowed an employer which paid wages in lieu of TTD to collect an
overpayment back at the time of trial on permanent disability for any money paid in excess of the
maximum allowable amount of TTD, apparently based on the period of time or the maximum rate.
However, the latest Act does not allow the employer to collect the overpayment if the payments were
made pursuant to a collective bargaining agreement.

Jurisdiction

Oklahoma jurisdiction was not mentioned in the previous version of the law, which appeared to be a
glaring oversight. The current version clarified that the Act covers injuries in which the employee was
hired in the state or the accident occurred in the state. It does prevent double recovery in Oklahoma if
injured worker has received benefits in another state. It further extends jurisdiction to injuries that occur
on federal land.

© Copyright 2019 by John Valentine, Lott and Valentine, PLLC. Reprinted with permission.

Oklahoma-Trends-2019.pdf

La petite mort is more than a mere expression in France; it turns out it may actually constitute a compensable work injury. 

According to aNew York Post article of September 10, 2019, an engineer working for a Paris railroad construction company was on a business trip in February 2013 when he suffered a fatal heart attack in his hotel.   His death was determined to be an“accident du travail”—a work accident—thus allowing the deceased man’s family to claim benefits from the state and the employer.  Benefits were deemed payable in the amount of 80% of the decedent’s salary until his would-be retirement age, after which his beneficiaries would be entitled to a portion of his pension. 

The employer fought the determination, citing the non-work-relatedness of the married man’s activities at the time of his death, which occurred during a spontaneous round of adulterous intercourse with a local woman he had just met. 

However, an appeals court decided that the victim was under continuous coverage during his business trip, thus entitling him to benefits sustained via a work-related injury.  The Court equated the sexual encounter to any other “act of normal life like taking a shower or eating a meal.” Such romantics, the French.

(Editor’s note: alternate titles for this entry included “Really Dangerous Liaisons” and “French Kiss of Death”.)
 
Copyright 2019,Stone Loughlin & Swanson, LLP

The Division is once again bypassing public discourse in its latest effort at ad hoc rule-making. During the DWC’s August Workers’ Compensation seminar in Austin, Benefit Review Officers were instructed that an insurance carrier representative in a Benefit Review Conference must do more than merely state the conditions thus far accepted by their clients, he or she will be required to sign a Form DWC024 agreement to that effect.  In other words, a party’s assurance that a given set of conditions is not in dispute will no longer suffice; a formal and legally-binding agreement must be entered into instead.  

This new policy has yet to be circulated in writing to system participants for comment or questions, so much of what is known of it has been obtained anecdotally.  According to those we have spoken with, the Benefit Review Officer will ask the parties to sign a DWC024 accepting as compensable any conditions listed as such in a PLN-11 or DWC032 completed by the Carrier.  If the Carrier representative will not agree, he or she may be subject to a violation referral, and the heretofore undisputed conditions would then become part of an extent of injury issue. 

The goal of having the parties enter into such an agreement is ostensibly to minimize the number of previously accepted conditions that suddenly become disputed ones.  The Division has been silent as to why this policy does not create the very problem it was intended to solve.

The purported authority for this rule change is Section 415.002(a), which states that “[a]n insurance carrier or its representative commits an administrative violation if that person: (9) attends a dispute resolution proceeding within the division without complete authority or fails to exercise authority to effectuate agreement or settlement.”  Thus far presiding officers have not been swayed by protestations that PLN-11’s and DWC032’s are not legally-binding documents, that stipulated conditions can simply be memorialized in a Benefit Review Officer’s Report, or that accepted injuries may change as the medical evidence develops. 

In the meantime, Carrier representatives are faced with a difficult choice: either sign an agreement that is perhaps not in their clients’ best interests, or subject themselves to potential violation referrals if they refuse.
 
Copyright 2019, Stone Loughlin & Swanson, LLP

Two medical practitioners have run afoul of the Division’s Medical Quality Review Panel in recent months, both for having made unnecessary referrals. 

On September 3, 2019, Wilson A. Cochrane, a Physician Assistant, was the subject of an audit pertaining to nine cases in which he ordered lumbar MRI’s.  The Panel determined that in 100% of those cases, the ordered MRI was not reasonable or necessary, as at least one month of conservative therapy had not yet been administered.  Mr. Cochrane’s failure to apply the Official Disability Guidelines appropriately resulted in an administrative violation and a fine of $3,000.00.

In August 2019, Al Jameson, D.C., was scrutinized for his tendency to refer work comp claimants out for further testing in his capacity as a designated doctor.  In ten audited cases, he was found to have made unnecessary referrals 100% of the time.  It was determined that Dr. Jameson had not adequately explained in any of his designated doctor reports why the referrals for additional testing were necessary to resolve the questions posed to him.   The Panel concluded that he had committed a violation each time he made unnecessary referrals to other healthcare providers for additional treatment or testing, and for failing to explain as much in his DD reports. Dr. Jameson was removed from the Designated Doctor List for two years.
 
Copyright 2019, Stone Loughlin & Swanson, LLP

Recently enacted by the 86th Legislature, House Bill 29 permits some qualified physical therapists to treat patients without a referral from a doctor.  A therapist with a doctoral degree in physical therapy, or one who has been licensed for at least one year and has completed a minimum of thirty hours of specific continuing education, will be allowed to treat a patient for up to ten consecutive business days without a referral.  Those with a doctoral degree and a completed residency or fellowship may treat for up to fifteen consecutive business days. 

However, HB 29 does not apply to treatment rendered for a work comp injury.  A physical therapist does not meet the definition of a treating doctor under Section 401.011 of the Texas Workers’ Compensation Act, and Section 408.021(c) specifies that a work comp claimant’s health care must be approved by the injured worker’s treating doctor. 

Copyright 2019,Stone Loughlin & Swanson, LLP

In September 2019, the Legislature amended Section 504.019(b) and added Section 504.019(c) in House Bill 2143.  For injuries occurringbefore September 1, 2019, the former provisions remain applicable, but for any injury claimedon or after September 1, 2019, the new law will apply. 

Until recently, Section 504.019(b) of the Texas Labor Code stated that, “Post-traumatic stress disorder suffered by a first responder is a compensable injury…only if it is based on a diagnosis that: 1) the disorder is caused by an eventoccurring in the course and scope of the first responder’s employment; and, 2) the preponderance of the evidence indicates that the event was asubstantial contributing factor of the disorder.”

In other words, section (b)(1) required a first responder’s claim for PTSD to have derived from asingular incident, not multiple occurrences.  That meant that for a first responder’s PTSD to be compensable, it must have developed suddenly, not gradually or cumulatively, such as might be found in a repetitive mental trauma injury.  Likewise, section (b)(2)’s requirement that the work event be a “substantial contributing factor” leading to the emergence of PTSD raised the burden of proof placed upon a first responder seeking to establish compensability of the condition. 

As of September 1, 2019, however, Section 504.019(b) now states: “Post-traumatic stress disorder suffered by a first responder is a compensable injury…only if it is based on a diagnosis that:  1) the disorder is caused byone or more events occurring in the course and scope of the first responder’s employment; and, 2) the preponderance of the evidence indicates that the event or events werea producing cause of the disorder. 

HB 2143 also added a new provision to establish the date of injury for such a claim, echoing the language of Section 408.007 pertaining to occupational diseases.  Section 504.019 (c) states:

“For purposes of this subtitle, the date of injury for post-traumatic stress disorder suffered by a first responder is the date on which the first responder firstknew or should have known that the disorder may be related to the first responder’s employment.”

Taken together, the amendments to subsection (b) and the addition of subsection (c) drastically improve a first responder’s ability to claim PTSD as a compensable diagnosis successfully.  No longer must such a claim be predicated on a lone traumatic event with a precise date of origin.  Now, a claim for PTSD may be based on the cumulative impact that traumatic work events have on a first responder’s mental health, and the date of injury is whenever the injured worker had reason to believe that such a diagnosis might have been caused by his/her work duties. 

-  Copyright 2019, Stone Loughlin & Swanson, LLP

September 2019

Court Decisions of Note

Attorney Solicitation Ban/First Amendment

Ohio Workers’ Compensation Law has become a subject for Federal Court litigation withBevan & Associates, LPA, Inc. v. Yost, 6th Circuit Case No. 18-3262 (July 8, 2019). In 2006, Ohio had amended its Workers’ Compensation Law (R.C. 4123.88) to block the public release of the names and addresses of workers’ compensation claimants. Ohio law firm, Bevan & Associates, had historically used the public records process to craft and send written solicitations targeted at workers’ compensation claimants regardless of whether they were already represented.

After the statute was amended, the Bevan firm utilized an exception in the ban which allowed journalists to gain access, hiring a former client with journalism credentials to obtain the information which it used from 2007 to 2016 in marketing campaigns. After a grand jury subpoena in 2016 investigating possible violations of the ban, the Bevan firm filed suit in the U.S. District Court for the Southern District of Ohio seeking a declaratory judgment that the solicitation ban was unconstitutional. The District Court avoided the First Amendment question and interpreted the statute narrowly to only ban solicitation using unlawfully obtained information.

The 6th Circuit, however, took on the constitutional issue and reversed after a determination that the statutory text at issue was unambiguous. The statute, the Court stressed, barred both in-person and written solicitation, with or without the use of improperly obtained claimant information. Therefore, applying the doctrine set forth in Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557, 563 (1980), the Court analyzed the Ohio statute under the First Amendment and weighed protecting the privacy of the claimant being solicited against the blanket prohibition on the Bevan firm’s right to engage in commercial speech.  The 6th Circuit found that the statute completely barred solicitation, failed the doctrine set forth inCentral Hudson, and that the law firm’s right to engage in free speech outweighed the potential recipient’s privacy interest.

OSHA Impossibility Defense in Workers’ Compensation Safety Violation      

State ex rel. Jackson Tube Service, Inc. v. Industrial Commission, 154 Ohio St.3d 180 (2018), was a case of first impression in Ohio.  An injured worker receiving workers’ compensation may obtain additional compensation by showing the injury resulted from the employer’s violation of a specific safety requirement (VSSR).  In Jackson Tube a heavy flywheel fell on an employee working under it. The Industrial Commission found that the employer violated Ohio Admin. Code § 4123:1-5-15(D) which prohibits workers from working under suspended loads. The Commission based its decision on the employee’s testimony that it was his “understanding” that there was a device that would have allowed removal of the flywheel without placing him in danger. A court later held that the Commission had to consider evidence that no such device existed and it would have been impossible for the employer to comply with the requirement.

Federal decisions under OSHA have allowed an employer to avoid liability for violating a safety regulation if the employer could demonstrate that it was impossible to comply with the regulation and still have the work performed.  This novel defense had not been accepted in Ohio courts or before the Industrial Commission.  A four-to-three Ohio Supreme Court held that the “impossibility defense” to violation of an OSHA standard could be imported into Ohio Workers’ Compensation Law as an affirmative defense to an alleged VSSR where an employer shows: (1) it would have been impossible to comply with the specific safety requirement or that compliance would have precluded performance of the work; and (2) that no alternate means of employee protection existed or were available.

The Chief Justice and two other justices dissented, arguing that the Industrial Commission’s reliance on the employee’s “understanding” alone was sufficient to support the VSSR.  The employer had been given an improper procedural “second bite at the apple” by being allowed to present evidence for the impossibility defense in a Request for Rehearing.

Voluntary Abandonment of Employment

The Ohio Supreme Court overruled precedent in order to strengthen its “voluntary abandonment doctrine.”  InState ex rel. Klein v. Precision Excavating & Grading Co., 155 Ohio St. 3d 78 (2018), the Ohio Supreme Court held:“…(W)hen a workers’ compensation claimant voluntarily removes himself from his former position of employmentfor reasons unrelated to a workplace injury, he is no longer eligible for temporary-total-disability compensation, even if the claimant remains disabled at the time of his separation from employment.”  (Emphasis added.)

Klein had fractured his ribs on November 5, 2014.  His doctor completed papers stating he would not be able to return to work until January 5, 2015.  Prior to the injury, Klein had informed Precision management and coworkers that he was going to move to Florida on or about November 20, 2014.  The Industrial Commission awarded Temporary Total Disability Compensation (TT) for the closed period of November 6 through November 19, 2014, determining that Klein’s employment ended for reasons unrelated to his industrial injury. 

Klein asked the Franklin County Court of Appeals to issue a writ of mandamus finding that the Industrial Commission had abused its discretion by terminating his TT prior to the date when he was medically able to return to work.  The Court of Appeals issued a limited writ, returning the case to the Industrial Commission to determine if Klein remained medically unable to return to his former position of employment as of November 20, 2014.  If he was, then Klein was entitled to further TT.  The Industrial Commission appealed to the Ohio Supreme Court.

To reach its conclusion the Ohio Supreme Court overruled two recent precedents as “wrongly decided,”State ex rel. Reitter Stucco, Inc. v. Indus. Comm., 117 Ohio St.3d 71 (2008), andState ex rel. OmniSource Corp. v. Indus. Comm., 113 Ohio St.3d 303 (2007).  Both cases stood for the proposition that a claimant still medically eligible for TT could not voluntarily abandon employment even if the criteria which normally would constitute voluntary abandonment had been met.  In Reitter, the claimant had been recovering from a compensable back surgery.  He was fired for making disparaging remarks about the company’s president.  OmniSource involved a commercial truck driver who lost his driver’s license due to being convicted of driving while intoxicated.  Obviously unable to drive legally, he was discharged while still on TT.  According to the majority, Reitter and OmniSource had inadvertently created an illogical and unworkable distinction between claimants terminated for misconduct and those who voluntarily retired. 

As a side note, administrative litigation before the Ohio Industrial Commission is notoriously informal.  Klein’s Employer had been meticulous in documenting his intent to move to Florida.  This ultimately resulted in the Employer’s victory.

Fight in Company Parking Lot Not Compensable

Garner, who performed machinery maintenance for Fuyao, pulled into the driveway of the company parking lot ten (10) minutes before the start of his 6:00 a.m. shift.  Jackson, coming from the opposite direction, pulled into the driveway just before Garner.  Jackson’s wife worked for Fuyao but he did not.  The way the respective drivers were operating their vehicles produced a “road rage” incident resulting in the following testimony by Garner: “…He was like, what if I just hit you? I’m like, I definitely would not recommend that.  That’s when he slugged me and knocked me down…I said you are going to jail…”

In Garner v. Ohio Bureau of Workers’ Compensation, et al., 2018 Ohio 3398, Larson’s presumption that an employer’s parking lot is part of the premises was overcome where the motive for the assault had nothing to do with the workplace.  Although arguably Garner was in the course of employment having already arrived at work just before his shift, his injuries did not arise out of employment.  “Arising out of” contemplates a causal connection between the injury and the employment. Fisher v. Mayfield, 49 Ohio St. 3d 275 (1987). “A casual connection is determined by looking at the totality of the facts and circumstances surrounding the accident, including the proximity of the scene of the accident to the place of employment, the degree of control the employer had over the scene of the accident, and the benefit the employer received from the inured employee’s presence at the scene of the accident.”

Garner discussed Foster v. Cleveland Clinic Foundation, 8th Dist. Cuyahoga Nos. 84156, 84169 2004-Ohio-6863, which analyzed fights and assaults in the workplace as historically focusing on two main questions; (1) was the origin of the assault work-related? and (2) was the claimant not the instigator?  The injury is compensable only if the answer to both questions is “yes”. Foster was fatally shot by her ex-husband on her employment premises.  Her current husband’s claim was denied.

No compensation was awarded in Garner.  He was not performing his work duties when he suffered the injury.  The assault did not involve another employee and the dispute was not related to the Claimant’s work duties. The dispute was over an entirely personal matter.  The sole fact that the injuries occurred in the Employer’s parking lot did not mean that the injury was compensable.

Ohio Legislative Update

Clarity in Independent Contractor Test for Motor Carrier Industry

Effective July 3, 2019, the Ohio General Assembly has enacted statutory changes to the definition of “employment” to provide clarity to motor carriers and those in the trucking industry as to how administrative agencies, including the Ohio Bureau of Workers’ Compensation (BWC), will view independent contractor drivers. H.B. 62, Ohio’s transportation budget bill which was signed into law by Governor DeWine on April 3, 2019 (the Bill), was supported by the Ohio Trucking Association in order to address the issue that different common law tests were used by the various Ohio agencies with a hand in regulating the trucking industry.

Prior to the enactment of H.B. 62, each agency used a slightly different test as developed under common law. For workers’ compensation, agencies and courts looked to whether the employer reserved the right to control the manner and means of performing the work. In unemployment compensation matters (as well as with construction industry-specific cases before the BWC), a 20-factor control test was utilized. Yet another test for purposes of minimum wage regulations required one to examine the economic realities in the nature of the relationship between the worker and the employer. The Bill now replaces all these tests and should provide clarity and consistent results for motor carriers operating in Ohio.

The Bill now exempts from coverage – under Ohio workers’ compensation law, unemployment compensation law, overtime law, and minimum wage law – individuals who meet all seven factors of the new statutory test to govern the definition of independent contractor across the agencies. Under the revised R.C. 4123.01 defining “employment” for the purposes of Ohio workers’ compensation (similarly with R.C. 4111.03, et seq. for minimum wage/overtime and R.C. 4141.01 for unemployment), an individual who operates a motor vehicle in the performance of services for or on behalf of a motor carrier will be designated as an independent contractor (and therefore exempt from coverage) if all these seven factors apply:

1.     The person owns the vehicle or vessel that is used in performing the services for or on behalf of the carrier, or the person leases the vehicle or vessel under a bona fide lease agreement that is not a temporary replacement lease agreement. For purposes of this division, a bona fide lease agreement does not include an agreement between the person and the motor carrier transporting property for which, or on whose behalf, the person provides services.

2.     The person is responsible for supplying the necessary personal services to operate the vehicle or vessel used to provide the service.

3.     The compensation paid to the person is based on factors related to work performed, including on a mileage-based rate or a percentage of any schedule of rates, and not solely on the basis of the hours or time expended.

4.     The person substantially controls the means and manner of performing the services, in conformance with regulatory requirements and specifications of the shipper.

5.     The person enters into a written contract with the carrier for whom the person is performing the services that describes the relationship between the person and the carrier to be that of an independent contractor and not that of an employee.

6.     The person is responsible for substantially all of the principal operating costs of the vehicle or vessel and equipment used to provide the services, including maintenance, fuel, repairs, supplies, vehicle or vessel insurance, and personal expenses, except that the person may be paid by the carrier the carrier's fuel surcharge and incidental costs, including tolls, permits, and lumper fees.

7.     The person is responsible for any economic loss or economic gain from the arrangement with the carrier.

See R.C. 4123.01(A)(1)(d). This industry-specific test is now a comprehensive way for motor carriers to properly interpret the nature of the relationship with independent contractors, as well as for Ohio administrative agencies to determine and adjudicate coverage disputes should they arise.

While some of the required factors which must apply to be deemed an independent contractor are common to tests in other jurisdictions – mileage-based compensation, supplying personal services, responsibility for operating costs – this new test expressly requires a bona fide, written agreement to be in place that specifies that the relationship is one of independent contractor. Such agreement must not be directly between the contractor and the motor carrier transporting company for whom the contractor provides the services.

Pursuant to the revised statute, administrative rules will be developed in the near future for implementation of the test for each agency. In the meantime, those in the trucking industry should review both their current written independent contractor agreements and the in-practice relationship with contractors to remain or come into compliance with Ohio’s clarified standard.

PTSD Coverage for First Responders is Getting Closer

In September 2019 the Ohio Bureau of Workers’ Compensation (BWC) Board of Directors lowered its projected cost estimates of instituting such a policy to $44 million.  Although provisions in the pending bills differ, prior cost estimates had ranged from $98.4 million to $183 million.  The lowered cost estimate resulted from borrowing the actuarial analysis performed by the Washington Department of Labor and Industries.  Prior BWC analysis had assumed that 100% of First Responders would file a PTSD Claim.  The Washington actuarial analysis assumed the correct number would be 38%, a figure the BWC actuaries found “persuasive.” 

There are approximately 80,000 First Responders in Ohio.  BWC assumed expenses of $40,000.00 per claim.  BWC also made assumptions regarding the number of PTSD Claims filed in any given year.  The $44 million resulted from simple multiplication.  It surely is a more palatable figure in persuading the legislature to pass a First Responder PTSD Bill.  On July 22, 2019 Ohio Governor Mike DeWine had signed into law the BWC budget.  Missing from it had been a provision recognizing PTSD for public safety/first responders (police, fire, emergency medical technicians) without a physical injury.  Ohio historically has been a “physical-mental” jurisdiction.  The only recent exception was “psychiatric conditions (which) have arisen from sexual conduct in which the claimant was forced by threat of physical harm to engage or participate.”

Ohio is a one-party state with Republicans controlling the Governor’s Office, House, and Senate.  Yet a budget could not be agreed upon by a June 30, 2019 deadline.  This necessitated a one-month extension with various bills ending up in conference committees.  The House members of the conference committee were strongly supportive of the first responder PTSD coverage, but the Senate conferees were hesitant.  The Senate President promised a separate bill in the next legislative session. 

Police and fire unions were obviously disappointed.  Absent from the debate were the legal and constitutional issues that workers’ compensation practitioners would recognize.  What about non-public safety workers?  An over-the-road truck driver and/or Good Samaritan can just as easily come upon a horrible scene causing PTSD.  Although it is an issue for some future time, Ohio courts may get the opportunity to reconsider restrictive holdings that a physical injurycause (rather than merely accompany) a psychiatric/psychological condition.

“Calfee Corner” - - Calfee Cases before the Ohio Industrial Commission

Claim 18-163810 (“Fight in parking lot”).

On 6/29/18, Injured Worker (IW) was hurt in the parking lot of the facility where he was placed by his staffing company employer. The injury was a blow to the head caused by a punch from a co-worker. Upon investigation and several witness interviews, the following factual circumstances were uncovered:

Earlier that day, IW had been driving a forklift and ran that forklift into a pole, damaging it. IW was cited by the employer for failing to survey his surroundings before backing up the forklift. The employer took him off forklift duty for the remainder of the day and going forward. Subsequently, a female co-worker asked IW why he was upset and he responded to her angrily. The female co-worker reported this behavior to her boyfriend, also an employee at the facility, and the remainder of the shift was filled with angry stares and tension between IW and the two co-workers. At the end of the shift when the workforce gathered at the time clock, another female co-worker asked IW what was wrong, and he responded to the group “Let’s go outside.” Once in the parking lot, the other co-workers entered their vehicles, but IW made a “come on” motion to the male co-workers in their vehicles while still in the parking lot. One of the male co-workers (the aforementioned boyfriend) got out of his vehicle and struck IW with a punch to the face.

The aftermath of the fight was caught on cell phone video, and the operations manager began his investigation of the incident. All workers involved in the incident, including IW, were terminated. Witness statements were gathered.  IW went to the emergency room for treatment for his punch injury and an Ohio workers’ compensation claim was filed with the diagnosis of a “contusion to head.”

The staffing company employer appealed Ohio BWC’s allowance of the claim. At hearing, counsel and the employer’s operations manager presented the evidence and argued that the claim should be disallowed as it did not arise in the course of IW’s employment. Ohio workers’ compensation law authorizes the allowance of a claim for an injury resulting from a workplace fight as long as: (1) the origin of the assault/fight was work-related; and (2) the IW/claimant was not the instigator of the assault/fight. While the origin of the fight may well have been work-related (IW’s anger over forklift incident), and despite IW being the only one actually punched, it was argued that he was the instigator and therefore his claim should be disallowed. The Industrial Commission agreed and disallowed his claim. Thorough investigation with witness statements was crucial to the hearing presentation in establishing that IW was the instigator, and getting his claim denied.

Claim 15-859933 (“Paraplegia diagnosis not medically justified”). 

On 12/3/15 IW, a then 52-year-old experienced nurse’s aide in a facility providing care for the elderly, slipped and fell in the dining room. A week later she had surgery to her right elbow. While hospitalized she developed an infection to the surgically repaired elbow. Still in the hospital, the IW developed a lumbar epidural abscess which also necessitated surgery. The IW had a complicated hospital course and was not released to rehabilitation until some six (6) months after the initial elbow surgery.  Her claim was allowed for “Displaced Fracture Lateral Condyle Right Humerus; Lumbar Epidural Abscess.”

The IW remained physically unable to return to her former position of employment as a nurse’s aide and was restricted to sedentary/office work. She eventually came under the care of Dr. N, a Physical Medicine and Rehabilitation Specialist. Dr. N provided a causal relationship for the additional allowance of her claim for “L3 AIS D Paraplegia.”  The Employer obtained an independent medical examination which concluded the additional condition should not be allowed because: “Paraplegia is defined as paralysis characterized by motor or sensory loss in the lower limbs and trunk…The medical records support that she has good strength…”

In successfully arguing the case before the Industrial Commission, Calfee emphasized the “International Standards for Neurological Classification of Spinal Cord Injury.”  The “L3” was simply the nerve root level that was the source of the alleged Paraplegia. “D” stood for “Motor Incomplete.”  Motor Incomplete status is defined…“with at least half (half or more) of key muscle functions below the single Nerve Root Level having a muscle grade greater than or equal to 3.”  Dr. N’s extensive office notes all showed physical examination muscle function scores of “4” and “5” throughout the IW’s lumbar spine.  The additional allowance was denied.

Claim 14-864539 (“She fooled all the doctors, but not the camera”). 

IW suffered a left foot fracture at work on 12/7/14.  The claim later was additionally allowed for complex regional pain syndrome (CRPS – formerly known as RSD).  IW was paid TT from the DOI without interruption.  Two separate employer IMEs supported on-going TT status as this doctor and that doctor tried this treatment and that treatment (PT, blocks, etc.), all to no apparent avail as the years went by.

The Employer then had IW surveilled.  Surveillance revealed an active IW with no apparent left foot problems at all and an IW ambulating in complete contradiction to her professed clinical picture.  A somewhat indignant IME doctor (who previously found the CRPS condition to be on-going and requiring treatment) issued a supplemental report finding MMI and no need for additional treatment.  All of this led to a Commission order terminating TT, as well as all on-going and future treatment in the claim.

Industrial Commission Update

New Commissioner

Governor Mike DeWine appointed James (“Jim”) Hughes to be the new chairman of the Ohio Industrial Commission effective July 1, 2019. Hughes, of Upper Arlington, Ohio, was a Republican member of the Ohio Senate from 2008 to 2016, as well as a member of the Ohio House from 2000 to 2008.

Minor Rule Changes

Minor changes were made to Ohio Administrative Code Chapter 4121 to the sections dealing with notices, meetings, standards of practice before the Commission, claims procedures, procedures for confidential information, code of ethics and payments to health care providers.

Ohio BWC Update

Substance Abuse Recovery Workplace Safety Program (SUR-WSP)

Launched in October 2018 in three Ohio counties, this program supports employers who hire workers struggling to overcome addiction to opioids and other substances in partnership with the Alcohol, Drug Addiction and Mental Health (ADAMH) boards.

Presumption of Cancer for Fire Fighters

As of July, 2019, the BWC had made decisions in 139 state fund claims. The presumption was met in 98 of those 139 claims, 66 of which were then appealed. Excluding claims that were dismissed, suspended or remain in the appeal process or allowed as a traditional occupational disease claim, 77 claims have been allowed by final administrative order, amounting in more than $2.5 million in medical paid and $679,000 in compensation.

Medical Marijuana

Medical Marijuana has come to Ohio. Effective 9/8/16, HB 523 permits a patient, on the recommendation of a physician, to use medical marijuana to treat a qualifying medical condition. By statute, this should have been effective 9/8/18 but has been delayed due to the multi-jurisdictional authority in the governance of the program through the Department of Commerce, Board of Pharmacy and State Medical Board.  Marijuana is not an approved drug in Ohio for workers’ compensation purposes, however it may impact issues related to the rebuttable presumption of an employee under the influence, the drug free safety program for employers and the procedures of the BWC Drug Formulary.

Additional Ohio BWC Updates

Since our last update, the Ohio Bureau of Workers’ Compensation (BWC) has implemented additional changes affecting Ohio employers.  A summary of some of the more intriguing updates follows:

Motor Vehicle Accidents Not Chargeable – Updated Application In Process

As previously reported, the passage of House Bill 207 states that if a State Fund employer can establish that an employee’s claim is the result of a motor vehicle accident involving a third party in which the employee was not at fault, the cost of that claim will be excluded from the employer’s future premium rating calculations.  This law/policy is effective for accidents occurring on or after July 1, 2017.

The law, as originally written, required that to obtain the claim cost exemption, the third party at-fault driver must have active insurance coverage, or the employer must have active uninsured motorist’s insurance coverage,and the at-fault driver must have been issued a citation as a result of the accident.

Initial experiences with this new procedure revealed that the citation requirement was in many cases an unforeseen stumbling block in gaining BWC approval of the exemption, as issuance of a citation tends to be discretionary, and therefore is not always available.

This unintended consequence was brought to the attention of the Ohio legislature, and an amended law has been passed & signed by the Governor.  This revision removes the requirement for an actual citation, but fault on the part of the third party must still be shown.  The change is intended to be retroactive to the original July 1, 2017 effective date of the law, which will require the BWC to re-adjudicate previously denied applications for recovery.

BWC is currently finalizing their procedures to comply with the revised law.  We urge employers to re-visit any claims involving motor vehicle accidents occurring July 1, 2017 or after, to ensure that if applicable, this potential 100% recovery is obtained.

Failure to meet all the requirements of this new statute, however, does not prevent the BWC from pursuing their historical rights to subrogate against a responsible third party, and provide proportional relief to the employer’s rating experience based on the amount they recover.

Rating Experience Changes / Premium Credits for July 2019 Policy Year

BWC analyses suggest that premiums for individually rated State Fund employers (those who are not in group experience rating programs or involved with PEOs) may not be adequately aligned to their actual claims costs.  As a result, BWC has implemented a number of changes to the factors which govern BWC’s experience rating calculations, and the resulting premiums charged to many Ohio employers.

The most significant of these changes involves introducing a Premium Size Factor to reduce the premiums of non-group experience rated employers who pay in excess of $5,000 in annual premium.

 The reductions, which will be applied automatically to the employer’s premiums, are:

·                15% discount on premiums between $5,000 and $100,000

·                20% discount on premiums between $100,000 and $500,000

·                25% discount on premiums above $500,000

The impact of these changes suggest that long-standing rating program selections should be closely examined to determine if they still provide optimum results, especially for employers with larger premium and/or moderate loss ratios.

For instance, for a larger employer, if traditional group experience rating results in savings of less than ~25%, consideration may be given to the group retrospective rating option, which could provide downstream rebates dwarfing the traditional up-front group rating discounts.

Employers’ third party administrators or other resources should be consulted to determine how their premiums and alternative rating program options may be affected by these proposed changes.

Other changes for the July 2019 policy year include:

·         An experience modifier adjustment factor for individually rated employers

o    Experience modifier adjustment credit of 5% for EMRs 0.90 and lower

o    No adjustment factor for EMRs 0.91 to 1.99

o    Experience modifier adjustment penalty of 5% for EMRs 2.00 and higher

·         Revised group retrospective rating program basic premium factors to compensate for the premium size factor adjustments

·         Reduce the maximum chargeable claims losses for the smallest Ohio employers

July 2018 Policy Year Rates Reduced

The BWC reduced private employer premium rates by an average of 12% for the July 1, 2018 policy year.  BWC estimates this will save private employers $163.5 million during the policy year ending June 30, 2019.

Ohio Workers’ Compensation rates are at their lowest point in over 40 years, with no overall rate increases since 2007.

Employers should consult their third-party administrators or other resources to confirm the impact of these rate changes, as individual manuals’ base rate changes can range from +14% to -36%. 

Additionally, premium rate reductions often are accompanied by similar reductions to expected loss rates, which can result in higher experience modifiers that would at least partially offset base rate reductions.

BWC Wellness Initiative

Through their recently announced “Better You, Better Ohio” program, BWC is taking steps to introduce wellness resources and services to workers who work for small employers (50 or fewer workers).

At present, this program is limited to the following high-risk industries:  agriculture; automotive repair and service; construction; firefighters; health care; manufacturing; police and public safety; public employers; restaurant and food service; transportation and trucking; trash collection; wholesale and retail.

Upon being identified by Ohio’s WC Managed Care Organizations (MCOs), and by agreeing to participate, injured workers can qualify for free services such as:

·                Health and wellness awareness, education and training

·                Health assessments & biometric screenings to better understand their health and well-being

·                A website allowing them to develop health plans & track progress to achieve their health goals

·                A state-of-the art mobile app for creating weekly action plans and getting health tips

·                Digital coaching to help them on their journey to better health.

This program, still in its infancy, strives to extend the BWC’s existing Wellness Grants program, which offers up to $15,000 in refunds to employers (usually larger ones) who implement a comprehensive Wellness program including biometric measurements and coaching to address at risk health behaviors.

A number of Ohio-certified Wellness program developers, including Paramount Preferred Solutions, are available to assist employers to implement Wellness programs which qualify for the BWC Wellness Grant reimbursements.

About the Author

The Ohio BWC Update is authored by Michael Brown, ARM, an Account Executive with Paramount Preferred Solutions, a Third Party Administrator (TPA) recognized nationally for expertise in all aspects of Workers’ Compensation, Group Health, and Disability Management solutions.  Michael has over 38 years’ experience in the Workers’ Compensation and Risk Management business since obtaining his mathematics & statistics degree from Miami University in Oxford, Ohio.

In addition to experience as a claims examiner and hearing representative, Michael has consulted with employers on the development and maintenance of best in class strategies, including evaluating the wide array of risk financing options available to employers.  Michael has also served as a Workers’ Compensation and Employee Benefits Manager for a multi-facility self-insured employer, and is well versed in Integrated Disability Management programs and philosophies.  This experience and his certification as an Associate in Risk Management (ARM) affords him in-depth insight into creative and wide reaching solutions to the most complex Workers’ Compensation challenges.

With his extensive experience in the field of workers’ compensation and other employee benefit matters, Michael consults with employers in a number of ways to allow them to save time and money by reducing the risk and costs of illness and injury.

Please feel free to reach out to Michael at mike.brown@promedica.org, www.linkedin.com/in/michaelbrown5 or (844) 777-5867 ext. 301770.

[1] Please see also May 2018 Ohio Update athttp://www.nwcdn.com/news?whatstate=US-OH.

This update is intended as a supplement to our earlier 2018 update.